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Exhibit 1
__________ SHARES(1)
PROMEDCO MANAGEMENT COMPANY
COMMON STOCK
PURCHASE AGREEMENT
_____________________, 1997
XXXXX XXXXXXX INC.
XXXXXXXXX XXXXXXXX & CO., LLP
XXXXX & COMPANY
As Representatives of the several
Underwriters named in Schedule I hereto
c/o Xxxxx Xxxxxxx Inc.
Xxxxx Xxxxxxx Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Gentlemen:
ProMedCo Management Company, a Delaware corporation (the "Company"),
proposes to sell to the several Underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of _____ shares (the "Firm Shares") of Common
Stock, $__________ par value per share (the "Common Stock"), of the Company. The
Firm Shares consist of _____ authorized but unissued shares of Common Stock to
be issued and sold by the Company. The Company and H. Xxxxx Xxxxx (the "Selling
Stockholder") have also granted to the several Underwriters an option to
purchase up to __________ and 150,000 additional shares of Common Stock,
respectively, on the terms and for the purposes set forth in Section 3 hereof
(the "Option Shares"). The Firm Shares and any Option Shares purchased pursuant
to this Purchase Agreement are herein collectively called the "Securities."
The Company and the Selling Stockholders hereby confirm their agreement
with respect to the sale of the Securities to the several Underwriters, for whom
you are acting as Representatives (the "Representatives").
1. Registration Statement and Prospectus. A registration statement on Form S-1
(File No. 333-10557) with respect to the Securities, including a preliminary
form of prospectus, has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations ("Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder and has been filed with the Commission;
one or more amendments to such registration statement have also been so prepared
and have been, or will
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(1) Plus an option to purchase up to _____ additional shares to cover
over-allotments.
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be, so filed; and, if the Company has elected to rely upon Rule 462(b) of the
Rules and Regulations to increase the size of the offering registered under the
Act, the Company will prepare and file with the Commission a registration
statement with respect to such increase pursuant to Rule 462(b). Copies of such
registration statement(s) and amendments and each related preliminary prospectus
have been delivered to you.
If the Company has elected not to rely upon Rule 430A of the Rules and
Regulations, the Company has prepared and will promptly file an amendment to the
registration statement and an amended prospectus (including a term sheet meeting
the requirements of Rule 434 of the Rules and Regulations). If the Company has
elected to rely upon Rule 430A of the Rules and Regulations, it will prepare and
file a prospectus (or a term sheet meeting the requirements of Rule 434)
pursuant to Rule 424(b) that discloses the information previously omitted from
the prospectus in reliance upon Rule 430A. Such registration statement as
amended at the time it is or was declared effective by the Commission, and, in
the event of any amendment thereto after the effective date and prior to the
First Closing Date (as hereinafter defined), such registration statement as so
amended (but only from and after the effectiveness of such amendment), including
a registration statement (if any) filed pursuant to Rule 462(b) of the Rules and
Regulations increasing the size of the offering registered under the Act and
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rules 430A(b) and 434(d) of the Rules and
Regulations, is hereinafter called the "Registration Statement." The prospectus
included in the Registration Statement at the time it is or was declared
effective by the Commission is hereinafter called the "Prospectus," except that
if any prospectus (including any term sheet meeting the requirements of Rule 434
of the Rules and Regulations provided by the Company for use with a prospectus
subject to completion within the meaning of Rule 434 in order to meet the
requirements of Section 10(a) of the Rules and Regulations) filed by the Company
with the Commission pursuant to Rule 424(b) (and Rule 434, if applicable) of the
Rules and Regulations or any other such prospectus provided to the Underwriters
by the Company for use in connection with the offering of the Securities
(whether or not required to be filed by the Company with the Commission pursuant
to Rule 424(b) of the Rules and Regulations) differs from the prospectus on file
at the time the Registration Statement is or was declared effective by the
Commission, the term "Prospectus" shall refer to such differing prospectus
(including any term sheet within the meaning of Rule 434 of the Rules and
Regulations) from and after the time such prospectus is filed with the
Commission or transmitted to the Commission for filing pursuant to such Rule
424(b) (and Rule 434, if applicable) or from and after the time it is first
provided to the Underwriters by the Company for such use. The term "Preliminary
Prospectus" as used herein means any preliminary prospectus included in the
Registration Statement prior to the time it becomes or became effective under
the Act and any prospectus subject to completion as described in Rule 430A or
Rule 434 of the Rules and Regulations.
2. Representations and Warranties of the Company and the Selling
Stockholder.
(a) The Company and the Selling Stockholder jointly and severally
represent and warrant to, and agree with, the several Underwriters as follows:
(i) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and no proceedings for such
purpose are pending before or, to the Company's knowledge, threatened by the
Commission, and each Preliminary Prospectus, at the time of filing thereof, did
not contain an untrue statement of a material fact or omit to state a material
fact
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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;
except that the foregoing shall not apply to statements in or omissions from any
Preliminary Prospectus in reliance upon, and in conformity with, written
information furnished to the Company by you, or by any Underwriter through you,
specifically for use in the preparation thereof.
(ii) As of the time the Registration Statement (or any post-effective
amendment thereto, including a registration statement (if any) filed pursuant to
Rule 462(b) of the Rules and Regulations increasing the size of the offering
registered under the Act) is or was declared effective by the Commission, upon
the filing or first delivery to the Underwriters of the Prospectus (or any
supplement to the Prospectus (including any term sheet meeting the requirements
of Rule 434 of the Rules and Regulations)) and at the First Closing Date and
Second Closing Date (as hereinafter defined), (A) the Registration Statement and
Prospectus (in each case, as so amended and/or supplemented) conformed or will
conform in all material respects to the requirements of the Act and the Rules
and Regulations, (B) the Registration Statement (as so amended) did not or will
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and (C) the Prospectus (as so supplemented) did not or will not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they are or were made, not misleading;
except that the foregoing shall not apply to statements in or omissions from any
such document in reliance upon, and in conformity with, written information
furnished to the Company by you, or by any Underwriter through you, specifically
for use in the preparation thereof. If the Registration Statement has been
declared effective by the Commission, no stop order suspending the effectiveness
of the Registration Statement has been issued, and no proceeding for that
purpose has been initiated or, to the Company's knowledge, threatened by the
Commission.
(iii) The Company manages the business operations of each of North
Texas Medical Surgical, P.A., Cullman Family Practice, P.C., Family Medical
Clinic, P.C., Xxxxxx-Xxxxx, P.S.C., HealthFirst Services, Inc. and Tarrant
Family Practice, P.A., Abilene Diagnostic Clinic Practices, King's Daughters
Clinic, P.A., and Western Medical Management Corp., Inc. (collectively, the
"Acquired Companies") but does not manage the business operations of any other
professional association or other business.
(iv) The financial statements of the Company, together with the notes
thereto, set forth in the Registration Statement and Prospectus comply in all
material respects with the requirements of the Act and fairly present the
financial condition of the Company as of the dates indicated and the results of
operations and changes in cash flows for the periods therein specified in
conformity with generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise stated therein); and the
supporting schedules included in the Registration Statement present fairly the
information required to be stated therein. The financial statements of each of
the Acquired Companies, together with the notes thereto, set forth in the
Registration Statement and Prospectus comply in all material respects with the
requirements of the Act and fairly present the financial condition of each
Acquired Company as of the dates indicated and the results of operations and
changes in cash flows for the periods therein specified in conformity with
generally accepted accounting principles consistently applied throughout the
periods involved (except as otherwise stated therein). No other financial
statements or schedules are required to be
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included in the Registration Statement or Prospectus. Xxxxxx Xxxxxxxx LLP, which
have expressed their opinion with respect to the financial statements and
schedules of the Company filed as a part of the Registration Statement and
included in the Registration Statement and Prospectus, are independent public
accountants as required by the Act and the Rules and Regulations.
(v) Each of the Company, its subsidiaries and the Acquired Companies
has been duly organized and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation. Each of the
Company, its subsidiaries and the Acquired Companies has full corporate power
and authority to own, lease and operate its properties and conduct its business
as currently being carried on and as described in the Registration Statement and
Prospectus, and is duly qualified to do business as a foreign corporation in
good standing in each jurisdiction in which it owns or leases real property or
in which the conduct of its business makes such qualification necessary and in
which the failure to so qualify would have a material adverse effect upon its
business, condition (financial or otherwise) or properties, taken as a whole.
Prior to the Closing, the merger of ProMedCo., Inc., a Texas corporation, with
and into the Company became effective under the laws of the States of Texas and
Delaware.
(vi) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus, neither the Company nor any of its subsidiaries nor any of
the Acquired Companies has incurred any material liabilities or obligations,
direct or contingent, or entered into any material transactions, or declared or
paid any dividends or made any distribution of any kind with respect to its
capital stock; and there has not been any change in the capital stock (other
than a change in the number of outstanding shares of Common Stock due to the
issuance of shares upon the exercise of outstanding options or warrants), or any
material change in the short-term or long-term debt, or any issuance of options,
warrants, convertible securities or other rights to purchase the capital stock,
of the Company, any of its subsidiaries or any of the Acquired Companies, or any
material adverse change, or any development involving a prospective material
adverse change, in the general affairs, condition (financial or otherwise),
business, key personnel, property, prospects, net worth or results of operations
of the Company, its subsidiaries and the Acquired Companies, taken as a whole.
(vii) Except as set forth in the Prospectus, there is not pending or,
to the knowledge of the Company, threatened or contemplated, any action, suit or
proceeding to which the Company, any of its subsidiaries or any of the Acquired
Companies is a party before or by any court or governmental agency, authority or
body, or any arbitrator, which might result in any material adverse change in
the condition (financial or otherwise), business, prospects, net worth or
results of operations of the Company and its subsidiaries and the Acquired
Companies, taken as a whole.
(viii) There are no contracts or documents of the Company, any of its
subsidiaries or any of the Acquired Companies that are required to be filed as
exhibits to the Registration Statement by the Act or by the Rules and
Regulations that have not been so filed.
(ix) This Agreement has been duly authorized, executed and delivered by
the Company, and constitutes a valid, legal and binding obligation of the
Company, enforceable in accordance with its terms, except as rights to indemnity
hereunder may be limited by federal or state securities laws and except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the rights of creditors generally and subject to general
principles of equity.
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The execution, delivery and performance of this Agreement and the consummation
of the transactions herein contemplated will not result in a breach or violation
of any of the terms and provisions of, or constitute a default under, any
statute, any agreement or instrument to which the Company, any subsidiary of the
Company or any of the Acquired Companies is a party or by which it or any such
subsidiary or any such Acquired Company is bound or to which any of its or any
such subsidiary's or any such Acquired Company's property is subject, the
Company's charter or by-laws, or any order, rule, regulation or decree of any
court or governmental agency or body having jurisdiction over the Company or any
such subsidiary or any such Acquired Company or any of its or any such
subsidiary's or any such Acquired Company's properties; no consent, approval,
authorization or order of, or filing with, any court or governmental agency or
body is required for the execution, delivery and performance of this Agreement
or for the consummation of the transactions contemplated hereby, including the
issuance or sale of the Securities by the Company or the Selling Stockholder,
except such as may be required under the Act or state securities or blue sky
laws; and the Company has full power and authority to enter into this Agreement
and to authorize, issue and sell the Securities as contemplated by this
Agreement.
(x) All of the issued and outstanding shares of capital stock of the
Company, including the outstanding shares of Common Stock, are duly authorized
and validly issued, fully paid and nonassessable, have been issued in compliance
with all federal and state securities laws, and were not issued in violation of
or subject to any preemptive rights or other rights to subscribe for or purchase
securities, and the holders thereof are not subject to personal liability by
reason of being such holders; the Securities which may be sold hereunder by the
Company have been duly authorized and, when issued, delivered and paid for in
accordance with the terms hereof, will have been validly issued and will be
fully paid and nonassessable, and the holders thereof will not be subject to
personal liability by reason of being such holders; and the capital stock of the
Company, including the Common Stock, conforms to the description thereof in the
Registration Statement and Prospectus. Except as otherwise stated in the
Registration Statement and Prospectus, there are no preemptive rights or other
rights to subscribe for or to purchase, or any restriction upon the voting or
transfer of, any shares of Common Stock pursuant to the Company's charter,
by-laws or any agreement or other instrument to which the Company is a party or
by which the Company is bound. Neither the filing of the Registration Statement
nor the offering or sale of the Securities as contemplated by this Agreement
gives rise to any rights for or relating to the registration of any shares of
Common Stock or other securities of the Company other than such rights as have
been duly waived. All of the issued and outstanding shares of capital stock of
each of the Company's subsidiaries have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as otherwise described
in the Registration Statement and Prospectus and except for any directors'
qualifying shares, the Company owns of record and beneficially, free and clear
of any security interests, claims, liens, proxies, equities or other
encumbrances, all of the issued and outstanding shares of such stock. Except as
described in the Registration Statement and the Prospectus, there are no
options, warrants, agreements, contracts or other rights in existence to
purchase or acquire from the Company or any subsidiary of the Company any shares
of the capital stock of the Company or any subsidiary of the Company. The
Company has an authorized and outstanding capitalization as set forth in the
Registration Statement and the Prospectus.
(xi) Each of the Company, its subsidiaries and the Acquired Companies
holds, and is operating in compliance in all material respects with, all
franchises, grants, authorizations, licenses, permits, easements, consents,
certificates (including, without limitation, certificates of need) and
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orders of any governmental or self-regulatory body required for the conduct of
its business and all such franchises, grants, authorizations, licenses, permits,
easements, consents, certificates and orders are valid and in full force and
effect; and each of the Company, its subsidiaries and the Acquired Companies are
in compliance in all material respects with all applicable federal, state, local
and foreign laws, regulations, orders and decrees.
(xii) The Company, its subsidiaries and the Acquired Companies have
good and marketable title to all property described in the Registration
Statement and Prospectus as being owned by them, in each case free and clear of
all liens, claims, security interests or other encumbrances except such as are
described in the Registration Statement and the Prospectus; the property held
under lease by the Company, its subsidiaries and the Acquired Companies is held
by them under valid, subsisting and enforceable leases with only such exceptions
with respect to any particular lease as do not interfere in any material respect
with the conduct of the business of the Company, its subsidiaries or the
Acquired Companies; each of the Company, its subsidiaries and the Acquired
Companies owns or possesses all patents, patent applications, trademarks,
service marks, tradenames, trademark registrations, service xxxx registrations,
copyrights, licenses, inventions, trade secrets and rights necessary for the
conduct of the business of the Company, its subsidiaries and the Acquired
Companies as currently carried on and as described in the Registration Statement
and Prospectus; except as stated in the Registration Statement and Prospectus,
no name which the Company, any of its subsidiaries or any of the Acquired
Companies uses and no other aspect of the business of the Company, any of its
subsidiaries or any of the Acquired Companies will involve or give rise to any
infringement of, or license or similar fees for, any patents, patent
applications, trademarks, service marks, tradenames, trademark registrations,
service xxxx registrations, copyrights, licenses, inventions, trade secrets or
other similar rights of others material to the business or prospects of the
Company, its subsidiaries and the Acquired Companies, taken as a whole, and
neither the Company nor any of its subsidiaries nor any of the Acquired
Companies has received any notice alleging any such infringement or fee.
(xiii) Neither the Company nor any of its subsidiaries nor any of the
Acquired Companies is in violation of its respective charter or by-laws or in
breach of or otherwise in default in the performance of any material obligation,
agreement or condition contained in any bond, debenture, note, indenture, loan
agreement or any other material contract, lease or other instrument to which it
is subject or by which any of them may be bound, or to which any of the material
property or assets of the Company, any of its subsidiaries or any of the
Acquired Companies are subject.
(xiv) The Company, its subsidiaries and the Acquired Companies have
filed all federal, state, local and foreign income and franchise tax returns
required to be filed and are not in default in the payment of any taxes which
were payable pursuant to said returns or any assessments with respect thereto,
other than any which the Company, any of its subsidiaries or any of the Acquired
Companies is contesting in good faith.
(xv) Each of the Company, its subsidiaries and the Acquired Companies
has timely filed all reports required to be filed in connection with federal
Medicare and applicable state Medicaid programs and due on or before the date
hereof, and all such required reports are true and complete in all material
respects; there are no claims, actions or appeals pending (and the Company, its
subsidiaries and the Acquired Companies have not filed anything that would
result in any claims, actions or appeals) before any commission, board or agency
with respect to any state or federal
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Medicare or Medicaid cost reports or claim filed by the Company, any of its
subsidiaries or any of the Acquired Companies on or before the date hereof, or
with respect to any disallowances by any intermediary, carrier, other insurer,
commission, board or agency in connection with any audit of any cost reports
that, if adversely determined, would have a material adverse effect on the
Company, its subsidiaries and the Acquired Companies, taken as a whole; no
validation review or program integrity review related to the Company, any of its
subsidiaries or the Acquired Companies has been conducted by any commission,
board or agency in connection with federal Medicare or state Medicaid programs,
and no such reviews are scheduled, pending or, to the Company's knowledge,
threatened against or affecting the Company, any of its subsidiaries or any of
the Acquired Companies; each of the Company, its subsidiaries and the Acquired
Companies has timely filed all material reports, data and other information
required by any other regulatory agency with authority to regulate the Company,
its subsidiaries, the Acquired Companies or the business of any of them in any
manner; and except as disclosed in the Registration Statement and Prospectus,
(i) each of the Company, its subsidiaries and the Acquired Companies is in
compliance in all material respects with all rules, regulations and requirements
of all regulatory agencies, except where such noncompliance would not have a
material adverse effect on the Company, its subsidiaries and the Acquired
Companies taken as a whole and (ii) the conduct of the business of each of the
Company, its subsidiaries and the Acquired Companies does not violate 42 U.S.C.
Section 1320a-7b (commonly known as the "Anti-Kickback Statute") or 42 U.S.C.
Section 1395nn (commonly known as the "Xxxxx Amendments"), including all
amendments thereto to the extent effective on the date hereof, unless any
noncompliance would not have a material adverse effect on the Company, its
subsidiaries and the Acquired Companies, taken as a whole.
(xvi) Each of the Company, its subsidiaries and the Acquired Companies
maintain reasonably adequate insurance.
(xvii) The Company has not distributed and will not distribute any
prospectus or other offering material in connection with the offering and sale
of the Securities other than any Preliminary Prospectus or the Prospectus or
other materials permitted by the Act to be distributed by the Company.
(xviii) The Securities have been conditionally approved for listing on
the Nasdaq National Market and, on the date the Registration Statement became or
becomes effective, the Company's Registration Statement on Form 8-A or other
applicable form under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), became or will become effective.
(xix) Other than the subsidiaries of the Company listed in Exhibit 21
to the Registration Statement, the Company owns no capital stock or other equity
or ownership or proprietary interest in any corporation, partnership,
association, trust or other entity.
(xx) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (a) transactions are executed
in accordance with management's general or specific authorization; (b)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (c) access to assets is permitted only in
accordance with management's general or specific authorization; and (d) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
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(xxi) Other than as contemplated by this Agreement, the Company has not
incurred any liability for any finder's or broker's fee or agent's commission in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby.
(xxii) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(xxiii) Neither the Company nor any of its affiliates is presently
doing business with the government of Cuba or with any person or affiliate
located in Cuba.
(b) The Selling Stockholder represents and warrants to, and agrees with,
the several Underwriters as follows:
(i) The Selling Stockholder is the record and beneficial owner of, and
has, and on the Second Closing Date will have, valid and marketable title to the
Securities to be sold by the Selling Stockholder, free and clear of all security
interests, claims, liens, restrictions on transferability, legends, proxies,
equities or other encumbrances; and upon delivery of and payment for such
Securities hereunder, the several Underwriters will acquire valid and marketable
title thereto, free and clear of any security interests, claims, liens,
restrictions on transferability, legends, proxies, equities or other
encumbrances. The Selling Stockholder is selling the Securities to be sold by
the Selling Stockholder for the Selling Stockholder's own account and is not
selling such Securities, directly or indirectly, for the benefit of the Company,
and no part of the proceeds of such sale received by such Selling Stockholder
will inure, either directly or indirectly, to the benefit of the Company other
than as described in the Registration Statement and Prospectus.
(ii) The Selling Stockholder has the power and authority to enter into
this Agreement and to sell, transfer and deliver the Securities to be sold by
the Selling Stockholder.
(iii) This Agreement has been duly authorized, executed and delivered
by the Selling Stockholder and constitutes a valid and binding agreement of such
Selling Stockholder, enforceable in accordance with its terms, except as rights
to indemnity hereunder or thereunder may be limited by federal or state
securities laws and except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or laws affecting the rights of creditors generally
and subject to general principles of equity. The execution and delivery of this
Agreement and the performance of the terms hereof and the consummation of the
transactions herein contemplated will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any agreement or
instrument to which the Selling Stockholder is a party or by which the Selling
Stockholder is bound, or any law, regulation, order or decree applicable to the
Selling Stockholder; no consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the execution,
delivery and performance of this Agreement or for the consummation of the
transactions contemplated hereby, including the sale of the Securities being
sold by the Selling Stockholder, except such as may be required under the Act or
state securities laws or blue sky laws.
(iv) The Selling Stockholder has not distributed and will not
distribute any prospectus or other offering material in connection with the
offering and sale of the Securities other than any Preliminary Prospectus or the
Prospectus or other materials permitted by the Act to be distributed by the
Selling Stockholder.
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(c) Any certificate signed by any officer of the Company and delivered
to you or to counsel for the Underwriters shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered thereby;
and any certificate signed by or on behalf of the Selling Stockholder as such
and delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty by such Selling Stockholder to each Underwriter as
to the matters covered thereby.
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3. Purchase, Sale and Delivery of Securities.
(a) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company agrees to issue and sell _____Firm Shares to the several Underwriters,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto. The purchase price for each Firm Share shall
be $_____ per share. The obligation of each Underwriter to the Company shall be
to purchase from the Company that number of Firm Shares (to be adjusted by the
Representatives to avoid fractional shares) which represents the same proportion
of the number of Firm Shares to be sold by the Company pursuant to this
Agreement as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto represents to the total number of Firm Shares
to be purchased by all Underwriters pursuant to this Agreement. In making this
Agreement, each Underwriter is contracting severally and not jointly; except as
provided in paragraph (c) of this Section 3 and in Section 8 hereof, the
agreement of each Underwriter is to purchase only the respective number of Firm
Shares specified in Schedule I.
The Firm Shares will be delivered by the Company to you for the
accounts of the several Underwriters against payment of the purchase price
therefor in immediately available funds to the Company and the Custodian, as
appropriate, at the offices of Xxxxx Xxxxxxx Inc., Xxxxx Xxxxxxx Tower, 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, or such other location as may be
mutually acceptable, at 9:00 a.m. Central time on the third (or if the
Securities are priced, as contemplated by Rule 15c6-1(c) under the Exchange Act,
after 4:30 p.m. Eastern time, the fourth) full business day following the date
hereof, or at such other time and date as you and the Company determine pursuant
to Rule 15c6-1(a) under the Exchange Act, such time and date of delivery being
herein referred to as the "First Closing Date." If the Representatives so elect,
delivery of the Firm Shares may be made by credit through full fast transfer to
the accounts at The Depository Trust Company designated by the Representatives.
Certificates representing the Firm Shares, in definitive form and in such
denominations and registered in such names as you may request upon at least two
business days' prior notice to the Company, will be made available for checking
and packaging not later than 10:30 a.m., Central time, on the business day next
preceding the First Closing Date at the offices of Xxxxx Xxxxxxx Inc., Xxxxx
Xxxxxxx Tower, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, or such other
location as may be mutually acceptable.
(b) On the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set forth, the
Company, with respect to ________ of the Option Shares, and the Selling
Stockholder, with respect to 150,000 of the Option Shares, hereby grant to the
several Underwriters an option to purchase all or any portion of the Option
Shares at the same purchase price as the Firm Shares, for use solely in covering
any over-allotments made by the Underwriters in the sale and distribution of the
Firm Shares. The option granted hereunder may be exercised at any time (but not
more than once) within 30 days after the effective date of this Agreement upon
notice (confirmed in writing) by the Representatives to the Company and to the
Selling Stockholder setting forth the aggregate number of Option Shares as to
which the several Underwriters are exercising the option, the names and
denominations in which the certificates for the Option Shares are to be
registered and the date and time, as determined by you, when the Option Shares
are to be delivered, such time and date being herein referred to as the "Second
Closing" and "Second Closing Date," respectively; provided, however, that the
Second Closing Date shall not be
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earlier than the First Closing Date nor earlier than the second business day
after the date on which the option shall have been exercised. If the
Underwriters exercise the option, the first 150,000 Option Shares will be
purchased from the Selling Stockholder and the remainder of the Option Shares,
if any are to be purchased, will be purchased from the Company. If the option is
exercised, each Underwriter shall purchase from the Selling Stockholder that
number of Option Shares (to be adjusted by the Representatives to avoid
fractional shares) which represents the same proportion to the number of Option
Shares to be purchased from the Selling Stockholder as the number of Firm Shares
to be purchased by each Underwriter represents to the total number of Firm
Shares to be purchased by all of the Underwriters pursuant to this Agreement,
and, to the extent that the Underwriters exercise the option to purchase more
than 150,000 Option Shares, each Underwriter shall purchase from the Company
that number of Option Shares (to be adjusted by the Representatives to avoid
fractional shares) which represents the same proportion to the number of Option
Shares to be purchased from the Company as the number of Firm Shares to be
purchased by each Underwriter represents to the total number of Firm Shares to
be purchased by all of the Underwriters pursuant to this Agreement. No Option
Shares shall be sold and delivered unless the Firm Shares previously have been,
or simultaneously are, sold and delivered.
The Option Shares will be delivered by the Selling Stockholder and
the Company, as appropriate, to you for the accounts of the several Underwriters
against payment of the purchase price therefor in immediately available funds to
the Selling Stockholder or the Company, as appropriate, at the offices of Xxxxx
Xxxxxxx Inc., Xxxxx Xxxxxxx Tower, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx, or such other location as may be mutually acceptable at 9:00 a.m.,
Central time, on the Second Closing Date. If the Representatives so elect,
delivery of the Option Shares may be made by credit through full fast transfer
to the accounts at The Depository Trust Company designated by the
Representatives. Certificates representing the Option Shares in definitive form
and in such denominations and registered in such names as you have set forth in
your notice of option exercise, will be made available for checking and
packaging not later than 10:30 a.m., Central time, on the business day next
preceding the Second Closing Date at the office of Xxxxx Xxxxxxx Inc., Xxxxx
Xxxxxxx Tower, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, or such other
location as may be mutually acceptable.
(c) It is understood that you, individually and not as Representatives of
the several Underwriters, may (but shall not be obligated to) make payment to
the Company or the Selling Stockholders, on behalf of any Underwriter for the
Securities to be purchased by such Underwriter. Any such payment by you shall
not relieve any such Underwriter of any of its obligations hereunder. Nothing
herein contained shall constitute any of the Underwriters an unincorporated
association or partner with the Company or the Selling Stockholder.
4. Covenants.
(a) The Company covenants and agrees with the several Underwriters as
follows:
(i) If the Registration Statement has not already been declared
effective by the Commission, the Company will use its best efforts to cause the
Registration Statement and any post-effective amendments thereto to become
effective as promptly as possible; the Company will notify you promptly of the
time when the Registration Statement or any post-effective amendment to the
Registration Statement has become effective or any supplement to the Prospectus
(including
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any term sheet within the meaning of Rule 434 of the Rules and Regulations) has
been filed and of any request by the Commission for any amendment or supplement
to the Registration Statement or Prospectus or additional information; if the
Company has elected to rely on Rule 430A of the Rules and Regulations, the
Company will prepare and file a Prospectus (or term sheet within the meaning of
Rule 434 of the Rules and Regulations) containing the information omitted
therefrom pursuant to Rule 430A of the Rules and Regulations with the Commission
within the time period required by, and otherwise in accordance with the
provisions of, Rules 424(b), 430A and 434, if applicable, of the Rules and
Regulations; if the Company has elected to rely upon Rule 462(b) of the Rules
and Regulations to increase the size of the offering registered under the Act,
the Company will prepare and file a registration statement with respect to such
increase with the Commission within the time period required by, and otherwise
in accordance with the provisions of, Rule 462(b); the Company will prepare and
file with the Commission, promptly upon your request, any amendments or
supplements to the Registration Statement or Prospectus (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations) that, in your
opinion, may be necessary or advisable in connection with the distribution of
the Securities by the Underwriters; and the Company will not file any amendment
or supplement to the Registration Statement or Prospectus (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations) to which you
shall reasonably object by notice to the Company after having been furnished a
copy a reasonable time prior to the filing.
(ii) The Company will advise you, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement, of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for any such
purpose; and the Company will promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such a stop order
should be issued.
(iii) Within the time during which a prospectus (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations) relating to
the Securities is required to be delivered under the Act, the Company will
comply with all requirements imposed upon it by the Act, as now and hereafter
amended, and by the Rules and Regulations, as from time to time in force, so far
as necessary to permit the continuance of sales of or dealings in the Securities
as contemplated by the provisions hereof and the Prospectus. If during such
period any event occurs as a result of which the Prospectus would include an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances then existing,
not misleading, or if during such period it is necessary to amend the
Registration Statement or supplement the Prospectus to comply with the Act, the
Company will promptly notify you and will amend the Registration Statement or
supplement the Prospectus (at the expense of the Company) so as to correct such
statement or omission or effect such compliance.
(iv) The Company will use its best efforts to qualify the Securities
for sale under the securities laws of such jurisdictions as you reasonably
designate and to continue such qualifications in effect so long as required for
the distribution of the Securities, except that the Company shall not be
required in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process in any state.
(v) The Company will furnish to the Underwriters copies of the
Registration Statement
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(five of which will be signed and will include all exhibits), each Preliminary
Prospectus, the Prospectus, and all amendments and supplements (including any
term sheet within the meaning of Rule 434 of the Rules and Regulations) to such
documents, in each case as soon as available and in such quantities as you may
from time to time reasonably request.
(vi) During a period of five years commencing with the date hereof,
the Company will (i) mail as soon as reasonably practicable after the end of
each fiscal year to the record holders of its Common Stock a financial report of
the Company and its subsidiaries on a consolidated basis, all such financial
reports to include a consolidated balance sheet, a consolidated statement of
operations, a consolidated statement of cash flows and a consolidated statement
of stockholders' equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year, certified by
independent certified public accountants, and (ii) mail and make generally
available as soon as practicable after the end of the first three quarters of
each fiscal year (beginning with the quarter ending September 30, 1997) to the
record holders of its Common Stock, unaudited consolidated summary financial
information of the Company and its subsidiaries for each such quarter in
reasonable detail.
(vii) During a period of five years commencing with the date hereof,
the Company will furnish to the Representatives, and to each Underwriter who may
so request in writing, copies of all periodic and special reports furnished to
the stockholders of the Company and all information, documents and reports filed
with the Commission, the National Association of Securities Dealers, Inc., the
Nasdaq National Market or any securities exchange.
(viii) The Company will make generally available to its security
holders as soon as practicable, but in any event not later than 15 months after
the end of the Company's current fiscal quarter, an earnings statement (which
need not be audited) covering a 12-month period beginning after the effective
date of the Registration Statement that shall satisfy the provisions of Section
11(a) of the Act and Rule 158 of the Rules and Regulations.
(ix) The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is prevented from becoming effective
under the provisions of Section 9(a) hereof or is terminated, will pay or cause
to be paid (A) all expenses (including transfer taxes allocated to the
respective transferees) incurred in connection with the delivery to the
Underwriters of the Securities, (B) all expenses and fees (including, without
limitation, fees and expenses of the Company's accountants and counsel but,
except as otherwise provided below, not including fees of the Underwriters'
counsel) in connection with the preparation, printing, filing, delivery, and
shipping of the Registration Statement (including the financial statements
therein and all amendments, schedules, and exhibits thereto), the Securities,
each Preliminary Prospectus, the Prospectus, and any amendment thereof or
supplement thereto, and the printing, delivery, and shipping of this Agreement
and other underwriting documents, including blue sky memoranda, (C) all filing
fees and fees and disbursements of the Underwriters' counsel incurred in
connection with the qualification of the Securities for offering and sale by the
Underwriters or by dealers under the securities or blue sky laws of the states
and other jurisdictions which you shall designate in accordance with Section
4(a)(iv) hereof, (D) the fees and expenses of any transfer agent or registrar,
(E) the filing fees incident to any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Securities, (F)
listing fees, if any, and (G) all other costs and expenses incident to the
performance of its obligations hereunder that are not otherwise specifically
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provided for herein. If the sale of the Securities provided for herein is not
consummated by reason of action by the Company pursuant to Section 9(a) hereof
which prevents this Agreement from becoming effective, or by reason of any
failure, refusal or inability on the part of the Company or the Selling
Stockholder to perform any agreement on its or his part to be performed, or
because any other condition of the Underwriters' obligations hereunder required
to be fulfilled by the Company or the Selling Stockholder is not fulfilled, the
Company will reimburse the several Underwriters for all out-of-pocket
disbursements (including fees and disbursements of counsel) incurred by the
Underwriters in connection with their investigation, preparing to market and
marketing the Securities or in contemplation of performing their obligations
hereunder. The Company shall not in any event be liable to any of the
Underwriters for loss of anticipated profits from the transactions covered by
this Agreement.
(x) The Company will apply the net proceeds from the sale of the
Securities to be sold by it hereunder for the purposes set forth in the
Prospectus and will file such reports with the Commission with respect to the
sale of the Securities and the application of the proceeds therefrom as may be
required in accordance with Rule 463 of the Rules and Regulations.
(xi) The Company will not, without the prior written consent of Xxxxx
Xxxxxxx Inc., offer for sale, sell, contract to sell, grant any option for the
sale of or otherwise issue or dispose of any Common Stock or any securities
convertible into or exchangeable for, or any options or rights to purchase or
acquire, Common Stock, except to the Underwriters pursuant to this Agreement and
under the Company's stock option plans that are described in the Prospectus, for
a period of 180 days after the commencement of the public offering of the
Securities by the Underwriters.
(xii) The Company has caused to be delivered to you a letter from
each of the Company's directors, officers and stockholders stating that such
person agrees that such person will not, without the prior written consent of
Xxxxx Xxxxxxx Inc., offer for sale, sell, contract to sell or otherwise dispose
of any shares of Common Stock or rights to purchase Common Stock, except to the
Underwriters pursuant to this Agreement, for a period of 180 days after
commencement of the public offering of the Securities by the Underwriters.
(xiii) The Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Securities, and has not effected any sales of Common Stock which are
required to be disclosed in response to Item 701 of Regulation S-K under the Act
which have not been so disclosed in the Registration Statement.
(xiv) The Company will not incur any liability for any finder's or
broker's fee or agent's commission in connection with the execution and delivery
of this Agreement or the consummation of the transactions contemplated hereby.
(xv) The Company will inform the Florida Department of Banking and
Finance at any time prior to the consummation of the distribution of the
Securities by the Underwriters if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba. Such
information will be provided within 90 days after the commencement thereof or
after a change occurs with respect to previously reported information.
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(xvi) The Company will use its best efforts to do and perform all
things required or necessary to be done and performed under this Agreement by
the Company prior to the First Closing Date or the Second Closing Date, as the
case may be, and to satisfy all conditions precedent to the delivery of the
Securities.
(b) The Selling Stockholder covenants and agrees with the several
Underwriters as follows:
(i) Except as otherwise agreed to by the Company and the Selling
Stockholder, the Selling Stockholder will pay all taxes, if any, on the transfer
and sale, respectively, of the Securities being sold by the Selling Stockholder,
the fees of the Selling Stockholder's counsel and the Selling Stockholder's
proportionate share (based upon the number of Securities being offered by such
Selling Stockholder pursuant to the Registration Statement) of all costs and
expenses (except for legal and accounting expenses and fees of the registrar and
transfer agent) incurred by the Company pursuant to the provisions of Section
4(a)(ix) of this Agreement; provided, however, that the Selling Stockholder
severally agrees to reimburse the Company for any reimbursement made by the
Company to the Underwriters pursuant to Section 4(a)(ix) hereof to the extent
such reimbursement resulted from the failure or refusal on the part of the
Selling Stockholder to comply under the terms or fulfill any of the conditions
of this Agreement.
(ii) If this Agreement shall be terminated by the Underwriters
because of any failure, refusal or inability on the part of the Selling
Stockholder to perform any agreement on the Selling Stockholder's part to be
performed, or because any other condition of the Underwriters' obligations
hereunder required to be fulfilled by the Selling Stockholder is not fulfilled,
the Selling Stockholder agrees to reimburse the several Underwriters for the
Selling Stockholder's proportionate share of out-of-pocket disbursements
(including fees and disbursements of counsel for the Underwriters) incurred by
the Underwriters in connection with their investigation, preparing to market and
marketing the Securities or in contemplation of performing their obligations
hereunder. The Selling Stockholder shall not in any event be liable to any of
the Underwriters for loss of anticipated profits from the transactions covered
by this Agreement.
(iii) The Securities to be sold by the Selling Stockholder are
subject to the interest of the several Underwriters; and the obligations of the
Selling Stockholder hereunder shall not be terminated, except as provided in
this Agreement, by any act of the Selling Stockholder, by operation of law, by
the death of the Selling Stockholder, or by the occurrence of any other event.
(iv) The Selling Stockholder will not, without your prior written
consent, offer for sale, sell, contract to sell, grant any option for the sale
of or otherwise dispose of any Common Stock or any securities convertible into
or exchangeable for, or any options or rights to purchase or acquire, Common
Stock, except to the Underwriters pursuant to this Agreement, for a period of
180 days after the commencement of the public offering of the Securities by the
Underwriters.
(v) The Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or which might reasonably be
expected to cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities, and
has not effected any sales of Common Stock which, if effected by the Company,
would be required to be disclosed in response to Item 701 of Regulation S-K.
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(vi) The Selling Stockholder shall immediately notify you if any
event occurs, or of any change in information relating to the Selling
Stockholder or the Company or any new information relating to the Company or
relating to any matter stated in the Prospectus or any supplement thereto
(including any term sheet within the meaning of Rule 434 of the Rules and
Regulations), which results in the Prospectus (as supplemented) including an
untrue statement of a material fact or omitting to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
5. Conditions of Underwriters' Obligations. The obligations of the several
Underwriters hereunder are subject to the accuracy, as of the date hereof and at
each of the First Closing Date and the Second Closing Date (as if made at such
Closing Date), of and compliance with all representations, warranties and
agreements of the Company and the Selling Stockholder contained herein, to the
performance by the Company and the Selling Stockholder of their respective
obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective not later than
5:00 p.m., Central time, on the date of this Agreement, or such later time and
date as you, as Representatives of the several Underwriters, shall approve and
all filings required by Rules 424, 430A and 434 of the Rules and Regulations
shall have been timely made; no stop order suspending the effectiveness of the
Registration Statement or any amendment thereof shall have been issued; no
proceedings for the issuance of such an order shall have been initiated or
threatened; and any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or otherwise) shall
have been complied with to your satisfaction.
(b) No Underwriter shall have advised the Company that the Registration
Statement or the Prospectus, or any amendment thereof or supplement thereto
(including any term sheet within the meaning of Rule 434 of the Rules and
Regulations), contains an untrue statement of fact which, in your opinion, is
material, or omits to state a fact which, in your opinion, is material and is
required to be stated therein or necessary to make the statements therein not
misleading.
(c) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus, neither the Company nor any of its subsidiaries shall have
incurred any material liabilities or obligations, direct or contingent, or
entered into any material transactions, or declared or paid any dividends or
made any distribution of any kind with respect to its capital stock; and there
shall not have been any change in the capital stock (other than a change in the
number of outstanding shares of Common Stock due to the issuance of shares upon
the exercise of outstanding options or warrants), or any material change in the
short-term or long-term debt of the Company, or any issuance of options,
warrants, convertible securities or other rights to purchase the capital stock
of the Company or any of its subsidiaries, or any material adverse change or any
development involving a prospective material adverse change (whether or not
arising in the ordinary course of business), in the general affairs, condition
(financial or otherwise), business, key personnel, property, prospects, net
worth or results of operations of the Company and its subsidiaries, taken as a
whole, that, in your judgment, makes it impractical or inadvisable to offer or
deliver the Securities on the terms and in the manner contemplated in the
Prospectus.
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(d) On each Closing Date, there shall have been furnished to you, as
Representatives of the several Underwriters, the opinion of Xxxx Xxxxx & Xxxxxx,
counsel for the Company and the Selling Stockholder, dated such Closing Date and
addressed to you, to the effect that:
(i) Each of the Company and its subsidiaries has been duly organized
and is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation. Each of the Company and its subsidiaries has full
corporate power and authority to own its properties and conduct its business as
currently being carried on and as described in the Registration Statement and
Prospectus, and is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction in which it owns or leases real property
or in which the conduct of its business makes such qualification necessary and
in which the failure to so qualify would have a material adverse effect upon the
business, condition (financial or otherwise) or properties of the Company and
its subsidiaries, taken as a whole.
(ii) The merger of ProMedCo, Inc., a Texas corporation, with and into
the Company, with the Company as the surviving corporation, has become effective
under the laws of the States of Texas and Delaware.
(iii) The capital stock of the Company conforms as to legal matters
to the description thereof contained in the Prospectus under the caption
"Description of Capital Stock." All of the issued and outstanding shares of the
capital stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable, and the holders thereof are not subject to
personal liability by reason of being such holders. The Securities to be issued
and sold by the Company hereunder have been duly authorized and, when issued,
delivered and paid for in accordance with the terms of this Agreement, will have
been validly issued and will be fully paid and nonassessable, and the holders
thereof will not be subject to personal liability by reason of being such
holders. Except as otherwise stated in the Registration Statement and
Prospectus, there are no preemptive rights or other rights to subscribe for or
to purchase, or any restriction upon the voting or transfer of, any shares of
Common Stock pursuant to the Company's charter, by-laws or any agreement or
other instrument known to such counsel to which the Company is a party or by
which the Company is bound. To the best of such counsel's knowledge, neither the
filing of the Registration Statement nor the offering or sale of the Securities
as contemplated by this Agreement gives rise to any rights for or relating to
the registration of any shares of Common Stock or other securities of the
Company other than such rights as have been duly waived.
(iv) All of the issued and outstanding shares of capital stock of
each of the Company's subsidiaries have been duly and validly authorized and
issued and are fully paid and nonassessable, and, to the best of such counsel's
knowledge, except as otherwise described in the Registration Statement and
Prospectus, the Company owns of record and beneficially, free and clear of any
security interests, claims, liens, proxies, equities or other encumbrances, all
of the issued and outstanding shares of such stock. To the best of such
counsel's knowledge, except as described in the Registration Statement and
Prospectus, there are no options, warrants, agreements, contracts or other
rights in existence to purchase or acquire from the Company or any subsidiary
any shares of the capital stock of the Company or any subsidiary of the Company.
(v) The Registration Statement has become effective under the Act
and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement
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has been issued and no proceeding for that purpose has been instituted or, to
the knowledge of such counsel, threatened by the Commission.
(vi) The descriptions in the Registration Statement and Prospectus of
statutes, legal and governmental proceedings, contracts and other documents are
accurate and fairly present the information required to be shown; and such
counsel does not know of any statutes or legal or governmental proceedings
required to be described in the Prospectus that are not described as required,
or of any contracts or documents of a character required to be described in the
Registration Statement or Prospectus or included as exhibits to the Registration
Statement that are not described or included as required.
(vii) The Company has full corporate power and authority to enter
into this Agreement, and this Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid, legal and binding obligation
of the Company enforceable in accordance with its terms (except as rights to
indemnity hereunder may be limited by federal or state securities laws and
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally and
subject to general principles of equity); the execution, delivery and
performance of this Agreement and the consummation of the transactions herein
contemplated will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, rule or regulation,
any agreement or instrument known to such counsel to which the Company or any
subsidiary of the Company is a party or by which it or such subsidiary is bound
or to which any of its or such subsidiary's property is subject, the Company's
charter or by-laws, or any order or decree known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or such
subsidiary or any of its or such subsidiary's respective properties; and no
consent, approval, authorization or order of, or filing with, any court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement or for the consummation of the transactions
contemplated hereby, including the issuance or sale of the Securities by the
Company, except such as may be required under the Act or state securities laws.
(viii) To the best of such counsel's knowledge, each of the Company
and its subsidiaries holds, and is operating in compliance in all material
respects with, all franchises, grants, authorizations, licenses, permits,
easements, consents, certificates (including, without limitation, certificates
of need) and orders of any governmental or self-regulatory body required for the
conduct of its business and all such franchises, grants, authorizations,
licenses, permits, easements, consents, certifications and orders are valid and
in full force and effect.
(ix) To the best of such counsel's knowledge, neither the Company nor
any of its subsidiaries is in violation of its respective charter or by-laws. To
the best of such counsel's knowledge, neither the Company nor any of its
subsidiaries is in breach of or otherwise in default in the performance of any
material obligation, agreement or condition contained in any bond, debenture,
note, indenture, loan agreement or any other material contract, lease or other
instrument to which it is subject or by which it may be bound, or to which any
of the material property or assets of the Company or any of its subsidiaries are
subject.
(x) After due inquiry, such counsel does not know of any legal or
governmental proceeding pending or threatened to which the Company or any of its
subsidiaries is a party or to
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which any of their respective property or assets are subject which is required
to be described in the Registration Statement or Prospectus and is not so
described;
(xi) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended;
(xii) The Registration Statement and the Prospectus, and any
amendment thereof or supplement thereto (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations), comply as to form in all
material respects with the requirements of the Act and the Rules and
Regulations; and on the basis of conferences with officers of the Company,
examination of documents referred to in the Registration Statement and
Prospectus and such other procedures as such counsel deems appropriate, nothing
has come to the attention of such counsel that causes such counsel to believe
that the Registration Statement or any amendment thereof, at the time the
Registration Statement became effective and as of such Closing Date (including
any Registration Statement filed under Rule 462(b) of the Rules and
Regulations), contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (as of its date and as
of such Closing Date), as amended or supplemented, includes any untrue statement
of material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; it being understood that such counsel need express no opinion as
to the financial statements or other financial data included in any of the
documents mentioned in this clause.
(xiii) The Selling Stockholder is the sole record and beneficial
owner of the Securities to be sold by the Selling Stockholder and delivery of
the certificates for the Securities to be sold by the Selling Stockholder
pursuant to this Agreement, upon payment therefor by the Underwriters, will pass
marketable title to such Securities to the Underwriters and the Underwriters
will acquire all the rights of the Selling Stockholder in the Securities
(assuming the Underwriters have no knowledge of an adverse claim), free and
clear of any security interests, claims, liens or other encumbrances.
(xiv) The Selling Stockholder has the power and authority to enter
into this Agreement and to perform and discharge his obligations hereunder; and
this Agreement has been duly and validly authorized, executed and delivered by
the Selling Stockholder and is a valid and binding agreement of the Selling
Stockholder, enforceable in accordance with its terms (except as rights to
indemnity hereunder may be limited by federal or state securities laws and
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally and subject
to general principles of equity).
(xv) The execution and delivery of this Agreement and the performance
of the terms hereof and the consummation of the transactions herein contemplated
will not result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any statute, rule or regulation, or any agreement
or instrument known to such counsel to which the Selling Stockholder is a party
or by which the Selling Stockholder is bound or to which any of his property is
subject or any order or decree known to such counsel of any court or government
agency or body having jurisdiction over the Selling Stockholder or any of his
properties; and no consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required for the execution, delivery
and performance of this Agreement or for the consummation of the
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transactions contemplated hereby, including the sale of the Securities being
sold by the Selling Stockholder, except such as may be required under the Act or
state securities laws or blue sky laws.
(xvi) Such other matters as you may reasonably request.
In rendering such opinion such counsel may rely (i) as to matters
of law other than Delaware and federal law, upon the opinion or opinions of
local counsel reasonably satisfactory to the Representatives, and as to the
matters covered by clauses (i) and (ii), upon the opinion of Boult Xxxxxxxx
Xxxxxxx & Xxxxx PLC, provided that the extent of such reliance is specified in
such opinion and that such counsel shall state that such opinion or opinions are
satisfactory to them and that they believe they and you are justified in relying
thereon and (ii) as to matters of fact, to the extent such counsel deems
reasonable upon certificates of officers of the Company and its subsidiaries and
of the Selling Stockholder provided that the extent of such reliance is
specified in such opinion.
(e) On each Closing Date, there shall have been furnished to you, as
Representatives of the several Underwriters, such opinion or opinions from
Xxxxxx & Xxxxxx L.L.P., counsel for the several Underwriters, dated such Closing
Date and addressed to you, with respect to the formation of the Company, the
validity of the Securities, the Registration Statement, the Prospectus and other
related matters as you reasonably may request, and such counsel shall have
received such papers and information as they request to enable them to pass upon
such matters.
(f) On each Closing Date, you, as Representatives of the several
Underwriters, shall have received a letter of Xxxxxx Xxxxxxxx LLP, dated such
Closing Date and addressed to you, confirming that they are independent public
accountants within the meaning of the Act and are in compliance with the
applicable requirements relating to the qualifications of accountants under Rule
2-01 of Regulation S-X of the Commission, and stating, as of the date of such
letter (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date of such
letter), the conclusions and findings of said firm with respect to the financial
information and other matters covered by its letter delivered to you
concurrently with the execution of this Agreement, and the effect of the letter
so to be delivered on such Closing Date shall be to confirm the conclusions and
findings set forth in such prior letter.
(g) On each Closing Date, there shall have been furnished to you, as
Representatives of the Underwriters, a certificate, dated such Closing Date and
addressed to you, signed by the chief executive officer and by the chief
financial officer of the Company (or such other officers as are acceptable to
you), to the effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct as if made at and as of such Closing Date, and
the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to such Closing
Date;
(ii) No stop order or other order suspending the effectiveness of
the Registration Statement or any amendment thereof or the qualification of the
Securities for offering or sale has been issued, and no proceeding for that
purpose has been instituted or, to the best of their knowledge,
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is contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined the
Registration Statement and the Prospectus, and any amendments thereof or
supplements thereto (including any term sheet within the meaning of Rule 434 of
the Rules and Regulations), and (A) such documents contain all statements and
information required to be included therein, the Registration Statement, or any
amendment thereof, does not 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, does not include any untrue statement of material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, (B) since the
effective date of the Registration Statement, there has occurred no event
required to be set forth in an amended or supplemented prospectus which has not
been so set forth, (C) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, neither
the Company nor any of its subsidiaries has incurred any material liabilities or
obligations, direct or contingent, or entered into any material transactions,
not in the ordinary course of business, or declared or paid any dividends or
made any distribution of any kind with respect to its capital stock, and except
as disclosed in the Prospectus, there has not been any change in the capital
stock (other than a change in the number of outstanding shares of Common Stock
due to the issuance of shares upon the exercise of outstanding options or
warrants), or any material change in the short-term or long-term debt, or any
issuance of options, warrants, convertible securities or other rights to
purchase the capital stock, of the Company, or any of its subsidiaries, or any
material adverse change or any development involving a prospective material
adverse change (whether or not arising in the ordinary course of business), in
the general affairs, condition (financial or otherwise), business, key
personnel, property, prospects, net worth or results of operations of the
Company and its subsidiaries, taken as a whole, and (D) except as stated in the
Registration Statement and the Prospectus, there is not pending, or, to the
knowledge of the Company, threatened or contemplated, any action, suit or
proceeding to which the Company or any of its subsidiaries is a party before or
by any court or governmental agency, authority or body, or any arbitrator, which
might result in any material adverse change in the condition (financial or
otherwise), business, prospects or results of operations of the Company and its
subsidiaries, taken as a whole.
(h) On each Closing Date, there shall have been furnished to you, as
Representatives of the several Underwriters, a certificate or certificates,
dated such Closing Date and addressed to you, signed by the Selling Stockholder
or the Selling Stockholder's Attorney-in-Fact to the effect that the
representations and warranties of the Selling Stockholder contained in this
Agreement are true and correct as if made at and as of such Closing Date, and
that the Selling Stockholder has complied with all the agreements and satisfied
all the conditions on the Selling Stockholder's part to be performed or
satisfied at or prior to such Closing Date.
(i) The Company shall have furnished to you and counsel for the
Underwriters such additional documents, certificates and evidence as you or they
may have reasonably requested.
(j) The Common Stock shall have been approved for listing or
quotation on the Nasdaq National Market.
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All such opinions, certificates, letters and other documents will
be in compliance with the provisions hereof only if they are satisfactory in
form and substance to you and counsel for the Underwriters. The Company will
furnish you with such number of conformed copies of such opinions, certificates,
letters and other documents as you shall reasonably request.
6. Indemnification and Contribution.
(a) The Company and the Selling Stockholder, jointly and severally,
agree to indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise (including in settlement of any
litigation if such settlement is effected with the written consent of the
Company), insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
including the information deemed to be a part of the Registration Statement at
the time of effectiveness pursuant to Rules 430A and 434(d) of the Rules and
Regulations, if applicable, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto (including any term sheet within the meaning of
Rule 434 of the Rules and Regulations), or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by it in connection with investigating or defending against such loss,
claim, damage, liability or action; provided, however, that neither the Company
nor the Selling Stockholder shall be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, any Preliminary Prospectus, the Prospectus,
or any such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by you, or by any Underwriter
through you, specifically for use in the preparation thereof; and further
provided, however, that in no event shall the Selling Stockholder be liable
under the provisions of this Section 6 for any amount in excess of the aggregate
amount of proceeds that the Selling Stockholder received from the sale of the
Securities pursuant to this Agreement.
In addition to their other obligations under this Section 6(a),
the Company and the Selling Stockholder, jointly and severally, agree that, as
an interim measure during the pendency of any claim, action, investigation,
inquiry or other proceeding arising out of or based upon any statement or
omission, or any alleged statement or omission, described in this Section 6(a),
they will reimburse each Underwriter on a monthly basis for all reasonable legal
fees or other expenses incurred in connection with investigating or defending
any such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the Company's and/or the Selling Stockholder's obligation to
reimburse the Underwriters for such expenses and the possibility that such
payments might later be held to have been improper by a court of competent
jurisdiction. To the extent that any such interim reimbursement payment is so
held to have been improper, the Underwriter that received such payment shall
promptly return it to the party or parties that made such payment, together with
interest, compounded daily, determined on the basis of the prime rate (or other
commercial lending rate for borrowers of the highest credit standing) announced
from time to time by NationsBank of Texas, N.A. (the "Prime Rate"). Any such
interim reimbursement payments which are not made to an Underwriter within 30
days of a request for reimbursement shall bear interest at the Prime Rate
-23-
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from the date of such request. This indemnity agreement shall be in addition to
any liabilities which the Company or the Selling Stockholder may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Company and
the Selling Stockholder against any losses, claims, damages or liabilities to
which the Company and the Selling Stockholder may become subject, under the Act
or otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of such Underwriter), insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations), or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, any Preliminary Prospectus, the Prospectus, or
any such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by you, or by such Underwriter
through you, specifically for use in the preparation thereof, and will reimburse
the Company and the Selling Stockholder for any legal or other expenses
reasonably incurred by the Company or the Selling Stockholder in connection with
investigating or defending against any such loss, claim, damage, liability or
action.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
that it may have to any indemnified party. In case any such action shall be
brought against any indemnified party, and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of the indemnifying party's
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that if, in the sole judgment of the Representatives, it is advisable for the
Underwriters to be represented as a group by separate counsel, the
Representatives shall have the right to employ a single counsel to represent the
Representatives and all Underwriters who may be subject to liability arising
from any claim in respect of which indemnity may be sought by the Underwriters
under subsection (a) of this Section 6, in which event the reasonable fees and
expenses of such separate counsel shall be borne by the indemnifying party or
parties and reimbursed to the Underwriters as incurred (in accordance with the
provisions of the second paragraph in subsection (a) above). An indemnifying
party shall not be obligated under any settlement agreement relating to any
action under this Section 6 to which it has not agreed in writing.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims,
-24-
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damages or liabilities referred to in subsection (a) or (b) above, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholder on the one hand and the Underwriters on the
other 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 Company and the Selling Stockholder 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 Company and the Selling Stockholder on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company and Selling Stockholder bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Stockholder or the
Underwriters and the parties' relevant intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Company, the Selling Stockholder and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this subsection (d) were to be
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the first sentence
of this subsection (d). The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending against any action or claim which is the subject of this subsection
(d). Notwithstanding the provisions of this subsection (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and the Selling Stockholder under
this Section 6 shall be in addition to any liability which the Company and the
Selling Stockholder may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 6
shall be in addition to any liability that the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company (including any person who, with his consent, is named in
the Registration Statement as about to become a director of the Company), to
each officer of the Company who has signed the Registration Statement and to
each person, if any, who controls the Company or the Selling Stockholder within
the meaning of the Act.
7. Representations and Agreements to Survive Delivery. All
representations, warranties, and agreements of the Company and the Selling
Stockholder herein or in certificates delivered pursuant
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hereto, and the agreements of the several Underwriters, the Company and the
Selling Stockholder contained in Section 6 hereof, shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or any controlling person thereof, or the Company or any of its
officers, directors, or controlling persons, or the Selling Stockholder, and
shall survive delivery of, and payment for, the Securities to and by the
Underwriters hereunder.
8. Substitution of Underwriters.
(a) If any Underwriter or Underwriters shall fail to take up and pay for
the amount of Firm Shares agreed by such Underwriter or Underwriters to be
purchased hereunder, upon tender of such Firm Shares in accordance with the
terms hereof, and the amount of Firm Shares not purchased does not aggregate
more than 10% of the total amount of Firm Shares set forth in Schedule I hereto,
the remaining Underwriters shall be obligated to take up and pay for (in
proportion to their respective underwriting obligations hereunder as set forth
in Schedule I hereto except as may otherwise be determined by you) the Firm
Shares that the withdrawing or defaulting Underwriters agreed but failed to
purchase.
(b) If any Underwriter or Underwriters shall fail to take up and pay for
the amount of Firm Shares agreed by such Underwriter or Underwriters to be
purchased hereunder, upon tender of such Firm Shares in accordance with the
terms hereof, and the amount of Firm Shares not purchased aggregates more than
10% of the total amount of Firm Shares set forth in Schedule I hereto, and
arrangements satisfactory to you for the purchase of such Firm Shares by other
persons are not made within 36 hours thereafter, this Agreement shall terminate.
In the event of any such termination neither the Company nor the Selling
Stockholder shall be under any liability to any Underwriter (except to the
extent provided in Section 4(a)(ix), Section 4(b)(ii) and Section 6 hereof) nor
shall any Underwriter (other than an Underwriter who shall have failed,
otherwise than for some reason permitted under this Agreement, to purchase the
amount of Firm Shares agreed by such Underwriter to be purchased hereunder) be
under any liability to the Company or the Selling Stockholder (except to the
extent provided in Section 6 hereof).
If Firm Shares to which a default relates are to be purchased by the
non-defaulting Underwriters or by any other party or parties, the
Representatives or the Company shall have the right to postpone the First
Closing Date for not more than seven business days in order that the necessary
changes in the Registration Statement, Prospectus and any other documents, as
well as any other arrangements, may be effected. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 8.
9. Effective Date of this Agreement and Termination.
(a) This Agreement shall become effective at 10:00 a.m., Central time, on
the first full business day following the effective date of the Registration
Statement, or at such earlier time after the effective time of the Registration
Statement as you in your discretion shall first release the Securities for sale
to the public; provided, that if the Registration Statement is effective at the
time this Agreement is executed, this Agreement shall become effective at such
time as you in your discretion shall first release the Securities for sale to
the public. For the purpose of this Section, the Securities shall be deemed to
have been released for sale to the public upon release by you of the publication
of a newspaper advertisement relating thereto or upon release by you of telexes
offering
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the Securities for sale to securities dealers, whichever shall first occur. By
giving notice as hereinafter specified before the time this Agreement becomes
effective, you, as Representatives of the several Underwriters, or the Company
may prevent this Agreement from becoming effective without liability of any
party to any other party, except that the provisions of Section 4(a)(ix),
Section 4(b)(ii) and Section 6 hereof shall at all times be effective.
(b) You, as Representatives of the several Underwriters, shall have
the right to terminate this Agreement by giving notice as hereinafter specified
at any time at or prior to the First Closing Date, and the option referred to in
Section 3(b), if exercised, may be cancelled at any time prior to the Second
Closing Date, if (i) the Company shall have failed, refused or been unable, at
or prior to such Closing Date, to perform any agreement on its part to be
performed hereunder, (ii) any other condition of the Underwriters' obligations
hereunder is not fulfilled, (iii) trading on the New York Stock Exchange or the
American Stock Exchange shall have been wholly suspended, (iv) minimum or
maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required, on the New York Stock Exchange or the
American Stock Exchange, by such Exchange or by order of the Commission or any
other governmental authority having jurisdiction, (v) a banking moratorium shall
have been declared by Federal, New York or Texas authorities, or (vi) there has
occurred any material adverse change in the financial markets in the United
States or an outbreak of major hostilities (or an escalation thereof) in which
the United States is involved, a declaration of war by Congress, any other
substantial national or international calamity or any other event or occurrence
of a similar character shall have occurred since the execution of this Agreement
that, in your judgment, makes it impractical or inadvisable to proceed with the
completion of the sale of and payment for the Securities. Any such termination
shall be without liability of any party to any other party except that the
provisions of Section 4(a)(ix), Section 4(b)(ii) and Section 6 hereof shall at
all times be effective.
(c) If you elect to prevent this Agreement from becoming effective or
to terminate this Agreement as provided in this Section, the Company and the
Selling Stockholder shall be notified promptly by you by telephone or telegram,
confirmed by letter. If the Company elects to prevent this Agreement from
becoming effective, you and the Selling Stockholder shall be notified by the
Company by telephone or telegram, confirmed by letter.
10. Information Furnished by Underwriters. The statements set forth in
the last paragraph of the cover page and under the caption "Underwriting" in any
Preliminary Prospectus and in the Prospectus constitute the written information
furnished by or on behalf of the Underwriters referred to in Section 2 and
Section 6 hereof.
11. Notices. Except as otherwise provided herein, all communications
hereunder shall be in writing or by telegraph and, if to the Underwriters, shall
be mailed, telegraphed or delivered to the Representatives c/o Xxxxx Xxxxxxx
Inc., Xxxxx Xxxxxxx Tower, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
except that notices given to an Underwriter pursuant to Section 6 hereof shall
be sent to such Underwriter at the address stated in the Underwriters'
Questionnaire furnished by such Underwriter in connection with this offering; if
to the Company or the Selling Stockholder, shall be mailed, telegraphed or
delivered to it at ProMedCo Management Company, 000 Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxx Xxxxx, Xxxxx 00000, Attention: Mr. H. Xxxxx Xxxxx; or in each case to such
other address as the person to be notified may have requested in writing. All
notices given by telegram shall be promptly confirmed by letter. Any party to
this Agreement may change such address for
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notices by sending to the parties to this Agreement written notice of a new
address for such purpose.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns and the controlling persons, officers and directors
referred to in Section 6. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable remedy or claim under or in respect of this Agreement or any provision
herein contained. The term "successors and assigns" as herein used shall not
include any purchaser, as such purchaser, of any of the Securities from any of
the several Underwriters.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
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Please sign and return to the Company the enclosed duplicates
of this letter whereupon this letter will become a binding agreement between the
Company, the Selling Stockholder and the several Underwriters in accordance with
its terms.
Very truly yours,
PROMEDCO MANAGEMENT COMPANY
By___________________________________________
**[Title]
_____________________________________________
H. XXXXX XXXXX
Confirmed as of the date first
above mentioned, on behalf of
themselves and the other several
Underwriters named in Schedule II
hereto.
XXXXX XXXXXXX INC.
By_____________________________________
Managing Director
XXXXXXXXX XXXXXXXX & CO., LLP
By_____________________________________
Managing Director
XXXXX & COMPANY
By_____________________________________
Managing Director
30
SCHEDULE I
Underwriter Number of Firm Shares (1)
----------- -------------------------
Xxxxx Xxxxxxx Inc.
Xxxxxxxxx Xxxxxxxx & Co., LLP
Xxxxx & Company
---------------
Total. . . . . . . . . . . . . . . . . . .
===============
----------
(1) The Underwriters may purchase up to an additional ______ Option Shares,
to the extent the option described in Section 3(b) of the Agreement is
exercised, in the proportions and in the manner described in the
Agreement.
