EXHIBIT 1.1
VantageMed Corporation
Common Stock, per value $.001 per share
UNDERWRITING AGREEMENT
________ , 19__
ADVEST, INC.
X. X. XXXXXXXX & COMPANY
As Representative(s) (the "Representative(s)")
of the Several Underwriters
Named in SCHEDULE I hereto
c/o Advest, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Dear Sirs and Mesdames:
VantageMed Corporation, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
sell to the several Underwriters named in SCHEDULE I hereto (the
"Underwriters"), an aggregate of 3,000,000 shares (the "Firm Shares") of the
Company's common stock, par value $.001 per share (the "Common Stock").
In addition, in order to cover over-allotments in the sale
of the Firm Shares, the Underwriters may, at the Underwriters' election and
subject to the terms and conditions stated herein, purchase ratably in
proportion to the amounts set forth opposite their respective names in
SCHEDULE I hereto, up to 450,000 additional shares of Common Stock from the
Company (such additional shares of Common Stock, the "Optional Shares"). The
Firm Shares and the Optional Shares are referred to collectively as the
"Shares."
As part of the offering of 3,000,000 Firm Shares
contemplated by this Agreement, Advest, Inc. ("Advest") has agreed to reserve
out of the Firm Shares set forth opposite its name on SCHEDULE I hereto, up
to [ ] Shares, for sale to the Company's employees, officers and directors
and other parties associated with the Company (collectively, the
"Participants"), as set forth in the Prospectus in the section entitled
"Underwriting" (the "Directed Share Program"). The Shares to be sold by
Advest pursuant to the Directed Share Program (the "Directed Shares") will be
sold by Advest pursuant to this Agreement at the public offering price. Any
Directed Shares not orally confirmed for purchase by any Participants by the
end of the first business day after the date on which this Agreement is
executed will be offered to the public by Advest as set forth in the
Prospectus.
The Company intending to be legally bound, hereby confirms
its agreement with the Underwriters as follows:
Section 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-1 (File No. [ ])
with respect to the Shares, including a prospectus subject to completion, has
been filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), and
one or more amendments to such registration statement may have been so filed.
After the execution of this Agreement, the Company will file with the
Commission either (i) if such registration statement, as it may have been
amended, has become effective under the Act and information has been omitted
therefrom in accordance with Rule 430A under the Act, a prospectus in the
form most recently included in an amendment to such registration statement
(or, if no such amendment shall have been filed, in such registration
statement) with such changes or insertions as are required by Rule 430A or
permitted by Rule 424(b) under the Act and as have been provided to and
approved by the Representative(s), or (ii) if such registration statement, as
it may have been amended, has not become effective under the Act, an
amendment to such registration statement, including a form of prospectus, a
copy of which amendment has been provided to and approved by the
Representative(s) prior to the execution of this Agreement. As used in this
Agreement, the term "Registration Statement" means such registration
statement, as amended at the time when it was or is declared effective,
including (A) all financial statements, schedules and exhibits thereto, (B)
all documents (or portions thereof) incorporated by reference therein, and
(C) any information omitted therefrom pursuant to Rule 430A under the Act and
included in the Prospectus (as hereinafter defined); the term "Preliminary
Prospectus" means each prospectus subject to completion included in such
registration statement or any amendment or post-effective amendment thereto
(including the prospectus subject to completion, if any, included in the
Registration Statement at the time it was or is declared effective),
including all documents (or portions thereof) incorporated by reference
therein; and the term "Prospectus" means the prospectus first filed with the
Commission pursuant to Rule 424(b) under the Act or, if no prospectus is
required to be so filed, such term means the prospectus included in the
Registration Statement, in either case, including all documents (or portions
thereof) incorporated by reference therein. Any registration statement filed
by the Corporation pursuant to Rule 462(b) under the Securities Act is called
the "Rule 462(b) Registration Statement," and from and after the time of the
filing of the Rule 462(b) Registration Statement, the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. As used
herein, any reference to any statement or information as being "made,"
"included," "contained," "disclosed" or "set forth" in any Preliminary
Prospectus, a Prospectus or any amendment or supplement thereto, or the
Registration Statement or any amendment thereto (or other similar references)
shall refer both to information and statements actually appearing in such
document as well as information and statements incorporated by reference
therein.
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued and no proceeding for that purpose has
been instituted or threatened by the Commission or the securities authority
of any state or other jurisdiction. If the Registration
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Statement has become effective under the Act, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been
issued and no proceeding for that purpose has been instituted or threatened
or, to the knowledge of the Company, contemplated by the Commission or the
securities authority of any state or other jurisdiction.
(c) When any Preliminary Prospectus was filed with the
Commission it contained all statements required to be stated therein in
accordance with, and complied in all material respects with the requirements
of, the Act and the rules and regulations of the Commission thereunder. When
the Registration Statement or any amendment thereto was or is declared
effective, and at each Time of Delivery (as hereinafter defined), it (i)
contained and will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects with
the requirements of, the Act and the rules and regulations of the Commission
thereunder and (ii) did not and will not include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading. When the Prospectus or any amendment or
supplement thereto is filed with the Commission pursuant to Rule 424(b) (or,
if the Prospectus or such amendment or supplement is not required to be so
filed, when the Registration Statement or the amendment thereto containing
such amendment or supplement to the Prospectus was or is declared effective)
and at each Time of Delivery, the Prospectus, as amended or supplemented at
any such time, (i) contained and will contain all statements required to be
stated therein in accordance with, and complied or will comply in all
material respects with the requirements of, the Act and the rules and
regulations of the Commission thereunder and (ii) did not and will not
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The foregoing
provisions of this paragraph (c) do not apply to statements or omissions made
in the Registration Statement or any amendment thereto or the Prospectus or
any amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through you
specifically for use therein. It is understood that the statements set forth
in the Registration Statement or any amendment thereto or the Prospectus or
any amendment or supplement thereto (W) in the last paragraph of the cover
page of the Prospectus, (X) on the inside cover page with respect to
stabilization and passive market making, and (Y) in the third, ninth and
tenth paragraphs and the list of Underwriters under the section entitled
"Underwriting," constitute the only written information furnished to the
Company by or on behalf of any Underwriter through you specifically for use
in the Registration Statement or any amendment thereto or the Prospectus and
any amendment or supplement thereto, as the case may be.
(d) There are no legal or governmental proceedings pending
or threatened to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any subsidiary is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts
or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
(e) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of
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incorporation and has full power and authority (corporate and other) to own
or lease its properties and conduct its business as described in the
Prospectus. The Company has full power and authority (corporate and other) to
enter into this Agreement and to perform its obligations hereunder. Each of
the Company and its subsidiaries is duly qualified to transact business as a
foreign corporation and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business,
so as to require such qualification, except where the failure to so qualify
would not have a material adverse effect on the financial position, results
of operations or business of the Company and its subsidiaries taken as a
whole.
(f) The Company's authorized, issued and outstanding
capital stock is as disclosed in the Prospectus. All of the issued shares of
capital stock of the Company, have been duly authorized and validly issued,
are fully paid and nonassessable and conform to the descriptions of the
Common Stock contained in the Prospectus. None of the issued shares of
capital stock of the Company or any of its subsidiaries has been issued or is
owned or held in violation of any statutory (or to the knowledge of the
Company, any other) preemptive rights of shareholders, and no person or
entity (including any holder of outstanding shares of capital stock of the
Company or its subsidiaries) has any statutory (or to the knowledge of the
Company, any other) preemptive or other rights to subscribe for any of the
Shares. None of the capital stock of the Company has been issued in violation
of applicable federal or state securities laws.
(g) All of the issued shares of capital stock of each
subsidiary have been duly authorized and validly issued, are fully paid and
nonassessable and are owned beneficially by the Company or one of its
subsidiaries, free and clear of all liens, security interests, pledges,
charges, encumbrances, defects, shareholders' agreements, voting agreements,
proxies, voting trusts, equities or claims of any nature whatsoever. Other
than the subsidiaries listed on Exhibit 21 to the Registration Statement, the
Company does not own, directly or indirectly, any capital stock or other
equity securities of any other corporation or any ownership interest in any
partnership, joint venture or other association.
(h) Except as disclosed in the Prospectus, there are no
outstanding (i) securities or obligations of the Company or any of its
subsidiaries convertible into or exchangeable for any capital stock of the
Company or any of its subsidiaries, (ii) warrants, rights or options to
subscribe for or purchase from the Company or any of its subsidiaries any
such capital stock or any such convertible or exchangeable securities or
obligations or (iii) obligations of the Company or any of its subsidiaries to
issue any shares of capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or options.
(i) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) neither the
Company nor any of its subsidiaries has incurred any liabilities or
obligations, direct or contingent, or entered into any transactions, not in
the ordinary course of business, that are material to the Company and its
subsidiaries, (ii) the Company has not purchased any of its outstanding
capital stock or declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock, (iii) there has not been any
change in the capital stock, long-term debt or short-term debt of the Company
or any of its subsidiaries, and (iv) there has not been any material adverse
change, or any development involving a prospective material adverse change,
in or affecting the financial position, results of
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operations or business of the Company and its subsidiaries, in each case
other than as disclosed in or contemplated by the Prospectus.
(j) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to require
the Company to file a registration statement under the Act with respect to
any securities of the Company owned or to be owned by such person or,
requiring the Company to include such securities in the securities registered
pursuant to the Registration Statement (or any such right has been
effectively waived) or requiring the registration of any securities pursuant
to any other registration statement filed by the Company under the Act.
Neither the filing of the Registration Statement nor the offering or sale of
Shares as contemplated by this Agreement gives any security holder of the
Company any rights for or relating to the registration of any shares of
Common Stock or any other capital stock of the Company, except such as have
been satisfied or waived.
(k) Neither the Company nor any of its subsidiaries is, or
with the giving of notice or passage of time or both would be, in violation
of its Articles of Incorporation or Bylaws or in default under any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or to
which any of their respective properties or assets are subject.
(l) The Company and its subsidiaries have good and
marketable title in fee simple to all real property, if any, and good title
to all personal property owned by them, in each case free and clear of all
liens, security interests, pledges, charges, encumbrances, mortgages and
defects, except such as are disclosed in the Prospectus or such as would not
have a material adverse effect on the financial position, results of
operations or business of the Company and its subsidiaries taken as a whole
and do not interfere with the use made or proposed to be made of such
property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company or any of its subsidiaries are held
under valid, subsisting and enforceable leases, with such exceptions as are
disclosed in the Prospectus or are not material and do not interfere with the
use made or proposed to be made of such property and buildings by the Company
or any subsidiary.
(m) The Company does not require any consent, approval,
authorization, order or declaration of or from, or registration,
qualification or filing with, any court or governmental agency or body in
connection with the sale of the Shares or the consummation of the
transactions contemplated by this Agreement, except the registration of the
Shares under the Act (which, if the Registration Statement is not effective
as of the time of execution hereof, shall be obtained as provided in this
Agreement) and of the Common Stock under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and such as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") or under state
securities or blue sky laws in connection with the offer, sale and
distribution of the Shares by the Underwriters.
(n) Other than as disclosed in the Prospectus, there is no
litigation, arbitration, claim, proceeding (formal or informal) or
investigation pending or, to the Company's knowledge, threatened in which the
Company or any of its subsidiaries is a party or of which any of their
respective properties or assets are the subject which, if determined
adversely to the
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Company or any subsidiary, would individually or in the aggregate have a
material adverse effect on the financial position, results of operations or
business of the Company and its subsidiaries taken as a whole. Neither the
Company nor any subsidiary is in violation of, or in default with respect to,
any law, statute, rule, regulation, order, judgment or decree, except as
described in the Prospectus or such as do not and will not individually or in
the aggregate have a material adverse effect on the financial position,
results of operations or business of the Company and its subsidiaries taken
as a whole, and neither the Company nor any subsidiary is required to take
any action in order to avoid any such violation or default.
(o) Xxxxxx Xxxxxxxx LLP, which has certified certain
financial statements of the Company and its consolidated subsidiaries
included in the Registration Statement and the Prospectus, are independent
public accountants as required by the Act, the Exchange Act and the
respective rules and regulations of the Commission thereunder.
(p) The consolidated financial statements and schedules
(including the related notes) of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration
Statement, the Prospectus and/or any Preliminary Prospectus were prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved and fairly present the financial position and
results of operations of the Company and its subsidiaries, on a consolidated
basis, at the dates and for the periods presented. The selected financial
data set forth under the captions "Summary Consolidated Financial Data,"
"Selected Consolidated Financial Data" and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" in the Prospectus
fairly present, on the basis stated in the Prospectus, the information
included therein, and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration Statement. The
supporting notes and schedules included in the Registration Statement, the
Prospectus and/or any Preliminary Prospectus fairly state in all material
respects the information required to be stated therein in relation to the
financial statements taken as a whole. The unaudited interim consolidated
financial statements included or incorporated by reference in the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of Rule 10-01 of Regulation S-X under the
Act.
(q) This Agreement has been duly authorized, executed and
delivered by the Company and, assuming due execution by the Representative(s)
of the Underwriters, constitutes the valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
subject, as to enforcement, to applicable bankruptcy, insolvency,
reorganization and moratorium laws and other laws relating to or affecting
the enforcement of creditors' rights generally and to general equitable
principles and except as the enforceability of rights to indemnity and
contribution under this Agreement may be limited under applicable securities
laws or the public policy underlying such laws.
(r) The sale of the Shares and the performance of this
Agreement and the consummation of the transactions herein contemplated will
not (with or without the giving of notice or the passage of time or both) (i)
conflict with or violate any term or provision of the articles of
incorporation or bylaws or other organizational documents of the Company or
any subsidiary, (ii) result in a breach or violation of any of the terms or
provisions of, or constitute a
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default under, any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which the Company or any subsidiary is a
party or to which any of their respective properties or assets is subject,
(iii) conflict with or violate any law, statute, rule or regulation or any
order, judgment or decree of any court or governmental agency or body having
jurisdiction over the Company or any subsidiary or any of their respective
properties or assets or (iv) result in a breach, termination or lapse of the
corporate power and authority of the Company or any subsidiary to own or
lease and operate their respective assets and properties and conduct their
respective business as described in the Prospectus.
(s) When the Shares to be sold by the Company hereunder
have been duly delivered against payment therefor as contemplated by this
Agreement, the Shares will be validly issued, fully paid and nonassessable,
and the holders thereof will not be subject to personal liability solely by
reason of being such holders. The certificates representing the Shares are in
proper legal form under, and conform in all respects to the requirements of,
the laws of the State of Delaware and the requirements of The Nasdaq Stock
Market.
(t) The Company has not distributed and will not distribute
any offering material in connection with the offering and sale of the Shares
other than the Registration Statement, a Preliminary Prospectus, the
Prospectus and other material, if any, permitted by the Act.
(u) Neither the Company nor any of its officers, directors
or affiliates has (i) taken, directly or indirectly, any action designed to
cause or result in, or that has constituted or might reasonably be expected
to constitute, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Shares or (ii) since
the filing of the Registration Statement (A) sold, bid for, purchased or paid
anyone any compensation for soliciting purchases of, the Shares or (B) paid
or agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(v) The operations of the Company and its subsidiaries with
respect to any real property currently leased or owned or by any means
controlled by the Company or any subsidiary (the "Real Property") are in
compliance in all material respects with all federal, state, and local laws,
ordinances, rules, and regulations relating to occupational health and safety
and the environment (collectively, "Laws"), and the Company and its
subsidiaries have not violated any Laws in a way which would have a material
adverse effect on the financial position, results of operations or business
of the Company and its subsidiaries taken as a whole. Except as disclosed in
the Prospectus, there is no pending or, to the Company's knowledge,
threatened claim, litigation or any administrative agency proceeding, nor has
the Company or any subsidiary received any written or oral notice from any
governmental entity or third party, that: (i) alleges a violation of any Laws
by the Company or any subsidiary or (ii) alleges the Company or any
subsidiary is a liable party under the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Section 9601 ET SEQ. or any state
superfund law.
(w) Neither the Company nor any subsidiary owns or has the
right to use patents, patent applications, trademarks, trademark
applications, trade names, service marks, copyrights, franchises, trade
secrets, proprietary or other confidential information and intangible
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properties and assets (collectively, "Intangibles"), the loss of any of which
would have a material adverse effect on the financial position, results of
operations or business of the Company and its subsidiaries taken as a whole;
and, to the best knowledge of the Company, neither the Company nor any
subsidiary has infringed or is infringing, and neither the Company nor any
subsidiary has received notice of infringement with respect to, asserted
Intangibles of others.
(x) Each of the Company and its subsidiaries makes and
keeps accurate books and records reflecting its assets and maintains internal
accounting controls which provide reasonable assurance that (i) transactions
are executed in accordance with management's authorization, (ii) transactions
are recorded as necessary to permit preparation of the Company's consolidated
financial statements in accordance with generally accepted accounting
principles and to maintain accountability for the assets of the Company,
(iii) access to the assets of the Company and each of its subsidiaries is
permitted only in accordance with management's authorization, and (iv) the
recorded accountability for assets of the Company and each of its
subsidiaries is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(y) The Company and its subsidiaries have filed all
foreign, federal, state and local tax returns that are required to be filed
by them and have paid all taxes shown as due on such returns as well as all
other taxes, assessments and governmental charges that are due and payable;
and no material deficiency with respect to any such return has been assessed
or proposed.
(z) Except for such plans that are expressly disclosed in
the Prospectus, the Company and its subsidiaries do not maintain, contribute
to or have any material liability with respect to any employee benefit plan,
profit sharing plan, employee pension benefit plan, employee welfare benefit
plan, equity-based plan or deferred compensation plan or arrangement
("Plans") that are subject to the provisions of the Employee Retirement
Income Security Act of 1974, as amended, or the rules and regulations
thereunder ("ERISA"). All Plans are in compliance in all material respects
with all applicable laws, including but not limited to ERISA and the Internal
Revenue Code of 1986, as amended (the "Code"), and have been operated and
administered in all material respects in accordance with their terms. No Plan
is a defined benefit plan or multi employer plan. The Company does not
provide retiree life and/or retiree health benefits or coverage for any
employee or any beneficiary of any employee after such employee's termination
of employment, except as required by Section 4980B of the Code or under a
Plan which is intended to be "qualified" under Section 401(a) of the Code. No
material liability has been, or could reasonably be expected to be, incurred
under Title IV of ERISA or Section 412 of the Code by any entity required to
be aggregated with the Company or any of the Subsidiaries pursuant to Section
4001(b) of ERISA and/or Section 414(b) or (c) of the Code (and the
regulations promulgated thereunder) with respect to any "employee pension
benefit plan" which is not a Plan. As used in this subsection, the terms
"defined benefit plan," "employee benefit plan," "employee pension benefit
plan," "employee welfare benefit plan" and "multiemployer plan" shall have
the respective meanings assigned to such terms in Section 3 of ERISA.
(aa) No material labor dispute exists with the Company's or
any subsidiary's employees, and no such labor dispute is threatened. The
Company has no knowledge of any
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existing or threatened labor disturbance by the employees of any of its
principal agents, suppliers, contractors or customers that would have a
material adverse effect on the financial position, results of operations or
business of the Company and its subsidiaries taken as a whole.
(bb) The Company and its subsidiaries have received all
permits, licenses, franchises, authorizations, registrations, qualifications
and approvals (collectively, "Permits") of governmental or regulatory
authorities as may be required of them to own their properties and conduct
their businesses in the manner described in the Prospectus, subject to such
qualifications as may be set forth in the Prospectus; and the Company and its
subsidiaries have fulfilled and performed all of their material obligations
with respect to such Permits, and no event has occurred which allows or,
after notice or lapse of time or both, would allow revocation or termination
thereof or result in any other material impairment of the rights of the
holder of any such Permit, subject in each case to such qualification as may
be set forth in the Prospectus; and, except as described in the Prospectus,
such Permits contain no restrictions that materially affect the ability of
the Company and its subsidiaries to conduct their businesses.
(cc) The Company and each of its subsidiaries has filed, or
has had filed on its behalf, on a timely basis, all materials, reports,
documents and information, except where the failure to have timely filed such
materials, reports, documents and information would not have a material
adverse effect on the financial position, results of operations or business
of the Company and its subsidiaries taken as a whole.
(dd) Neither the Company, nor any subsidiary is an
"investment company" or a company "controlled" by an investment company as
such terms are defined in Sections 3(a) and 2(a)(9), respectively, of the
Investment Company Act of 1940, as amended (the "Investment Company Act"),
and, if the Company or any subsidiary conducts its business as set forth in
the Registration Statement and the Prospectus, will not become an "investment
company" and will not be required to register under the Investment Company
Act.
(ee) The Registration Statement, the Prospectus, the
Preliminary Prospectus and any amendment or supplement thereto comply with
any applicable laws or regulations of foreign jurisdictions in which the
Prospectus or Preliminary Prospectus, as amended or supplemented, are
distributed in connection with the Directed Share Program; and no
authorization, approval, consent, license, order, registration or
qualification of or with any government, governmental instrumentality or
court, other than such as have been obtained, is necessary under the
securities laws and regulations of foreign jurisdictions in which the
Directed Shares are offered outside the United States.
(ff) The Company has not offered, or caused the
Underwriters to offer, Shares to any person pursuant to the Directed Share
Program with the specific intent to unlawfully influence (i) a customer or
supplier of the Company to alter the customer's or supplier's level or type
of business with the Company, or (ii) a trade journalist or publication to
write or publish favorable information about the Company or its products.
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Section 2. PURCHASE AND SALE OF SHARES.
(a) Subject to the terms and conditions herein set forth,
the Company agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company,
at a purchase price of [ ] Dollars and [ ] cents ($[ ]) per share (the "Per
Share Price"), the number of Firm Shares (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying the aggregate number
of Firm Shares to be sold by the Company as set forth in the first paragraph
of this Agreement by a fraction, the numerator of which is the aggregate
number of Firm Shares to be purchased by such Underwriter as set forth
opposite the name of such Underwriter in SCHEDULE I hereto, and the
denominator of which is the aggregate number of Firm Shares to be purchased
by the several Underwriters hereunder.
(b) The Company hereby grants to the Underwriters the right
to purchase at their election in whole or in part from time to time up to [ ]
Optional Shares, at the Per Share Price, for the sole purpose of covering
over-allotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised by written notice from the Representative(s)
to the Company, given from time to time within a period of 30 calendar days
after the date of this Agreement and setting forth the aggregate number of
Optional Shares to be purchased and the date on which such Optional Shares
are to be delivered, as determined by you but in no event earlier than the
First Time of Delivery (as hereinafter defined) or, unless the
Representative(s) otherwise agree in writing, earlier than two or later than
ten business days after the date of such notice. In the event the
Underwriters elect to purchase all or a portion of the Optional Shares, the
Company agrees to furnish or cause to be furnished to the Representative(s)
the certificates, letters and opinions, and to satisfy all conditions, set
forth in Section 7 hereof at each Subsequent Time of Delivery (as hereinafter
defined).
(c) In making this Agreement, each Underwriter is
contracting severally, and not jointly, and except as provided in Section
2(b) and 9 hereof, the agreement of each Underwriter is to purchase only that
number of shares specified with respect to that Underwriter in SCHEDULE I
hereto. No Underwriter shall be under any obligation to purchase any Optional
Shares prior to an exercise of the option with respect to such Shares granted
pursuant to Section 2(b) hereof.
Section 3. OFFERING BY THE UNDERWRITERS. Upon the authorization by
the Representative(s) of the release of the Shares, the several Underwriters
propose to offer the Shares for sale upon the terms and conditions disclosed
in the Prospectus.
Section 4. DELIVERY OF SHARES; CLOSING. Certificates in definitive
form for the Shares to be purchased by each Underwriter hereunder, and in
such denominations and registered in such names as the Representative(s) may
request upon at least 48 hours' prior notice to the Company, shall be
delivered by or on behalf of the Company to the Representative(s) for the
account of such Underwriter, against payment by such Underwriter on its
behalf of the purchase price therefor by wire transfer of immediately
available funds to such accounts as the Company shall designate in writing.
The closing of the sale and purchase of the Shares shall be held at the
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offices of XxXxxxxxx, Will & Xxxxx, Boston, Massachusetts except that
physical delivery of such certificates shall be made at the office of The
Depository Trust Company, 00 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
The time and date of such delivery and payment shall be, with respect to the
Firm Shares, at 10:00 a.m., New York, New York time, on the third (3rd) full
business day after this Agreement is executed or at such other time and date
as the Representative(s) and the Company may agree upon in writing, and, with
respect to the Optional Shares, at 10:00 a.m., New York, New York time, on
the date specified by the Representative(s) in the written notice given by
the Representative(s) of the Underwriters' election to purchase all or part
of such Optional Shares, or at such other time and date as the
Representative(s) and the Company may agree upon in writing. Such time and
date for delivery of the Firm Shares is herein called the "First Time of
Delivery," such time and date for delivery of any Optional Shares, if not the
First Time of Delivery, is herein called a "Subsequent Time of Delivery," and
each such time and date for delivery is herein called a "Time of Delivery."
The Company will make such certificates available for checking and packaging
at least 24 hours prior to each Time of Delivery at the office of The
Depository Trust Company, 00 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or
at such other location specified by you in writing at least 48 hours prior to
such Time of Delivery.
Section 5. COVENANTS OF THE COMPANY. The Company covenants and
agrees with each of the Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective prior to the execution and delivery
of this Agreement, to become effective. If the Registration Statement has
been declared effective prior to the execution and delivery of this
Agreement, the Company will file the Prospectus with the Commission pursuant
to and in accordance with subparagraph (1) (or, if applicable and if
consented to by you, subparagraph (4)) of Rule 424(b) within the time period
required under Rule 424(b) under the Act. The Company will advise you
promptly of any such filing pursuant to Rule 424(b). The Company will file
timely all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act.
(b) The Company will not file with the Commission the
prospectus or the amendment referred to in Section 1(a) hereof, any amendment
or supplement to the Prospectus or any amendment to the Registration
Statement unless you have received a reasonable period of time to review any
such proposed amendment or supplement and consented to the filing thereof and
will use its best efforts to cause any such amendment to the Registration
Statement to be declared effective as promptly as possible. Upon the request
of the Representative(s) or counsel for the Underwriters, the Company will
promptly prepare and file with the Commission, in accordance with the rules
and regulations of the Commission, any amendments to the Registration
Statement or amendments or supplements to the Prospectus that may be
necessary or advisable in connection with the distribution of the Shares by
the several Underwriters and will use its best efforts to cause any such
amendment to the Registration Statement to be declared effective as promptly
as possible. If required, the Company will file any amendment or supplement
to the Prospectus with the Commission in the manner and within the time
period required by Rule 424(b) under the Act. The Company will advise the
Representative(s),
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promptly after receiving notice thereof, of the time when the Registration
Statement or any amendment thereto has been filed or declared effective or
the Prospectus or any amendment or supplement thereto has been filed and will
provide evidence to the Representative(s) of each such filing or
effectiveness.
(c) The Company will advise the Representative(s) promptly
after receiving notice or obtaining knowledge of (i) when any post-effective
amendment to the Registration Statement is filed with the Commission, (ii)
the receipt of any comments from the Commission concerning the Registration
Statement, (iii) when any post-effective amendment to the Registration
Statement becomes effective, or when any supplement to the Prospectus or any
amended Prospectus has been filed, (iv) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or any
part thereof or any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, (v) the
suspension of the qualification of the Shares for offer or sale in any
jurisdiction or of the initiation or threatening of any proceeding for any
such purpose, (vi) any request made by the Commission or any securities
authority of any other jurisdiction for amending the Registration Statement,
for amending or supplementing the Prospectus or for additional information.
The Company will use its best efforts to prevent the issuance of any such
stop order or suspension and, if any such stop order or suspension is issued,
to obtain the withdrawal thereof as promptly as possible.
(d) If the delivery of a prospectus relating to the Shares
is required under the Act at any time prior to the expiration of nine months
after the date of the Prospectus and if at such time any events have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if for any
reason it is necessary during such same period to amend or supplement the
Prospectus, the Company will promptly notify the Representative(s) and upon
their request (but at the Company's expense) prepare and file with the
Commission an amendment or supplement to the Prospectus that corrects such
statement or omission or effects such compliance and will furnish without
charge to each Underwriter and to any dealer in securities as many copies of
such amended or supplemented Prospectus as the Representative(s) may from
time to time reasonably request.
(e) The Company promptly from time to time will take such
action as the Representative(s) may reasonably request to qualify the Shares
for offering and sale under the securities or blue sky laws of such
jurisdictions as the Representative(s) may request and will continue such
qualifications in effect for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction. The Company will
file such statements and reports as may be required by the laws of each
jurisdiction in which the Shares have been qualified as above provided.
(f) The Company will promptly provide the
Representative(s), without charge, (i) three manually executed copies of the
Registration Statement as originally filed with the Commission and of each
amendment thereto, including all exhibits and all documents or
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information incorporated by reference therein, (ii) for each other
Underwriter, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto, without exhibits but including all
documents or information incorporated by reference therein and (iii) so long
as a prospectus relating to the Shares is required to be delivered under the
Act, as many copies of each Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto as the Representative(s) may reasonably
request.
(g) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its security holders an earnings statement of the Company and
its subsidiaries, if any, covering a period of at least 12 months beginning
after the effective date of the Registration Statement (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations thereunder. "Availability Date" means the forty-fifth (45th) day
after the end of the fourth fiscal quarter following the fiscal quarter in
which the Registration Statement went effective, except that if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the ninetieth (90th) day after the end of such
fourth fiscal quarter.
(h) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, the Company will not, and will cause its officers and directors
not to, without the prior written consent of Advest, Inc., as representative
of the Underwriters, directly or indirectly (i) offer, sell, contract to sell
or otherwise dispose of, any shares of Common Stock or securities convertible
into or exercisable or exchangeable for shares of Common Stock or (ii) enter
into any swap or other agreement or any transaction that transfers, in whole
or in part, the economic consequences of ownership of shares of Common Stock
whether any such swap or other agreement is to be settled by delivery of
shares of Common Stock, other securities, cash or otherwise; except for the
sale of the Shares hereunder and except for the issuance of Common Stock upon
the exercise of stock options or warrants or the conversion of convertible
securities outstanding on the date of this Agreement to the extent that such
stock options, warrants and convertible securities are disclosed in the
Prospectus or except for the grant to employees of stock options to purchase
Common Stock which are not exercisable within such 180 days.
(i) During the period of three years after the effective
date of the Registration Statement, the Company will furnish to the
Representative(s) and, upon request, to each of the other Underwriters,
without charge, (i) copies of all reports or other communications (financial
or other) furnished to shareholders and (ii) as soon as they are available,
copies of any reports and financial statements furnished to or filed with the
Commission, the NASD or any national securities exchange.
(j) Prior to the termination of the underwriting syndicate
contemplated by this Agreement, neither the Company nor any of its officers,
directors or affiliates will (i) take, directly or indirectly, any action
designed to cause or to result in, or that might reasonably be expected to
cause or result in, the stabilization or manipulation of the price of any
security of the Company or (ii) sell, bid for, purchase or pay anyone any
compensation for soliciting purchases of, the Shares.
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(k) In case of any event, at any time within the period
during which a prospectus is required to be delivered under the Act, as a
result of which any Preliminary Prospectus or the Prospectus, as then amended
or supplemented, would contain an untrue statement of a material fact, or
omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or, if it is necessary at any time to amend any Preliminary
Prospectus or the Prospectus to comply with the Act or any applicable
securities or blue sky laws, the Company promptly will prepare and file with
the Commission, and any applicable state securities commission, an amendment,
supplement or document that will correct such statement or omission or effect
such compliance and will furnish to the several Underwriters such number of
copies of such amendment(s), supplement(s) or document(s) as the
Representative(s) may reasonably request. For purposes of this subsection
(k), the Company will provide such information to the Representative(s), the
Underwriters' counsel and counsel to the Company as shall be necessary to
enable such persons to consult with the Company with respect to the need to
amend or supplement the Registration Statement, any Preliminary Prospectus or
the Prospectus or file any document, and shall furnish to the
Representative(s) and the Underwriters' counsel such further information as
each may from time to time reasonably request.
(l) The Company will use its best efforts to obtain, and
thereafter maintain, the qualification or listing of the shares of Common
Stock (including, without limitation, the Shares) on The Nasdaq National
Market.
(m) In connection with the Directed Share Program, the
Company will ensure that the Directed Shares will be restricted, to the
extent required by the NASD or the NASD rules and regulations, including but
not limited to, the "Free-Riding and Withholding" Interpretation[, from sale,
transfer, assignment, pledge or hypothecation for a period of three months
following the date of the effectiveness of the Registration Statement. Advest
will notify the Company as to which Participants will need to be so restricted.
At the request of Advest, the Company will direct the transfer agent to place
stop transfer restrictions upon such securities for such period of time.
(n) The Company will pay (i) all fees and disbursements
incurred by counsel for the Underwriters and (ii) all stamp duties, similar
taxes or duties or other taxes, if any, incurred by the Underwriters in
connection with the Directed Share Program.
Section 6. EXPENSES.
(a) The Company will pay all costs and expenses incident to
the performance of the obligations of the Company under this Agreement,
whether or not the transactions contemplated hereby are consummated or this
Agreement is terminated pursuant to Section 10 hereof, including, without
limitation, all costs and expenses incident to (i) the printing of and
mailing expenses associated with the Registration Statement, the Preliminary
Prospectus and the Prospectus and any amendments or supplements thereto, this
Agreement, the Agreement among Underwriters, the Underwriters' Questionnaire
submitted to each of the Underwriters by the Representative(s) in connection
herewith, the power of attorney executed by each of the Underwriters in favor
of Advest, Inc. in connection herewith, the Dealer Agreement and related
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documents (collectively, the "Underwriting Documents") and the preliminary
Blue Sky memorandum relating to the offering prepared by XxXxxxxxx, Will &
Xxxxx, counsel to the Underwriters (collectively with any supplement thereto,
the "Preliminary Blue Sky Memorandum"); (ii) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation and, if applicable, filing of the Registration Statement
(including all amendments thereto), any Preliminary Prospectus, the
Prospectus and any amendments and supplements thereto, the Underwriting
Documents and the Preliminary Blue Sky Memorandum; (iii) the delivery of
copies of the foregoing documents to the Underwriters; (iv) the filing fees
of the Commission and the NASD relating to the Shares; (v) the preparation,
issuance and delivery to the Underwriters of any certificates evidencing the
Shares, including transfer agent's and registrar's fees; (vi) the
qualification of the Shares for offering and sale under state securities and
blue sky laws, including filing fees and fees and disbursements of counsel
for the Underwriters (and local counsel therefor) relating thereto; (vii) any
listing of the Shares on The Nasdaq National Market; (viii) any expenses for
travel, lodging and meals incurred by the Company and any of its officers,
directors and employees in connection with any meetings with prospective
investors in the Shares; (ix) the costs of advertising the offering,
including, without limitation, with respect to the placement of "tombstone"
advertisements in publications selected by the Representative(s); (x) all
other costs and expenses reasonably incident to the performance of the
Company's obligations hereunder that are not otherwise specifically provided
for in this Section; and (xi) any fees and disbursements incurred by counsel
for the Underwriters and all stamp duties, similar taxes or duties or other
taxes, if any, incurred by the Underwriters in connection with the Directed
Share Program if the Issuer decides to reserve shares pursuant to such
program.
Section 7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters hereunder to purchase and pay for the Shares
to be delivered at each Time of Delivery shall be subject, in their
discretion, to the accuracy of the representations and warranties of the
Company, contained herein as of the date hereof and as of such Time of
Delivery, to the accuracy of the statements of the Company's officers made
pursuant to the provisions hereof, to the performance by the Company of its
covenants and agreements hereunder, and to the following additional
conditions precedent:
(a) If the registration statement as amended to date has
not become effective prior to the execution of this Agreement, such
registration statement shall have been declared effective not later than
11:00 a.m., Hartford, Connecticut time, on the date of this Agreement or such
later date and/or time as shall have been consented to by you in writing. If
required, the Prospectus and any amendment or supplement thereto shall have
been filed with the Commission pursuant to Rule 424(b) within the applicable
time period prescribed for such filing and in accordance with Section 5(a) of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted, threatened or, to
the knowledge of the Company and the Representative(s), contemplated by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to your reasonable satisfaction.
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(b) The Representative(s) shall have received a copy of an
executed lock-up agreement from the Company and each of the Company's
officers and directors and certain shareholders of Common Stock.
(c) You shall have received an opinion, dated such Time of
Delivery, of GrayCary Xxxx & Friedenrich LLP, counsel for the Company, in
form and substance satisfactory to you and your counsel, to the effect that:
(i) The Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
State of Delaware and has the corporate power and authority to own or lease
its properties and conduct its business as described in the Registration
Statement and the Prospectus and to enter into this Agreement and perform its
obligations hereunder. The Company is duly qualified to transact business as
a foreign corporation and is in good standing under the laws of each other
jurisdiction in which it owns or leases property, or conducts any business,
so as to require such qualification, except where the failure to so qualify
would not have a material adverse effect on the financial position, results
of operations or business of the Company and its subsidiaries taken as a
whole.
(ii) Each of the Company's "significant
subsidiaries" as defined in Regulation S-X (each a "Subsidiary" and
collectively the "Subsidiaries") is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation and has the
corporate power and authority to own or lease its properties and conduct its
business as described in the Registration Statement and the Prospectus. Each
Subsidiary is duly qualified to transact business as a foreign corporation
and is in good standing under the laws of each other jurisdiction in which it
owns or leases property, or conducts any business, so as to require such
qualification, except where the failure to so qualify would not have a
material adverse effect on the financial position, results of operations or
business of the Company and its subsidiaries taken as a whole.
(iii) The Company's authorized, issued and
outstanding capital stock is as disclosed in the Prospectus. All of the
issued shares of capital stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and conform to the
description of the Common Stock contained in the Prospectus. None of the
issued shares of Common Stock of the Company or capital stock of any of its
subsidiaries has been issued or is owned or held in violation of any
statutory (or, to the knowledge of such counsel, any other) preemptive rights
of shareholders, and no person or entity (including any holder of outstanding
shares of Common Stock of the Company or capital stock of its subsidiaries)
has any statutory (or, to the knowledge of such counsel, any other)
preemptive or other rights to subscribe for any of the Shares.
(iv) All of the issued shares of capital stock of
each of the Company's subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable, and, to such counsel's knowledge,
are owned beneficially by the Company or its subsidiaries, free and clear of
all liens, security interests, pledges, charges, encumbrances, shareholders'
agreements, voting agreements, proxies, voting trusts, defects, equities or
claims of any nature whatsoever (collectively, "Encumbrances"), including,
without limitation, any Encumbrance arising or
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resulting from any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement of or entered into by the Company or its subsidiaries. To
such counsel's knowledge, other than the subsidiaries listed on Exhibit 21 to
the Registration Statement, the Company does not own, directly or indirectly,
any capital stock or other equity securities of any other corporation or any
ownership interest in any partnership, joint venture or other association.
(v) Except as disclosed in the Prospectus, there
are, to such counsel's knowledge, no outstanding (A) securities or
obligations of the Company or any of its subsidiaries convertible into or
exchangeable for any capital stock of the Company or any subsidiary, (B)
warrants, rights or options to subscribe for or purchase from the Company or
any of its subsidiaries any such capital stock or any such convertible or
exchangeable securities or obligations or (C) obligations of the Company or
any of its subsidiaries to issue any shares of capital stock, any such
convertible or exchangeable securities or obligations, or any such warrants,
rights or options.
(vi) When the Shares to be sold by the Company
have been duly delivered against payment therefor as contemplated by this
Agreement, the Shares will be duly authorized, validly issued and fully paid
and nonassessable, the holders thereof will not be subject to personal
liability solely by reason of being such holders and the Shares will conform
to the description of the Common Stock contained in the Prospectus; the
certificates evidencing the Shares will comply with all applicable
requirements of Delaware law.
(vii) There are no contracts, agreements or
understandings known to such counsel between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company owned
or to be owned by such person or, requiring the Company to include such
securities in the securities registered pursuant to the Registration
Statement (or any such right has been effectively waived) or requiring the
registration of any securities pursuant to any other registration statement
filed by the Company under the Act.
(viii) To such counsel's knowledge, neither the
Company nor any of its subsidiaries is, or with the giving of notice or
passage of time or both, would be, in violation of its articles of
incorporation or bylaws, in each case as amended to date, or, in default in
any material respect under any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument known to such counsel to
which the Company or any of its subsidiaries is a party or to which any of
their respective properties or assets is subject.
(ix) The sale of the Shares being sold at such
Time of Delivery and the performance of this Agreement and the consummation
of the transactions herein contemplated will not conflict with or violate any
provision of the articles of incorporation or bylaws of the Company or any of
its subsidiaries, in each case as amended to date, or to such counsel's
knowledge, any existing law, statute, rule or regulation, or in any material
respect, conflict with, or (with or without the giving of notice or the
passage of time or both) result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument known
to such counsel to which the Company or any of its subsidiaries is a party or
to which any of their
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respective properties or assets is subject, or, conflict with or violate any
order, judgment or decree known to such counsel, of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets.
(x) To such counsel's knowledge, no consent,
approval, authorization, order or declaration of or from, or registration,
qualification or filing with, any court or governmental agency or body is
required for the sale of the Shares or the consummation of the transactions
contemplated by this Agreement, except such as have been or will have been
obtained and are or will be in effect, and except the registration of the
Shares under the Act, of Common Stock under the Exchange Act and such as may
be required by the NASD or under state securities or blue sky laws in
connection with the offer, sale and distribution of the Shares by the
Underwriters.
(xi) To such counsel's knowledge and other than as
disclosed in or contemplated by the Prospectus, there is no litigation,
arbitration, claim, proceeding (formal or informal) or investigation pending
or threatened, in which the Company or any of its subsidiaries is a party or
of which any of their respective properties or assets is the subject which,
if determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
financial position, results of operations or business of the Company and its
subsidiaries taken as a whole; and, to such counsel's knowledge, neither the
Company nor any of its subsidiaries is in violation of, or in default with
respect to, any law, statute, rule, regulation, order, judgment or decree,
except as described in the Prospectus or such as do not and will not
individually or in the aggregate have a material adverse effect on the
financial position, results of operations or business of the Company and its
subsidiaries taken as a whole, nor is the Company or any of its subsidiaries
required to take any action in order to avoid any such violation or default.
(xii) The statements in the Prospectus under
"Business -- Regulation," "Business -- Legal Proceedings," "Description of
Capital Stock" and "Shares Eligible for Future Sale" have been reviewed by
such counsel, and insofar as they refer to statements of law, descriptions of
statutes, licenses, rules or regulations, or legal conclusions, are correct
in all material respects.
(xiii) This Agreement has been duly authorized,
executed and delivered by the Company and, assuming due execution by the
Representative(s) of the Underwriters, constitutes the valid and binding
agreement of the Company against the Company in accordance with its terms,
subject, as to enforcement, to applicable bankruptcy, insolvency,
reorganization and moratorium laws and other laws relating to or affecting
the enforcement of creditors' rights generally and to general equitable
principles and except as the enforceability of rights to indemnity and
contribution under this Agreement may be limited under applicable securities
laws or the public policy underlying such laws.
(xiv) Neither the Company nor any of its
subsidiaries is an "investment company" or a company "controlled" by an
investment company as such terms are defined in Sections 3(a) and 2(a)(9),
respectively, of the Investment Company Act.
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(xv) To such counsel's knowledge, the Company and
its subsidiaries have received all permits, licenses, franchises,
authorizations, registrations, qualifications and approvals (collectively,
"permits") of governmental or regulatory authorities (including, without
limitation, state and/or other insurance regulatory authorities) as may be
required of them to own their properties and to conduct their businesses in
the manner described in the Prospectus, subject to such qualification as may
be set forth in the Prospectus; to such counsel's knowledge, the Company and
its subsidiaries have fulfilled and performed all of their material
obligations with respect to such permits and no event has occurred which
allows, or after notice or lapse of time or both would allow, revocation or
termination thereof or result in any other material impairment of the rights
of the holder of any such permits, subject in each case to such
qualifications as may be set forth in the Prospectus; and other than as
described in the Prospectus, such permits contain no restrictions that
materially affect the ability of the Company and its subsidiaries to conduct
their businesses.
(xvi) The Registration Statement and the
Prospectus and each amendment or supplement thereto (other than the financial
statements, the notes and schedules thereto and other financial data included
therein, to which such counsel need express no opinion), as of their
respective effective or issue dates, complied as to form in all material
respects with the requirements of the Act and the respective rules and
regulations thereunder. The descriptions in the Registration Statement and
the Prospectus of contracts and other documents are accurate and fairly
present the information required to be shown; and such counsel do not know of
any contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required.
Such counsel shall also state that they have participated
in the preparation of the Registration Statement and the Prospectus and in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company, and
representatives of and counsel to the Underwriters at which the contents of
the Registration Statement, the Prospectus and related matters were discussed
and, although such counsel has not passed upon or assumed any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, and although such counsel has not
undertaken to verify independently the accuracy or completeness of the
statements in the Registration Statement or the Prospectus, nothing has come
to such counsel's attention to lead them to believe that the Registration
Statement, or any further amendment thereto made prior to such Time of
Delivery, on its effective date and as of such Time of Delivery, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, not misleading, or that the Prospectus, or any amendment
or supplement thereto made prior to such Time of Delivery, as of its issue
date and as of such Time of Delivery, contained or contains any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (provided that such
counsel need express no belief regarding the financial statements, the notes
and schedules thereto and other financial data contained in the Registration
Statement, any amendment thereto, or the Prospectus, or any amendment or
supplement thereto).
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In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deem proper, on certificates of
officers of the Company, public officials and letters from officials of the
NASD. Copies of such certificates of officers of the Company and other
opinions shall be addressed and furnished to the Underwriters and furnished
to counsel for the Underwriters.
(d) XxXxxxxxx, Will & Xxxxx counsel for the Underwriters,
shall have furnished to you such opinion or opinions, dated such Time of
Delivery, with respect to the incorporation of the Company, the validity of
the Shares being delivered at such Time of Delivery, the Registration
Statement, the Prospectus, and other related matters as you may reasonably
request, and the Company shall have furnished to such counsel such documents
as they request for the purpose of enabling them to pass upon such matters.
(e) The Representative(s) shall have received, on each of
the date hereof and the Closing Date, as the case may be, in form and
substance satisfactory to the Representative(s), from Xxxxxx Xxxxxxxx LLP,
independent public accountants, a letter or letters, as the case may be,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to Underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and Prospectus; provided that the letter or letters, as the case
may be, delivered on the Closing Date shall use a "cut-off date" not earlier
than the date hereof.
(f) Since the date of the latest audited financial
statements included in the Prospectus, neither the Company nor any of the
Subsidiaries shall have sustained any change, or any development involving a
prospective change (including, without limitation, a change in management or
control of the Company), in or affecting the position (financial or
otherwise), results of operations, net worth or business prospects of the
Company and its subsidiaries, otherwise than as disclosed in or contemplated
by the Prospectus, the effect of which, in either such case, in your sole
judgment makes it impracticable or inadvisable to proceed with the purchase,
sale and delivery of the Shares being delivered at such Time of Delivery as
contemplated by the Registration Statement, as amended as of the date hereof.
(g) Subsequent to the date hereof, there shall not have
occurred any of the following: (i) any suspension or limitation in trading in
securities generally on the New York Stock Exchange, and/or the American
Stock Exchange or any setting of minimum prices for trading on such exchange,
or in the Common Stock of the Company by the Commission or The Nasdaq
National Market (ii) a moratorium on commercial banking activities in New
York, Delaware or Connecticut declared by either federal or state
authorities; or (iii) any outbreak or escalation of hostilities involving the
United States, declaration by the United States of a national emergency or
war or any other national or international calamity or emergency if the
effect of any such event specified in this clause (iii) in your sole judgment
makes it impracticable or inadvisable to proceed with the purchase, sale and
delivery of the Shares being delivered at such Time of Delivery as
contemplated by the Registration Statement, as amended as of the date hereof.
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(h) The Company shall have furnished to you at such Time of
Delivery certificates of the chief executive and chief financial officers of
the Company satisfactory to you, as to the accuracy of the respective
representations and warranties of the Company herein at and as of such Time
of Delivery with the same effect as if made at such Time of Delivery, as to
the performance by the Company of all of its respective obligations hereunder
to be performed at or prior to such Time of Delivery, and as to such other
matters as you may reasonably request, and the Company shall have furnished
or caused to be furnished certificates of such officers as to such matters as
you may reasonably request.
(i) The representations and warranties of the Company in
this Agreement and in the certificates delivered by the Company pursuant to
this Agreement shall be true and correct in all material respects when made
and on and as of each Time of Delivery as if made at such time, and the
Company shall have performed all covenants and agreements and satisfied all
conditions contained in this Agreement required to be performed or satisfied
by the Company at or before such Time of Delivery.
(j) The Shares shall continue to be listed on the The
Nasdaq National Market.
Section 8. INDEMNIFICATION AND CONTRIBUTION.
(a) (I) The Company agrees 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, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon: (i) any untrue statement
or alleged untrue statement made by the Company in Section 1 of this
Agreement; (ii) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, or (B) any application or other document, or amendment or
supplement thereto, executed by the Company or based upon written information
furnished by or on behalf of the Company filed in any jurisdiction in order
to qualify the Shares under the securities or blue sky laws thereof or filed
with the Commission or any securities association or securities exchange
(each an "Application"); or (iii) the omission of or alleged omission to
state in the Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, or any
Application of 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 such
Underwriter in connection with investigating, defending against or appearing
as a third-party witness in connection with any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the Company shall not 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 or any amendment thereto, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto or any Application in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through you expressly for use therein (which
information is solely as set forth in Section 1(c) hereof). The Company will
not, without the prior written consent of the Representative(s) of the
Underwriters, settle or compromise or
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consent to the entry of any judgment in any pending or threatened claim,
action, suit or proceeding (or related cause of action or portion thereof) in
respect of which indemnification may be sought hereunder (whether or not any
Underwriter is a party to such claim, action, suit or proceeding), unless
such settlement, compromise or consent includes an unconditional release of
each Underwriter from all liability arising out of such claim, action, suit
or proceeding (or related cause of action or portion thereof).
(II) The Company agrees to indemnify and hold harmless
Advest and each person, if any, who controls Advest within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act
("Advest Entities"), against any and all losses, claims, damages or
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim): (i) that arises out of or is based upon any untrue
statement or alleged untrue statement of any material fact contained in the
prospectus wrapper material prepared by or with the consent of the Company
for distribution in foreign jurisdictions in connection with the Directed
Share Program attached to the Prospectus or Preliminary Prospectus or any
amendment or supplement thereto or caused by any omission of or alleged
omission to state in the Prospectus or Preliminary Prospectus or any
amendment or supplement thereto, a material fact required to be stated
therein or necessary to make the statements therein not misleading; (ii)
caused by the failure of any Participant to pay for and accept delivery of
the Shares which, immediately following the effectiveness of the Registration
Statement, were subject to a properly confirmed agreement to purchase; or
(iii) related to, arising out of, or in connection with the Directed Share
Program, provided that the Company shall not be responsible under this
subsection 8(b) for any losses, claims, damages or liabilities (or expenses
relating thereto) that are finally judicially determined to have resulted
from the bad faith or gross negligence of Advest Entities.
(b) Each Underwriter, severally but not jointly, agrees to
indemnify and hold harmless the Company against any losses, claims, damages
or liabilities to which the Company may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or any Application 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 reliance upon and in conformity with
written information furnished to the Company by such Underwriter through you
expressly for use therein (which information is solely as set forth in
Section 1(c) hereof); and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating
or defending 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
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indemnifying party shall not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than under
such subsection (a) or (b). 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
therein 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 (who shall not, except with
the consent of the indemnified party, be counsel to the indemnifying party);
PROVIDED, HOWEVER, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses
available to it or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action on behalf
of such indemnified party and such indemnified party shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party. After such notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. Nothing in this Section 8(c) shall preclude an
indemnified party from participating at its own expense in the defense of any
such action so assumed by the indemnifying party. Notwithstanding anything
contained herein to the contrary, if indemnity may be sought pursuant to
Section 8(a)(II) hereof in respect of such action or proceeding, then in
addition to such separate firm for the indemnified parties, the indemnifying
party shall be liable for the reasonable fees and expenses of counsel for
Advest for the defense of any losses, claims, damages and liabilities arising
out of the Directed Share Program, and all persons, if any, who control
Advest within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act.
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Shares. If, however,
the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party
shall contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriters on the other hand shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting
-23-
discounts and commissions received by the Underwriters. 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 on the one hand or the Underwriters on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in 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 any such action or claim. 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 Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which 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 under this Section 8
shall be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each officer,
director and employee of the Underwriters and to each person, if any, who
controls any Underwriter within the meaning of the Act or the Exchange Act;
and the obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to each officer,
trustee and director of the Company and to each person, if any, who controls
the Company within the meaning of the Act or the Exchange Act.
Section 9. DEFAULT OF UNDERWRITERS.
(i) If any Underwriter defaults in its obligation
to purchase Shares at a Time of Delivery, you may in your discretion arrange
for you or another party or other parties to purchase such Shares on the
terms contained herein within thirty-six (36) hours after such default by any
Underwriter. In the event that, within the respective prescribed period, you
notify the Company that you have so arranged for the purchase of such Shares,
you shall have the right to postpone a Time of Delivery for a period of not
more than seven (7) days in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus that in your
opinion may thereby be made necessary. The cost of preparing, printing and
filing any such amendments shall be paid for by the Underwriters. The term
"Underwriter" as used in this Agreement shall
-24-
include any person substituted under this Section with like effect as if such
person had originally been a party to this Agreement with respect to such
Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you as
provided in subsection (a) above, if any, the aggregate number of such Shares
which remains unpurchased does not exceed one-eleventh (1/11) of the
aggregate number of Shares to be purchased at such Time of Delivery, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the number of Shares which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
number of Shares which such Underwriter agreed to purchase hereunder) of the
Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made.
Section 10. TERMINATION.
(a) This Agreement may be terminated in the sole discretion
of the Representative(s) by notice to the Company given prior to the First
Time of Delivery or any Subsequent Time of Delivery, respectively, in the
event that (i) any condition to the obligations of the Underwriters set forth
in Section 7 hereof has not been satisfied, or (ii) the Company shall have
failed, refused or been unable to deliver such party's respective Shares or
the Company shall have failed, refused or been unable to perform all
obligations and satisfy all conditions on their respective parts to be
performed or satisfied hereunder at or prior to such Time of Delivery, in
either case other than by reason of a default by any of the Underwriters. If
this Agreement is terminated pursuant to this Section 10(a), the Company will
reimburse the Underwriters severally upon demand for all out-of-pocket
expenses (including counsel fees and disbursements) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you as
provided in Section 9(a), the aggregate number of such Shares which remains
unpurchased exceeds one-eleventh (1/11) of the aggregate number of Shares to
be purchased at such Time of Delivery, then this Agreement (or, with respect
to a Subsequent Time of Delivery, the obligations of the Underwriters to
purchase and of the Company to sell the Optional Shares) shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or
the Company except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
Section 11. SURVIVAL. The respective indemnities, agreements,
representations, warranties and other statements of the Company, its officers
and the several Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain in
full force and effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any Underwriter or any
controlling person referred to in Section 8(e) or the Company, or any
officer, trustee or director or controlling person of the Company referred to
in Section 8(e), and shall survive delivery of and payment for
-25-
the Shares. The respective agreements, covenants, indemnities and other
statements set forth in Sections 6 and 8 hereof shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement.
Section 12. NOTICES. All communications hereunder shall be in
writing and, if sent to any of the Underwriters, shall be mailed, delivered
or telegraphed and confirmed in writing to you in care of Advest, Inc., 00
Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, XX 00000, Attention: Xxxxx Xxxxx (with a copy
to XxXxxxxxx, Will & Xxxxx, Attention: Xxxx X. Xxxxxx, Esq.; if to the
Company shall be sufficient in all respects if mailed, delivered or
telegraphed and confirmed in writing to Vantage Corporation, Attention: Xxxxx
Xxxxxx (with a copy to Xxxx Xxxx Xxxx & Freidenrich, Attention: Xxxxx Xxxxx,
Esq.
Section 13. BINDING EFFECT. This Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and to the
extent provided in Sections 8 and 10 hereof, the officers, trustees,
directors and employees and controlling persons referred to therein and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
Section 14. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to any provisions regarding conflicts of laws.
Section 15. COUNTERPARTS. This Agreement may be executed by any one
or more of the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us one of the counterparts hereof, and upon the
acceptance hereof by Advest, Inc., on behalf of each of the Underwriters,
this letter will constitute a binding agreement among the Underwriters, the
Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in the
Agreement among Underwriters, a copy of which shall be submitted to the
Company for examination, upon request, but without warranty on your part as
to the authority of the signers thereof.
Very truly yours,
VANTAGEMED CORPORATION
By:
------------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above at
Hartford, Connecticut.
ADVEST, INC.
X. X. XXXXXXXX & CO.
By: ADVEST, INC.
By:
------------------------------------
Name:
Title:
On behalf of each of the Underwriters
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SCHEDULE I
Number of Optional
Shares to be
Total Number Purchased if
of Firm Shares Maximum Option
Underwriter to be Purchased Exercised
----------- --------------- ---------
Advest, Inc.
X.X. Xxxxxxxx & Co.
