EXHIBIT 1
UNDERWRITING AGREEMENT
Xxxxx & Minor, Inc.
$150,000,000
_______% Senior Subordinated Notes due 2006
__________, 1996
X.X. XXXXXX SECURITIES INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
NATIONSBANC CAPITAL MARKETS, INC.
WHEAT FIRST BUTCHER SINGER
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxx & Minor, Inc., a Virginia corporation (the
"Company"), proposes to issue and sell to the underwriters listed
in Schedule I hereto (collectively, the "Underwriters")
$150,000,000 aggregate principal amount of its ________% Senior
Subordinated Notes due 2006 (the "Notes"). The Notes will be
issued pursuant to the provisions of an Indenture to be dated as of
____________, 1996 (the "Indenture") among the Company, the
Guarantors (as hereinafter defined) and Crestar Bank, as Trustee
(the "Trustee"). The Notes will be unconditionally guaranteed,
jointly and severally, on a senior subordinated unsecured basis by
each of Xxxxx & Minor Medical, Inc., a Virginia corporation;
National Medical Supply Corporation, a Delaware corporation; Xxxxx
& Minor West, Inc., a California corporation; Koley's Medical
Supply, Inc., a Nebraska corporation; Xxxxx Physician Supply
Company, an Ohio corporation; X. Xxxxxxx & Company, a Michigan
corporation; and Stuart Medical, Inc., a Pennsylvania corporation
(each a "Guarantor" and collectively the "Guarantors"). Such
guarantees are hereinafter referred to as the "Guarantees," and the
Notes and the Guarantees are hereinafter referred to as the
"Securities." The Company and the Guarantors are collectively
referred to herein as the "Registrants."
The Registrants have prepared and filed with the
Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as
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amended, and the rules and regulations of the Commission thereunder
(collectively, the "Securities Act"), a registration statement on
Form S-3 (File No. 33-________), including a prospectus, relating
to the Securities. The registration statement as amended at the
time when it shall become effective, or, if post-effective
amendments are filed with respect thereto, as amended by such
post-effective amendments at the time of their effectiveness,
including in each case information (if any) deemed to be part of
the registration statement at the time of effectiveness pursuant to
Rule 430A under the Securities Act, together with any related
registration statement filed with the Commission for registration
of a portion of the Securities which registration statement becomes
effective pursuant to Rule 462(b) under the Securities Act, is
hereinafter referred to as the "Registration Statement," and the
prospectus in the form first used to confirm sales of Securities is
hereinafter referred to as the "Prospectus." Any reference in this
Agreement to the Registration Statement, any preliminary prospectus
or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act, as of the effective date of the
Registration Statement or the date of such preliminary prospectus
or the Prospectus, as the case may be, and any reference to
"amend," "amendment" or "supplement" with respect to the
Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents
filed after such date under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act"), that are deemed to be
incorporated by reference therein.
The Company hereby agrees with each Underwriter as
follows:
1. The Company hereby agrees to issue and sell the
Securities to the several Underwriters as hereinafter provided, and
each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly,
from the Company the respective principal amount of Securities set
forth opposite such Underwriter's name in Schedule I hereto at a
price equal to _______% of their principal amount.
2. The Company understands that the Underwriters intend
(i) to make a public offering of the Securities as soon as they
deem advisable after the Registration Statement and this Agreement
have become effective and the Indenture has been qualified under
the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Trust
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Indenture Act") and (ii) initially to offer the Securities upon the
terms set forth in the Prospectus.
3. Payment for the Securities shall be made to the
Company or to its order by certified or official bank check or
checks payable in New York Clearing House or other next day funds
(unless the Company requests payment in same day funds, in which
event such payment shall be made by wire transfer of same day funds
net of the Underwriters' costs associated with the payment in same
day funds for the Securities) at the office of Xxxxxx Xxxxxx &
Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 A.M., New York
City time, on ________, 1996, or at such other time on the same or
such other date, not later than the fifth Business Day thereafter,
as the Underwriters and the Company may agree upon in writing. The
time and date of such payment for the Securities are referred to
herein as the "Closing Date." As used herein, the term "Business
Day" means any day other than a day on which banks are permitted or
required to be closed in New York City.
Payment for the Securities to be purchased on the Closing
Date shall be made against delivery to the Underwriters of the
certificates for the Securities to be purchased on such date
registered in such names and in such denominations as the
Underwriters shall request in writing not later than two full
Business Days prior to the Closing Date, with any transfer taxes
payable in connection with the transfer to the Underwriters of the
Securities duly paid by the Company. The certificates for the
Securities will be made available for inspection and packaging by
the Underwriters in New York, New York not later than 1:00 P.M.,
New York City time, on the Business Day prior to the Closing Date.
4. Each of the Registrants, jointly and severally,
represents and warrants to each of the Underwriters that:
(a) no order preventing or suspending the use of any
preliminary prospectus filed as part of the Registration
Statement has been issued by the Commission, and each
preliminary prospectus filed as part of the Registration
Statement, as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities
Act, complied when so filed in all material respects with the
Securities Act, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, provided that this representation
and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information
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relating to any Underwriter furnished to any Registrant in
writing by such Underwriter expressly for use therein;
(b) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for
that purpose has been instituted or, to the knowledge of any
Registrant, threatened by the Commission; and the Registration
Statement and the Prospectus (as amended or supplemented if
the Registrants shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may
be, in all material respects with the Securities Act and the
Trust Indenture Act and do not, and will not, as of the
applicable effective date as to the Registration Statement and
any amendment thereto and as of the date of the Prospectus and
any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus, as
amended or supplemented at the Closing Date, will not, as of
the Closing Date, 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 the light of the circumstances under which they were made,
not misleading, except that the foregoing representations and
warranties shall not apply to statements or omissions in the
Registration Statement or the Prospectus made in reliance upon
and in conformity with information relating to any Underwriter
furnished to any Registrant in writing by such Underwriter
expressly for use therein or to the Statement of Eligibility
on Form T-1 of the Trustee under the Trust Indenture Act filed
as an exhibit to the Registration Statement;
(c) the documents incorporated by reference in the
Prospectus, when they were filed with the Commission,
conformed in all material respects to the requirements of the
Exchange Act and none of such documents contained an untrue
statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading;
and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed
with the Commission, will conform in all material respects to
the requirements of the Exchange Act, and will not contain an
untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
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(d) the audited financial statements, and the related
notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the
consolidated financial position of the Company and its
subsidiaries and the results of their operations and the
changes in their consolidated cash flows as of the dates and
for the periods indicated, and said financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the
periods involved, and the financial statement schedules
included or incorporated by reference in the Registration
Statement include all the information required to be stated
therein; the summary and selected financial and statistical
data included in the Registration Statement and the Prospectus
present fairly the information shown therein and have been
prepared and compiled on a basis consistent with the audited
financial statements included or incorporated by reference
therein, except as otherwise stated therein; and KPMG Peat
Marwick LLP, whose report on the audited financial statements
included in the Registration Statement and the Prospectus
appears in the Prospectus, are independent accountants as
required by the Securities Act;
(e) the Company has no subsidiaries other than those
subsidiaries (the "Subsidiaries") listed on Exhibit 21 to the
Registration Statement and all the Subsidiaries, other than
O&M Funding Corp., a Virginia corporation, are Guarantors; the
Company owns, directly or indirectly, free and clear of any
mortgage, pledge, security interest, lien, claim or other
encumbrance, all of the outstanding capital stock of the
Subsidiaries; all of the outstanding capital stock of the
Subsidiaries has been duly authorized and validly issued and
is fully paid and nonassessable;
(f) since the respective dates as of which information
is given in the Registration Statement and the Prospectus,
there has not been (A) any change in the Company's issued
capital stock, warrants or options, except pursuant to the
exercise of such options or warrants or pursuant to the
issuance of the Company's common stock under the Company's
stock purchase plan, savings plan or dividend reinvestment
plan, or (B) any material adverse change, or any development
involving a prospective material adverse change, in or
affecting the general affairs, management, business,
prospects, financial position, shareholder's equity or results
of operations of the Company and the Subsidiaries, taken as a
whole (a "Material Adverse Change"), otherwise than as set
forth or contemplated in the Prospectus;
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(g) since the respective dates as of which information
is given in the Registration Statement and the Prospectus, and
except as disclosed or contemplated therein, (i) there have
been no transactions entered into by the Company or by any of
the Subsidiaries, including those entered into in the ordinary
course of business, which are material to the Company and the
Subsidiaries taken as a whole; and (ii) there has been no
dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock other than
normal quarterly dividends declared or paid on the Company's
capital stock consistent with past practice;
(h) each of the Company and the Subsidiaries has been
duly incorporated under the laws of its jurisdiction of
incorporation; each of the Company and the Subsidiaries is a
validly existing corporation in good standing under the laws
of its jurisdiction of incorporation, with full power and
corporate authority to own, lease and operate its properties
and conduct its business as described in the Registration
Statement and the Prospectus and is duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business,
so as to require such qualification, except where the failure
to be so qualified or in good standing would not, individually
or in the aggregate, have a material adverse effect on the
general affairs, management, business, prospects, financial
position, shareholders' equity or results of operations of the
Company and the Subsidiaries, taken as a whole (a "Material
Adverse Effect");
(i) this Agreement has been duly authorized, executed
and delivered by each of the Registrants;
(j) the execution and delivery of the Indenture has been
duly and validly authorized by the Company and each of the
Guarantors and the Indenture has been qualified under the
Trust Indenture Act and, when executed and delivered by the
Company and each of the Guarantors (assuming due
authorization, execution and delivery thereof by the Trustee),
the Indenture will constitute a legal, valid and binding
agreement of the Company and each of the Guarantors
enforceable against the Company and each of the Guarantors in
accordance with its terms, except that the enforcement thereof
may be subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before
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which any proceeding therefor may be brought; and the
Securities (including the Guarantees) and the Indenture
conform in all material respects to the descriptions thereof
in the Prospectus;
(k) the Notes have been duly authorized by the Company
and the Guarantees have been duly authorized by each of the
Guarantors and, when executed and authenticated in accordance
with the terms of the Indenture and delivered to and paid for
by the Underwriters, the Notes will constitute legal, valid
and binding obligations of the Company and the Guarantees will
constitute legal, valid and binding obligations of each
Guarantor, in each case enforceable in accordance with their
terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of
equity and the discretion of the court before which any
proceeding therefor may be brought;
(l) the agreements, documents and instruments relating
to the New Senior Credit Facility (as defined in the
Prospectus), (collectively, the "Credit Documents"), when
executed and delivered by the Company and the Subsidiaries
party thereto (A) will constitute legal, valid and binding
agreements of the Company and such Subsidiaries, enforceable
against the Company and each such Subsidiary in accordance
with their respective terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity and the discretion of
the court before which any proceeding therefor may be brought
and (B) will be in substantially the form thereof provided to
the Underwriters prior to the date of the Prospectus; as of
the Closing Date the Credit Documents will be in effect on the
terms described in the Prospectus; and the description in the
Prospectus of the Credit Documents is accurate and complete in
all material respects;
(m) the agreements, documents and instruments executed
and delivered in connection with the Receivables Financing (as
defined in the Prospectus), as amended and in effect as of the
date of the Prospectus (collectively, the "Receivables
Documents"), constitute legal, valid and binding agreements of
the Company and each of the Subsidiaries a party thereto
enforceable against the Company and each such Subsidiary in
accordance with their respective terms, except that the
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enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor
may be brought; except as described in the Prospectus, as of
the Closing Date the Receivables Documents will be in effect
on the terms described in the Prospectus; and the description
in the Prospectus of the Receivables Documents is accurate and
complete in all material respects;
(n) the execution and delivery by the Company and each
of the Guarantors of, and the performance by the Company and
each of the Guarantors of all of the provisions of their
respective obligations under, this Agreement, the Indenture
and the Securities (including the Guarantees) and the
consummation by the Company and each of the Guarantors of the
transactions herein and therein contemplated and as set forth
under "Use of Proceeds and Refinancing" in the Prospectus (i)
have been duly authorized by all necessary corporate action on
the part of the Company and each of the Guarantors, (ii) do
not and will not result in any violation of the Articles of
Incorporation or the By-laws of the Company or any Subsidiary,
(iii) do not and will not result in any right to terminate, or
automatic termination of, commitments to purchase receivables
under the Receivables Documents and (iv) do not and will not
conflict with, or result in a breach or violation of any of
the terms or provisions of, or constitute a default (or an
event which, with notice or lapse of time, or both, would
constitute a default) under, or give rise to any right to
accelerate the maturity or require the prepayment of any
indebtedness or the purchase of any capital stock under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any properties or assets of the Company or of
any Subsidiary under, (A) any contract, indenture, mortgage,
deed of trust, loan agreement, note, lease, partnership
agreement or other agreement or instrument to which the
Company or any such Subsidiary is a party or by which any of
them may be bound or to which any of their respective
properties or assets may be subject, except for any breach,
violation or default that individually or in the aggregate
could not reasonably be expected to have a Material Adverse
Effect, (B) any applicable law or statute, rule or regulation
(other than the securities or Blue Sky laws of the various
states of the United States of America), except for violations
that individually or in the aggregate could not reasonably be
expected to have a Material Adverse Effect or (C) any
judgment, order or decree of any government, governmental
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instrumentality, agency, body or court, domestic or foreign,
having jurisdiction over the Company or any such Subsidiary or
any of their respective properties or assets;
(o) the Company and each of the Subsidiaries have good
and marketable title in fee simple to all items of real
property and good and marketable title to all personal
property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described
in the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made
or proposed to be made of such property by the Company and the
Subsidiaries; and any real property and buildings held under
lease by the Company and the Subsidiaries are held by them
under valid, existing and enforceable leases with such
exceptions as are not material and do not interfere with the
use made or proposed to be made of such property and buildings
by the Company or the Subsidiaries;
(p) no authorization, approval, consent, order,
registration, qualification or license of, or filing with, any
government, governmental instrumentality, agency, body or
court, domestic or foreign, or third party (other than as have
been or, if the Registration Statement has not been declared
effective, will be prior to the Closing Date obtained under
the Securities Act or the Trust Indenture Act or as may be
required under the securities or Blue Sky laws of the various
states of the United States of America) is required for the
valid authorization, issuance, sale and delivery of the
Securities (including the Guarantees), or the performance by
the Company or any Guarantor of all of its obligations under
this Agreement, the Indenture and the Securities (including
the Guarantees), or the consummation by the Company of the
transactions contemplated by this Agreement, the Indenture or
the "Use of Proceeds and Refinancing" section of the
Prospectus;
(q) neither the Company nor any of the Subsidiaries
(i) is in violation of its Articles of Incorporation (or other
applicable charter document) or By-Laws or (ii) is in breach
or violation of any of the terms or provisions of, or with the
giving of notice or lapse of time, or both, would be in
default under, any contract, indenture, mortgage, deed of
trust, loan agreement, note, lease, partnership agreement, or
other agreement or instrument to which the Company or any
Subsidiary is a party or by which any of them may be bound or
to which any of their properties or assets may be subject,
except for such violations or defaults that would not,
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individually or in the aggregate, have a Material Adverse
Effect; no event has occurred which gives rise to the right to
terminate, or results in the automatic termination of, the
commitments to purchase receivables under the Receivables
Documents;
(r) other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending or, to the
knowledge of any Registrant, threatened to which the Company
or any of the Subsidiaries is or may be a party or to which
any property of the Company or any of the Subsidiaries is or
may be the subject which, if determined adversely to the
Company or any of the Subsidiaries, could individually or in
the aggregate be expected to have a Material Adverse Effect
and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(s) each of the Company and the Subsidiaries owns,
possesses or has obtained all material licenses, permits,
certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings
with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies) and all
courts and other tribunals, domestic or foreign, necessary to
own or lease, as the case may be, and to operate its
properties and to carry on its business as conducted as of the
date hereof and each of them is in full force and effect,
except in each case where the failure to obtain licenses,
permits, certificates, consents, orders, approvals and other
authorizations, or to make all declarations and filings, would
not, individually or in the aggregate, have a Material Adverse
Effect, and neither the Company nor any of the Subsidiaries
has received any notice relating to revocation or modification
of any such license, permit, certificate, consent, order,
approval or other authorization, except as described in the
Registration Statement and the Prospectus and except, in each
case, where such revocation or modification would not,
individually or in the aggregate, have a Material Adverse
Effect; and the Company and each of the Subsidiaries are in
compliance with all laws and regulations relating to the
conduct of their respective businesses as conducted as of the
date hereof, except where noncompliance with such laws or
regulations would not, individually or in the aggregate, have
a Material Adverse Effect;
(t) no person has the right to require the Company to
register any securities for offering and sale under the
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Securities Act by reason of the filing of the Registration
Statement with the Commission or the issue and sale of the
Securities;
(u) all of the outstanding shares of capital stock of
the Company have been duly authorized and validly issued and
are fully paid and nonassessable;
(v) except as disclosed in the Prospectus, there are no
labor disputes or negotiations with employees of the Company
or any of the Subsidiaries which could have, individually or
in the aggregate, a Material Adverse Effect;
(w) the Company and the Subsidiaries are in compliance
with, and not subject to any liability under, the common law
and all applicable federal, state, local and foreign laws,
regulations, rules, codes, ordinances, directives, and orders
relating to pollution or to protection of public or employee
health or safety or to the environment, including, without
limitation, those that relate to any Hazardous Material (as
hereinafter defined) ("Environmental Laws"), except, in each
case, where noncompliance or liability, individually or in the
aggregate, would not be reasonably likely to have a Material
Adverse Effect. The term "Hazardous Material" means any
pollutant, contaminant or waste, or any hazardous, dangerous,
or toxic chemical, material, waste, substance or constituent
subject to regulation under any Environmental Law;
(x) the fair salable value of the assets of each of the
Company and the Guarantors (collectively the "Material
Registrants") exceeds the amount that will be required to be
paid on or in respect of its existing debts and other
liabilities (including contingent liabilities) as they mature;
the assets of each of the Material Registrants do not
constitute unreasonably small capital to carry out its
business as conducted or as proposed to be conducted; each
Registrant does not intend to, and does not believe that it
will, incur debts beyond its ability to pay such debts as they
mature; upon the issuance of the Securities, the fair salable
value of the assets of each of the Material Registrants will
exceed the amount that will be required to be paid on or in
respect of its existing debts and other liabilities (including
contingent liabilities) as they mature; and upon the issuance
of the Securities, the assets of each of the Material
Registrants will not constitute unreasonably small capital to
carry out its business as now conducted or as proposed to be
conducted;
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(y) the Company and the Subsidiaries have filed all
federal, state, local and foreign tax returns which have been
required to be filed and have paid all taxes shown thereon and
all assessments received by them or any of them to the extent
that such taxes have become due and are not being contested in
good faith, except where the failure to file individually or
in the aggregate could not reasonably be expected to have a
Material Adverse Effect; and, except as disclosed in the
Registration Statement and the Prospectus, there is no tax
deficiency which has been or might reasonably be expected to
be asserted or threatened against the Company or any
Subsidiary which, individually or in the aggregate, could have
a Material Adverse Effect; and
(z) the statistical market share data and other
information included or incorporated by reference in the
Registration Statement and the Prospectus with respect to the
size of, and the Company's relative position in, the markets
in which it competes have been derived from sources which the
Company believes to be reliable, reasonable and accurate.
5. The Registrants, jointly and severally, covenant and
agree with each Underwriter as follows:
(a) to use their respective best efforts to cause the
Registration Statement to become effective (if the
Registration Statement shall not have been declared effective
prior to the execution hereof) at the earliest possible time
and, if required, to file the Prospectus with the Commission
in the manner and within the time periods specified by
Rule 424(b) and Rule 430A under the Securities Act;
(b) to deliver, at the expense of the Registrants,
(i) one signed and three conformed copies of the Registration
Statement (as originally filed) and each amendment thereto,
including exhibits and documents incorporated by reference
therein, to the Underwriters, and (ii) during the period
mentioned in paragraph (e) below, to each of the Underwriters
as many copies of the Prospectus (including all amendments and
supplements thereto and documents incorporated by reference
therein) as the Underwriters may reasonably request;
(c) before filing any amendment or supplement to the
Registration Statement or the Prospectus, whether before or
after the time the Registration Statement becomes effective,
to furnish to the Underwriters and their counsel a copy of the
proposed amendment or supplement for review within a
reasonable time prior to the proposed filing thereof and not
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to file any such proposed amendment or supplement to which the
Underwriters or their counsel reasonably object by prompt
notice to the Company;
(d) to advise the Underwriters promptly, and to deliver
any written communication from the Commission or any state
securities commission, (i) when the Registration Statement
shall become effective, (ii) when any amendment to the
Registration Statement shall have become effective, (iii) of
any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation
or threatening of any proceeding for that purpose and (v) of
the receipt by any Registrant of any notification with respect
to any suspension of the qualification of the Securities
(including any Guarantee) for offer and sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose; and to use their respective best
efforts to prevent the issuance of any such stop order or
notification and, if issued, to obtain promptly the withdrawal
thereof;
(e) if, during such period of time after the first date
of the public offering of the Securities as in the opinion of
counsel for the Underwriters a prospectus relating to the
Securities is required by law to be delivered in connection
with sales by an Underwriter or any dealer, any event shall
occur which is known to any of the Registrants or information
shall become known to any of the Registrants in any such case
as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the
light of the circumstances at the time the Prospectus is
delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with
law, forthwith to, at the sole expense of the Registrants,
prepare and, subject to Section 5(c) above, file with the
Commission, and furnish to the Underwriters and to the dealers
(whose names and addresses the Underwriters will furnish to
the Registrants) to which Securities may have been sold by the
Underwriters and to any other dealers upon request such
amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the
circumstances at the time the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply
with law; provided that all expenses with respect to any
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amendment of or supplement to the Prospectus required to
correct a misleading statement made therein in reliance upon
and in conformity with information relating to an Underwriter
furnished to any Registrant in writing by such Underwriter
expressly for use therein shall be borne by such Underwriter;
(f) (i) to endeavor to qualify the Securities for offer
and sale under the securities or Blue Sky laws of such
jurisdictions as the Underwriters shall reasonably request and
to continue such qualification in effect so long as reasonably
required for distribution of the Securities and (ii) to pay
all fees and expenses (including fees and disbursements of
counsel for the Underwriters) incurred in connection with such
qualification and in connection with the determination of the
eligibility of the Securities for investment under the laws of
such jurisdictions as the Underwriters may designate; provided
that no Registrant shall be required to file a general consent
to service of process in any jurisdiction in which it would
not otherwise be required to do so;
(g) to make generally available to the Registrants'
security holders, and to the Underwriters as soon as
practicable an earnings statement covering a period of at
least twelve months beginning with the first fiscal quarter of
the Registrants occurring after the effective date of the
Registration Statement which shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder;
(h) so long as the Securities are outstanding, to
furnish to the Underwriters copies of all reports or other
communications (financial or other) required to be furnished
to holders of the Securities, and copies of any reports and
financial statements required to be furnished to or filed with
the Commission or any national securities exchange;
(i) to pay all costs and expenses incident to the
performance of its obligations hereunder, including without
limiting the generality of the foregoing, all costs and
expenses (i) incident to the preparation, issuance, execution,
authentication and delivery of the Securities (including any
expenses of the Trustee and the Trustee's counsel),
(ii) incident to the preparation, printing and filing under
the Securities Act of the Registration Statement, the
Prospectus and any preliminary prospectus (including in each
case all exhibits, amendments and supplements thereto),
(iii) incurred in connection with the registration or
qualification of the Securities and Guarantees under the laws
-15-
of such jurisdictions as the Underwriters may designate
(including fees and disbursements of Xxxxxx Xxxxxx & Xxxxxxx,
counsel for the Underwriters, in connection with such
registration or qualification), (iv) relating to any filing
with, and determination of the fairness of the underwriting
terms and arrangements by, the National Association of
Securities Dealers, Inc. in connection with the offering of
the Securities and Guarantees, (v) in connection with the
printing (including word processing and duplication costs) and
delivery of this Agreement, the Indenture, all other
agreements relating to underwriting arrangements, the
Preliminary and Supplemental Blue Sky Memorandum and the
furnishing to the Underwriters and dealers of copies of the
Registration Statement and the Prospectus, including mailing
and shipping, as herein provided, and (vi) payable to rating
agencies in connection with the rating of the Securities;
(j) to use the net proceeds of the offering of
Securities as set forth in the Registration Statement and the
Prospectus under the caption "Use of Proceeds and
Refinancing";
(k) during the period when the Prospectus is required to
be delivered under the Securities Act or the Exchange Act in
connection with sales (including resales) of the Securities,
to file all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act within
the time period required by the Exchange Act and the Exchange
Act Regulations; and
(l) The Prospectus shall be furnished to not more than
three locations in New York City (A) on or prior to 2:00 P.M.,
New York time, on the business day following the execution and
delivery of this Agreement if the Closing Date is three
business days after the date of execution and delivery of this
Agreement or (B) on or prior to 6:00 P.M., New York time, on
the business day following the execution and delivery of this
Agreement if the Closing Date is four business days after the
execution and delivery of this Agreement.
6. The several obligations of the Underwriters
hereunder to purchase the Securities are subject to the performance
by the Registrants of their obligations hereunder and to the
following additional conditions:
(a) if the Registration Statement has not been declared
effective prior to the execution and delivery hereof, the
Registration Statement shall have become effective (or if a
-16-
post-effective amendment is required to be filed under the
Securities Act, such post-effective amendment shall have
become effective) not later than 5:00 P.M., New York City
time, on the date hereof; and no stop order suspending the
effectiveness of the Registration Statement shall be in
effect, and no proceedings for such purpose shall be pending
before or threatened by the Commission; and any requests for
additional information shall have been complied with to the
satisfaction of the Underwriters;
(b) each of the representations and warranties of the
Registrants contained herein shall be true and correct on and
as of the Closing Date as if made on and as of the Closing
Date, and the Registrants shall have complied with all
agreements and all conditions on their part to be performed or
satisfied hereunder at or prior to the Closing Date;
(c) subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have
occurred any downgrading, nor shall any notice have been given
of (i) any intended or potential downgrading or (ii) any
review or possible change that does not indicate an
improvement in the rating accorded any securities of or
guaranteed by any of the Registrants by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities
Act, the effect of which in the sole judgment of the
Underwriters makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities on
the terms and in the manner contemplated in the Prospectus;
(d) since the respective dates as of which information
is given in the Prospectus, there shall not have been or
become known any Material Adverse Change, otherwise than as
set forth in the Prospectus, the effect of which in the sole
judgment of the Underwriters makes it impracticable or
inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner
contemplated in the Prospectus;
(e) the Underwriters shall have received on and as of
the Closing Date a certificate, addressed to the Underwriters
and dated the Closing Date, of an executive officer of the
Company satisfactory to the Underwriters to the effect set
forth in subsections (a) through (c) of this Section 6;
(f) the Underwriters shall have received on the Closing
Date a signed opinion of Hunton & Xxxxxxxx, counsel for the
-17-
Company in form and substance satisfactory to Xxxxxx Xxxxxx &
Xxxxxxx, counsel to the Underwriters, dated the Closing Date
and addressed to the Underwriters, to the effect that:
(i) the Company has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of the Commonwealth of Virginia with the corporate
power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration
Statement and the Prospectus;
(ii) the authorized capital stock of the Company
is as set forth in the Registration Statement and the
Prospectus;
(iii) other than as set forth in the Prospectus,
to such counsel's knowledge there are no legal or governmental
proceedings pending or threatened to which the Company or any
of the Subsidiaries is or may be a party or to which any
property of the Company or the Subsidiaries is or may be the
subject which, if determined adversely to the Company or any
such Subsidiary, could individually or in the aggregate
reasonably be expected to have a Material Adverse Effect; and
such counsel does not know of any contracts or other documents
of a character required to be filed as an exhibit to the
Registration Statement or required to be described or
referred to in the Registration Statement or the Prospectus
which are not filed, referred to or described as required;
(iv) the execution and delivery by the Company
and Xxxxx & Minor Medical, Inc. ("O&M Medical", and together
with the Company, the "Virginia Companies") and the
performance by the Virginia Companies of all of the provisions
of their respective obligations under, this Agreement, the
Indenture and the Securities (including the Guarantees) and
the consummation by the Virginia Companies of the transactions
herein and therein contemplated and as set forth under "Use of
Proceeds and Refinancing" in the Prospectus (i) have been duly
authorized by all necessary corporate action on the part of
the Virginia Companies and (ii) do not and will not conflict
with, or result in a breach or violation of any of the terms
and provisions of, or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a
default) under, or give rise to any right to accelerate the
maturity or require the
-18-
prepayment of any indebtedness or the purchase of any
capital stock under, or result in the creation or
imposition of any lien, charge or encumbrance upon the
properties or assets of either Virginia Company under,
any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease, partnership agreement or other
agreement or instrument known to such counsel to which
either of the Virginia Companies is a party or by which
either of them may be bound or to which either of their
respective assets or properties may be subject, except
for any conflict, breach, violation or default that
individually or in the aggregate could not reasonably be
expected to have a Material Adverse Effect; the execution
and delivery by the Company and each of the Guarantors
of, and the performance by the Company and each of the
Guarantors of all of the provisions of their respective
obligations under, this Agreement, the Indenture and the
Securities (including the Guarantees) and the
consummation by the Company and each of the Guarantors of
the transactions herein and therein contemplated and as
set forth under "Use of Proceeds and Refinancing" in the
Prospectus (i) do not and will not result in any
violation of the Articles of Incorporation or the By-
laws of the Company or any Subsidiary, (ii) do not and
will not result in any right to terminate, or automatic
termination of, commitments to purchase receivables under
the Receivables Documents and (iii) do not and will not
conflict with, or result in a breach or violation of any
of the terms or provisions of, or constitute a default
(or an event which, with notice or lapse of time, or
both, would constitute a default) under, (A) any
applicable law or statute, rule or regulation (other than
the securities or Blue Sky laws of the various states of
the United States of America) or (B) any judgment, order
or decree of any government, governmental
instrumentality, agency, body or court, domestic or
foreign, known to such counsel having jurisdiction over
the Company or any such Subsidiary or any of their
respective properties or assets, except in each case (A)
and (B) for any conflict, breach, violation or default
that individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect
(it being understood that the opinions set forth in
subclauses (A) and (B) of this clause (iii) shall be
limited to federal, Virginia and New York law);
(v) the Indenture has been duly executed and
delivered by the Virginia Companies and qualified under
-19-
the Trust Indenture Act and, assuming due authorization,
execution and delivery thereof by the Trustee, is a
legal, valid and binding agreement of the Virginia
Companies, enforceable against the Virginia Companies in
accordance with its terms, except that the enforcement
thereof may be subject to (1) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or
similar laws now or hereafter in effect relating to
creditors' rights generally and (2) principles of equity,
whether considered at law or in equity, and the
discretion of the court before which any proceeding
therefor may be brought;
(vi) the Notes have been duly authorized by the
Company and the Guarantees have been duly authorized by
O&M Medical and, when executed and authenticated in
accordance with the terms of the Indenture and delivered
to and paid for by the Underwriters, the Notes will
constitute legal, valid and binding obligations of the
Company enforceable in accordance with their terms and
(assuming the due authorization, execution and delivery
thereof by each Guarantor other than O&M Medical and that
the law of the state of incorporation of each Guarantor
other than O&M Medical is the same as New York law) the
Guarantees, when executed and delivered by the Guarantors
in accordance with the terms of the Indenture, will
constitute legal, valid and binding obligations of each
Guarantor, in each case enforceable in accordance with
their terms, except in each case that the enforcement
thereof may be subject to (1) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or
similar laws now or hereafter in effect relating to
creditors' rights generally and (2) principles of equity,
whether considered at law or in equity, and the
discretion of the court before which any proceeding
therefor may be brought;
(vii) the Credit Documents when executed and
delivered by each of the Virginia Companies will
constitute legal, valid and binding agreements of each of
the Virginia Companies, enforceable against each of the
Virginia Companies in accordance with their respective
terms, except that (A) the enforcement thereof may be
subject to (1) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws now or
hereafter in effect relating to creditors' rights
generally and (2) general principles of equity and the
discretion of the court before which any proceeding
-20-
therefor may be brought and (B) the enforceability of the
indemnification provisions included in the Credit
Documents may be limited by public policy; the Credit
Documents are in effect on the terms described in the
Prospectus; the description in the Prospectus of the
Credit Documents is accurate and complete in all material
respects; and the opinion rendered by such counsel set
forth in this clause (vii) may be further subject to the
following exceptions: (i) certain of the waivers
contained in the Credit Documents may be unenforceable in
whole or in part, but the inclusion of such provisions
does not render the other provisions of the Credit
Documents invalid or unenforceable, (ii) such counsel
need not express an opinion as to Section 10.02 of the
Credit Documents insofar as it provides that any
participant in the loans may exercise set-off or similar
rights with respect to such participation, and (iii) such
counsel may assume that, when exercising rights under any
Credit Document, the agents and the banks will act in
good faith;
(viii) the Receivables Documents constitute legal,
valid and binding agreements of the Company and each of
the Subsidiaries a party thereto, enforceable against the
Company and each such Subsidiary in accordance with its
terms, except that the enforcement thereof may be subject
to (1) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws now or
hereafter in effect relating to creditors' rights
generally and (2) principles of equity, whether
considered at law or in equity, and the discretion of the
court before which any proceeding therefor may be
brought; the Receivables Documents are in effect on the
terms described in the Prospectus; and the description in
the Prospectus of the Receivables Documents is accurate
and complete in all material respects; provided, however,
such counsel need not give an opinion as to the
enforceability of (i) any indemnification or contribution
provisions contained in the Receivables Documents, (ii)
any waiver of statutory rights by the Company or any
Subsidiary, including procedural laws governing
jurisdiction, venue and service of process and waiver of
the right to jury trial, (iii) any provision of the
Receivables Documents to the effect that the failure to
exercise or delay in exercising rights or remedies will
not operate as a waiver of such rights or remedies or to
the effect that the provisions thereof may only be waived
in writing to the extent that an oral agreement modifying
-21-
such provisions has been entered into, or (iv) any
consent of the Company or any Subsidiary to jurisdiction
of the courts of the State of New York or any other
consent to jurisdiction;
(ix) the Securities (including the Guarantees)
and the Indenture conform in all material respects to the
descriptions thereof in the Prospectus;
(x) this Agreement has been duly authorized,
executed and delivered by each of the Virginia Companies;
(xi) no authorization, approval, consent, order,
registration, qualification or license of, or filing
with, any government, governmental instrumentality,
agency, body or court, domestic or foreign (other than as
have been obtained under the Securities Act or the Trust
Indenture Act or as may be required under the securities
or Blue Sky laws of the various states of the United
States of America) is required under federal, Virginia or
New York law for the valid authorization, issuance, sale
and delivery of the Securities (including the
Guarantees), or the performance by the Company and each
of the Guarantors of all of their obligations under this
Agreement, the Indenture and the Securities (including
the Guarantees), or the consummation by the Company and
each of the Guarantors of the transactions contemplated
by this Agreement, the Indenture or the "Use of Proceeds
and Refinancing" section of the Prospectus;
(xii) the Registration Statement has been declared
effective under the Securities Act and no stop order
suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto has
been issued and, to such counsel's knowledge, no
proceeding for that purpose has been instituted or
threatened by the Commission; the Indenture has been duly
qualified under the Trust Indenture Act; any required
filing of the Prospectus and any supplements thereto
pursuant to Rule 424(b) has been made in a manner and
within the time period required by Rule 424(b);
(xiii) each document incorporated by reference in
the Registration Statement and the Prospectus (except for the
financial statements and other financial and statistical data
included therein as to which such counsel need express no
opinion) complied as to form in all material
-22-
respects, when filed with the Commission, with the
requirements of the Exchange Act;
(xiv) the Registration Statement and the
Prospectus and any amendments and supplements thereto (except
for the financial statements and other financial and
statistical data included therein as to which such counsel
need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act and the
Trust Indenture Act; and
(xv) nothing has come to such counsel's attention
that leads it to believe that the Registration Statement and
the Prospectus included therein at the time the Registration
Statement became effective contained any untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, and the Prospectus as of its date and as of
the Closing Date, as amended or supplemented, if applicable,
contained or contains any untrue statement of a material fact
or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it
being understood that such counsel need not express an opinion
or belief as to the financial statements and other financial
and statistical data included therein or that part of the
Registration Statement which constitutes the Statement of
Eligibility on Form T-1 of the Trustee under the Trust
Indenture Act or any statements or omissions made in reliance
upon and in conformity with information relating to any
Underwriter furnished to any Registrant in writing by such
Underwriter expressly for use in the Registration Statement);
(g) the Underwriters shall have received on the Closing
Date a signed opinion of Drew St. X. Xxxxxxx, Esq., General Counsel to
the Company, in form and substance satisfactory to Xxxxxx Xxxxxx &
Xxxxxxx, counsel to the Underwriters, dated the Closing Date and
addressed to the Underwriters, to the effect that:
(i) the Company has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of the Commonwealth of Virginia with the corporate
power and authority to own, lease and operate
-23-
its properties and to conduct its business as described
in the Registration Statement and the Prospectus;
(ii) the Company has been duly qualified as a
foreign corporation for the transaction of business and
is in good standing in each jurisdiction in which it owns
or leases properties or conducts any business so as to
require such qualification, except where the failure to
be so qualified or in good standing would not have a
Material Adverse Effect;
(iii) each Subsidiary has been duly incorporated
and is validly existing as a corporation under the laws of its
jurisdiction of incorporation with the corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Registration
Statement and the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing in each jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, except where the failure to be so qualified or
in good standing would not have a Material Adverse Effect;
(iv) the authorized capital stock of the Company
is as set forth in the Registration Statement and the
Prospectus;
(v) all the outstanding shares of capital stock
of each Subsidiary have been duly authorized and validly
issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Prospectus, are directly or
indirectly owned by the Company free and clear of any
mortgage, pledge, security interest, lien, claim or other
encumbrance;
(vi) other than as set forth in the Prospectus,
there are no legal or governmental proceedings pending or, to
such counsel's knowledge, threatened to which the Company or
any of the Subsidiaries is or may be a party or to which any
property of the Company or the Subsidiaries is or may be the
subject which, if determined adversely to the Company or any
such Subsidiary, could individually or in the aggregate
reasonably be expected to have a Material Adverse Effect; and
such counsel does not know of any contracts or other documents
of a character required to be filed as
-24-
an exhibit to the Registration Statement or required to
be described or referred to in the Registration Statement
or the Prospectus which are not filed, referred to or
described as required;
(vii) neither the Company nor any of the
Subsidiaries (A) is in violation of its Certificate of
Incorporation or By-Laws or (B) is in breach or violation of
any of the terms or provisions of, or with the giving of
notice or lapse of time, or both, would be in default under,
any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which
the Company or any of the Subsidiaries is a party or by which
it or any of them or any of their respective properties is
bound, or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company, the Subsidiaries or any of
their respective properties, except for violations and
defaults which individually or in the aggregate would not have
a Material Adverse Effect; and no event has occurred which
gives rise to the right to terminate, or results in the
automatic termination of, the commitments to purchase
receivables under the Receivables Documents;
(viii) the execution and delivery by each of
National Medical Supply Corporation, Xxxxx & Minor West, Inc.,
Koley's Medical Supply, Inc., Xxxxx Physician Supply Company,
X. Xxxxxxx & Company, and Stuart Medical, Inc. (collectively
the "Non-Virginia Guarantors") of, and the performance by each
of the Non-Virginia Guarantors of all of the provisions of
their respective obligations under, this Agreement, the
Indenture and the Securities (including the Guarantees) and
the consummation by each of the Non-Virginia Guarantors of the
transactions herein and therein contemplated and as set forth
under "Use of Proceeds and Refinancing" in the Prospectus (i)
have been duly authorized by all necessary corporate action on
the part of each of the Non-Virginia Guarantors, (ii) do not
and will not result in any violation of the Articles of
Incorporation or the By-laws of any Non-Virginia Guarantor,
(iii) do not and will not result in any right to terminate,
or automatic termination of, commitments to purchase
receivables under the Receivables Documents and (iv) do not
and will not conflict with, or result in a breach or violation
of any of the terms or provisions of, or constitute a default
(or an event which, with notice or lapse of time, or both,
would constitute a default)
-25-
under, or give rise to any right to accelerate the
maturity or require the prepayment of any indebtedness or
the purchase of any capital stock under, or result in the
creation or imposition of any lien, charge or encumbrance
upon any properties or assets of any Non-Virginia
Guarantor under, (A) any contract, indenture, mortgage,
deed of trust, loan agreement, note, lease, partnership
agreement or other agreement or instrument known to such
counsel to which any such Non-Virginia Guarantor is a
party or by which any of them may be bound or to which
any of their respective properties or assets may be
subject, except for any conflict, breach, violation or
default that individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect,
(B) any applicable law or statute, rule or regulation
(other than the securities or Blue Sky laws of the
various states of the United States of America) or
(C) any judgment, order or decree of any government,
governmental instrumentality, agency, body or court,
domestic or foreign, known to such counsel having
jurisdiction over any such Non-Virginia Guarantor or any
of their respective properties or assets, except in each
case (B) and (C) for any conflict, breach, violation or
default that individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect
(it being understood that the opinions set forth in
subclauses (B) and (C) of this clause (iii) shall be
limited to federal and Virginia law);
(ix) the Indenture has been duly executed and
delivered by each of the Non-Virginia Guarantors and, assuming
due authorization, execution and delivery thereof by the
Trustee, is a legal, valid and binding agreement of each of
the Non-Virginia Guarantors, enforceable against each of the
Non-Virginia Guarantors in accordance with its terms, except
that the enforcement thereof may be subject to
(1) bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or similar laws now or hereafter in effect
relating to creditors' rights generally and (2) principles of
equity, whether considered at law or in equity, and the
discretion of the court before which any proceeding therefor
may be brought;
(x) the Guarantees have been duly authorized by
each of the Non-Virginia Guarantors and, when the Notes are
executed and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by
-26-
the Underwriters, the Guarantees, when executed and
delivered by the Non-Virginia Guarantors in accordance
with the terms of the Indenture, will constitute legal,
valid and binding obligations of each Non-Virginia
Guarantor, in each case enforceable in accordance with
their terms, except that the enforcement thereof may be
subject to (1) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws now or
hereafter in effect relating to creditors' rights
generally and (2) principles of equity, whether
considered at law or in equity, and the discretion of the
court before which any proceeding therefor may be
brought;
(xi) the Credit Documents when executed and
delivered by each of the Non-Virginia Guarantors will
constitute legal, valid and binding agreements of each of
the Non-Virginia Guarantors, enforceable against each
such Non-Virginia Guarantor in accordance with their
respective terms, except that (A) the enforcement thereof
may be subject to (1) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or
similar laws now or hereafter in effect relating to
creditors' rights generally and (2) principles of equity,
whether considered at law or in equity, and the
discretion of the court before which any proceeding
therefor may be brought and (B) the enforceability of the
indemnification provisions included in the Credit
Documents may be limited by public policy; the Credit
Documents are in effect on the terms described in the
Prospectus; and the opinion rendered by such counsel set
forth in this clause (xi) may be further subject to the
following exceptions: (i) certain of the waivers
contained in the Credit Documents may be unenforceable
in whole or in part, but the inclusion of such provisions
does not render the other provisions of the Credit
Documents invalid or unenforceable, (ii) such counsel
need not express an opinion as to Section 10.02 of the
Credit Documents insofar as it provides that any
participant in the loans may exercise set-off or similar
rights with respect to such participation, and (iii) such
counsel may assume that, when exercising rights under any
Credit Document, the agents and the banks will act in
good faith;
(xii) this Agreement has been duly authorized,
executed and delivered by the Non-Virginia Guarantors;
-27-
(xiii) no authorization, approval, consent, order,
registration, qualification or license of, or filing with, any
government, governmental instrumentality, agency, body or
court, domestic or foreign (other than as have been obtained
under the Securities Act or the Trust Indenture Act or as may
be required under the securities or Blue Sky laws of the
various states of the United States of America) is required
under federal or Virginia law for the valid authorization,
issuance, sale and delivery of the Guarantees, or the
performance by each of the Non-Virginia Guarantors of all of
their obligations under this Agreement, the Indenture and the
Guarantees, or the consummation by each of the Non-Virginia
Guarantors of the transactions contemplated by this Agreement,
the Indenture or the "Use of Proceeds and Refinancing" section
of the Prospectus; and
(xiv) nothing has come to such counsel's attention
that leads it to believe that the Registration Statement and
the Prospectus included therein at the time the Registration
Statement became effective contained any untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus as of its date and as
of the Closing Date, as amended or supplemented, if
applicable, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading (it being understood that such counsel need not
express an opinion or belief as to the financial statements
and other financial and statistical data included therein or
that part of the Registration Statement which constitutes the
Statement of Eligibility on Form T-1 of the Trustee under the
Trust Indenture Act or any statements or omissions made in
reliance upon and in conformity with information relating to
any Underwriter furnished to any Registrant in writing by such
Underwriter expressly for use in the Registration Statement);
(h) on the effective date of the Registration Statement
and the effective date of the most recently filed post-effective
amendment, if any, to the Registration Statement and also on the
Closing Date, KPMG Peat Marwick LLP shall have furnished to the
Underwriters letters, dated the respective dates of delivery thereof,
in form and substance
-28-
satisfactory to the Underwriters, containing statements and
information of the type customarily included in accountants'
"comfort letters" to underwriters with respect to the
financial statements and certain financial information
contained or incorporated by reference in the Registration
Statement and the Prospectus;
(i) the Underwriters shall have received on and as of the
Closing Date an opinion dated the Closing Date of Xxxxxx Xxxxxx &
Xxxxxxx, counsel to the Underwriters, addressed to the Underwriters and
in form and substance satisfactory to the Underwriters with respect to
the validity of the Securities, the Indenture, the Registration
Statement, the Prospectus and other related matters as the Underwriters
may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(j) on or prior to the Closing Date the Company shall
have furnished to the Underwriters such further certificates and
documents as the Underwriters or their counsel, Xxxxxx Xxxxxx &
Xxxxxxx, shall reasonably request;
(k) on the Closing Date the Credit Documents shall be in
full force and effect on the terms described in the Prospectus and no
breach or violation of any of the terms or provisions thereof, or
default (or an event which, with notice or lapse of time, or both,
would constitute a default) thereunder shall exist; and
(l) on the Closing Date the Receivables Documents shall
be in full force and effect on the terms described in the Prospectus
and no breach or violation of any of the terms or provisions thereof,
or default (or an event which, with notice or lapse of time, or both,
would constitute a default) thereunder shall exist nor shall any event
have occurred or condition exist which gives rise to the right to
terminate, or the automatic termination of, commitments to purchase
receivables under the Receivables Documents;
In rendering the opinions referred to in the foregoing clauses
(f) and (g), Hunton & Xxxxxxxx and Xxxx St. X. Xxxxxxx may rely as to matters of
fact, to the extent each deems proper, on certificates of responsible officers
of the Company, the Subsidiaries and public officials and, as to matters
involving the application of laws of any jurisdiction other than the
Commonwealth of Virginia, the State of New York (with respect to Hunton &
Xxxxxxxx only), the corporate laws of the State of Delaware, and
-29-
the federal laws of the United States, to the extent such counsel
deems proper and specifies in such opinion and to the extent such
opinion is satisfactory in form and scope to counsel for the
Underwriters, upon the opinion of other counsel qualified in such
jurisdictions who they believe are reliable and who are
satisfactory to counsel for the Underwriters. Copies of any such
opinion shall be delivered to the Underwriters and counsel for the
Underwriters. With respect to matters covered in the second clause
of paragraph (iii) and paragraphs (xiv) and (xv) of clause (f) and
the second clause of paragraph (vi) and paragraph (xiv) of clause
(g), Hunton & Xxxxxxxx and Xxxx St. X. Xxxxxxx, respectively, may
state that their opinion and belief is based upon their
participation in the preparation of the Registration Statement and
the Prospectus and any amendment or supplement thereto (other than
documents incorporated by reference therein) and review and
discussion of the contents thereof (including the documents
incorporated by reference therein) but is without independent check
or verification, except as provided.
7. The Registrants, jointly and severally, agree to
indemnify and hold harmless each Underwriter, its officers and directors, and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Underwriter furnished to any Registrant in writing by such
Underwriter expressly for use therein; provided, however, that the foregoing
indemnity with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter (or the benefit of any person controlling such
Underwriter) from whom the person asserting any such losses, claims, damages or
liabilities purchased Notes if such untrue statement or omission or alleged
untrue statement or omission was made in such preliminary prospectus and is
eliminated or remedied in the Prospectus and the Company has provided such
Prospectus in accordance with paragraph 5(b) hereof (as amended or supplemented
-30-
if the Company shall have furnished any amendments or supplements
thereto) and if it shall be established in the related action or
proceeding that a copy of the Prospectus, if required by law (as so
amended or supplemented, but exclusive of any documents
incorporated therein by reference), shall not have been furnished
to such person at or prior to the written confirmation of the sale
of such Securities to such person, except to the extent that such
Prospectus contains any other untrue statement or omission or
alleged untrue statement or omission of a material fact that was
the subject matter of the related action or proceeding. For
purposes of the proviso to the immediately preceding sentence, the
term "Prospectus" shall not be deemed to include the documents
incorporated therein by reference, and no Underwriter shall be
obligated to send or give any supplement or amendment to any
document incorporated by reference in any preliminary prospectus or
the Prospectus to any person.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless each of the Registrants, each of their
directors, each of their officers who signed the Registration
Statement and each person who controls any of the Registrants
within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Registrants to each Underwriter, but only with
reference to information relating to such Underwriter furnished to
any Registrant in writing by such Underwriter expressly for use in
the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any preliminary prospectus. For purposes of
this Section 7 and paragraphs (a) and (b) of Section 4 hereof, the
only written information furnished by the Underwriters to any
Registrant expressly for use in the Registration Statement and the
Prospectus is the information in the last paragraph on the cover
page of the Prospectus, and the first paragraph under the table in
the "Underwriting" section of the Prospectus.
If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be
brought or asserted against any person in respect of which
indemnity may be sought pursuant to either of the two preceding
paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person,
upon request of the Indemnified Person, shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of
such counsel related to such proceeding. In any such proceeding,
any Indemnified Person shall have the right to retain its own
-31-
counsel, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including
any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying
Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriters and such control persons of
Underwriters shall be designated in writing by X.X. Xxxxxx
Securities Inc. and any such separate firm for any of the
Registrants, each director of the Registrants, each officer of the
Registrants who signed the Registration Statement and such control
persons of the Registrants shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment
for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested
an Indemnifying Person to reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by the third sentence of
this paragraph, the Indemnifying Person agrees that it shall be
liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than
30 days after receipt by such Indemnifying Person of the aforesaid
request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and
indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement includes an unconditional written
release, in form and substance reasonably satisfactory to the
Indemnified Person, of such Indemnified Person from all liability
on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and
second paragraphs of this Section 7 is for any reason unavailable
-32-
to, or insufficient to hold harmless, an Indemnified Person in
respect of any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Person under such paragraph, in
lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person
as a result of such losses, claims, damages or liabilities (i) in
such proportion as is appropriate to reflect the relative benefits
received by the Registrants on the one hand and the Underwriters on
the other hand from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also
the relative fault of the Registrants on the one hand and the
Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Registrants
on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from
the offering (before deducting expenses) received by the Company
and the total underwriting discounts and the commissions actually
received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus, bear to the aggregate public
offering price of the Securities. The relative fault of the
Registrants on the one hand and the Underwriters on the other shall
be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Registrants or by the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Registrants and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as
a result of the losses, claims, damages and liabilities referred to
in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstand-
ing the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to
-33-
the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay or has paid by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to
the respective principal amounts of Securities set forth opposite
their names in Schedule I hereto, and not joint.
The indemnity and contribution agreements contained in
this Section 7 are in addition to any liability which the
Indemnifying Persons may otherwise have to the Indemnified Persons
referred to above.
The indemnity and contribution agreements contained in
this Section 7 and the representations and warranties of the
Registrants as set forth in this Agreement shall remain operative
and in full force and effect regardless of (i) any termination of
this Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on
behalf of any Registrant, officer or director of any Registrant or
any other person controlling any Registrant and (iii) acceptance of
and payment for any of the Securities.
8. Notwithstanding anything herein contained, this
Agreement may be terminated in the absolute discretion of the
Underwriters, by notice given to the Company, if after the
execution and delivery of this Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially
limited on the New York Stock Exchange or the Nasdaq National
Market, (ii) trading of any securities of or guaranteed by any of
the Registrants shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial
banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment
of the Underwriters, is material and adverse and which, in the
judgment of the Underwriters, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the
Prospectus.
9. If, on the Closing Date, any one or more of the
Underwriters shall fail or refuse to purchase the aggregate
principal amount of Securities which it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount
-34-
of Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of Securities to be
purchased on such date, the other Underwriters shall be obligated
severally, in the proportions that the aggregate principal amount
of Securities set forth opposite their respective names in
Schedule I hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Underwriters may
specify, to purchase the aggregate principal amount of Securities
which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided, however, that in no
event shall the aggregate principal amount of Securities that any
Underwriter has agreed to purchase pursuant to Section 1 be
increased pursuant to this Section 9 by an amount in excess of
one-ninth of such aggregate principal amount of Securities without
the written consent of such Underwriter. If, on the Closing Date,
any Underwriter or Underwriters shall fail or refuse to purchase
the aggregate principal amount of Securities which it or they have
agreed to purchase hereunder on such date, and the aggregate
principal amount of Securities with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of
Securities to be purchased on such date, and arrangements
satisfactory to the Underwriters and the Company for the purchase
of such aggregate principal amount of Securities are not made
within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or
the Company. In any such case either the Underwriters or the
Company shall have the right to postpone the Closing Date, but in
no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve
any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the
Underwriters because of any failure or refusal on the part of any
of the Registrants to comply with the terms or to fulfill any of
the conditions of this Agreement, or if for any reason any
Registrant shall be unable to perform its obligations under this
Agreement or if any condition set forth in Section 6 is not
satisfied, the Registrants agree jointly and severally to reimburse
the Underwriters for all out-of-pocket expenses (including the fees
and expenses of their counsel) reasonably incurred by the
Underwriters in connection with this Agreement or the offering
contemplated hereunder.
-35-
11. Any action by the Underwriters hereunder may be taken
by the Underwriters jointly or by X.X. Xxxxxx Securities Inc. alone on behalf of
the Underwriters, and any such action taken by X.X. Xxxxxx Securities Inc. alone
shall be binding upon the Underwriters. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or telecopied. Notices to the Underwriters shall be given to the
Underwriters, c/o X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (facsimile number (000) 000-0000); Attention: Syndicate Department.
Notices to any Registrant shall be given to the Company at 0000 Xxx Xxxx, Xxxx
Xxxxx, XX 00000 (facsimile number (000) 000-0000); Attention: Senior Vice
President, Corporate Counsel.
12. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the Registrants and any
controlling person referred to herein and their respective
successors, heirs and legal representatives. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters
and the Registrants and their respective successors, heirs and
legal representatives and the controlling persons and officers and
directors referred to in Section 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein
contained. No purchaser of Securities from any Underwriter shall
be deemed to be a successor merely by reason of such purchase.
13. This Agreement may be signed in counterparts, each
of which shall be an original and all of which together shall
constitute one and the same instrument.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF.
If the foregoing is in accordance with your
understanding, please sign and return four counterparts hereof.
Very truly yours,
XXXXX & MINOR, INC.
By:
Name:
Title:
XXXXX & MINOR MEDICAL, INC.
By:
Name:
Title:
NATIONAL MEDICAL SUPPLY
CORPORATION
By:
Name:
Title:
XXXXX & MINOR WEST, INC.
By:
Name:
Title:
KOLEY'S MEDICAL SUPPLY, INC.
By:
Name:
Title:
XXXXX PHYSICIAN SUPPLY
COMPANY
By:
Name:
Title:
X. XXXXXXX & COMPANY
By:
Name:
Title:
STUART MEDICAL, INC.
By:
Name:
Title:
Accepted: __________, 1996
X.X. XXXXXX SECURITIES INC.
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
NATIONSBANC CAPITAL MARKETS, INC.
WHEAT FIRST BUTCHER SINGER
By: X.X. XXXXXX SECURITIES INC.
By:
Name:
Title:
SCHEDULE I
Principal Amounts
of Securities
Underwriter to be Purchased
----------- ------------------
X.X. Xxxxxx Securities Inc. ....................................... $
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation ..........................................
NationsBanc Capital Markets, Inc. .................................
Wheat First Butcher Singer ........................................ ____________
Total.......................................... $150,000,000
