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EXHIBIT 1
AMSURG CORP.
3,700,000 SHARES OF CLASS A COMMON STOCK
UNDERWRITING AGREEMENT
_________ ___, 1998
X.X. XXXXXXXX & CO., L.L.C.
XXXXX XXXXXXX INC.
XXXXXX XXXXXX & COMPANY, INC.
As Representatives of the Several Underwriters
c/o X.X. Xxxxxxxx & Co.
X.X. Xxxxxxxx Financial Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
AmSurg Corp., a Tennessee corporation (the "Company"), proposes to
sell to the several underwriters named in Schedule I hereto (the
"Underwriters"), for whom you are acting as the representatives (the
"Representatives"), 3,700,000 shares (the "Firm Shares"), of the Class A Common
Stock, no par value per share (the "Class A Common Stock"), of the Company. The
Company proposes to grant to the Underwriters an option to purchase up to
555,000 additional shares of Class A Common Stock as provided for in Section 3
of this Agreement for the purpose of covering over-allotments (the "Option
Shares"). The Underwriters, severally and not jointly, are willing to purchase
the Firm Shares set forth opposite their respective names on Schedule I hereto
and their pro-rata share of the Option Shares in the event the Representatives
elect to exercise the over-allotment taken in whole or in part. The Firm Shares
and the Option Shares purchased pursuant to this Underwriting Agreement (the
"Agreement") are collectively referred to herein as the "Shares."
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission"), under the Securities Act of 1933, as
amended (the "Securities Act"), a registration statement on Form S-1
(Registration No. 333-50813), including the related preliminary
prospectus relating to the Shares, and has filed one or more amendments
thereto. Copies of such registration statement and any amendments,
including any post-effective amendments, and all forms of the related
prospectuses contained therein and any supplements thereto, have been
delivered to you. Such registration statement, including the
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prospectus, Part II, all financial schedules and exhibits thereto, all
information deemed to be a part of such registration statement pursuant
to Rule 430A under the Rules and Regulations (as hereinafter defined)
and any related registration statement filed pursuant to Rule 462(b)
under the Rules and Regulations, at the time when they became
effective, are herein referred to as the "Registration Statement," and
the prospectus included as part of the Registration Statement on file
with the Commission that discloses all the information that was omitted
from the prospectus pursuant to Rule 430A under the Rules and
Regulations on the date that the Registration Statement became
effective and in the form filed pursuant to Rule 424(b) Rules and
Regulations, is herein referred to as the "Final Prospectus." The
prospectus included as part of the Registration Statement on the date
when the Registration Statement became effective is referred to herein
as the "Effective Prospectus." Any prospectus included in the
Registration Statement and in any amendment thereto prior to the date
on which the Registration Statement became effective is referred to
herein as a "Preliminary Prospectus." For purposes of this Agreement,
"Rules and Regulations" means the rules and regulations promulgated by
the Commission under either the Securities Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as applicable.
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus and no proceeding for
that purpose has been instituted or threatened by the Commission or the
securities authority of any state or other jurisdiction. Each
Preliminary Prospectus, at the time of filing thereof, complied with
the requirements of the Securities Act and the Rules and Regulations,
and did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; except that the foregoing does
not apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through X.X. Xxxxxxxx & Co. ("Bradford") specifically for
use therein (it being understood that the only information so provided
is the information included in the last paragraph on the cover page and
in the third, fourth, fifth and eighth paragraphs under the caption
"Underwriting" in the Final Prospectus). When the Registration
Statement becomes effective and at all times subsequent thereto up to
and including the First Closing Date (as hereinafter defined), (i) the
Registration Statement, the Effective Prospectus and the Final
Prospectus and any amendments or supplements thereto will contain all
statements which are required to be stated therein in accordance with
the Securities Act and the Rules and Regulations and will comply with
the requirements of the Securities Act and the Rules and Regulations,
and (ii) neither the Registration Statement, the Effective Prospectus
nor the Final
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Prospectus nor any amendment or supplement thereto will include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; except that the foregoing does not apply to statements
or omissions made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through
Bradford specifically for use therein (it being understood that the
only information so provided is the information included in the last
paragraph on the cover page and in the third, fourth, fifth and eighth
paragraphs under the caption "Underwriting" in the Final Prospectus).
(c) The Company is duly organized and validly existing and in
good standing under the laws of the jurisdiction of its incorporation
or organization with full corporate power and corporate authority to
own its properties and conduct its business as now conducted and is
duly qualified or authorized to do business and is in good standing in
all jurisdictions wherein the nature of its business or the character
of property owned or leased may require it to be authorized or
qualified to do business, except where failure to obtain such
authorization or qualification would not have a material adverse effect
on the Company's condition (financial or otherwise). The Company holds
all licenses, consents and approvals, and has satisfied all eligibility
and other similar requirements imposed by federal, state and local
regulatory bodies, administrative agencies or other governmental
bodies, agencies or officials, in each case as material to the conduct
of the business in which it is engaged as set forth in the Effective
Prospectus.
(d) All of the consolidated corporations, partnerships
(including, without limitation, general and limited partnerships) and
limited liability companies in which the Company has a direct or
indirect ownership interest are listed in Exhibit 21 to the
Registration Statement (collectively, the "Subsidiaries"). Each
Subsidiary that is a corporation (a "Corporate Subsidiary") has been
duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, with
corporate power and corporate authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement. Each Corporate Subsidiary is duly qualified and in good
standing as a foreign corporation authorized to do business in each
other jurisdiction in which the nature of its business or its ownership
or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on
the Company's condition (financial or otherwise). All of the
outstanding shares of capital stock of each Corporate Subsidiary have
been duly authorized and validly issued, are fully paid and
non-assessable, were not issued in violation of or subject to any
preemptive or similar rights, and, except as set forth in the
Registration Statement, are owned by the Company directly, or
indirectly through one
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of the other Subsidiaries, free and clear of all security interests,
liens, encumbrances and equities and claims; and no options, warrants
or other rights to purchase, agreements or other obligations to issue
or other rights to convert any obligations into shares of capital stock
or ownership interests in any Corporate Subsidiary are outstanding.
(e) Each Subsidiary that is a partnership (a "Partnership")
has been duly organized, is validly existing as a partnership under the
laws of its jurisdiction of organization and has the partnership power
and partnership authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement.
Each Partnership is duly qualified as a foreign partnership authorized
to do business in each other jurisdiction in which the nature of its
business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not
have a material adverse effect on the Company's condition (financial or
otherwise). The initial capital contributions with respect to the
outstanding units of each Partnership have been made to the
Partnership. Except as set forth in Schedule 1(e), the general and
limited partnership interests therein held directly or indirectly by
the Company are owned free and clear of all security interests, liens,
encumbrances and equities and claims; and no options, warrants or other
rights to purchase, agreements or other obligations to issue or other
rights to convert any obligations into ownership interests in any
Partnership are outstanding. Each partnership agreement pursuant to
which the Company or a Subsidiary holds an interest in a Partnership is
in full force and effect and constitutes the legal, valid and binding
agreement of the parties thereto, enforceable against such parties in
accordance with the terms thereof, except as enforcement thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance or other
similar laws affecting the enforcement of creditors' rights generally.
There has been no material breach of or default under, and no event
which with notice or lapse of time would constitute a material breach
of or default under, such partnership agreements by the Company or any
Subsidiary or, to the Company's knowledge, any other party to such
agreements.
(f) Each Subsidiary that is a limited liability company (an
"LLC") has been duly organized, is validly existing as a limited
liability company under the laws of its jurisdiction of organization
and has the limited liability company power and limited liability
company authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement. Each
LLC is duly qualified as a foreign limited liability company authorized
to do business in each other jurisdiction in which the nature of its
business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not
have a material adverse effect on the Company's condition (financial or
otherwise). The initial capital contributions with respect to the
outstanding
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membership interests of each LLC have been made to the LLC. All
outstanding membership interests in the LLCs were issued and sold in
compliance with the applicable operating agreements of such LLCs and
all applicable federal and state securities laws, and, except as set
forth in Schedule 1(f), the membership interests therein held directly
or indirectly by the Company are owned free and clear of all security
interests, liens, encumbrances and equities and claims; and no options,
warrants or other rights to purchase, agreements or other obligations
to issue or other rights to convert any obligations into ownership
interests in any LLC are outstanding. Each operating agreement pursuant
to which the Company or a Subsidiary holds a membership interest in an
LLC is in full force and effect and constitutes the legal, valid and
binding agreement of the parties thereto, enforceable against such
parties in accordance with the terms thereof, except as enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent conveyance
or other similar laws affecting the enforcement of creditors' rights
generally. There has been no material breach of or default under, and
no event which with notice or lapse of time would constitute a material
breach of or default under, such operating agreements by the Company or
any Subsidiary or, to the Company's knowledge, any other party to such
agreements.
(g) Except to the extent disclosed in the Prospectus, each of
the centers described in the Prospectus as owned by the Company is
owned and operated by a Subsidiary in which the Company directly or
indirectly owns at least 51% of the outstanding ownership interests.
Except as disclosed in the Prospectus, there are no consensual
encumbrances or restrictions on the ability of any Subsidiary (i) to
pay any dividends or make any distributions on such Corporate
Subsidiary's capital stock, such Partnership's partnership interests or
such LLC's membership interests or to pay any indebtedness owed to the
Company or any other Subsidiary, (ii) to make any loans or advances to,
or investments in, the Company or any other Subsidiary, or (iii) to
transfer any of its property or assets to the Company or any other
Subsidiary.
(h) The capitalization of the Company as of March 31, 1998 is
as set forth under the caption "Capitalization" in the Effective
Prospectus and the Final Prospectus, and the Company's capital stock
conforms to the description thereof contained under the caption
"Description of Capital Stock" in the Effective Prospectus and the
Final Prospectus. All the issued shares of the Company's Class A Common
Stock have been duly authorized and validly issued, and are fully paid
and nonassessable. None of the issued shares of the Company's Class A
Common Stock have been issued in violation of any preemptive or similar
rights. The Shares have been duly and validly authorized and, upon
issuance and delivery and payment therefor in the manner herein
described, will be validly issued, fully paid and nonassessable. Except
as set forth in the Effective
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Prospectus and the Final Prospectus, (i) the Company does not have
outstanding any options to purchase, or any rights or warrants to
subscribe for, or any securities or obligations convertible into, or
any contracts or commitments to issue or sell, any shares of capital
stock, and (ii) there are no preemptive rights or other rights to
subscribe for or to purchase, or any restriction upon the transfer of,
any shares of capital stock pursuant to the Company's charter, bylaws
or any agreement or other instrument to which the Company is a party or
by which it may be bound. Neither the filing of the Registration
Statement nor the issuance, offer or sale of the Shares as contemplated
by this Agreement gives rise to any rights, other than those which have
been waived or satisfied, for or relating to the registration of any
shares of Common Stock or any other securities of the Company. The
Underwriters will receive good and marketable title to the Shares to be
issued and delivered hereunder, free and clear of all liens,
encumbrances, claims, security interests, restrictions, shareholders'
agreements, voting trusts or any other claims of third parties
whatsoever.
(i) All offers and sales by the Company of the Company's
securities prior to the date hereof were at all relevant times duly
registered or the subject of an available exemption from the
registration requirements of the Securities Act and were duly
registered or the subject of an available exemption from the
registration requirements of the applicable state securities or Blue
Sky laws, and any private placement memoranda delivered in connection
with offers and sales of the Company's securities prior to the date
hereof did not include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein not misleading.
(j) The Company has full legal right, power and authority to
enter into this Agreement and to sell and deliver the Shares to be sold
by it to the Underwriters as provided herein, and this Agreement has
been duly authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms. No consent, approval,
authorization or order of any court or governmental agency or body or
third party is required for the performance of this Agreement by the
Company or the consummation by the Company of the transactions
contemplated hereby, except such as have been obtained and such as may
be required by the National Association of Securities Dealers, Inc.
(the "NASD") or under the Securities Act or state securities or Blue
Sky laws in connection with the purchase and distribution of the Shares
by the Underwriters. The issuance and sale of the Shares by
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the Company, the Company's performance of this Agreement and the
consummation of the transactions contemplated hereby will not result in
a breach or violation of, or conflict with, any of the terms and
provisions of, or constitute a default by the Company under, any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Company is a party or to which the
Company or any of its properties is subject, the charter, bylaws or
other governing instruments of the Company or any statute or any
judgment, decree, order, rule or regulation of any court or
governmental agency or body applicable to the Company or any of its
properties. The Company is not in violation of its charter, bylaws or
any law, administrative rule or regulation or arbitrators' or
administrative court decree, judgment or order or in violation or
default (there being no existing state of facts which with notice or
lapse of time or both would constitute a default) in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, deed of trust, mortgage, loan
agreement, note, lease, agreement or other instrument or permit to
which it is a party or by which it or any of its properties is or may
be bound, other than violations and defaults which would not have a
material adverse effect on the business condition (financial or
otherwise) of the Company. To the best knowledge of the Company, no
other party under any such contract or other material instrument to
which the Company and the Subsidiaries are a party is in default in any
material respect thereunder.
(k) The historical consolidated financial statements, together
with the related schedules and notes, of the Company, included in the
Registration Statement, the Effective Prospectus and the Final
Prospectus, comply with the requirements of the Securities Act and the
Rules and Regulations. Such financial statements fairly present the
financial position of the Company at the respective dates indicated in
accordance with generally accepted accounting principles applied on a
consistent basis for the periods indicated. The financial and
statistical data set forth in the Effective Prospectus and the Final
Prospectus fairly present the information set forth therein on the
basis stated in the Effective Prospectus and the Final Prospectus.
Deloitte & Touche, LLP, whose reports are included in the Effective
Prospectus and the Final Prospectus, are independent accountants as
required by the Securities Act and the Rules and Regulations. The other
financial statements and schedules included in or as schedules to the
Registration Statement, the Effective Prospectus and the Final
Prospectus conform to the requirements of the Act and the Regulations
and present fairly the information presented therein for the periods
shown. The unaudited pro forma financial statements and notes thereto
are in conformity with generally accepted accounting principles and are
presented on the basis of appropriate and reasonable pro forma
adjustments. The accounts receivable of the Company and its
Subsidiaries have been and will continue to be adjusted to reflect
reimbursement policies of third party payors such as Medicare,
Medicaid, MediCal, Blue Cross/Blue Shield, private insurance companies,
health maintenance organizations, preferred provider organizations,
managed care systems and other third party payors. The accounts
receivable relating to such third party payors do not and shall not
exceed amounts the Company and its Subsidiaries are entitled to
receive, subject to adjustments to reflect reimbursement policies of
third party payors and normal discounts in the ordinary course of
business.
(l) Subsequent to December 31, 1997, the Company and the
Subsidiaries have not sustained any material loss or interference with
its business or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, which is not
disclosed in the Effective
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Prospectus and the Final Prospectus; and subsequent to the respective
dates as of which information is given in the Registration Statement,
the Effective Prospectus and the Final Prospectus, (i) the Company and
the Subsidiaries have not incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business, and (ii) there has
not been any issuance of options, warrants or rights to purchase
interests or the capital stock of the Company and the Subsidiaries, or
any material adverse change, or any development involving a prospective
material adverse change, in the general affairs, management, business,
prospects, financial position, net worth or results of operations of
the Company and the Subsidiaries, except in each case as described in
the Effective Prospectus and the Final Prospectus.
(m) Except as described in the Effective Prospectus and the
Final Prospectus, there is not pending, or to the knowledge of the
Company threatened, any legal or governmental action, suit, proceeding,
inquiry or investigation, to which the Company, the Subsidiaries or any
of the Company's officers or directors is a party, or to which its
property is subject, before or brought by any court or governmental
agency or body, wherein an unfavorable decision, ruling or finding
could prevent or materially hinder the consummation of this Agreement
or result in a material adverse change in the business condition
(financial or other), prospects, financial position, net worth or
results of operations of the Company.
(n) 4,255,000 additional shares of Class A Common Stock
have been approved for listing on the Nasdaq National Market (the
"Nasdaq National Market"), subject to official notice of issuance.
(o) Neither the Company nor any of its directors, officers or
controlling persons, has taken or will take, directly or indirectly,
any action resulting in a violation of Regulation M under the Exchange
Act, or designed to cause or result under the Exchange Act or otherwise
in, or which has constituted or which reasonably might be expected to
constitute, the stabilization or manipulation of the price of any
securities of the Company or facilitation of the sale or resale of the
Shares.
(p) There are no contracts or other documents required by the
Securities Act or by the Rules and Regulations to be described in the
Registration Statement, the Effective Prospectus or the Final
Prospectus or to be filed as exhibits to the Registration Statement
which have not been described or filed as required. All such contracts
to which the Company and the Subsidiaries are a party have been duly
authorized, executed and delivered by the Company and the Subsidiaries,
constitute valid and binding agreements of the Company and the
Subsidiaries and are enforceable against the Company and the
Subsidiaries in accordance with the terms thereof.
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Company and the Subsidiaries have performed all obligations required to
be performed by them, and are neither in default nor have they received
notice of any default or dispute under, any such contract or other
material instrument to which they are a party or by which their
property is bound or affected.
(q) Except as described in the Effective Prospectus and the
Final Prospectus, the Company and the Subsidiaries have good and
marketable title to all real and material personal property owned by
them, free and clear of all liens, charges, encumbrances or defects,
except those reflected in the financial statements hereinabove
described. The real and personal property and buildings referred to in
the Effective Prospectus and the Final Prospectus which are leased from
others by the Company and the Subsidiaries are held under valid,
subsisting enforceable leases. The Company and the Subsidiaries own or
lease all such properties as is necessary to the Company's operations
as now conducted.
(r) The Company's system of internal accounting controls is
sufficient to meet the broad objectives of internal accounting controls
insofar as those objectives pertain to the prevention or detection of
errors or irregularities in amounts that would be material in relation
to the Company's financial statements.
(s) The Company and the Subsidiaries have filed all foreign,
federal, state and local income and franchise tax returns required to
be filed through the date hereof (with the exception or any returns for
which valid extensions for the filing have been obtained) and have paid
all taxes shown as due thereon to the extent such taxes have become due
and are not being contested in good faith; and there is no tax
deficiency that has been, nor does the Company have knowledge of any
tax deficiency which is likely to be, asserted against the Company or
any of the Subsidiaries which, if determined adversely, could
materially and adversely affect the earnings, assets, affairs, business
prospects or condition (financial or other) of the Company.
(t) The Company and its Subsidiaries have operated and
currently operate their business in conformity with all applicable
laws, rules and regulations of each jurisdiction in which they conduct
business, except where the failure to so be in compliance would not
reasonably be expected to, individually or in the aggregate, have a
material adverse effect on the Company's condition (financial or
otherwise). The Company and each of the Subsidiaries and, to the
Company's knowledge, its affiliated physician practices hold all
material certificates, consents, exemptions, orders, licenses,
authorizations, accreditations, permits or other approvals or rights
from all governmental authorities, all self-regulatory organizations,
all governmental and private accrediting bodies and all courts and
other tribunals (collectively, "Permits") which are necessary to own
their properties and to conduct their businesses, including, without
limitation, such permits as are required (i) under such federal and
state healthcare laws as are applicable to the Company and its
Subsidiaries and (ii) with respect to those facilities operated by the
Company or any Subsidiary that participate in Medicare and/or Medicaid,
to receive reimbursement thereunder, except for such failures to have
Permits which would not reasonably be expected to, individually or in
the aggregate, result in a material adverse effect. The Company and
each of its Subsidiaries have fulfilled and performed all of their
material obligations with respect to such Permits, and no event or
change in condition has occurred which allows, or after notice or lapse
of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such
Permit, except as to such qualifications as may be set forth in the
Prospectus and except for such failures which would not reasonably be
expected to, individually or in the aggregate, result in a material
adverse effect on the Company's condition (financial or otherwise).
During the period for which financial statements are included in the
Prospectus, denials by third party payers of claims for reimbursement
for services rendered by the Company, its Subsidiaries or, to the
Company's knowledge, its affiliated physician practices have not had a
material adverse effect on the Company's condition (financial or
otherwise). Neither the Company nor any of its Subsidiaries or, to the
Company's knowledge, its affiliated physician practices has failed to
file with applicable regulatory authorities any statement, report,
information or form required by any applicable law, regulation or
order, except where the failure to be so in compliance would not
reasonably be expected to, individually or in the aggregate, have a
material adverse effect on the Company's condition (financial or
otherwise), all such filings or submissions were in material compliance
with applicable laws when filed and no material deficiencies have been
asserted by any regulatory commission, agency or authority with respect
to any such filings or submissions.
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(u) Neither the Company nor any of its Subsidiaries is in
violation of any federal, state, local or foreign law or regulation
relating to occupational safety and health and other employment
matters or to the storage, handling or transportation of hazardous or
toxic materials, and the Company and the Subsidiaries have received all
permits, licenses or other approvals required of them under applicable
federal, state and foreign occupational safety and health and
environmental laws and regulations to conduct their respective
businesses, and the Company and the Subsidiaries are in compliance with
all terms and conditions of any such permit, license or approval,
except for any such violation of law or regulation, failure to receive
required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals which
would not result in a material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
prospects of the Company.
(v) Neither the Company nor any of its Subsidiaries has failed
to file with the applicable regulatory authorities any statements,
reports, information or forms required by all applicable laws,
regulations or orders where the failure to file the same would have a
material adverse effect on the Company; all such filings or submissions
were in material compliance with applicable laws when filed, and no
material deficiencies have been asserted by any regulatory commission,
agency or authority with respect to such filings or submissions.
Neither the Company nor any of its Subsidiaries has failed to maintain
in full force and effect any licenses, registrations or permits
necessary or proper for the conduct of their respective businesses, or
received any notification that any revocation or limitation thereof is
threatened or pending, and, except as disclosed in the Effective
Prospectus and the Final Prospectus, there is not to the knowledge of
the Company pending any change under any law, regulation, license or
permit which could materially adversely affect the business,
operations, properties or business prospects of the Company and the
Subsidiaries. Neither the Company nor any of its Subsidiaries has
received any notice of violation of or been threatened with a charge of
violating or, to the Company's knowledge, is under investigation with
respect to a possible violation of any provision of any law, regulation
or order.
(w) No labor dispute exists or is imminent with any of the
employees of the Company and the Subsidiaries or otherwise which could
materially adversely affect the Company. The Company is not aware of
any existing or imminent labor disturbance by employees of the Company
and the Subsidiaries which could be expected to materially adversely
affect the condition (financial or otherwise), results of operations,
properties, affairs, management, business affairs or business prospects
of the Company.
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(x) The Company and its Subsidiaries and, to the Company's
knowledge, its affiliated practice groups own or possess all licenses,
patents, copyrights, trademarks, service marks and trade names
currently employed by them in connection with the businesses currently
operated or proposed to be operated by them, and none of such parties
has received any notice of infringement of or conflict with asserted
rights of others with respect to any of the foregoing which, alone or
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company.
(y) The Company and its Subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in
which they are engaged and in which they propose to engage, and the
Company has no reason to believe that it and the Subsidiaries will not
be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as
may be necessary to continue its business.
(z) Neither the Company, its Subsidiaries, nor, to the
Company's knowledge, any director, officer, agent, employee or other
person acting on behalf of the Company has (i) used, or authorized the
use of, any corporate or other funds for unlawful payments,
contributions, gifts or entertainment, (ii) made unlawful expenditures
relating to political activity to government officials or others, or
(iii) established or maintained any unlawful or unrecorded funds in
violation of any federal, state, local or foreign law or regulation,
including Section 30A of the Exchange Act. Neither the Company nor, to
the Company's knowledge, any director, officer, agent, employee or
other person acting on behalf of the Company has accepted or received
any unlawful contributions, payments, gifts or expenditures.
(aa) The Company is not, will not become as a result of the
transactions contemplated hereby, and does not intend to conduct its
business in a manner that would cause it to become, an "investment
company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940.
(bb) Except as disclosed in the Registration Statement and the
Effective Prospectus, there are no business relationships or related
party transactions required to be disclosed therein by Item 404 of
Regulation S-K promulgated by the Commission.
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(cc) None of the Company nor any of its officers or directors,
or, to the knowledge of the Company, any employee, member of an LLC,
partner of a Partnership, contractor or other agent of the Company or
any of its Subsidiaries or affiliated physician practices, has ever
been excluded from participation in a federal health care program for
the provision of items or services for which payment may be made under
such a program, nor has engaged on behalf of the Company in any of the
following: (i) knowingly and willfully making or causing to be made a
false statement or representation of a material fact in any
applications for any benefit or payment under the Medicare or Medicaid
program or from any third party (where applicable federal or state law
prohibits such payments to third parties); (ii) knowingly and willfully
making or causing to be made any false statement or representation of a
material fact for use in determining rights to any benefit or payment
under the Medicare or Medicaid program or from any third party (where
applicable federal or state law prohibits such payments to third
parties); (iii) failing to disclose knowledge by a claimant of the
occurrence of any event affecting the initial or continued right to any
benefit or payment under the Medicare or Medicaid program or from any
third party (where applicable federal or state law prohibits such
payments to third parties) on its own behalf or on behalf of another,
with intent to secure such benefit or payment fraudulently; (iv)
knowingly and willfully offering, paying, soliciting or receiving any
remuneration (including any kickback, bribe or rebate), directly or
indirectly overtly or covertly, in cash or in kind (a) in return for
referring an individual to a person for the furnishing or arranging for
the furnishing of any item or service for which payment may be made in
whole or in part by Medicare or Medicaid or any third party (where
applicable federal or state law prohibits such payments to third
parties), or (b) in return for purchasing, leasing or ordering or
arranging for or recommending the purchasing, leasing or ordering of
any good, facility, service, or item for which payment may be made in
whole or in part by Medicare or Medicaid or any third party (where
applicable federal or state law prohibits such payments to third
parties.
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2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to the several
Underwriters 3,700,000 Firm Shares, and each of the Underwriters,
severally and not jointly, agrees to purchase at a purchase price of
$______ per share, the number of Firm Shares set forth opposite such
Underwriter's name in Schedule I hereto, plus such additional number
of Firm Shares which such Underwriter may become obligated to purchase
pursuant to Section 8 hereof.
(b) The Company hereby grants to the Underwriters an option to
purchase, solely for the purpose of covering over-allotments in the
sale of Firm Shares, all or any portion of the Option Shares at the
purchase price per share set forth above. The option granted hereby may
be exercised as to all or any part of the Option Shares at any time
within 30 days after the date of the Final Prospectus. The Underwriters
shall not be under any obligation
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to purchase any Option Shares prior to the exercise of such option. The
option granted hereby may be exercised by the Underwriters by Bradford
giving written notice to the Company setting forth the number of Option
Shares to be purchased and the date and time for delivery of and
payment for such Option Shares and stating that the Option Shares
referred to therein are to be used for the purpose of covering
over-allotments in connection with the distribution and sale of the
Firm Shares. If such notice is given prior to the First Closing Date
(as hereinafter defined), the date set forth therein for such delivery
and payment shall not be earlier than two full business days thereafter
or the First Closing Date, whichever occurs later. If such notice is
given on or after the First Closing Date, the date set forth therein
for such delivery and payment shall not be earlier than three full
business days thereafter. In either event, the date so set forth shall
not be more than four full business days after the date of such notice.
The date and time set forth in such notice is herein called the "Option
Closing Date." Upon exercise of the option, the Company shall become
obligated to sell to the Underwriters, and, subject to the terms and
conditions herein set forth, the Underwriters shall become obligated to
purchase, for the account of each Underwriter, from the Company,
severally and not jointly, the number of Option Shares specified in
such notice. Option Shares shall be purchased for the accounts of the
Underwriters in proportion to the number of Firm Shares set forth
opposite such Underwriter's name in Schedule I hereto, except that the
respective purchase obligations of each Underwriter shall be adjusted
so that no Underwriter shall be obligated to purchase fractional Option
Shares.
(c) Certificates in definitive form for the Firm Shares which
each Underwriter has agreed to purchase hereunder shall be delivered by
or on behalf of the Company to the Underwriters for the account of such
Underwriter against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer of immediately available funds
to the order of the Company, at the offices of Bradford, 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, or at such other place as may be
agreed upon by Bradford and the Company, at 10:00 A.M., Nashville time,
on the third full business day after this Agreement becomes effective,
or, at the election of the Underwriters, on the fourth full business
day after this Agreement becomes effective, if it becomes effective
after 4:30 P.M. Eastern time, or at such other time not later than the
seventh full business day thereafter as the Underwriters and the
Company may determine, such time of delivery against payment being
herein referred to as the "First Closing Date." The First Closing Date
and the Option Closing Date are herein individually referred to as the
"Closing Date" and collectively referred to as the "Closing Dates."
Certificates in definitive form for the Option Shares which each
Underwriter shall have agreed to purchase hereunder shall be similarly
delivered by or on behalf of the Company on the Option Closing Date.
The certificates in definitive form for the Shares to be delivered will
be in good delivery form
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and in such denominations and registered in such names as Xxxxxxxx xxx
request not less than 48 hours prior to the First Closing Date or the
Option Closing Date, as the case may be. Such certificates will be made
available for checking and packaging at a location in New York, New
York as may be designated by Bradford, at least 24 hours prior to the
First Closing Date or the Option Closing Date, as the case may be. It
is understood that Xxxxxxxx xxx (but shall not be obligated to) make
payment on behalf of any Underwriter or Underwriters for the Shares to
be purchased by such Underwriter or Underwriters. No such payment shall
relieve such Underwriter or Underwriters from any of its or their
obligations hereunder.
3. Offering by the Underwriters. After the Registration Statement
becomes effective, the several Underwriters propose to offer for sale to the
public the Firm Shares and any Option Shares which may be sold at the price and
upon the terms set forth in the Final Prospectus.
4. Covenants of the Company. The Company covenants and agrees with each
of the Underwriters that:
(i) The Company shall comply with the provisions of
and make all requisite filings with the Commission pursuant to
Rules 424 and 430A of the Rules and Regulations and shall
notify the Representatives promptly (in writing, if requested)
of all such filings. The Company shall notify the
Representatives promptly of any request by the Commission for
any amendment of or supplement to the Registration Statement,
the Effective Prospectus or the Final Prospectus or for
additional information; the Company shall prepare and file
with the Commission, promptly upon the Underwriters' request,
any amendments of or supplements to the Registration
Statement, the Effective Prospectus or the Final Prospectus
which, in the Underwriters' opinion, based on the advice of
legal counsel, may be necessary or advisable in connection
with the distribution of the Shares; and the Company shall not
file any amendment of or supplement to the Registration
Statement, the Effective Prospectus or the Final Prospectus
which is not approved by the Representatives after reasonable
notice thereof. The Company shall advise the Representatives
promptly of the issuance by the Commission or any jurisdiction
or other regulatory body of any stop order or other order
suspending the effectiveness of the Registration Statement,
suspending or preventing the use of any Preliminary
Prospectus, the Effective Prospectus or the Final Prospectus
or suspending the qualification of the Shares for offering or
sale in any jurisdiction, or of the institution of any
proceedings for any such purpose; and the Company shall use
its best efforts to prevent the
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issuance of any stop order or other such order and, should a
stop order or other such order be issued, to obtain as soon as
possible the lifting thereof.
(ii) The Company will take or cause to be taken, in
cooperation with the Underwriters and their counsel, all
necessary action and furnish to whomever the Representatives
direct, such information as may be reasonably required in
qualifying the Shares for offer and sale under the securities
or Blue Sky laws of such jurisdictions as the Underwriters may
designate and will continue such qualifications in effect for
as long as may be reasonably necessary to complete the
distribution of the Shares. The foregoing notwithstanding,
the Company shall not be required to qualify as a foreign
corporation or to take any action which would subject it to
general service of process in any jurisdiction where it is not
presently qualified or where it would be subject to taxation
as a foreign corporation.
(iii) Within the time during which a Final Prospectus
relating to the Shares is required to be delivered under the
Securities Act, the Company shall comply with all requirements
imposed upon it by the Securities Act, as now and hereafter
amended, and by the Rules and Regulations, as from time to
time in force, so far as is necessary to permit the
continuance of sales of or dealings in the Shares as
contemplated by the provisions hereof and the Final
Prospectus. If during such period any event occurs as a result
of which the Final Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit
to state a material fact necessary to make the statements
therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary to amend
the Registration Statement or supplement the Final Prospectus
to comply with the Securities Act, the Company shall promptly
notify the Representatives and shall amend the Registration
Statement or supplement the Final Prospectus (at the expense
of the Company) so as to correct such statement or omission or
effect such compliance.
(iv) The Company will furnish without charge to the
Representatives and make available to the Underwriters copies
of the Registration Statement (four of which shall be signed
and shall be accompanied by all exhibits), each Preliminary
Prospectus, the Effective Prospectus and the Final Prospectus,
and all amendments and supplements thereto, including any
prospectus or supplement prepared after the effective date of
the Registration Statement, in each case as soon as available
and in such quantities as the Underwriters may reasonably
request.
(v) The Company will (A) deliver to the
Representatives at such office or offices as the
Representatives may designate as many copies of the
Preliminary Prospectus and Final Prospectus as the
Representatives may reasonably request, and (B) for a period
of not more than nine months after the Registration Statement
becomes effective,
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send to the Representatives as many additional copies of the
Final Prospectus and any supplement thereto as the
Representatives may reasonably request.
(vi) The Company shall make generally available to
its security holders, in the manner contemplated by Rule
158(b) under the Rules and Regulations as promptly as
practicable and in any event no later than 45 days after the
end of its fiscal quarter in which the first anniversary of
the effective date of the Registration Statement occurs, an
earnings statement satisfying the provisions of Section 11(a)
of the Securities Act covering a period of at least 12
consecutive months beginning after the effective date of the
Registration Statement.
(vii) The Company will apply the net proceeds from
the sale of the Shares to be sold by it as set forth under the
caption "Use of Proceeds" in the Final Prospectus and will
timely report such use of proceeds in its periodic reports
filed pursuant to sections 13(a) and 15(d) of the Exchange Act
in accordance with Rule 463 of the Securities Act or any
successor provision.
(viii) During a period of five years from the
effective date of the Registration Statement or such longer
period as the Representatives may reasonably request, the
Company will furnish to the Representatives copies of all
reports and other communications (financial or other)
furnished by the Company to its shareholders and, as soon as
available, copies of any reports or financial statements
furnished or filed by the Company to or with the Commission or
any national securities exchange or over-the-counter market on
which any class of securities of the Company may be listed for
trading.
(ix) The Company will, from time to time, after the
effective date of the Registration Statement file with the
Commission such reports as are required by the Securities Act,
the Exchange Act and the Rules and Regulations, and shall also
file with foreign, state and other governmental securities
commissions in jurisdictions where the Shares have been sold
by the Underwriters (as the Representatives shall have advised
the Company in writing) such reports as are required to be
filed by the securities acts and the regulations of those
jurisdictions.
(x) Except pursuant to this Agreement or with the
Representatives' written consent, for a period of 120 days
from the effective date of the Registration Statement, the
Company will not,
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and the Company has provided agreements (the "Lockup
Agreements") executed by each of its officers, directors and
5% or greater Shareholders providing that for a period of 120
days from the effective date of the Registration Statement,
such person will not, offer for sale, sell (other than the
issuance by the Company of shares of Common Stock pursuant to
acquisitions or the exercise of options granted pursuant to
existing employee benefit plans and agreements), grant any
options (other than pursuant to existing employee benefit
plans and agreements), rights or warrants with respect to any
shares of Common Stock, securities convertible into shares of
Common Stock or any other capital stock of the Company, or
otherwise dispose of, directly or indirectly, any shares of
Common Stock or such other securities or capital stock.
(xi) Neither the Company nor any of its directors,
officers or controlling persons, has taken or will take,
directly or indirectly, any action resulting in a violation of
Regulation M under the Exchange Act, or designed to cause or
result in, or which has constituted or which reasonably might
be expected to constitute, the stabilization or manipulation
of the price of any securities of the Company or facilitation
of the sale or resale of the Shares.
(xii) The Company will either conduct its business
and operations as described in the Final Prospectus or, if the
Company makes any material change to its business or
operations as so conducted, promptly disclose such change
generally to the Company's security holders.
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5. Expenses. The Company agrees with the Underwriters that (a) whether
or not the transactions contemplated by this Agreement are consummated or this
Agreement becomes effective or is terminated, the Company will pay all fees and
expenses incident to the performance of the obligations of the Company
hereunder, including, but not limited to, (i) the Commission's registration fee,
(ii) the expenses of printing (or reproduction) and distributing the
Registration Statement (including the financial statements therein and all
amendments and exhibits thereto), each Preliminary Prospectus, the Effective
Prospectus, the Final Prospectus, any amendments or supplements thereto, and
this Agreement and other underwriting documents, including Underwriter's
Questionnaires, Underwriter's Powers of Attorney, Blue Sky Memoranda, Agreements
Among Underwriters and Selected Dealer Agreements, (iii) fees and expenses of
accountants and counsel for the Company, (iv) expenses of registration or
qualification of the Shares under state Blue Sky and securities laws, including
the fees and disbursements of counsel to the Underwriters in connection
therewith, (v) filing fees paid or incurred by the Underwriters in connection
with filings with the NASD, (vi) expenses of listing the outstanding Common
Stock on the Nasdaq National Market, (vii) all travel, lodging and reasonable
living expenses incurred by the Company in connection with marketing, dealer and
other meetings attended by the Company and the Underwriters in marketing the
Shares, (viii) the costs and charges of the Company's transfer agent and
registrar and the cost of preparing the certificates for the Shares, and (ix)
all other costs and expenses incident to the performance of its obligations
hereunder not otherwise provided for in this Section; and (b) all out-of-pocket
expenses, including counsel fees, disbursements and expenses, incurred by the
Underwriters in connection with investigating, preparing to market and marketing
the Shares and proposing to purchase and purchasing the Shares under this
Agreement, will be borne and paid by the Company if the sale of the Shares
provided for herein is not consummated (i) by reason of the termination of this
Agreement by the Underwriters pursuant to Section 12(b)(ii) or (iv) of this
Agreement or (ii) because of any failure or refusal on the part of the Company
to comply with the terms or fulfill any of the conditions of this Agreement.
6. Conditions of the Underwriters' Obligations. The respective
obligations of the Underwriters to purchase and pay for the Firm Shares shall be
subject to the accuracy of the representations and warranties of the Company
herein as of the date hereof and as of the Closing Date as if made on and as of
the Closing Date, to the accuracy of the statements of the Company's officers
made pursuant to the provisions hereof, to the performance by the Company of all
of its covenants and agreements hereunder and to the following additional
conditions:
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(a) The Registration Statement and all post-effective
amendments thereto shall have become effective not later than 5:30
P.M., Washington, D.C. time, on the day following the date of this
Agreement, or such later time and date as shall have been consented to
by the Representatives and all filings required by Rule 424 and Rule
430A of the Securities Act Rules shall have been made; no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened or, to the knowledge of the Company or the
Underwriters, shall be contemplated by the Commission; any request of
the Commission for additional information (to be included in the
Registration Statement or the Final Prospectus or otherwise) shall have
been complied with to the Representatives' satisfaction; and the NASD,
upon review of the terms of the public offering of the Shares, shall
not have objected to such offering, such terms or the Underwriters'
participation in the same.
(b) No Representative shall have advised the Company that the
Registration Statement, Preliminary Prospectus, the Effective
Prospectus or Final Prospectus, or any amendment or any supplement
thereto, contains an untrue statement of fact which, in the
Representatives' reasonable judgment, is material, or omits to state a
fact which, in the Representatives' reasonable judgment, is material
and is required to be stated therein or necessary to make the
statements therein not misleading and the Company shall not have cured
such untrue statement of fact or omission.
(c) The Representatives shall have received an opinion, dated
the Closing Date, from Bass, Xxxxx & Xxxx PLC, counsel for the Company,
to the effect that:
(i) Each of the Company and the Corporate
Subsidiaries has been duly organized and is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and
corporate authority to own or lease its properties and conduct
its business as described in the Registration Statement, each
of the Company and the Corporate Subsidiaries is duly
qualified to transact business as a foreign corporation and in
good standing in those states where a failure to so qualify
would have a material adverse effect on the Company; and the
outstanding shares of capital stock of each of the Corporate
Subsidiaries have been duly authorized and validly issued and
are fully paid and non-assessable and are owned by the Company
or a Corporate Subsidiary; and, to such counsel's
knowledge, the outstanding shares of capital stock of each of
the Subsidiaries is owned free and clear of all liens,
encumbrances and equities and claims, and no options, warrants
or other fights to purchase, agreements or other obligations
to issue or other rights to convert any obligations into any
shares of capital stock or of ownership interests in the
Corporate Subsidiaries are outstanding.
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(ii) Each of the Partnerships has been duly
organized and is an existing partnership under the laws of the
jurisdiction of its organization, with the partnership power
and partnership authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and Prospectus, and is duly qualified
to conduct its business; each of the Partnerships is qualified
as a foreign partnership in those states listed on a schedule
thereto; to such counsel's knowledge, the partnership
interests in the Partnerships held directly or indirectly by
the Company are free and clear of all liens, encumbrances and
equities and claims, and no options, warrants or other rights
to purchase, agreements or other obligations to issue or other
rights to convert any obligations into any ownership interests
in the Partnerships are outstanding.
(iii) Each of the LLCs has been duly organized and is
an existing limited liability company under the laws of the
jurisdiction of its organization, with the limited liability
company power and limited liability company authority to own,
lease and operate its properties and to conduct its business
as described in the Registration Statement and Prospectus, and
is duly qualified to conduct its business; each of the LLCs is
qualified as a foreign limited liability company in those
states listed on a schedule thereto; to such counsel's
knowledge, the membership interests in the LLCs held directly
or indirectly by the Company are free and clear of all liens,
encumbrances and equities and claims, and no options, warrants
or other rights to purchase, agreements or other obligations
to issue or other rights to convert any obligations into any
ownership interests in the LLCs are outstanding.
(iv) As of the date specified therein, the Company
had historically authorized and issued capital stock as set
forth under the caption "Capitalization" in the Final
Prospectus. All of the outstanding shares of Common Stock have
been duly authorized and are validly issued, fully paid and
nonassessable, and the Shares to be sold by the Company have
been duly authorized, and upon issuance thereof and payment
therefor as provided herein, will be validly issued, fully
paid and nonassessable; none of the issued shares have been
issued in violation of or subject to any preemptive rights
provided for by law, any agreement known to such counsel or
the Company's charter. To such counsel's knowledge, the
Company does not have outstanding any options to purchase, or
any rights or warrants to subscribe for, or any securities or
obligations convertible into, or any
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contracts or commitments to issue or sell any shares of
capital stock, and there are no preemptive rights or other
rights to subscribe for or purchase any shares of the capital
stock of the Company, or any restriction upon the transfer of,
the Shares pursuant to the Company's charter or bylaws or any
agreement or other instrument known to such counsel to which
the Company is a party or by which it may be bound, except as
described in the Effective Prospectus and Final Prospectus. To
such counsel's knowledge, neither the filing of the
Registration Statement nor the offer or sale of the Shares as
contemplated by this Agreement gives rise to any rights, other
than those which have been waived or satisfied, for or
relating to the registration of any Common Stock or any other
securities of the Company. The Underwriters will receive good
and marketable title to the Shares to be issued and delivered
by the Company pursuant to this Agreement, free and clear of
all liens, encumbrances, claims, security interests,
restrictions, shareholders agreements, voting trusts and the
rights of any third party whatsoever. The capital stock of the
Company and the Shares conform to the description thereof
contained in the Final Prospectus. All offers and sales of the
Company's interests and securities prior to the date hereof
were made in reliance upon available exemptions from the
registration requirements of the Securities Act and the
registration requirements of applicable state securities or
Blue Sky laws or, if not exempt, properly registered in
compliance with such laws.
(v) No consent, approval, authorization or order of
any court or governmental agency or body or, to such counsel's
knowledge, third party is required for the performance of this
Agreement by the Company or the consummation by the Company of
the transactions contemplated hereby, except such as have been
obtained under the Securities Act and such as may be required
by the NASD and under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by
several Underwriters, as to which such counsel need not
express an opinion. The performance of this Agreement by the
Company and the consummation by the Company of the
transactions contemplated hereby will not conflict with or
result in a breach or violation by the Company or any of its
Subsidiaries of any of the terms or provisions of, or
constitute a default by the Company or any of its Subsidiaries
under, any material contract, agreement, indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or
instrument to which either the Company or any of its
Subsidiaries is a party or to which either the Company or any
of its Subsidiaries or their properties is subject, the
charter or bylaws of the Company, any statute, or any
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judgment, decree, order, rule or regulation of any court or
governmental agency or body applicable to the Company and
known to such counsel (except that such counsel need not
express an opinion as to whether performance of the
indemnification provisions of this Agreement would be
permitted).
(vi) The Company has full legal right and all
corporate power and authority to enter into this Agreement and
to issue, sell and deliver the Shares to be sold by it to the
Underwriters as provided herein, and this Agreement has been
duly authorized, executed and delivered by the Company and
constitutes the valid and legally binding obligation of the
Company enforceable against the Company in accordance with its
terms.
(vii) Except as described in the Final Prospectus,
to such counsel's knowledge, there is not pending or
threatened, any action, suit, proceeding, inquiry or
investigation, to which the Company or any of the Subsidiaries
are a party, or to which the property of the Company or any of
the Subsidiaries are subject, before or brought by any court
or governmental agency or body, which, if determined adversely
to the Company or any of the Subsidiaries, would result in any
material adverse change in the business, financial position,
net worth or results of operations, or would materially
adversely affect the properties or assets, of the Company or
any of the Subsidiaries.
(viii) To such counsel's knowledge, no default
exists, and no event has occurred which with notice or after
the lapse of time to cure or both, would constitute a default,
in the due performance and observance of any term, covenant or
condition of any material indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to
which either the Company or any of its Subsidiaries is a party
or to which their respective properties are subject, or of the
charter or bylaws of the Company.
(ix) The Company is not an "investment company" or
an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as
amended.
(x) The Registration Statement and all
post-effective amendments thereto have become effective under
the Securities Act, and, to such counsel's knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or are threatened, pending or
contemplated by the Commission. All filings required by Rule
424 and Rule 430A of the
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Rules and Regulations have been made; the Registration
Statement, the Effective Prospectus and Final Prospectus, and
any amendments or supplements thereto, as of their respective
effective or issue dates, complied as to form in all material
respects with the requirements of the Securities Act and the
Rules and Regulations; the descriptions in the Registration
Statement, the Effective Prospectus and the Final Prospectus
of statutes, regulations, legal and governmental proceedings,
and contracts and other documents are accurate in all material
respects and present fairly in all material respects the
information purported to be summarized; and counsel does not
know of any pending or threatened legal or governmental
proceedings, statutes or regulations required to be described
in the Final Prospectus which are not described as required
nor of any contracts or documents of a character required to
be described in the Registration Statement or the Final
Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required.
(xi) To such counsel's knowledge in the course of
their representation, neither the Company, its Subsidiaries
nor any of the affiliated physician practices is in violation
of any material healthcare laws applicable to the Company or
any of the Subsidiaries or any of the affiliated physician
practices or of any decree of any court or governmental agency
or body having jurisdiction over the Company or any of the
Subsidiaries. To such counsel's knowledge, neither the
Company, its Subsidiaries nor any of the affiliated physician
practices is in violation of applicable state licensure,
Medicare or Medicaid requirements, which violation is likely
to have a material adverse effect on the Company's condition
(financial or otherwise).
(xii) To such counsel's knowledge, the Company and
each of its Subsidiaries have all necessary Permits (except
where the failure to have such Permits, individually or in the
aggregate, would not have a material adverse effect on the
business, operations or financial condition of the Company and
the Subsidiaries taken as a whole), to own their respective
properties and to conduct their respective businesses as now
being conducted, and as described in the Registration
Statement and Prospectus, including, without limitation, such
Permits as are required (a) under applicable law and (b) with
respect to those centers owned or operated by the Company or
any Subsidiary that participate in Medicare and/or Medicaid,
to receive reimbursement thereunder.
(xiii) The descriptions of statutes and regulations
under the captions "Risk Factors - Contingent Purchase
Obligations," "Risk Factors - Risks Associated with Capitated
Payment Arrangements," "Risk Factors - Dependence on
Third-Party Reimbursement; Risk of Fee Reductions or Exclusion
from Managed Care Arrangements," "Risk Factors - Risk
Associated with Medicare -Medicaid Illegal Remuneration
("anti-kickback") Laws," "Risk Factors - Risks Associated with
Physician Self-Referral Laws," "Risk Factors - Risk Related to
Laws Governing Corporate Practice of Medicine," "Risk Factors
- Risk or Potential Applicability of Insurance Regulations and
Antitrust Laws," "Risk Factors - Risk of Compliance with Other
Governmental Regulation" and "Business - Government
Regulation," in the Prospectus have been reviewed by such
counsel and fairly summarize such statutes and regulations in
all material respects.
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In addition to the matters set forth above, such opinion shall also
include a statement to the effect that nothing has come to the attention of such
counsel which leads them to believe that the Registration Statement, the
Effective Prospectus and the Final Prospectus or any amendment or supplement
thereto contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein not misleading in light
of the circumstances under which they were made (except that such counsel need
express no view as to financial statements, schedules and other financial or
statistical information included therein).
The opinion to be rendered pursuant to paragraph (c) may be limited to
federal law, and as to foreign and state law matters, to the laws of the states
or jurisdictions in which such counsel is admitted to practice. Such counsel may
rely upon opinions of other counsel in rendering such opinions provided that
such counsel shall state that they believe that both the Representatives and
they are justified in relying upon such opinions and that such counsel is
reasonably satisfactory to you.
(d) The Underwriters shall have received an opinion or
opinions, dated the Closing Date, of Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, A
Professional Limited Liability Company, counsel for the Underwriters,
with respect to the Registration Statement and the Final Prospectus,
and such other related matters as the Underwriters may require, and the
Company shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters.
(e) The Representatives shall have received from Deloitte &
Touche, LLP, a letter dated the date hereof and, at the Closing Date, a
second letter dated the Closing Date, in form and substance
satisfactory to the Representatives, stating that they are independent
public accountants with respect to the Company and its subsidiaries
within the meaning of the Securities Act and the applicable Rules and
Regulations, and 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 of the Company contained in the Registration Statement and
the Prospectus.
In the event that the letters to be delivered referred to above set
forth any such changes, decreases or increases, it shall be a further condition
to the obligations of the Underwriters that the Underwriters shall have
determined, after discussions with officers of Company responsible for financial
and accounting matters and with Deloitte & Touche, LLP that such changes,
decreases or increases as are set forth in such letters do not reflect a
material adverse change in the total assets, shareholders' equity or long-term
debt of Company as compared with the amounts shown in the latest balance sheets
of Company included in the Final Prospectus, or a material
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adverse change in revenues or net income of Company, in each case as compared
with the corresponding period of the prior year.
(f) There shall have been furnished to the Representatives a
certificate, dated the Closing Date and addressed to you, signed by the
Chief Executive Officer and Chief Financial Officer of the Company, to
the effect that:
(i) the representations and warranties of the
Company in Section 1 of this Agreement are true and correct,
as if made at and as of the Closing Date, and the Company has
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceedings
for that purpose have been initiated or are pending, or to
their knowledge, threatened under the Securities Act;
(iii) they have carefully examined the Registration
Statement, the Effective Prospectus and the Final Prospectus,
and any amendments or supplements thereto, and such documents
do not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances under which they were made; and
(iv) since the effective date of the Registration
Statement, there has occurred no event required to be set
forth in an amendment or supplement to the Registration
Statement, the Effective Prospectus or the Final Prospectus
which has not been so set forth.
(g) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus, and
except as stated therein, the Company has not sustained any material
loss or interference with its business or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by
insurance, or from any
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labor dispute or any court or governmental action, order or decree, or
become a party to or the subject of any litigation which is material to
the Company, nor shall there have been any material adverse change, or
any development involving a prospective material adverse change, in the
business, properties, key personnel, capitalization, prospects, net
worth, results of operations or condition (financial or other) of the
Company, which loss, interference, litigation or change, in the
Representatives' reasonable judgment shall render it inadvisable to
commence or continue the offering of the Shares at the offering price
to the public set forth on the cover page of the Prospectus or to
proceed with the delivery of the Shares.
(h) The Shares shall be listed on the Nasdaq National Market.
(i) The Representatives shall have received the Lockup
Agreements.
All such opinions, certificates, letters and documents delivered
pursuant to this Agreement will comply with the provisions hereof only if they
are reasonably satisfactory to the Representatives and their counsel. The
Company shall furnish to the Representatives such conformed copies of such
opinions, certificates, letters and documents in such quantities as the
Representatives shall reasonably request.
The respective obligations of the Underwriters to purchase and pay for
the Option Shares shall be subject, in their discretion, to the conditions of
this Section 6, except that all references to the "Closing Date" shall be deemed
to refer to the Option Closing Date, if it shall be a date other than the
Closing Date.
7. Condition of the Company's Obligations. The obligations hereunder
of the Company are subject to the condition set forth in Section 6(a) hereof.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, and each person, if any, who controls any Underwriter
within the meaning of the Securities Act, against any losses, claims,
damages or liabilities to which such Underwriter or controlling person
may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based in whole or in part upon: (i) any
inaccuracy in the representations and warranties of the Company
contained herein; (ii) any failure of the Company to perform its
obligations hereunder or under law; (iii) any untrue statement or
alleged untrue statement of any material fact contained in (A) the
Registration Statement, any Preliminary Prospectus, the Effective
Prospectus or Final Prospectus, or any amendment or supplement thereto,
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or (B) in any Blue Sky application or other written information
furnished by the Company filed in any state or other jurisdiction in
order to qualify any or all of the Shares under the securities laws
thereof (a "Blue Sky Application"); (iv) or the omission or alleged
omission to state in the Registration Statement, any Preliminary
Prospectus, the Effective Prospectus or Final Prospectus or any
amendment or supplement thereto, or Blue Sky Application a material
fact required to be stated therein or necessary to make the statements
therein not misleading; or (v) any act or failure to act or any alleged
act or failure to act by any Underwriter in connection with, or
relating in any manner to, the Shares or the offering contemplated
hereby, and which is included as part of or referred to in any loss,
claim, damage, liability or action arising out of or based upon matters
covered by clause (i), (ii), (iii) or (iv) above (provided that the
Company shall not be liable under this clause (v) to the extent that it
is determined in a final judgment by a court of competent jurisdiction
that such loss, claim, damage, liability or action resulted directly
from any such acts or failures to act undertaken or omitted to be taken
by such Underwriter through its gross negligence or willful
misconduct); and will reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred
by such Underwriter or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such
loss, claim, damage, or liability arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, the Preliminary
Prospectus, the Effective Prospectus or Final Prospectus, or any
amendment or supplement thereto, or any Blue Sky Application in
reliance upon and in conformity with written information furnished to
the Company by any Underwriter specifically for use therein (it being
understood that the only information so provided is the information
included in the last paragraph on the cover page and in the third,
fourth, fifth and eighth paragraphs under the caption "Underwriting" in
any Preliminary Prospectus and the Final Prospectus and the Effective
Prospectus).
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(b) Each Underwriter, will indemnify and hold harmless the
Company, each of its directors, each of the Company's officers who
signed the Registration Statement and each person, if any, who controls
the Company within the meaning of the Securities Act against any
losses, claims, damages or liabilities to which the Company or any
such director, officer or controlling person may become subject, under
the Securities 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, any Preliminary
Prospectus, the Effective Prospectus or Final Prospectus, or any
amendment or supplement thereto, or any Blue Sky Application, or arise
out of or are based upon the omission or the alleged omission to state
in the Registration Statement, any Preliminary Prospectus, the
Effective Prospectus or Final Prospectus, or any amendment or
supplement thereto, or any Blue Sky Application 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 any
Underwriter specifically for use therein (it being understood that the
only information so provided is the information included in the last
paragraph on the cover page and in the third, fourth, fifth and eighth
paragraphs under the caption "Underwriting" in any Preliminary
Prospectus and in the Effective Prospectus and the Final Prospectus).
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(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, including
governmental proceedings, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 8 notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party
hereunder unless the indemnifying party has been materially prejudiced
thereby and in any event shall not relieve it from liability otherwise
than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified
party; and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under
this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other
than reasonable costs of investigation except that the indemnified
party shall have the right to employ separate counsel if, in the
indemnified party's reasonable judgment, it is advisable for the
indemnified party to be represented by separate counsel, and in that
event the fees and expenses of separate counsel shall be paid by the
indemnifying party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in the
preceding part of this Section 8 is for any reason held to be
unavailable to the Underwriters or the Company or is insufficient to
hold harmless an indemnified party, then the Company shall contribute
to the damages paid by the Underwriters, and the Underwriters shall
contribute to the damages paid by the Company; provided, however, that
no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f)) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The amount of such contribution shall (i) be in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the
other from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, be in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as
any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and
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the Underwriters on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the
offering of the Shares purchased under this Agreement (before deducting
expenses) received by the Company, in the case of the Company, and the
total underwriting discounts and commissions received by the
Underwriters with respect to the Shares purchased under this Agreement,
in the case of the Underwriters, bear to the total gross proceeds from
the offering of the Shares under this Agreement, in each case as set
forth in the Prospectus. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters, the
intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be
equitable if the amount of such contribution were determined by pro
rata or per capita allocation (even if the Underwriters were treated as
one entity for such purpose). Notwithstanding the foregoing, no
Underwriter or person controlling such Underwriter shall be obligated
to make contribution hereunder which in the aggregate exceeds the
underwriting discount applicable to the Shares purchased by such
Underwriter under this Agreement, less the aggregate amount of any
damages which such Underwriter and its controlling persons have
otherwise been required to pay in respect of the same or any similar
claim. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective obligations and not joint.
For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act
shall have the same rights to contribution as such Underwriters, and
each director of the Company, each officer of the Company who signed
the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act shall
have the same rights to contribution as the Company, as the case
may be.
(e) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened action, suit or proceeding in respect of which any
indemnified party is a party or is (or would be, if a claim were to be
made against such indemnified party) entitled to indemnity hereunder,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
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9. Default of Underwriters. If any Underwriter defaults in its
obligation to purchase Shares hereunder and if the total number of Shares which
such defaulting Underwriter agreed but failed to purchase is ten percent or less
of the total number of Shares to be sold hereunder, the non-defaulting
Underwriters shall be obligated severally to purchase (in the respective
proportions which the number of Shares set forth opposite the name of each
non-defaulting Underwriter in Schedule I hereto bears to the total number of
Shares set forth opposite the names of all the non-defaulting Underwriters), the
Shares which such defaulting Underwriter or Underwriters agreed but failed to
purchase. If any Underwriter so defaults and the total number of Shares with
respect to which such default or defaults occur is more than ten percent of the
total number of Shares to be sold hereunder, and arrangements satisfactory to
the other Underwriters and the Company for the purchase of such Shares by other
persons (who may include the non-defaulting Underwriters) are not made within 36
hours after such default, this Agreement, insofar as it relates to the sale of
the Shares, will terminate without liability on the part of the non-defaulting
Underwriters or the Company except for (i) the provisions of Section 8 hereof,
and (ii) the expenses to be paid or reimbursed by the Company pursuant to
Section 5. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 9. Nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company or its
officers and the Underwriters set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement shall remain in full
force and effect, regardless of (a) any investigation made by or on behalf of
the Company, any of its officers or its directors, any Underwriter or any
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controlling person, (b) any termination of this Agreement and (c) delivery of
and payment for the Shares.
11. Effective Date. This Agreement shall become effective at whichever
of the following times shall first occur: (i) at 11:30 am Washington D.C. time,
on the next full business day following the date in which the Registration
Statement becomes effective or (ii) at such time after the Registration
Statement has become effective as the Representatives shall release the Firm
Shares for sale to the public; provided, however, that the provisions of
Sections 5,8,10, and 11 hereof shall at all times be effective. For purposes of
this Section 11, the Firm Shares shall be deemed to have been so released upon
the release by the Representatives for publication, at any time after the
Registration Statement has become effective, of any newspaper advertisement
relating to the Firm Shares or upon the release by the Representatives of
telegrams offering the Firm Shares for sale to securities dealers, whichever may
occur first.
12. Termination.
(a) The Company's obligations under this Agreement may be
terminated by the Company by notice to the Representatives (i) at any
time before it becomes effective in accordance with Section 11 hereof,
or (ii) in the event that the condition set forth in Section 7 shall
not have been satisfied at or prior to the First Closing Date.
(b) This Agreement may be terminated by the Representatives by
notice to the Company (i) at any time before it becomes effective in
accordance with Section 11 hereof; (ii) in the event that at or prior
to the First Closing Date the Company shall have failed, refused or
been unable to perform any agreement on the part of the Company to be
performed hereunder or any other condition to the obligations of the
Underwriters hereunder is not fulfilled; (iii) if at or prior to the
Closing Date trading in securities on the NYSE, the Nasdaq National
Market, the American Stock Exchange or the over-the-counter market
shall have been suspended or materially limited or minimum or maximum
prices shall have been established on either of such exchanges or such
market, or a banking moratorium shall have been declared by Federal or
state authorities; (iv) if at or prior to the Closing Date trading in
securities of the Company shall have been suspended; or (v) if there
shall have been such a material adverse change in general economic,
political or financial conditions or if the effect of international
conditions on the financial markets in the United States shall be such
as, in your reasonable judgment, makes it inadvisable to commence or
continue the offering of the Shares at the offering price to the public
set forth on the cover page of the Prospectus or to proceed with the
delivery of the Shares.
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(c) Termination of this Agreement pursuant to this Section 12
shall be without liability of any party to any other party other than
as provided in Sections 5 and 8 hereof.
13. Notices. All communications hereunder shall be in writing and, if
sent to any of the Underwriters, shall be mailed or delivered or telegraphed and
confirmed in writing to the Underwriters in care of X. X. Xxxxxxxx & Co., X. X.
Xxxxxxxx Financial Center, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxxxx, or if sent to the Company shall be mailed,
delivered or telegraphed and confirmed in writing to the Company at Xxx Xxxxxx
Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxx X.
XxXxxxxx.
14. Miscellaneous. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the Company and their respective successors
and legal representatives. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Company and the Underwriters and for the benefit of no
other person except that (a) the representations and warranties and indemnities
of the Company contained in this Agreement shall also be for the benefit of any
person or persons who control any Underwriter within the meaning of Section 15
of the Securities Act, and (b) the indemnities by the Underwriters shall also be
for the benefit of the directors of the Company, officers of the Company who
have signed the Registration Statement and any person or persons who control the
Company within the meaning of Section 15 of the Securities Act. No purchaser of
Shares from any Underwriter will be deemed a successor because of such purchase.
The validity and interpretation of this Agreement shall be governed by the laws
of the State of Tennessee. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The Representatives
hereby represent and warrant to the Company that the Representative have
authority to act hereunder on behalf of the Underwriters, and any action
hereunder taken by the Representatives shall be binding upon all the
Underwriters.
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If the foregoing is in accordance with your understanding of our
agreement, please indicate your acceptance thereof in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement
among the Company and each of the Underwriters.
Very truly yours,
AMSURG CORP.
By:
--------------------------------------
Title:
----------------------------------
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Confirmed and accepted as of
the date first above written.
X.X. XXXXXXXX & CO., L.L.C.
By:
-------------------------------------
XXXXX XXXXXXX INC.
By:
-------------------------------------
XXXXXX XXXXXX & COMPANY, INC.
By:
-------------------------------------
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SCHEDULE I
UNDERWRITERS
Underwriter Number of Firm Shares to be Purchased
----------- -------------------------------------
X.X. Xxxxxxxx & Co.
Xxxxx Xxxxxxx Inc.
Xxxxxx Xxxxxx & Company, Inc.
------------------------
Total
========================
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