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EXHIBIT 1.1
2,500,000 Shares
MEDIRISK, INC.
Common Stock
UNDERWRITING AGREEMENT
, 1997
EQUITABLE SECURITIES CORPORATION
XXXXXXXXX & COMPANY, INC.
As Representatives of the Several Underwriters
c/o EQUITABLE SECURITIES CORPORATION
000 Xxxxxxxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Dear Sirs:
Medirisk, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell an aggregate of 2,500,000 shares (the "Firm Shares")
of its common stock, par value $0.001 per share (the "Common Stock"), to the
several Underwriters named in Schedule I hereto (the "Underwriters"). In
addition, solely for the purpose of covering over-allotments, the Company
proposes to sell to the Underwriters, upon the terms and conditions set forth
in Section 2 hereof, up to an additional 375,000 shares (the "Additional
Shares") of Common Stock. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "Shares."
The Company wishes to confirm as follows its agreement with
you (the "Representatives") and the other several Underwriters on whose behalf
you are acting, in connection with the several purchases of the Shares by the
Underwriters.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the
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provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Act"), a
registration statement on Form S-1 under the Act (the "registration
statement"), including a prospectus subject to completion, relating to the
Shares. The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits) as
amended at the time it becomes effective or, if the registration statement
became effective prior to the execution of this Agreement, as supplemented or
amended prior to the execution of this Agreement. If it is contemplated, at
the time this Agreement is executed, that a post-effective amendment to the
registration statement will be filed and must be declared effective before the
offering of the Shares may commence, the term "Registration Statement" as used
in this Agreement means the registration statement as amended by said
post-effective amendment. If an abbreviated registration statement relating to
the offering of the Shares is prepared and filed with the Commission in
accordance with Rule 462(b) under the Act (an "Abbreviated Registration
Statement"), the term "Registration Statement" as used in this Agreement
includes the Abbreviated Registration Statement. The term "Prospectus" as used
in this Agreement means the prospectus in the form included in the Registration
Statement, or, if the prospectus included in the Registration Statement omits
information in reliance on Rule 430A under the Act and such information is
included in a prospectus filed with the Commission pursuant to Rule 424(b)
under the Act, the term "Prospectus" as used in this Agreement means the
prospectus in the form included in the Registration Statement as supplemented
by the addition of the Rule 430A information contained in the prospectus filed
with the Commission pursuant to Rule 424(b). The term "Prepricing Prospectus"
as used in this Agreement means the prospectus subject to completion in the
form included in the registration statement at the time of the initial filing
of the registration statement with the Commission and as such prospectus shall
have been amended from time to time prior to the date of the Prospectus.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees,
subject to all the terms and conditions set forth herein, to issue and sell to
each Underwriter and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each Underwriter, severally and not jointly,
agrees to purchase from the Company, at a purchase price of $ per share
(the "purchase price per share"), the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule I hereto (or such number of Firm
Shares increased as set forth in Section 10 hereof).
The Company also agrees, subject to all the terms and
conditions set forth herein, to sell to the Underwriters, and, upon the basis
of the representations, warranties and agreements of the Company herein
contained and subject to all the terms and conditions set forth herein, the
Underwriters shall have the right to purchase from the Company, at the purchase
price per share, pursuant to an option (the "over-allotment option") which may
be exercised at any time and from time to time prior to 9:00 p.m., Nashville
time, on the 30th day after the date of the Prospectus (or, if such 30th day
shall be a Saturday or Sunday or a holiday, on the next business day thereafter
when the New York Stock Exchange is open for trading), up to an aggregate of
375,000 Additional Shares from the Company. Additional Shares may be purchased
solely to cover over-allotments made in connection with the offering of the
Firm Shares. Upon any exercise of the over-allotment option, each Underwriter,
severally and not jointly, agrees to
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purchase from the Company the number of Additional Shares (subject to such
adjustments as you may determine in order to avoid fractional shares) which
bears the same proportion to the number of Additional Shares to be purchased by
the Underwriters as the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto (or such number of Firm Shares increased
as set forth in Section 10 hereof) bears to the aggregate number of Firm
Shares.
3. TERMS OF PUBLIC OFFERING. The Company has been advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and initially
to offer the Shares upon the terms set forth in the Prospectus.
4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery to the
Underwriters of and payment for the Firm Shares shall be made at the office of
Equitable Securities Corporation, 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000-0000, at 9:00 A.M., Nashville time, on , 1997 (the "Closing
Date"). The place of closing for the Firm Shares and the Closing Date may be
varied by agreement between you and the Company.
Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at the aforementioned
office of Equitable Securities Corporation at such time on such date (the
"Option Closing Date"), which may be the same as the Closing Date but shall in
no event be earlier than the Closing Date nor earlier than two nor later than
ten business days after the giving of the notice hereinafter referred to, as
shall be specified in a written notice from you on behalf of the Underwriters
to the Company of the Underwriters' determination to purchase a number,
specified in such notice, of Additional Shares. The place of closing for any
Additional Shares and the Option Closing Date for such Shares may be varied by
agreement between you and the Company.
Certificates for the Firm Shares and for any Additional Shares
to be purchased hereunder shall be registered in such names and in such
denominations as you shall request by written notice, it being understood that
a facsimile transmission shall be deemed written notice, prior to 8:30 A.M.,
Nashville time, on the second business day preceding the Closing Date or any
Option Closing Date, as the case may be. Such certificates shall be made
available to you in Nashville for inspection and packaging not later than 8:30
A.M., Nashville time, on the business day next preceding the Closing Date or
the Option Closing Date, as the case may be. The certificates evidencing the
Firm Shares and any Additional Shares to be purchased hereunder shall be
delivered to you on the Closing Date or the Option Closing Date, as the case
may be, against payment of the purchase price therefor in immediately available
funds to such account as the Company directs.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters as follows:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for the registration statement or a post-effective
amendment thereto or any Abbreviated Registration Statement to be declared or,
in the case of an Abbreviated Registration Statement, to become
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effective before the offering of the Shares may commence, the Company will
endeavor to cause the registration statement or such post-effective amendment
or Abbreviated Registration Statement to become effective as soon as possible
and will advise you promptly and, if requested by you, will confirm such advice
in writing, when the registration statement or such post-effective amendment or
Abbreviated Registration Statement has become effective.
(b) The Company will advise you promptly and, if
requested by you, will confirm such advice in writing: (i) of any request by
the Commission for amendment of or a supplement to the registration statement,
any Prepricing Prospectus or the Prospectus or for additional information; (ii)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction or the
initiation of any proceeding for such purpose; and (iii) during the period of
time referred to in paragraph (f) below, of any change in the Company's
condition (financial or other), business, prospects, properties, net worth or
results of operations, or of the happening of any event, which makes any
statement of a material fact made in the Registration Statement or the
Prospectus (as then amended or supplemented) untrue or which requires the
making of any additions to or changes in the Registration Statement or the
Prospectus (as then amended or supplemented) in order to state a material fact
required by the Act or the regulations thereunder to be stated therein or
necessary in order to make the statements therein not misleading in any
material respect, or of the necessity to amend or supplement the Prospectus (as
then amended or supplemented) to comply with the Act or any other law. If at
any time the Commission shall issue any stop order suspending the effectiveness
of the Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge,
three signed copies of the registration statement as originally filed with the
Commission and of each amendment thereto, including financial statements and
all exhibits to the registration statement and will also furnish to you,
without charge, such number of conformed copies of the registration statement
as originally filed and of each amendment thereto, but without exhibits, as you
may request.
(d) The Company will not (i) file any amendment to the
registration statement or make any amendment or supplement to the Prospectus of
which you shall not previously have been advised or to which you shall
reasonably object after being so advised or (ii) so long as, in the opinion of
counsel for the Underwriters, a prospectus is required to be delivered in
connection with sales by any Underwriter or dealer, file any information,
documents or reports pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), without delivering a copy of such information,
documents or reports to you, as Representatives of the Underwriters, prior to
or concurrently with such filing.
(e) Prior to the execution and delivery of this
Agreement, the Company has delivered or will deliver to you, without charge, in
such quantities as you have reasonably requested or may hereafter request,
copies of each form of the Prepricing Prospectus. The Company consents to the
use, in accordance with the provisions of the Act and with the securities or
Blue Sky laws of the jurisdictions in which the Shares are offered by the
several
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Underwriters and by dealers, prior to the date of the Prospectus, of each
Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this
Agreement as possible and thereafter from time to time for such period as in
the opinion of counsel for the Underwriters a prospectus is required by the Act
to be delivered in connection with sales by any Underwriter or dealer, the
Company will expeditiously deliver to each Underwriter and each dealer, without
charge, as many copies of the Prospectus (and of any amendment or supplement
thereto) as you may reasonably request. The Company consents to the use of the
Prospectus (and of any amendment or supplement thereto) in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Shares are offered by the several Underwriters and
by all dealers to whom Shares may be sold, both in connection with the offering
and sale of the Shares and for such period of time thereafter as the Prospectus
is required by the Act to be delivered in connection with sales by any
Underwriter or dealer. If during such period of time any event shall occur
that in the judgment of the Company or in the reasonable opinion of counsel for
the Underwriters is required to be set forth in the Prospectus (as then amended
or supplemented) or should be set forth therein in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary to supplement or amend the Prospectus to
comply with the Act or any other law, the Company will forthwith prepare and,
subject to the provisions of paragraph (d) above, file with the Commission an
appropriate supplement or amendment thereto and will expeditiously furnish
copies thereof to the Underwriters and dealers in such quantities as you shall
request. In the event that the Company and you, as Representatives of the
several Underwriters, agree that the Prospectus should be amended or
supplemented, the Company, if requested by you, will promptly issue a press
release announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
(g) The Company will cooperate with you and with counsel
for the Underwriters in connection with the registration or qualification of
the Shares for offering and sale by the several Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as you may
designate and will file such consents to service of process or other documents
necessary or appropriate in order to effect such registration or qualification;
provided, however, that in no event shall the Company be obligated to qualify
to do business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Shares, in any jurisdiction
where it is not now so subject.
(h) The Company will make generally available to its
security holders a consolidated earnings statement, which need not be audited,
covering a twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months thereafter, as soon
as practicable after the end of such period, which consolidated earnings
statement shall satisfy the provisions of Section 11(a) of the Act.
(i) During the period of five years hereafter, the
Company will furnish to you (i) as soon as available, a copy of each report of
the Company mailed to stockholders or filed
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with the Commission, and (ii) from time to time such other information
concerning the Company as you may reasonably request.
(j) If this Agreement shall terminate or shall be
terminated after execution pursuant to any provisions hereof (otherwise than
pursuant to the second paragraph of Section 10 hereof or by notice given by you
terminating this Agreement pursuant to Section 10 or Section 11 hereof), or if
this Agreement shall be terminated by the Underwriters 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, the Company agrees to reimburse the
Representatives for all out-of-pocket expenses (including fees and expenses of
counsel for the Underwriters) reasonably incurred by you in connection herewith
subject to your delivery of reasonably satisfactory documentation
substantiating such expenses.
(k) The Company will apply the net proceeds from the sale
of the Shares substantially in accordance with the description set forth in the
Prospectus.
(l) If Rule 430A of the Act is employed, the Company will
timely file the Prospectus pursuant to Rule 424(b) under the Act and will
advise you of the time and manner of such filing.
(m) The Company will not (and will not announce or
otherwise disclose any intention to) offer to sell, contract to sell, sell or
otherwise transfer or dispose of, or grant any option or warrant to purchase,
any shares of Common Stock (or any securities convertible into or exercisable
or exchangeable for Common Stock) for a period of 180 days after the date of
the Prospectus (the "Lock-up Period") without the prior written consent of
Equitable Securities Corporation except for (i) the sale of the Shares to the
Underwriters pursuant to this Agreement, (ii) the issuance of shares of Common
Stock upon exercise of options or warrants disclosed to be outstanding in the
Prospectus, (iii) the grant pursuant to stock option plans described in the
Prospectus of stock options not exercisable during the Lock-up Period and (iv)
the issuance of 1,021,809 shares of Common Stock upon the conversion, in
accordance with their terms, of the shares of the Company's Series A and Series
B Convertible Preferred Stock disclosed in the Prospectus as outstanding.
(n) The Company has furnished or will furnish to you
"lock-up" letters, in form and substance satisfactory to you, signed by each of
its current officers and directors and each of its stockholders designated by
you on or before the date of this Agreement.
(o) Except as stated in this Agreement and in the
Prepricing Prospectus and Prospectus, the Company has not taken, and will not
take, directly or indirectly, any action designed to or that might reasonably
be expected to cause or result in stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of the Shares.
(p) The Company will use its best efforts to have the
Common Stock approved for quotation on The Nasdaq Stock Market's National
Market prior to or concurrently with the effectiveness of the Registration
Statement.
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6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied when
so filed in all material respects with the provisions of the Act. The
Commission has not issued any order preventing or suspending the use of any
Prepricing Prospectus.
(b) The registration statement in the form in which it
became or becomes effective, and also in such form as it may be when any
post-effective amendment thereto or any Abbreviated Registration Statement
shall become effective, and the Prospectus and any supplement or amendment
thereto when filed with the Commission under Rule 424(b) under the Act,
complied or will comply in all material respects with the provisions of the Act
and did not or will not at any such times contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except that this
representation and warranty does not apply to statements in or omissions from
the registration statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to the
Company in writing by or on behalf of such Underwriter through you expressly
for use therein.
(c) All the outstanding shares of capital stock of the
Company have been duly authorized and validly issued, are fully paid and
nonassessable, are free of any preemptive or similar rights (other than such
rights as shall terminate upon completion of, and be inapplicable to, the
offering contemplated hereby) and have been issued and sold in compliance with
all Federal and state securities laws. The Shares have been duly authorized
and, when issued and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will be validly issued, fully paid and
nonassessable and free of any preemptive or similar rights. The capital stock
of the Company conforms in all material respects to the description thereof in
the Registration Statement and the Prospectus.
(d) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus, and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify would not
have a material adverse effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Company and
the Subsidiaries (as defined herein), taken as a whole (a "Material Adverse
Effect").
(e) All of the Company's subsidiaries (as defined in the Act)
are listed in an exhibit to the Registration Statement and are referred to
herein individually as a "Subsidiary" and collectively as the "Subsidiaries."
Each Subsidiary is a corporation duly organized, validly existing and in good
standing in the jurisdiction of its incorporation, with full corporate power
and authority to own, lease and operate its properties and to conduct its
business as described
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in the Registration Statement and the Prospectus and is duly registered and
qualified to conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its business
requires such registration, except where the failure so to register or qualify
would not have a Material Adverse Effect. All the outstanding shares of
capital stock of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable and are wholly-owned by the Company
directly or indirectly through one of the other Subsidiaries, free and clear of
any lien, adverse claim, security interest, equity or other encumbrance, except
as disclosed in the Registration Statement and the Prospectus (or any amendment
or supplement thereto).
(f) There are no legal or governmental proceedings pending
or, to the knowledge of the Company, threatened, against the Company or any of
the Subsidiaries, or to which the Company or any of the Subsidiaries or any of
their respective properties is subject, that are required to be described in
the Registration Statement or the Prospectus but are not described as required.
There are no agreements, contracts, indentures, leases or other instruments
that are required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement that are
not described or filed as required by the Act. Neither the Company nor any of
the Subsidiaries is involved in any strike, job action or labor dispute, to the
Company's knowledge, no such action or dispute is threatened.
(g) Neither the Company nor any of the Subsidiaries is (i) in
violation of its certificate of incorporation or by-laws or other
organizational documents, or of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of the
Subsidiaries or of any decree of any court or governmental agency or body
having jurisdiction over the Company or any of the Subsidiaries, or (ii) in
default in any material respect in the performance of any obligation, agreement
or condition contained in any material bond, debenture, note or any other
evidence of indebtedness or in any material agreement, indenture, lease or
other instrument to which the Company or any of the Subsidiaries is a party or
by which any of them or any of their respective properties may be bound.
(h) Neither the issuance and sale of the Shares, the
execution, delivery or performance of this Agreement by the Company nor the
consummation by the Company of the transactions contemplated hereby (i)
requires any consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative agency
or other governmental body, agency or official (except such as may be required
for the registration of the Shares under the Act and the Exchange Act, all of
which have been or will be effected in accordance with this Agreement, and
compliance with the securities or Blue Sky laws of various jurisdictions) or
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, the certificate of incorporation or bylaws, or other
organizational documents, of the Company or any of the Subsidiaries or (ii)
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, any indenture, bond, note, lease or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by
which the Company or any of the Subsidiaries or any of their respective
properties are bound, or violates or will violate any current statute, law,
regulation or filing or judgment, injunction, order or decree applicable to the
Company or any of the Subsidiaries or any of their respective properties, or
will result in the creation or imposition of any lien, charge or encumbrance (a
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"Lien" and collectively, "Liens") upon any property or assets of the Company or
any of the Subsidiaries pursuant to the terms of any agreement or instrument to
which any of them is a party or by which any of them may be bound or to which
any of their respective property or assets is subject (except for such conflict
or conflicts, violation or violations, or Lien or Liens that, singly or in the
aggregate, would not have a Material Adverse Effect).
(i) The accountants, KPMG Peat Marwick LLP and Xxxxx, Smith,
Wallace, L.L.C., who have certified or shall certify the financial statements
filed or to be filed as part of the Registration Statement or the Prospectus
(or any amendment or supplement thereto), are independent public accountants as
required by the Act.
(j) The financial statements, together with the related
schedules and notes forming part of the Registration Statement and the
Prospectus (and any amendment or supplement thereto), comply in all material
respects with the requirements of the Act and present fairly the consolidated
financial position, results of operations and changes in stockholders' equity
and cash flows of the Company and the Subsidiaries and of PracticeMatch, Inc.
and Formations in Health Care, Inc. (collectively, the "Acquired Companies"),
as the case may be, on the basis stated in the Registration Statement at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved, except as disclosed therein. The pro forma financial
information included in the Registration Statement and Prospectus (and any
amendment or supplement thereto) has been prepared in accordance with the
requirements of the Act and the rules and regulations of the Commission with
respect to pro forma financial information (including Article 11 of Regulation
S-X) and have been properly computed on the basis described therein, and the
assumptions used in the preparation of the pro forma financial statements and
other pro forma financial information included in the Registration Statement
and the Prospectus (or any amendment or supplement thereto) were made on a
reasonable basis, and the adjustments used therein are reasonably appropriate
to give effect to the transactions or circumstances referred to therein. The
other financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) are accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company and the Acquired
Companies, as the case may be.
(k) The Company has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement. The
execution and delivery of, and the performance by the Company of its
obligations under, this Agreement have been duly and validly authorized by the
Company. This Agreement has been duly executed and delivered by the Company
and constitutes the valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnity and contribution hereunder may be limited by federal or state
securities laws or principles of public policy and subject to the qualification
that the enforceability of the Company's obligations hereunder may be limited
by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors' rights generally and by
general equitable principles (whether applied at law or in equity).
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(l) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto), neither
the Company nor any of the Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction that is
material to the Company and the Subsidiaries, taken as a whole, and there has
not been any material change in the capital stock, or material increase in the
consolidated short-term or long-term debt, of the Company and the Subsidiaries,
or any material adverse change, or any development involving or which may
reasonably be expected to involve a prospective material adverse change, in the
condition (financial or other), business, prospects, properties, net worth or
results of operations of the Company and the Subsidiaries, taken as a whole.
(m) Neither the Company nor any of its Subsidiaries owns any
real property. Each of the Company and the Subsidiaries has good title to all
personal property described in the Prospectus as being owned by it, free and
clear of all liens, claims, security interests or other encumbrances except
such as are described in the Registration Statement and the Prospectus. All
the property described in the Prospectus as being held under lease by the
Company or any of the Subsidiaries is held by it under valid, subsisting and
enforceable leases, subject to the qualification that enforceability may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other laws relating to or affecting creditors' rights generally
and by general equitable principles (whether applied at law or in equity).
(n) The Company has not distributed and, prior to the later
to occur of the Closing Date and completion of the distribution of the Shares,
will not distribute any offering material in connection with the offering and
sale of the Shares other than the Registration Statement, the Prepricing
Prospectus, the Prospectus or other materials, if any, permitted by the Act and
state securities or Blue Sky laws.
(o) Each of the Company and the Subsidiaries has such
permits, licenses, franchises, authorizations and clearances ("Permits") of
governmental or regulatory authorities as are necessary to own, lease and
operate its properties and to conduct its business in the manner described in
the Prospectus, subject to such qualifications as may be set forth in the
Prospectus; subject to such qualifications as may be set forth in the
Prospectus, each of the Company and the Subsidiaries has fulfilled and
performed all its material obligations with respect to the Permits, and no
event has occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material impairment
of the rights of the holder of any Permit, subject in each case to such
qualifications as may be set forth in the Prospectus. Except as described in
the Prospectus, none of the Permits contains any restriction that is materially
burdensome to the Company or any of the Subsidiaries.
(p) The property, assets and operations of the Company and
the Subsidiaries comply in all respects with all applicable federal, state and
local laws, rules, orders, decrees, judgments, injunctions, licenses, permits
or regulations relating to environmental matters (the "Environmental Laws"),
except where the failure to so comply would not have a Material Adverse Effect.
To the Company's knowledge, none of the Company's nor any of the
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Subsidiaries' property, assets or operations is the subject of any federal,
state or local investigation evaluating whether any remedial action is needed
to respond to a release of any substance regulated by or form the basis of
liability under any Environmental Laws (a "Hazardous Material") into the
environment or is in contravention of any federal, state, local or foreign law,
order or regulation. Neither the Company nor any of the Subsidiaries has
received any notice or claim, nor are there any pending or, to the Company's
best knowledge, threatened or reasonably anticipated lawsuits or other
proceedings against it with respect to violations of an Environmental Law or in
connection with the release of any Hazardous Material into the environment.
Neither the Company nor any of the Subsidiaries has any material contingent
liability in connection with any release of Hazardous Material into the
environment.
(q) Each of the Company and the Subsidiaries is insured by
insurers of recognized financial responsibility against such losses and risks
and in such amount as are customary in the business in which it is engaged. To
the Company's knowledge, all policies of insurance insuring the Company and
each of the Subsidiaries or their respective business, assets, employees,
officers and directors are in full force and effect, and the Company and each
of the Subsidiaries is in compliance with the terms of such policies in all
material respects. There are no claims by the Company or any of the
Subsidiaries under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights clause.
(r) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(s) Neither the Company nor any of the Subsidiaries nor, to
the Company's knowledge, any employee or agent of the Company or any of the
Subsidiaries has made any payment of funds of the Company or any of the
Subsidiaries or received or retained any funds in violation of any law, rule or
regulation, which payment, receipt or retention of funds is of a character
required to be disclosed in the Prospectus.
(t) Each of the Company and the Subsidiaries has filed all
federal, state, local and foreign tax returns and tax forms required to be
filed, such returns and forms are complete and correct, and all taxes shown by
such returns or otherwise assessed that are due or payable have been paid,
except (i) such taxes as are being contested in good faith and as to which
adequate reserves have been provided, (ii) for the grant of extensions for the
filing of such returns and forms and payment of any taxes, interest and
penalties due thereon for which adequate reserves have been established with
respect to such returns and forms, and (ii) all such failures to file or pay
that would not, individually or in the aggregate, have a Material Adverse
Effect. All payroll withholdings required to be made by the Company or any of
the Subsidiaries with respect to employees have been made. The charges,
accruals and reserves on the books
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of the Company and the Subsidiaries in respect of any tax liability for any
year not finally determined are adequate in all materials respects to meet any
assessments or reassessments for additional taxes. There have been no tax
deficiencies asserted and, to the best knowledge of the Company, no tax
deficiency might be reasonably asserted or threatened against the Company or
any of the Subsidiaries that could, individually or in the aggregate, have a
Material Adverse Effect.
(u) No holder of any security of the Company has any right
(other than rights that have been validly waived) to require registration of
shares of Common Stock or any other security of the Company because of the
filing of the Registration Statement or the consummation of the transactions
contemplated by this Agreement and, except as disclosed in the Prospectus, no
person has the right to require registration under the Act of any shares of
Common Stock or other securities of the Company. No person has the right,
contractual or otherwise, to cause the Company to permit such person to
underwrite the sale of any of the Shares. Except as described in or
contemplated by the Prospectus, there are no outstanding options, warrants or
other rights calling for the issuance of, and there are no commitments, plans
or arrangements to issue, any shares of capital stock of the Company or any of
the Subsidiaries or any security convertible into or exchangeable or
exercisable for capital stock of the Company or any of the Subsidiaries.
(v) The Company and the Subsidiaries own or possess all
patents, trademarks, trademark registrations, service marks, service xxxx
registrations, trade names, copyrights, licenses, inventions, trade secrets and
rights described in the Prospectus as being owned by any of them or necessary
for the conduct of their respective businesses, and, to the knowledge of the
Company, the Company is not infringing upon the rights of any other person with
respect to the foregoing.
(w) The Company is not, and, upon the sale of the Shares to
be issued and sold by it hereunder and application of the net proceeds from
such sale as described in the Prospectus under the caption "Use of Proceeds,"
will not be an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(x) Neither the execution, delivery or performance of the
Stock Purchase Agreement dated November 22, 1995 by and among the Company and
Xxxxxx Xxxxxx, as amended, and the Stock Purchase Agreement dated March 8, 1996
by and among the Company, Xxxxxx X. Xxxxxxx, acting individually and as trustee
under the Xxxxxx X. Xxxxxxx revocable living trust, Xxxxx Xxxxxx, Xxxxx
Xxxxxxx, acting individually and as trustee under the Xxxxx Xxxxxxx revocable
living trust, and Xxxxxx X. Xxxxx (collectively, the "Acquisition Agreements")
by the Company nor the consummation by the Company of the transactions
contemplated thereby (the "Acquisitions") (i) requires or required any consent,
approval, authorization or other order of, or registration with, any court,
regulatory body, administrative agency or other governmental body, agency or
official (except such as have been obtained by the Company or the Subsidiaries
in a timely fashion) or conflicted, conflicts or will conflict with or
constituted, constitutes or will constitute a breach of, or a default under,
the certificate or articles of incorporation or bylaws or other organizational
documents of the Company or any of the Subsidiaries or (ii) conflicted,
conflicts or will conflict with or constituted, constitutes or will constitute
a breach of, or a default under, any agreement, indenture, lease or other
instrument to which the Company or any
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of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound, or violates or will violate any statute,
law, regulation or filing or judgment, injunction, order or decree applicable
to the Company or any of the Subsidiaries or any of their respective
properties, or will result in the creation or imposition of any lien, charge or
incumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to the terms of any agreement or instrument to which any
of them is a party or by which any of them may be bound or to which any of the
property or assets of any of them is subject.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each of you and each other Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs
of investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prepricing Prospectus or
in the Registration Statement or the Prospectus or in any amendment or
supplement thereto, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any such untrue statement or omission or alleged untrue statement or omission
which has been made therein or omitted therefrom in reliance upon and in
conformity with the information relating to such Underwriter furnished in
writing to the Company by or on behalf of such Underwriter through you
expressly for use in connection therewith; provided, however, that the
indemnification contained in this paragraph (a) with respect to any Prepricing
Prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) on account of any such loss, claim,
damage, liability or expense arising from the sale of Shares by such
Underwriter to any person if (i) a copy of the Prospectus shall not have been
delivered or sent to such person within the time required by the Act, and the
untrue statement or alleged untrue statement or omission or alleged omission of
a material fact contained in such Prepricing Prospectus was corrected in the
Prospectus and (ii) the Company delivered the Prospectus to the several
Underwriters no later than 1:00 p.m., Nashville time, on the first business day
following the date of this Agreement, in such quantity as the Underwriters
shall have reasonably requested. The foregoing indemnity agreement shall be in
addition to any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought
against any Underwriter or any person controlling any Underwriter in respect of
which indemnity may be sought against the Company, such Underwriter or such
controlling person shall promptly notify the Company, and the Company shall
assume the defense thereof, including the employment of counsel and payment of
all fees and expenses. Such Underwriter or any such controlling person shall
have the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Underwriter or such controlling
person unless (i) the Company has agreed in writing to pay such fees and
expenses, (ii) the Company has failed to assume the defense and employ counsel
or (iii) the named parties to any such action, suit or proceeding (including
any impleaded parties) include both such Underwriter or such controlling person
and the Company and such Underwriter or such controlling person shall have been
advised that, in the written opinion of
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its counsel, representation of such indemnified party and the Company by the
same counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them (in which
case the Company shall not have the right to assume the defense of such action,
suit or proceeding on behalf of such Underwriter or such controlling person).
It is understood, however, that the Company shall, in connection with any one
such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable
fees and expenses of only one separate firm of attorneys (in addition to any
local counsel) at any time for all such Underwriters and controlling persons
not having actual or potential differing interests with you or among
themselves, which firm shall be designated in writing by Equitable Securities
Corporation, and that all such fees and expenses shall be reimbursed as they
are incurred. The Company shall not be liable for any settlement of any such
action, suit or proceeding effected without its written consent, but if settled
with such written consent, or if there be a final judgment for the plaintiff in
any such action, suit or proceeding, the Company agrees to indemnify and hold
harmless any Underwriter and any such controlling person, to the extent
provided in the preceding paragraph, from and against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers who
sign the Registration Statement and any person who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Company to each Underwriter,
but only with respect to information relating to such Underwriter furnished in
writing to the Company by or on behalf of such Underwriter through you
expressly for use in the Registration Statement, the Prospectus or any
Prepricing Prospectus, or any amendment or supplement thereto. If any action,
suit or proceeding shall be brought against the Company, any of its directors,
any such officer or any such controlling person based on the Registration
Statement, the Prospectus or any Prepricing Prospectus, or any amendment or
supplement thereto, and in respect of which indemnity may be sought against any
Underwriter pursuant to this paragraph (c), such Underwriter shall have the
rights and duties given to the Company by paragraph (b) above (except that if
the Company shall have assumed the defense thereof such Underwriter shall not
be required to do so, but may employ separate counsel therein and participate
in the defense thereof, but the fees and expenses of such counsel shall be at
such Underwriter's expense), and the Company, its directors, any such officer,
and any such controlling person shall have the rights and duties given to the
Underwriters by paragraph (b) above. The foregoing indemnity agreement shall
be in addition to any liability which the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 7
is unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other hand from the
offering of the Shares, or (ii) if the allocation provided
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by clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other hand shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus; provided
that, in the event that the Underwriters shall have purchased any Additional
Shares hereunder, any determination of the relative benefits received by the
Company and the Underwriters from the offering of the Shares shall include the
net proceeds (before deducting expenses) received by the Company, and the
underwriting discounts and commissions received by the Underwriters, from the
sale of such Additional Shares, in each case computed on the basis of the
respective amounts set forth in the notes to the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or by the Underwriters on
the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by a pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities and expenses referred to in paragraph (d)
above shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price of the Shares underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to
this Section 7 are several in proportion to the respective numbers of Firm
Shares set forth opposite their names in Schedule I hereto (or such numbers of
Firm Shares increased as set forth in Section 10 hereof) and not joint.
(f) 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 or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
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unconditional release of such indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses
for which an indemnified party is entitled to indemnification or contribution
under this Section 7 shall be paid by the indemnifying party to the indemnified
party as such losses, claims, damages, liabilities or expenses are incurred.
The indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers or any person
controlling the Company, (ii) acceptance of any Shares and payment therefor
hereunder and (iii) any termination of this Agreement. A successor to any
Underwriter or any person controlling any Underwriter, or to the Company, its
directors or officers, or any person controlling the Company, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 7.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Firm Shares hereunder are
subject to the following conditions:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for the registration statement or a post-effective
amendment thereto or an Abbreviated Registration Statement to be declared
effective before the offering of the Shares may commence, the registration
statement or such post-effective amendment or Abbreviated Registration
Statement shall have become effective not later than 5:30 P.M., New York City
time, on the date hereof, or at such later date and time as shall be consented
to in writing by you, and all filings, if any, required by Rules 424 and 430A
under the Act shall have been timely made.
(b) Subsequent to the effective date of this Agreement,
there shall not have occurred (i) any material adverse change or any
development involving a prospective adverse change in or affecting the
condition, financial or otherwise, of the Company or the earnings, business
affairs, management or business prospects of the Company whether or not arising
in the ordinary course of business, or (ii) any event or development relating
to or involving the Company or any of the Subsidiaries, or any officer or
director of the Company or any of the Subsidiaries, which makes any statement
made in the Prospectus untrue or which, in the reasonable opinion of the
Company and its counsel or the Underwriters and their counsel, requires the
making of any addition to or change in the Prospectus in order to state a
material fact required by the Act or any other law to be stated therein or
necessary in order to make the statements therein not misleading, if amending
or supplementing the Prospectus to reflect such event or development would, in
your opinion, as Representatives of the several Underwriters, materially,
adversely affect the market for the Shares.
(c) You shall have received on the Closing Date an opinion of
Xxxxxx & Bird, counsel for the Company, dated the Closing Date and addressed to
you, as Representatives of the several Underwriters, that:
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(i) The Company is a corporation duly
incorporated and validly existing in good standing under the laws of
the State of Delaware with full corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus (and any
amendment or supplement thereto), and is duly registered and qualified
to conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the
failure so to register or qualify would not have a Material Adverse
Effect, based, as to matters of fact, upon a certificate of an officer
of the Company;
(ii) Each Subsidiary is a corporation duly
incorporated and validly existing and in good standing under the laws
of the jurisdiction of its organization, with full corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus
(and any amendment or supplement thereto); each Subsidiary is duly
registered and qualified to conduct its business and is in good
standing as a foreign corporation in each jurisdiction or place where
the nature of its properties or the conduct of its business requires
such registration or qualification, except where the failure so to
register or qualify or to be in good standing would not have a
Material Adverse Effect, based, as to matters of fact, upon a
certificate of an officer of the Company; and all the outstanding
shares of capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable and
are owned of record by the Company free and clear of any perfected
security interest;
(iii) The authorized capital stock of the Company
is as set forth under the caption "Capitalization" in the Prospectus,
and the authorized capital stock of the Company conforms in all
material respects as to legal matters to the description contained in
the Prospectus under the caption "Description of Capital Stock";
(iv) All the shares of capital stock of the
Company outstanding prior to the issuance of the Shares have been duly
authorized and validly issued, and are fully paid and nonassessable;
(v) The Shares have been duly authorized and,
when issued and delivered to the Underwriters against payment therefor
in accordance with the terms hereof, will be validly issued, fully
paid and nonassessable and free of (A) any preemptive rights arising
under the Company's certificate of incorporation or the Delaware
General Corporation Law or (B) to the knowledge of such counsel,
similar rights arising under any agreement which is made an exhibit to
the Registration Statement that entitle or will entitle any person to
acquire any shares of capital stock of the Company upon the issuance
and sale of the Shares by the Company, other than those rights which
have been validly waived;
(vi) The form of certificate for the Shares
conforms to the requirements of the Delaware General Corporation Law;
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(vii) Such counsel has received oral confirmation
from the staff of the Commission that the Registration Statement and
all post-effective amendments, if any, have become effective under the
Act and, to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose are pending before or contemplated by the
Commission; and any required filing of the Prospectus pursuant to Rule
424(b) has been made in accordance with Rule 424(b);
(viii) The Company has the corporate power and
authority to enter into this Agreement and to issue, sell and deliver
the Shares to the Underwriters as provided herein, and this Agreement
has been duly authorized, executed and delivered by the Company and is
a valid, legal and binding agreement of the Company, enforceable
against the Company in accordance with its terms;
(ix) Neither the offer, sale or delivery of the
Shares, the execution, delivery or performance of this Agreement,
compliance by the Company with the provisions hereof nor consummation
by the Company of the transactions contemplated hereby conflicts or
will conflict with or constitutes or will constitute a breach of, or a
default under, the certificate of incorporation or bylaws, or other
organizational documents, of the Company or any of the Subsidiaries or
any, indenture, bond, note, lease or other agreement or instrument to
which the Company or any of the Subsidiaries is a party or by which
the Company or any of the Subsidiaries or any of their respective
properties is bound that is made an exhibit to the Registration
Statement, or to the knowledge of such counsel will result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Subsidiaries, nor will
any such action result in any violation of any existing law or
regulation known to such counsel and applicable to the Company or any
of the Subsidiaries or any of their respective properties;
(x) No consent, approval, authorization or other
order of, or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency, or official
is required on the part of the Company or any of the Subsidiaries
(except as have been obtained under the Act and the Exchange Act or
such as may be required under state securities or Blue Sky laws
governing the purchase and distribution of the Shares) for the valid
issuance and sale of the Shares to the Underwriters as contemplated by
this Agreement;
(xi) The Registration Statement and the Prospectus
and any supplements or amendments thereto (except for the financial
statements and the notes thereto and the schedules and other financial
and statistical data included therein, as to which such counsel need
not express any opinion) comply as to form in all material respects
with the requirements of the Act;
(xii) To the knowledge of such counsel, (A) there
are no legal or governmental proceedings pending or threatened against
the Company or any of the Subsidiaries, or to which the Company or any
of the Subsidiaries or any of their
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respective properties is subject, which are required to be described
in the Registration Statement or Prospectus (or any amendment or
supplement thereto) that are not described as required and (B) there
are no agreements, contracts, indentures, leases or other instruments
that are required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement thereto) or to be filed as
an exhibit to the Registration Statement that are not described or
filed as required, as the case may be;
(xiii) The statements in the Registration Statement
and Prospectus, insofar as they are descriptions of contracts,
agreements or other legal documents, or refer to statements of law or
legal conclusions, are accurate in all material respects and present
fairly the information required to be shown;
(xiv) Except as described in the Prospectus, such
counsel does not know of any holder of any securities of the Company
or any other person who has the right, contractual or otherwise, to
cause the Company to sell or otherwise issue to them, or to permit
them to underwrite the sale of, any of the Shares or the right to have
any Common Stock or other securities of the Company included in the
Registration Statement or the right, as a result of the filing of the
Registration Statement, to require the Company to register under the
Act any shares of Common Stock or other securities of the Company, and
any registration rights in connection with the offering contemplated
hereby have been validly waived; and
(xv) The Company is not an "investment company" or
a person "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
Such opinion may be limited by and in accordance with the
January 1, 1992 edition of the Interpretive Standards Applicable to Legal
Opinions to Third Parties in Corporate Transactions adopted by the Legal
Opinion Committee of the Corporate and banking Law Section of the State Bar of
Georgia, which Interpretive Standards may be incorporated therein by reference.
Xxxxxx & Bird shall confirm in its opinion letter (i) that it has received
certificates of good standing for the Company from the States of Georgia and
Delaware, which certificates shall be attached as an exhibit to such opinion
letter; (ii) that it has received a certificate of good standing for Medirisk
of Missouri, Inc. from the State of Missouri, which certificate shall be
attached as an exhibit to such opinion letter; and (iii) that it has received
certificates of good standing for Medirisk of Illinois, Inc. from the States of
Indiana and Illinois, which certificates shall be attached as exhibits to such
opinion letter. Xxxxxx & Bird shall further confirm that, to its knowledge,
the issuance and sale of the Shares being issued at the Closing Date or the
Option Closing Date and the performance of this Agreement and the consummation
of the transactions contemplated hereby does not violate any order, judgment or
decree of any court of governmental agency or body having jurisdiction over the
Company or any of its Subsidiaries or any of their respective properties or
assets.
In addition, such counsel shall state that although such
counsel has not undertaken, except as otherwise indicated in their opinion, to
determine independently, and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements in the
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Registration Statement, such counsel has participated in the preparation of the
Registration Statement and the Prospectus, including review and discussion of
the contents thereof, and nothing has come to the attention of such counsel
that has caused it to believe that the Registration Statement, at the time the
Registration Statement became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus, as of its date and as of the Closing Date or the Option Closing
Date, as the case may be, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or that any amendment or supplement to the
Prospectus, as of its date, and as of the Closing Date or the Option Closing
Date, as the case may be, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading (it being understood that such counsel need express
no opinion with respect to the financial statements and the notes thereto and
the schedules and other financial and statistical data included in the
Registration Statement or the Prospectus).
In rendering their opinion as aforesaid, counsel may rely upon
an opinion or opinions, each dated the Closing Date, of other counsel retained
by them or the Company as to laws of any jurisdiction other than the federal
laws of the United States or the States of Georgia or the corporation law of
the State of Delaware, provided, however that (1) each such local counsel is
acceptable to the Representatives, (2) such reliance is expressly authorized by
each opinion so relied upon and a copy of each such opinion is delivered to the
Representatives and is, in form and substance, satisfactory to them and counsel
for the Underwriters and (3) counsel shall state in their opinion that they
believe that they and the Underwriters are justified in relying thereon.
(d) You shall have received on the Closing Date an opinion of
Xxxxx Xxxxxxxxxx, counsel for the Underwriters, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, with respect
to the matters referred to in clauses (v) (other than subclause (B) thereof),
(vii), (viii), (xi) and the penultimate paragraph of Section 8(c) hereof and
such other related matters as you may request.
(e) You shall have received letters addressed to you and dated
the date hereof and, as to such letter that relates to the Company, the Closing
Date from KPMG Peat Marwick LLP and Xxxxx, Smith, Wallace, L.L.C., independent
certified public accountants, substantially in the forms heretofore approved by
you.
(f)(i) 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, to the knowledge of the Company,
contemplated by the Commission at or prior to the Closing Date and any request
of the Commission for additional information (to be included in the
registration statement or the prospectus or otherwise) shall have been complied
with; (ii) there shall not have been any material change in the capital stock
of the Company nor any material increase in the short-term or long-term debt of
the Company and the Subsidiaries, taken as a whole, from that set forth or
contemplated in the Registration Statement or the Prospectus (or any amendment
or
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supplement thereto); (iii) there shall not have been, since the respective
dates as of which information is given in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), except as may otherwise be
stated in the Registration Statement and Prospectus (or any amendment or
supplement thereto), any material adverse change in the condition (financial or
other), business, prospects, properties, net worth or results of operations of
the Company and the Subsidiaries, taken as a whole; (iv) neither the Company
nor any of the Subsidiaries shall have any liabilities or obligations, direct
or contingent (whether or not in the ordinary course of business), that are
material to the Company and the Subsidiaries, taken as a whole, other than
those reflected in or contemplated by the Registration Statement or the
Prospectus (or any amendment or supplement thereto); and (v) all the
representations and warranties of the Company contained in this Agreement shall
be true and correct in all material respects on and as of the date hereof and
on and as of the Closing Date as if made on and as of the Closing Date, and you
shall have received a certificate, dated the Closing Date and signed by the
chief executive officer and the chief financial officer of the Company (or such
other officers as are acceptable to you), as to the matters set forth in this
Section 8(f) and in Section 8(g) hereof.
(g) The Company shall not have failed at or prior to the Closing
Date to have performed or complied with any of its agreements herein contained
and required to be performed or complied with by it hereunder at or prior to
the Closing Date.
(h) The Shares shall have been approved for quotation subject to
notice of issuance on The Nasdaq Stock Market's National Market.
(i) The Company shall have furnished or caused to be furnished
to you such further certificates and documents as you shall have reasonably
requested, provided that such request or requests shall be furnished to the
Company as soon as is reasonably practicable.
All such opinions, certificates, letters and other documents will
be in compliance with the provisions hereof only if they are satisfactory in
form and substance to you, as Representatives of the several Underwriters, and
counsel for the Underwriters.
Any certificate or document signed by any officer of the Company
and delivered to you, as Representatives of the several Underwriters, or to
counsel for the Underwriters, shall be deemed a representation or warranty by
the Company to each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the satisfaction on and as of any
Option Closing Date of the conditions set forth in this Section 8, except that,
if any Option Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in paragraphs (c) through (f) and paragraph
(j) shall be dated the Option Closing Date in question and the opinions called
for by paragraphs (c) and (d) shall be revised to reflect the sale of
Additional Shares.
9. EXPENSES. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder: (i) the
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preparation by the Company, printing or reproduction, and filing with the
Commission of the registration statement (including financial statements and
exhibits thereto), each Prepricing Prospectus, the Prospectus, and each
amendment or supplement to any of them (but not exceeding nine months after the
date of this Agreement, after which time it shall be at the expense of the
Underwriters, if so requested); (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of the registration statement, each Prepricing
Prospectus, the Prospectus, and all amendments or supplements to any of them as
may be reasonably requested for use in connection with the offering and sale of
the Shares; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Shares, including any stamp taxes in
connection with the offering of the Shares; (iv) the printing (or reproduction)
and delivery of this Agreement, the preliminary and supplemental Blue Sky
Memoranda and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Shares; (v) the registration
of the Common Stock under the Exchange Act and the listing of the Shares on the
Nasdaq National Market; (vi) the registration or qualification of the Shares
for offer and sale under the securities or Blue Sky laws of the several states
as provided in Section 5(g) hereof (including the reasonable fees, expenses and
disbursements of counsel for the Underwriters relating to the preparation,
printing or reproduction, and delivery of the preliminary and supplemental Blue
Sky Memoranda and such registration and qualification); (vii) the filing fees
and the reasonable fees and expenses of counsel for the Underwriters in
connection with any filings required to be made with the National Association
of Securities Dealers, Inc. in connection with the offering; (viii) the
transportation and other expenses incurred by or on behalf of representatives
of the Company in connection with presentations to prospective purchasers of
the Shares; (ix) the fees and expenses of the Company's accountants and the
fees and expenses of counsel (including local and special counsel) for the
Company; and (x) the performance by the Company of its other obligations under
this Agreement.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto;
or (ii) if, at the time this Agreement is executed and delivered, it is
necessary for the registration statement or a post-effective amendment thereto
or an Abbreviated Registration Statement to be declared or become effective
before the offering of the Shares may commence, when notification of the
effectiveness of the registration statement or such post-effective amendment
has been released by the Commission or such Abbreviated Registration Statement
has, pursuant to the provisions of Rule 462 under the Act, become effective.
Until such time as this Agreement shall have become effective, it may be
terminated by the Company, by notifying you, or by you, as Representatives of
the several Underwriters, by notifying the Company.
If any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they have agreed to purchase hereunder, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of Shares which the Underwriters are obligated to purchase on
the Closing Date, each non-defaulting Underwriter shall be obligated,
severally, in the proportion which the number of Firm Shares set forth opposite
its name in Schedule I hereto bears to the aggregate number of Firm Shares set
forth opposite the names of all non-defaulting Underwriters or in such other
proportion as you shall specify in accordance with the Agreement
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among Underwriters, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed, but failed or refused, to purchase. If any Underwriter or
Underwriters shall fail or refuse to purchase Shares which it or they are
obligated to purchase on the Closing Date and the aggregate number of Shares
with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares which the Underwriters are obligated to purchase on
the Closing Date and arrangements satisfactory to you and the Company for the
purchase of such Shares by one or more non-defaulting Underwriters or other
party or parties approved by you and the Company are not made within 36 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case which does
not result in termination of this Agreement, either you or the Company shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any such default of any
such Underwriter under this Agreement. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Company,
purchases Shares which a defaulting Underwriter agreed, but failed or refused,
to purchase.
Any notice under this Section 10 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
11. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company, by notice to the Company, if prior to the Closing
Date or any Option Closing Date (if different from the Closing Date and then
only as to the Additional Shares), as the case may be, (i) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market shall have been suspended or materially
limited, (ii) a general moratorium on commercial banking activities in New York
shall have been declared by either federal or state authorities, or (iii) there
shall have occurred any outbreak or escalation of hostilities or other
international or domestic calamity, crisis or change in political, financial or
economic conditions, the effect of which on the financial markets of the United
States is such as to make it, in your judgment, impracticable or 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 enforce contracts
for the resale of the Shares by the Underwriters. Notice of such termination
may be given by telegram, telecopy or telephone and shall be subsequently
confirmed by letter.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set
forth in the last paragraph on the cover page, the stabilization legend on the
inside front cover page and the statements in the first and third paragraphs
under the caption "Underwriting" in any Prepricing Prospectus and in the
Prospectus constitute the only information furnished by or on behalf of the
Underwriters through you as such information is referred to in Sections 6(b)
and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10
and 11 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if
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to the Company, at the office of the Company at Two Piedmont Center, Suite 400,
0000 Xxxxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000, Attention: Xxxx X. Xxxxxx,
Chairman of the Board, President and Chief Executive Officer, with a copy to
Xxxxxx & Bird, One Atlantic Center, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxx, Esq.; or (ii) if to you, as
Representatives of the several Underwriters, care of Equitable Securities
Corporation, 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000, Attention:
Xxxx X. Xxxxx, Xx., Managing Director, Syndicate Department, with a copy to
Xxxxx Xxxxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxxxx X. Xxxxxx, Esq.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company, its directors, its officers who sign the
Registration Statement and the controlling persons referred to in Section 7
hereof and, to the extent provided herein, their respective successors and
assigns and no other person shall acquire or have any right under or by virtue
of this Agreement. Neither the term "successor" nor the term "successors and
assigns" as used in this Agreement shall include a purchaser from any
Underwriter of any of the Shares in his status as such purchaser.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed
by and construed in accordance with the laws of the State of Georgia applicable
to contracts made and to be performed within the State of Georgia.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts,
this Agreement shall not become effective unless at least one counterpart
hereof shall have been executed and delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the
agreement between the Company and the several Underwriters.
Very truly yours,
MEDIRISK, INC.
By:
---------------------------------
Xxxx X. Xxxxxx
Chairman of the Board, President
and Chief Executive Officer
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
EQUITABLE SECURITIES CORPORATION
XXXXXXXXX & COMPANY, INC.
As Representatives of the Several Underwriters
By: EQUITABLE SECURITIES CORPORATION
By:
----------------------------------
Managing Director
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SCHEDULE I
Medirisk, Inc.
Number of
Underwriter Firm Shares
----------- -----------
Equitable Securities Corporation . . . . . . . . . . . . . . . .
Xxxxxxxxx & Company, Inc. . . . . . . . . . . . . . . . . . . . .
---------
Total . . . . . . . . . . . . . . . . . .
2,500,000
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