4,850,000 Shares WELLCARE HEALTH PLANS, INC. COMMON STOCK, PAR VALUE $0.01 PER SHARE UNDERWRITING AGREEMENT
Exhibit
1.1
4,850,000
Shares
COMMON
STOCK, PAR VALUE $0.01 PER SHARE
March
7,
2006
March
7,
2006
Xxxxxx
Xxxxxxx & Co. Incorporated
Xxxxxxx,
Sachs & Co.
Xxxxxx
Brothers Inc.
Wachovia
Capital Markets, LLC
c/o Morgan
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Dear
Sirs
and Mesdames:
WellCare
Health Plans, Inc., a Delaware corporation (the “Company”), proposes to issue
and sell to the several underwriters named in Schedule II hereto (the
“Underwriters”), and the shareholder of the Company named in Schedule I-A hereto
(“TBI”) and the shareholders of the Company named in Schedule I-B hereto (the
“Management Selling Shareholders” and, together with TBI, the “Selling
Shareholders”) severally propose to sell to the several Underwriters, an
aggregate of 4,850,000 shares (the “Firm Shares”) of the common stock, par value
$.01, of the Company (the “Common Stock”), of which 500,000 shares are to be
issued and sold by the Company and 4,350,000 shares are to be sold by the
Selling Shareholders, each Selling Shareholder selling the amount set forth
opposite such Selling Shareholder's name in Schedules I-A and I-B hereto, as
applicable. The Company and the Selling Shareholders propose to sell to the
several Underwriters not more than an additional 727,500 shares of Common Stock
(the “Additional Shares”), of which 75,000 shares are to be issued and sold by
the Company and 652,500 shares are to be sold by the Selling Shareholders,
each
Selling Shareholder selling the amount set forth opposite such Selling
Shareholder's name in Schedule I-C hereto, if and to the extent that you have
determined to exercise the right to purchase such shares of common stock granted
to the Underwriters in Section 3 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the “Shares.” The
Company and the Selling Shareholders are hereinafter sometimes collectively
referred to as the “Sellers.”
The
Company has filed with the Securities and Exchange Commission (the “Commission”)
an "automatic shelf registration statement" as defined under Rule 405 under
the
Securities Act of 1933, as amended (the “Securities Act”),
on
Form S-3 (file No. 333-132052), relating to shares of Common Stock (the
“Shelf Securities”), including the Shares, to be issued from time to time by the
Company.
The
registration statement as amended to the date of this Agreement, including
the
information (if any) deemed to be part of the registration statement at the
time
of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act,
is
hereinafter referred to as the “Registration Statement;” the related prospectus
contained therein covering the Shelf Securities dated February 27,
2006 is
hereinafter referred to as the “Basic Prospectus.” If the Company has filed an
abbreviated registration statement to register additional shares of Common
Stock
pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration
Statement”), then any reference herein to the term “Registration Statement”
shall be deemed to include such Rule 462 Registration Statement. The Basic
Prospectus, as supplemented by the prospectus supplement specifically relating
to the Shares in the form first used to confirm sales of the Shares (or in
the
form first made available to the Underwriters by the Company to meet requests
of
purchasers pursuant to Rule 173 under the Securities Act) is hereinafter
referred to as the “Prospectus,” and the term “preliminary prospectus” means any
preliminary form of the Prospectus. For
purposes of this Agreement, “free writing prospectus” has the meaning set forth
in Rule 405 under the Securities Act, “Time of Sale Prospectus” means the Basic
Prospectus as supplemented by the prospectus supplement
specifically relating to the Shares
dated
February 27, 2006, and together with the free writing prospectuses, if any,
each
identified in Schedule III hereto, and the information set forth on Schedule
IV
hereto.
As used
herein, the terms “Registration Statement,” “Basic Prospectus,” “preliminary
prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the
documents, if any, incorporated by reference therein. The terms “supplement,”
“amendment,” and “amend” as used herein with respect to the Registration
Statement, the Basic Prospectus, Time
of
Sale Prospectus, any preliminary prospectus or free writing prospectus shall
include all documents subsequently filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), that are deemed to be incorporated by reference therein.
1. Representations
and Warranties
of
the Company.
The
Company represents and warrants to and agrees with each of the Underwriters
that:
(a) The
Registration Statement became effective under the Securities Act upon its filing
with the Commission; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose are
pending before or, to the knowledge of the Company, threatened by the
Commission. The
Company is eligible to use the Registration Statement as an automatic shelf
registration statement as
defined in Rule 405 under the Securities Act, and, as of the applicable
determination date (as defined in Rule 405 under the Securities Act), the
Company was qualified as a well-known seasoned issuer (as defined in Rule 405
under the Securities Act). The Company has not received notice that the
Commission objects to the use of the Registration Statement as an automatic
shelf registration statement.
(b) (i)
Each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus
complied or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission thereunder,
(ii)
each
part of the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable, will
not
contain any 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, (iii)
the
Registration Statement as of the date hereof does not contain any 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,
(iv)
the
Registration Statement and the Prospectus comply, and as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder, (v)
the Time
of Sale Prospectus does not, and at the time of each sale of the Shares in
connection with the offering when the Prospectus is not yet available to
prospective purchasers and at the Closing Date (as defined in Section 5),
the Time of Sale Prospectus, as then amended or supplemented by the Company,
if
applicable, will not, contain any untrue statement of a material fact or omit
to
state a material fact necessary to make the statements therein, in the light
of
the circumstances under which they were made, not misleading, and (vi)
the
Prospectus does not contain and, as amended or supplemented, if applicable,
will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations
and
warranties set forth in this paragraph do not apply to statements or omissions
in the Registration Statement, the Time of Sale Prospectus, the Prospectus,
or
any free writing prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
(c) As
of the
applicable determination date
(as
defined in Rule 405 under the Securities Act),
the
Company was not an “ineligible issuer” in connection with the offering pursuant
to Rules 164, 405 and 433 under the Securities Act.
(d) Any
free
writing prospectus that the Company is required to file pursuant to Rule 433(d)
under the Securities Act has been, or will be, filed with the Commission in
accordance with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder. Each free writing prospectus
that
the Company has filed, or is required to file, pursuant to Rule 433(d) under
the
Securities Act or that was prepared by or behalf of or used or referred to
by
the Company complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules and regulations
of
the Commission thereunder. Except for the free writing prospectuses, if any,
identified in Schedule III hereto, and electronic road shows, each furnished
to
you before first use, the Company has not prepared, used or referred to any
free
writing prospectus.
(e) The
Company has been duly incorporated, is validly existing as a corporation in
good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business
as
described in the Time of Sale Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole (collectively, the “WellCare Group”).
(f) Each
subsidiary of the Company has been duly incorporated or organized, as the case
may be, is validly existing as a corporation or limited liability company in
good standing under the laws of the jurisdiction of its incorporation or
organization, as the case may be, has the power (corporate or limited liability
company, as the case may be) and authority to own its property and to conduct
its business as described in the Time of Sale Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which
the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in
good standing would not have a material adverse effect on the WellCare Group;
all of the issued shares of capital stock or membership interests, as the case
may be, of each of the Company's subsidiaries have been duly and validly
authorized and issued or created, as the case may be, and, in the case of shares
of capital stock, are fully paid and non-assessable; and in each case such
capital stock or membership interest, as the case may be, is owned directly
or
indirectly by the Company, free and clear of all liens, encumbrances, equities
or claims, except as described in the Time of Sale Prospectus.
(g) This
Agreement has been duly authorized, executed and delivered by the
Company.
(h) The
authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in each of the Time of Sale Prospectus and the
Prospectus; and except as disclosed in the Time of Sale Prospectus, there are
no
outstanding securities convertible into or exchangeable for, or warrants, rights
or options to subscribe to or purchase from the Company, or obligation of the
Company to issue, shares of Common Stock.
(i) The
shares of Common Stock (including the Shares to be sold by the Selling
Shareholders) outstanding prior to the issuance of the Shares to be sold by
the
Company have been duly authorized and are validly issued, fully paid and
non-assessable; and there are no restrictions on transfer of or encumbrances
on
the Shares to be sold by the Selling Shareholders pursuant to this Agreement
under the laws of the Delaware General Corporation Law or
the
certificate of incorporation of the Company.
(j) The
Shares to be sold by the Company have been duly authorized and, when issued
and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will
not
be subject to any preemptive or similar rights.
(k) The
execution and delivery by the Company of, and the performance by the Company
of
its obligations under, this Agreement will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the Company,
or
any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the WellCare Group, or any judgment, order
or
decree of any governmental body, agency or court having jurisdiction over the
Company or any of its subsidiaries; and no consent, approval, authorization
or
order of, or qualification with, any governmental body or agency is required
for
the performance by the Company of its obligations under this Agreement, except
such as may be required by the Securities Act, the Securities and Exchange
Act
of 1934, as amended (the “Exchange Act”), the rules and regulations of the New
York Stock Exchange (the “NYSE”) or the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Shares.
(l) There
has
not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of the WellCare Group, from that
set
forth in the Time of Sale Prospectus (other than such change or development
set
forth in any amendments or supplements thereto subsequent to the date of this
Agreement).
(m) There
are
no legal or governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its subsidiaries
is
subject that are required to be described in the Registration Statement or
the
Prospectus and are not so described or any statutes, regulations, contracts
or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement
that
are not described or filed as required. The Time of Sale Prospectus contains
in
all material respects the same description of the foregoing matters contained
in
the Prospectus.
(n) Each
preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder.
(o) The
Company is not, and after giving effect to the offering and sale of the Shares
and the application of the proceeds thereof as described in the Prospectus,
will
not be, required to register as an “investment company” as such term is defined
in the Investment Company Act of 1940, as amended.
(p) The
Company and each of its subsidiaries: (i) are in compliance with any and all
applicable federal, state and local laws and regulations relating to the
protection of human health and safety (“Health and Safety Laws”) and the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants (“Environmental Laws”); (ii) have received all permits, licenses or
other approvals required of them under applicable Health and Safety and
Environmental Laws to conduct their respective businesses; and (iii) are in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Health and Safety or
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a material
adverse effect on the WellCare Group.
(q) There
are
no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or any permit, license
or
approval, any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate, have
a
material adverse effect on the WellCare Group.
(r) There
are
no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company
or to require the Company to include such securities with the Shares registered
pursuant to the Registration Statement, in each case except as described in
the
Time of Sale Prospectus.
(s) Subsequent
to the respective dates as of which information is given in the Registration
Statement, the Time of Sale Prospectus, and the Prospectus, (i) none of the
Company or any of its subsidiaries has incurred any material liability or
obligation, direct or contingent, or entered into any material transaction
not
in the ordinary course of business; (ii) none of the Company or any of its
subsidiaries has purchased any of its outstanding capital stock or membership
units, or declared, paid or otherwise made any dividend or distribution of
any
kind on its capital stock or membership units; and (iii) there has not been
any
material change in the capital stock, membership units, short-term debt or
long-term debt of any of the Company or its subsidiaries, except in each case
as
described in each of the Registration Statement, Time of Sale Prospectus and
the
Prospectus.
(t) The
Company and each of its subsidiaries have good and marketable title in fee
simple to all real property and good and marketable title to all personal
property owned by them which is material to the WellCare Group, in each case
free and clear of all liens, encumbrances and defects except such as are
described in the Time of Sale Prospectus or such as do not materially affect
the
value of such property and do not interfere with the use made and proposed
to be
made of such property by the WellCare Group; and any real property and buildings
held under lease by each of the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as are
not
material and do not interfere with the use made and proposed to be made of
such
property and buildings by the Company and each of its subsidiaries, in each
case
except as described in the Time of Sale Prospectus.
(u) Except
as
set forth in the Time of Sale Prospectus, (i) the Company and each of its
subsidiaries own, possess, license or have other rights to use on reasonable
terms, all material patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems, or procedures), trademarks,
service marks and trade names, and domain names (in each case including all
registrations and applications to register same), and other intellectual
property, (collectively, the “Intellectual Property”) necessary for the
operation of the business of the Company and each of its subsidiaries as now
conducted; (ii) none of the Company or any of its subsidiaries has received
any
notice of infringement of or conflict with asserted rights of other parties
with
respect to such Intellectual Property, and the Company is unaware of any facts
which would form a reasonable basis for a party to send such a notice; (iii)
to
the knowledge of the Company, there is no material infringement by third parties
of any such Intellectual Property that is owned by or exclusively licensed
to
the Company or any of its subsidiaries; and (iv) there is no pending or, to
the
Company's knowledge, threatened action, suit, proceeding or claim by any third
party that the conduct of the business of the Company or any of its subsidiaries
infringes or otherwise violates any Intellectual Property Rights of any third
party, and the Company is unaware of any other fact which would form a
reasonable basis for any such claim.
(v) No
material labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent; and none
of the Company or any of its subsidiaries is aware of any existing, threatened
or imminent labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors that could have a material adverse
effect on the WellCare Group.
(w) None
of
the following events has occurred or exists: (i) a failure to fulfill the
obligations, if any, under the minimum funding standards of Xxxxxxx 000 xx
xxx
Xxxxxx Xxxxxx Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), and the regulations and published interpretations thereunder with
respect to a Plan, determined without regard to any waiver of such obligations
or extension of any amortization period; (ii) an audit or investigation by
the
Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit
Guaranty Corporation or any other federal or state governmental agency or any
foreign regulatory agency with respect to the employment or compensation of
employees by any member of the WellCare Group that could have a material adverse
effect on the WellCare Group; or (iii) any breach by any member of the WellCare
Group of any contractual obligation to employees that could have a material
adverse effect on the WellCare Group. None of the following events has or is
reasonably likely to occur: (A) a material increase in the aggregate amount
of
contributions required to be made to all Plans in the current fiscal year of
the
WellCare Group compared to the amount of such contributions made in the WellCare
Group's most recently completed fiscal year; (B) a material increase in the
WellCare Group's “accumulated post-retirement benefit obligations” (within the
meaning of Statement of Financial Accounting Standards 106) compared to the
amount of such obligations in the WellCare Group's most recently completed
fiscal year; (C) the termination of any Plan, the assets of which are not
sufficient to pay benefit liabilities; or (D) the filing of a claim by one
or
more employees or former employees of the WellCare Group related to their
employment that could have a material adverse effect on the WellCare Group.
For
purposes of this paragraph, the term “Plan” means a plan (within the meaning of
Section 3(3) of ERISA) subject to Title IV of ERISA with respect to which any
member of the WellCare Group may have any liability.
(x) The
Company and each of 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
none
of the Company or any of its subsidiaries has any reason to believe that it
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 at a cost that would not have a material adverse effect
on the WellCare Group.
(y) None
of
the Company or any of its subsidiaries is (i) in violation of its certificate
of
incorporation or bylaws or other organizational document, as the case may be,
or
(ii) in default in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, credit agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any of
its
property or assets is subject.
(z) The
Company and each of its subsidiaries (i) are in compliance with, and conduct
their respective businesses in conformity with, all applicable federal, state
and local laws and regulations, except where the failure to so comply or conform
would not have a material adverse effect on the WellCare Group; (ii) have
received all permits, licenses and other approvals issued by the appropriate
federal, state or local regulatory authorities necessary to conduct their
respective businesses, except where the failure to receive such permits,
licenses or other approvals would not have a material adverse effect on the
WellCare Group; (iii) are in compliance with all terms and conditions of any
such permit, license or other approval, except where such noncompliance would
not have a material adverse effect on the WellCare Group; and (iv) none of
the
Company or any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such permit, license or other
approval which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on the
WellCare Group, except in each case as described in the Time of Sale Prospectus.
(aa) The
Company and each of its subsidiaries have filed all federal, state and local
tax
returns required to be filed through the date of this Agreement or have
requested extensions thereof (except for cases in which the failure to file
would not have a material adverse effect on the WellCare Group) and have paid
all taxes due thereon, and, except as currently being contested in good faith
and for which reserves required by generally accepted accounting principles
have
been created on the financial statements of the Company, no tax deficiency
has
been determined adversely to the Company or any of its subsidiaries which has
had (nor does the Company or any of its subsidiaries have any knowledge of
any
tax deficiency which, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have) a material adverse effect
on
the WellCare Group.
(bb) The
Company and each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to
maintain asset accountability; (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 the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(cc) Based
on
its evaluation of its internal control over financial reporting, the Company
is
not aware that there has been, since the end of the Company's most recent
audited fiscal year, any material weakness or reportable condition in the
Company's internal control over financial reporting (whether or not
remediated).
(dd) The
Company has established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act); such
disclosure controls and procedures are designed to ensure that material
information relating to the Company, including its consolidated subsidiaries,
is
made known to the Company's Chief Executive Officer and Chief Financial Officer
by others within the Company, and such disclosure controls and procedures are
effective to perform the functions for which they were established as of
December 31, 2005; the Company's auditor and the Audit Committee of its Board
of
Directors have been advised of: (i) any significant deficiencies in the design
or operation of internal controls which could adversely affect the Company's
ability to record, process, summarize, and report financial data; and (ii)
any
fraud, whether or not material, that involves management or other employees
who
have a role in the Company's internal controls; any material weaknesses in
internal controls have been identified for the Company's auditors; and since
December 31, 2005, the date of the most recent evaluation of such disclosure
controls and procedures, there have been no significant changes in internal
controls or in other factors that could significantly affect internal controls,
including any corrective actions with regard to significant deficiencies and
material weaknesses.
(ee) Since
July 7, 2004, the Company has not, directly or indirectly, including through
any
subsidiary: (i) extended credit, arranged to extend credit, or renewed any
extension of credit, in the form of a personal loan, to or for any director
or
executive officer of the Company, or to or for any family member or affiliate
of
any director or executive officer of the Company; or (ii) made any material
modification, including any renewal thereof, to any term of any personal loan
to
any director or executive officer of the Company, or any family member or
affiliate of any director or executive officer, which loan was outstanding
on
July 30, 2002.
(ff) The
Company has not taken and will not take, directly or indirectly, any action
which is designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the price of
any
security of the Company to facilitate the sale or resale of the Shares.
(gg) Deloitte
& Touche LLP, who have certified certain financial statements of the Company
and its subsidiaries, are independent public accountants as required by the
Securities Act and the rules and regulations of the Commission
thereunder.
(hh) It
is not
necessary in connection with the contribution of Common Stock to any deferred
compensation or other benefit plan to register any such Common Stock under
the
Securities Act, or to qualify any indenture under the Trust Indenture Act of
1939, as amended.
2. Representations
and Warranties of the Selling Shareholders.
(a) TBI
represents and warrants to and agrees with each of the Underwriters
that:
(i) This
Agreement has been duly authorized, executed and delivered by or on behalf
of
TBI.
(ii) The
execution and delivery by TBI of, and the performance by TBI of its obligations
under, this Agreement will not contravene any provision of applicable law or
the
partnership agreement of TBI or any agreement or other instrument binding upon
TBI or any judgment, order or decree of any governmental body, agency or court
having jurisdiction over TBI, except to the extent a consent or waiver has
been
obtained and remains in full force and effect; and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by TBI of its obligations under this
Agreement, except such as may be required by the securities or Blue Sky laws
of
the various states in connection with the offer and sale of the
Shares.
(iii) TBI
is,
and on the Closing Date (as defined below) or any Option Closing Date (as
defined below), as the case may be, will be, the record owner of the Shares
to
be sold by TBI, free and clear of all security interests, claims, liens,
equities or other encumbrances (other than pursuant to this Agreement), and
has
duly endorsed such Shares in blank; and TBI has the legal right and power,
and
all authorization and approval required by law, to enter into this Agreement
and
to sell, transfer and deliver the Shares to be sold by TBI.
(iv) Upon
payment for the Shares to be sold by TBI pursuant to this Agreement, delivery
of
such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such
other nominee as may be designated by The Depository Trust Company (“DTC”),
registration of such Shares in the name of Cede or such other nominee and the
crediting of such Shares on the books of DTC to securities accounts of the
Underwriters (assuming that neither DTC nor any such Underwriter has notice
of
any adverse claim (within the meaning of Section 8-105 of the New York Uniform
Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected
purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B)
under Section 8-501 of the UCC, the Underwriters will acquire a valid security
entitlement in respect of such Shares and (C) no action based on any “adverse
claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be
asserted against the Underwriters with respect to such Shares; for purposes
of
this representation, such Selling Shareholder may assume that when such payment,
delivery and crediting occur, (x) such Shares will have been registered in
the
name of Cede or another nominee designated by DTC, in each case on the Company's
share registry in accordance with its certificate of incorporation, bylaws
and
applicable law, (y) DTC will be registered as a “clearing corporation” within
the meaning of Section 8-102 of the UCC and (z) appropriate entries to the
accounts of the several Underwriters on the records of DTC will have been made
pursuant to the UCC.
(v) TBI
is
not prompted by any information concerning the Company or its subsidiaries
which
is not set forth in the Prospectus to sell its Shares pursuant to this
Agreement.
(vi) (A)
The
Registration Statement, when it became effective, did not contain and, as
amended or supplemented, if applicable, will not contain any 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; (B) the Prospectus
does not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and (C) the Time of Sale Prospectus
does not, and at the time of each sale of the Shares in connection with the
offering when the Prospectus is not yet available to prospective purchasers
and
at the Closing Date (as defined in Section 5), the Time of Sale Prospectus,
as then amended or supplemented by the Company, if applicable, will not, contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the representations
and warranties set forth in this paragraph 2(a)(vi) are limited to statements
or
omissions made in reliance upon information relating to TBI furnished to the
Company in writing by TBI expressly for use in the Registration Statement,
the
Prospectus or any amendments or supplements thereto.
(vii) TBI
has
not taken and will not take, directly or indirectly, any action which is
designed to or which has constituted or which might reasonably be expected
to
cause or result in stabilization or manipulation of the price of any security
of
the Company to facilitate the sale or resale of its Shares.
(viii) Except
as
disclosed by TBI in writing to Xxxxxx Xxxxxxx & Co. Incorporated (“Xxxxxx
Xxxxxxx”), neither TBI nor any of its affiliates directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, or has any other association with (within the meaning of Article
1(q) of the Bylaws of the National Association of Securities Dealers, Inc.
(the
“NASD”)), any member firm of the NASD.
(b) Each
Management Selling Shareholder represents and warrants to and agrees with each
of the Underwriters that, with respect to such Selling Shareholder
only:
(i) This
Agreement has been duly authorized, executed and delivered by or on behalf
of
such Selling Shareholder.
(ii) The
execution and delivery by such Selling Shareholder of, and the performance
by
such Selling Shareholder of its obligations under, this Agreement, the Stock
Custody Agreement signed by such Selling Shareholder and Computershare Trust
Company, N.A., as Custodian, relating to the deposit of the Shares to be sold
by
such Selling Shareholder (the “Custody Agreement”) and the Power of Attorney
appointing certain individuals as such Selling Shareholder's attorneys-in-fact
to the extent set forth therein, relating to the transactions contemplated
hereby and by the Registration Statement (the “Power of Attorney”) will not
contravene (A) any provision of applicable law, (B) any agreement or other
instrument binding upon such Selling Shareholder, except to the extent a consent
or waiver has been obtained and remains in full force and effect or (C) any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over such Selling Shareholder, except where such contravention
would not impact in any material respect the consummation of such Selling
Shareholder's obligations under this Agreement, the Custody Agreement or such
Selling Shareholder's Power of Attorney; and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency is required
for the performance by such Selling Shareholder of its obligations under this
Agreement or the Custody Agreement or Power of Attorney of such Selling
Shareholder, except such as may be required by the Securities Act, the Exchange
Act, the securities or Blue Sky laws of any jurisdiction, or the rules and
regulations of the NASD in connection with the offer and sale of the
Shares.
(iii) Such
Selling Shareholder is, and on the Closing Date will be, the record owner of
the
Shares to be sold by such Selling Shareholder (in the case of an individual,
either individually or jointly with such individual's spouse), free and clear
of
all security interests, claims, liens, equities or other encumbrances, and
has
duly endorsed such Shares in blank; and such Selling Shareholder has the legal
right and power, and all authorization and approval required by law, to enter
into this Agreement, the Custody Agreement and the Power of Attorney of such
Selling Shareholder and to sell, transfer and deliver the Shares to be sold
by
such Selling Shareholder.
(iv) The
Custody Agreement and the Power of Attorney of such Selling Shareholder have
been duly authorized, executed and delivered by such Selling Shareholder and
are
valid and binding agreements of such Selling Shareholder.
(v) Upon
payment for the Shares to be sold by such Selling Shareholder pursuant to this
Agreement, delivery of such Shares, as directed by the Underwriters, to Cede
or
such other nominee as may be designated by DTC, registration of such Shares
in
the name of Cede or such other nominee and the crediting of such Shares on
the
books of DTC to securities accounts of the Underwriters (assuming that neither
DTC nor any such Underwriter has notice of any adverse claim (within the meaning
of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected
purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B)
under Section 8-501 of the UCC, the Underwriters will acquire a valid security
entitlement in respect of such Shares and (C) no action based on any “adverse
claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be
asserted against the Underwriters with respect to such Shares; for purposes
of
this representation, such Selling Shareholder may assume that when such payment,
delivery and crediting occur, (x) such Shares will have been registered in
the
name of Cede or another nominee designated by DTC, in each case on the Company's
share registry in accordance with its certificate of incorporation, bylaws
and
applicable law, (y) DTC will be registered as a “clearing corporation” within
the meaning of Section 8-102 of the UCC and (z) appropriate entries to the
accounts of the several Underwriters on the records of DTC will have been made
pursuant to the UCC.
(vi) (A)
In
the case of the Management Selling Shareholders only, such Selling Shareholder
has no reason to believe that the representations and warranties of the Company
contained in Section 1 are not true and correct, is familiar with the
Registration Statement and Prospectus and has no knowledge of any material
fact,
condition or information not disclosed in the Time of Sale Prospectus or the
Prospectus that has had, or may have, a material adverse effect on the WellCare
Group; and (B) such Selling Shareholder is not prompted by any information
concerning the Company or its subsidiaries which is not set forth in the Time
of
Sale Prospectus, the Prospectus or the Registration Statement to sell its Shares
pursuant to this Agreement.
(vii)
(A) The
Registration Statement, when it became effective, did not contain and, as
amended or supplemented, if applicable, will not contain any untrue statement
of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and (B) the
Prospectus does not contain and, as amended or supplemented, if applicable,
will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and (C) the Time of Sale Prospectus
does not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the representations
and warranties set forth in this paragraph 2(b)(vii) do not apply to statements
or omissions in the Registration Statement, the Time of Sale Prospectus, or
the
Prospectus based upon information relating to any Underwriter furnished to
the
Company in writing by such Underwriter through you expressly for use
therein.
(viii) Such
Selling Shareholder has not taken and will not take, directly or indirectly,
any
action which is designed to or which has constituted or which might reasonably
be expected to cause or result in stabilization or manipulation of the price
of
any security of the Company to facilitate the sale or resale of its
Shares.
(ix) Except
as
disclosed by such Selling Shareholder in writing to Xxxxxx Xxxxxxx, neither
the
Selling Shareholder nor any of his, her or its affiliates directly, or
indirectly through one or more intermediaries, controls, or is controlled by,
or
is under common control with, or has any other association with (within the
meaning of Article 1(q) of the Bylaws of the NASD), any member firm of the
NASD.
3. Agreements
to Sell and Purchase.
(a) Each
Seller, severally and not jointly, hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees, severally and not jointly, to purchase from such Seller at $37.8787
a
share (the “Purchase Price”) the number of Firm Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears
the
same proportion to the number of Firm Shares to be sold by such Seller as the
number of Firm Shares set forth in Schedule II hereto opposite the name of
such
Underwriter bears to the total number of Firm Shares.
(b) On
the
basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Company and the Selling Shareholders
agree to sell to the Underwriters the Additional Shares, and the Underwriters
shall have the right to purchase, severally and not jointly, up to 727,500
Additional Shares at the Purchase Price. The Underwriters may exercise this
right in whole or from time to time in part by giving written notice of each
election to exercise the option not later than 30 days after the date of this
Agreement. Any exercise notice shall specify the number of Additional Shares
to
be purchased by the Underwriters and the date on which such shares are to be
purchased. Each purchase date must be at least one business day after the
written notice is given and may not be earlier than the Closing Date nor later
than ten business days after the date of such notice. Additional Shares may
be
purchased as provided in Section 5 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. On
each
day, if any, that Additional Shares are to be purchased (an “Option Closing
Date”), each Underwriter agrees, severally and not jointly, to purchase the
number of Additional Shares (subject to such adjustments to eliminate fractional
shares as you may determine) that bears the same proportion to the total number
of Additional Shares to be purchased on such Option Closing Date as the number
of Firm Shares set forth in Schedule II hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
(c) Each
Seller hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx
and Xxxxxxx, Xxxxx & Co. (“Xxxxxxx Sachs”) on behalf of the Underwriters, it
will not, during the period ending 90 days after the date of the Prospectus,
(i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant
to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly,
any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, (ii) file any registration statement with the
Commission relating to the offering of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock
or
(iii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (i), (ii) or (iii)
above
is to be settled by delivery of Common Stock or such other securities, in cash
or otherwise. The restrictions contained in this paragraph shall not apply
to
(A) the issuance by the Company of shares of Common Stock upon the exercise
of
an option or warrant or the conversion of a security outstanding on the date
hereof of which the Underwriters have been advised in writing or which is set
forth in the Prospectus; (B) transactions by any person other than the Company
relating to shares of Common Stock or other securities acquired in open market
transactions after the completion of the offering of the Shares; (C) the grant
of options or the issuance of shares of Common Stock by the Company to
employees, officers, directors, advisors or consultants pursuant to an employee
benefit plan described in the Prospectus; or (D) the filing of any registration
statement on Form S-8 in respect of any employee benefit plan described in
the
Prospectus.
(d) Notwithstanding
the foregoing, if (i) during the last 17 days of the 90-day restricted period
the Company issues an earnings release or material news or a material event
relating to the Company occurs, or (ii) prior to the expiration of the 90-day
restricted period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the 90-day period, the
restrictions imposed on the Company by Section 3(c) above shall continue to
apply until the expiration of the 18-day period beginning on the issuance of
the
earnings release or the occurrence of the material news or material
event.
4. Terms
of Public Offering.
The
Sellers are 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. The Sellers are further advised by you that the Shares
are to be offered to the public initially at $39.560 a share (the “Public
Offering Price”) and to certain dealers selected by you at a price that
represents a concession not in excess of $1.090 a share under the Public
Offering Price.
5. Payment
and Delivery. Payment
for the Firm Shares to be sold by the Sellers shall be made to such Sellers
in
federal or other funds immediately available in New York City against delivery
of such Firm Shares for the respective accounts of the several Underwriters
at
10:00 a.m., New York City time, on March 13, 2006, or at such other time on
the
same or such other date, not later than March 20, 2006 as shall be designated
in
writing by you. The time and date of such payment are hereinafter referred
to as
the “Closing Date.”
Payment
for any Additional Shares shall be made to the Company and each of the Selling
Shareholders in federal or other funds immediately available in New York City
against delivery of such Additional Shares for the respective accounts of the
several Underwriters at 10:00 a.m., New York City time, on the date specified
in
the corresponding notice described in Section 3 or at such other time on the
same or on such other date, in any event not later than April 12, 2006, as
shall
be designated in writing by you.
The
Firm
Shares and Additional Shares shall be registered in such names and in such
denominations as you shall request in writing not later than one full business
day prior to the Closing Date or the applicable Option Closing Date, as the
case
may be. The Firm Shares and Additional Shares shall be delivered to you on
the
Closing Date or an Option Closing Date, as the case may be, for the respective
accounts of the several Underwriters, with any transfer taxes payable in
connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6. Conditions
to the Underwriters' Obligations.
The
obligations of the Sellers to sell the Shares to the Underwriters and the
several obligations of the Underwriters to purchase and pay for the Shares
on
the Closing Date are subject to the condition that the Registration Statement
shall have become effective not later than 5:30 pm (New York City time) on
the
date hereof.
The
several obligations of the Underwriters are subject to the following further
conditions:
(a) Subsequent
to the execution and delivery of this Agreement and prior to the Closing
Date:
(i) there
shall not have occurred any downgrading, nor shall any notice have been given
of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any “nationally recognized
statistical rating organization,” as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there
shall not have occurred any change, or any development involving a prospective
change, in the condition, financial or otherwise, or in the earnings, business
or operations of the WellCare Group, from that set forth in the Time of Sale
Prospectus (exclusive of any amendments or supplements thereto subsequent to
the
date of this Agreement) that, in your judgment, is material and adverse and
that
makes it, in your judgment, impracticable to market the Shares on the terms
and
in the manner contemplated in the Time of Sale Prospectus.
(b) The
Underwriters shall have received on the Closing Date a certificate, dated the
Closing Date and signed by an executive officer of the Company, to the effect
set forth in Section 6(a)(i) above and to the effect that the representations
and warranties of the Company contained in this Agreement are true and correct
as of the Closing Date, the Company has complied in all material respects with
all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date, no stop order
suspending the effectiveness of the Registration Statement has been issued
and
no proceedings for that purpose have been instituted or, to the Company's
knowledge, threatened.
The
officer signing and delivering such certificate may rely upon the best of his
or
her knowledge as to proceedings threatened.
(c) The
Underwriters shall have received on the Closing Date an opinion of Xxxxx &
Xxxxxxx L.L.P., outside counsel for the Company and counsel for the Management
Selling Shareholders dated the Closing Date, in a form reasonably acceptable
to
the Underwriters, which shall be attached as Exhibit
A
hereto.
(d) The
Underwriters shall have received on the Closing Date an opinion of General
Counsel for the Company, dated the Closing Date, in a form reasonably acceptable
to the Underwriters, which shall be attached as Exhibit
B
hereto.
(e) The
Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx
& Xxxxx LLP, counsel for TBI, dated the Closing Date, substantially in the
form attached as Exhibit
C
hereto.
(f) The
Underwriters shall have received on the Closing Date an opinion of Ropes &
Xxxx LLP, counsel for the Underwriters, dated the Closing Date, substantially
in
the form attached as Exhibit
D
hereto.
(g) With
respect to Section 6(e) above, Xxxxxxxx & Xxxxx LLP may rely upon an opinion
or opinions of other counsel for any Selling Shareholder and, with respect
to
factual matters and to the extent such counsel deems appropriate, upon the
representations of each Selling Shareholder contained herein and in the Custody
Agreement and Power of Attorney of such Selling Shareholder, as applicable,
and
in other documents and instruments; provided that (A) each such counsel for
the
Selling Shareholders is satisfactory to your counsel, (B) a copy of each opinion
so relied upon is delivered to you and is in form and substance satisfactory
to
your counsel, (C) copies of such Custody Agreements and Powers of Attorney
and
of any such other documents and instruments shall be delivered to you and shall
be in form and substance satisfactory to your counsel and (D) Xxxxxxxx &
Xxxxx LLP shall state in their opinion that they are justified in relying on
each such other opinion. With respect to Section 6(c) above, Xxxxx & Xxxxxxx
L.L.P. may rely, with respect to factual matters and to the extent such counsel
deems appropriate, upon the representations of the Company and the Management
Selling Shareholders contained herein and in the Custody Agreement and Power
of
Attorney of such Management Selling Shareholder; provided that copies of such
other documents and instruments shall be delivered to you and shall be in form
and substance satisfactory to your counsel.
The
opinions of Xxxxx & Xxxxxxx L.L.P., General Counsel for the Company and
Xxxxxxxx & Xxxxx LLP described in Sections 6(c), 6(d) and 6(e) above shall
be rendered to the Underwriters at the request of the Company or one or more
of
the Selling Shareholders, as the case may be, and shall so state
therein.
(h) The
Underwriters shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be,
in
form and substance satisfactory to the Underwriters, from Deloitte & Touche
LLP, independent public accountants, containing statements and information
of
the type ordinarily included in accountants’ “comfort letters” to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement, the Time of Sale Prospectus and the
Prospectus; provided that the letter delivered on the Closing Date shall use
a
“cut-off date” not earlier than the date hereof.
(i) The
“lock-up” agreements, each substantially in the form of Exhibit
E
hereto
except as you may otherwise agree, between you and certain shareholders,
officers and directors of the Company relating to sales and certain other
dispositions of shares of Common Stock or certain other securities, delivered
to
you on or before the date hereof, shall be in full force and effect on the
Closing Date.
(j) The
Shares shall have been approved for listing on the NYSE, subject only to
official notice of issuance.
The
several obligations of the Underwriters to purchase Additional Shares hereunder
are subject to the delivery to you on the applicable Option Closing Date of
such
documents as you may reasonably request with respect to the good standing of
the
Company and the due authorization and issuance of the Additional Shares to
be
sold on such Option Closing Date and other matters related to the issuance
of
such Additional Shares.
7. Covenants
of the Company.
In
further consideration of the agreements of the Underwriters herein contained,
the Company covenants with each Underwriter as follows:
(a) To
furnish to you, without charge, five signed copies of the Registration Statement
(including exhibits thereto) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto) and
to
furnish to you in New York City, without charge, prior to 10:00 a.m. New York
City time on the business day next succeeding the date of this Agreement and
during the period mentioned in Section 7(c) below, as many copies of the Time
of
Sale Prospectus, the Prospectus and any supplements and amendments thereto
or to
the Registration Statement as you may reasonably request.
(b) Before
amending or supplementing the Registration Statement, the Time of Sale
Prospectus, or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the Commission
within the applicable period specified in Rule 424(b) under the Securities
Act
any prospectus required to be filed pursuant to such Rule.
(c) To
furnish to you a copy of each proposed free writing prospectus to be prepared
by
or on behalf of, used by, or referred to by the Company and not to use or refer
to any proposed free writing prospectus without the prior written consent of
Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx, which consent will not be unreasonably
withheld.
(d) Not
to
take any action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by or on behalf of the
Underwriter that the Underwriter otherwise would not have been required to
file
thereunder.
(e) If
the
Time of Sale Prospectus is being used to solicit offers to buy the Shares at
a
time when the Prospectus is not yet available to prospective purchasers and
any
event shall occur or condition exist as a result of which it is necessary to
amend or supplement the Time of Sale Prospectus in order to make the statements
therein, in the light of the circumstances, not misleading, or if any event
shall occur or condition exist as a result of which the Time of Sale Prospectus
conflicts with the information contained in the Registration Statement then
on
file, or if it is necessary to amend or supplement the Time of Sale Prospectus
to comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to any dealer upon
request, either amendments or supplements to the Time of Sale Prospectus so
that
the statements in the Time of Sale Prospectus as so amended or supplemented
will
not, in the light of the circumstances when delivered to a prospective
purchaser, be misleading or so that the Time of Sale Prospectus , as amended
or
supplemented, will no longer conflict with the Registration Statement, or so
that the Time of Sale Prospectus, as amended or supplemented, will comply with
applicable law.
(f) If,
during such period after the first date of the public offering of the Shares
as
in the opinion of counsel for the Underwriters the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities Act) is
required by law to be delivered in connection with sales by an Underwriter
or
dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities Act) is
delivered to a purchaser, not misleading, or if, in the opinion of counsel
for
the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission
and
furnish, at its own expense, to the Underwriters and to the dealers (whose
names
and addresses you will furnish to the Company) to which Shares may have been
sold by you on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the statements in
the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus (or in lieu thereof the notice referred to
in
Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading
or so that the Prospectus, as amended or supplemented, will comply with law.
(g) To
endeavor to qualify the Shares for offer and sale under the securities or Blue
Sky laws of such jurisdictions as you shall reasonably request.
(h) To
make
generally available to the Company's security holders and to you as soon as
practicable an earning statement covering the twelve-month period ending March
31, 2007 that satisfies the provisions of Section 11(a) of the Securities Act
and the rules and regulations of the Commission thereunder.
(i) If
the
third anniversary of the initial effective date of the Registration Statement
occurs before all the Shares have been sold by the Underwriters, prior to the
third anniversary to file a new shelf registration statement and to take any
other action necessary to permit the public offering of the Shares to continue
without interruption; references herein to the Registration Statement shall
include the new registration statement declared effective by the
Commission.
8. Expenses.
Whether
or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, the Company agrees to pay or cause to be paid all
expenses incident to the performance of their obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel,
the Company's accountants and counsel for the Selling Shareholders in connection
with the registration and delivery of the Shares under the Securities Act and
all other fees or expenses in connection with the preparation and filing of
the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus,
the Prospectus, any free writing prospectus prepared by or on behalf of, used
by, or referred to by the Company and amendments and supplements to any of
the
foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified; (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters, including any transfer
or other taxes payable thereon; (iii) the cost of printing or producing any
Blue
Sky or Legal Investment memorandum in connection with the offer and sale of
the
Shares under state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities laws
as
provided in Section 7(d) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or Legal Investment
memorandum; (iv) all filing fees and the reasonable fees and disbursements
of
counsel to the Underwriters incurred in connection with the review and
qualification of the offering of the Shares by the NASD; (v) the cost of
printing certificates representing the Shares; (vi) the costs and charges of
any
transfer agent, registrar or depositary; (vii) the costs and expenses of the
Company relating to investor presentations on any “road show” undertaken in
connection with the marketing of the offering of the Shares, including, without
limitation, expenses associated with the preparation or dissemination of any
electronic roadshow, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in connection with
the road show presentations with the prior approval of the Company, travel
and
lodging expenses of the representatives and officers of the Company and any
such
consultants, and the cost of any aircraft chartered in connection with the
road
show (it being understood that the Underwriters shall be responsible for paying
travel and lodging expenses of the representatives of the Underwriters, one-half
of the cost of any aircraft chartered in connection with the road show, and
for
any ground transportation used by representatives of the Company or the
Underwriters in connection with the road show); (viii) the document production
charges and expenses associated with printing this Agreement; and (ix) all
other
costs and expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section. It is
understood, however, that except as provided in this Section, Section 9 entitled
“Indemnity and Contribution,” and the last paragraph of Section 11 below, the
Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel, stock transfer taxes payable on resale of any
of
the Shares by them and any advertising expenses connected with any offers they
may make. The provisions of this Section shall not supersede or otherwise affect
any agreement that the Company and the Selling Shareholders may otherwise have
for the allocation of such expenses among themselves.
9. Covenant
of the Underwriters.
Each
Underwriter severally covenants with the Company
not to,
without the prior consent of the Company, take any action that would result
in
the Company being required to file with the Commission under Rule 433(d) a
free
writing prospectus prepared by or on behalf of such Underwriter that otherwise
would not be required to be filed by the Company thereunder, but for the action
of the Underwriter
10. Indemnity
and Contribution.
(a) Each
of
the Company and the Management Selling Shareholders, severally and not jointly,
agrees to indemnify and hold harmless each Underwriter, each person, if any,
who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act and each affiliate of any
Underwriter within the meaning of Rule 405 under the Securities Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus,
the
Time of Sale Prospectus, any issuer free writing prospectus as defined in Rule
433(h) under the Securities Act, any Company information that the Company has
filed or is required to file, pursuant to Rule 433(d) under the Securities
Act
or the Prospectus (or any amendment or supplement thereto), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by
any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein; provided, that the
liability of each Management Selling Shareholder under such Management Selling
Shareholder's representations and warranties contained in Sections 2(b)(vi)(A)
and 2(b)(vii) hereof and under this paragraph (a) shall be limited to an amount
equal to the net proceeds received by such Management Selling Shareholder from
the sale of such Management Selling Shareholder's Shares.
(b) The
Company agrees to indemnify and hold harmless TBI and each person, if any,
who
controls TBI within the meaning of either Section 15 of the Securities Act
or
Section 20 of the Exchange Act, in each case from
and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus,
the
Time of Sale Prospectus, any issuer free writing prospectus as defined in Rule
433(h) under the Securities Act, any Company information that the Company has
filed or is required to file, pursuant to Rule 433(d) under the Securities
Act
or the Prospectus (or any amendment or supplement thereto), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by
any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to TBI furnished to the Company in writing by TBI
expressly for use therein.
(c) TBI
agrees to indemnify and hold harmless (i) each Underwriter and each person,
if
any, who controls any Underwriter within the meaning of either Section 15 of
the
Securities Act or Section 20 of the Exchange Act and (ii) the Company, the
directors of the Company, the officers of the Company who sign the Registration
Statement and each person, if any, who controls the Company or any Selling
Stockholder within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, in each case from
and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus,
the
Time of Sale Prospectus, any issuer free writing prospectus as defined in Rule
433(h) under the Securities Act, any Company information that the Company has
filed or is required to file, pursuant to Rule 433(d) under the Securities
Act
or the Prospectus (or any amendment or supplement thereto), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
but
only with reference to information relating specifically to TBI, as set forth
under the caption “Principal and Selling Stockholders” (including the notes
thereto); provided, however, that with respect to any amount due an indemnified
person under this paragraph (b), TBI shall be liable only to the extent of
the
net proceeds received by TBI from the sale of TBI's Shares.
(d) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, the Selling Shareholders, the directors of the Company, the
officers of the Company who sign the Registration Statement and each person,
if
any, who controls the Company or any Selling Shareholder within the meaning
of
either Section 15 of the Securities Act or Section 20 of the Exchange Act from
and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused
by
any untrue statement or alleged untrue statement of a material fact contained
in
the Registration Statement or any amendment thereof, any preliminary prospectus
or the Time of Sale Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), any issuer free writing
prospectus as defined in Rule 433(h) under the Securities Act, or the
Prospectus, or caused by any omission or alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with reference to information relating to
such
Underwriter furnished to the Company in writing by such Underwriter through
you
expressly for use in the Registration Statement, any preliminary prospectus,
the
Time of Sale Prospectus, any issuer free writing prospectus or the Prospectus
or
any amendment or supplement thereto.
(e) In
case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
Section 9(a), 9(b), 9(c) or 9(d) such person (the “indemnified party”) shall
promptly notify the person against whom such indemnity may be sought (the
“indemnifying party”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees
and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense
of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (A) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any,
who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act or who are affiliates of any
Underwriter within the meaning of Rule 405 under the Securities Act, (B) the
fees and expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either such Section; (C) the fees and expenses of more than one separate
firm
(in addition to any local counsel) for the Selling Shareholders and all persons,
if any, who control any such Selling Shareholder within the meaning of either
such Section, and that all such fees and expenses shall be reimbursed as they
are incurred; and (D) the fees and expenses of more than one separate firm
(in
addition to any local counsel) for TBI and all persons who control TBI within
the meaning of either such Section, and that all such fees and expenses shall
be
reimbursed as they are incurred. In the case of any such separate firm for
the
Underwriters and such control persons and affiliates of any Underwriters, such
firm shall be designated in writing by Xxxxxx Xxxxxxx. In the case of any such
separate firm for the Company, and such directors, officers and control persons
of the Company, such firm shall be designated in writing by the Company. In
the
case of any such separate firm for the Management Selling Shareholders and
such
control persons of such Selling Shareholders, such firm shall be designated
in
writing by the persons named as attorneys in fact for such Management Selling
Shareholders under the Powers of Attorney. In the case of any such separate
firm
for TBI and such control persons of TBI, such firm shall be designated in
writing by TBI. The indemnifying party shall not be liable for any settlement
of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested
an
indemnifying party to reimburse the indemnified party for fees and expenses
of
counsel as contemplated by the second and third sentences of this paragraph,
the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (1) such settlement is
entered into more than 30 days after receipt by such indemnifying party of
the
aforesaid request and (2) such indemnifying party shall not have reimbursed
the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent
of
the indemnified party, effect any settlement of any pending or threatened
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 (i) includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding, and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(f) To
the
extent the indemnification provided for in Section 9(a), 9(b), 9(c) or 9(d)
is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying
party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as
a
result of such losses, claims, damages or liabilities (i) in such proportion
as
is appropriate to reflect the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party or parties on the
other hand from the offering of the Shares or (ii) if the allocation provided
by
clause 9(f)(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
9(f)(i) above but also the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party or parties on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Sellers on the one hand
and the Underwriters on the other hand in connection with the offering of the
Shares shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Shares (before deducting expenses) received
by
each Seller and the total underwriting discounts and commissions received by
the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Shares. The
relative fault of the Sellers 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 Sellers
or by the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters’ respective obligations to contribute pursuant to this Section
9 are several in proportion to the respective number of Shares they have
purchased hereunder, and not joint. In no event shall the liability of any
Selling Shareholder under this Section 9(f) exceed the amount that such Selling
Shareholder would have been required to pay under Section 9(c) had such
indemnification been held to be available thereunder.
(g) The
Sellers and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by
any
other method of allocation that does not take account of the equitable
considerations referred to in Section 9(f). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 9, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by
it
and distributed to the public were offered to the public exceeds the amount
of
any damages that such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 9 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or
in
equity. The provisions of this Section 9 shall not supersede or otherwise affect
any agreement that the Sellers may otherwise have with respect to
indemnification between them.
(h) The
indemnity and contribution provisions contained in this Section 9 and the
representations, warranties and other statements of the Company and the Selling
Shareholders contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii)
any
investigation made by or on behalf of any Underwriter, any person controlling
any Underwriter or any affiliate of any Underwriter, any Selling Shareholder
or
any person controlling any Selling Shareholder, or the Company, its officers
or
directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Shares.
11. Termination.
The
Underwriters may terminate this Agreement by notice given by you to the Company,
if after the execution and delivery of this Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited
on,
or by, as the case may be, either the NYSE or the Nasdaq National Market; (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market; (iii) a material disruption in
securities settlement, payment or clearance services in the United States shall
have occurred; (iv) any moratorium on commercial banking activities shall have
been declared by Federal or New York State authorities; or (v) there shall
have
occurred any outbreak or escalation of hostilities, or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse and which, singly or together with any other event specified in this
clause (v), makes it, in your judgment, impracticable or inadvisable to proceed
with the offer, sale or delivery of the Shares on the terms and in the manner
contemplated in the Time of Sale Prospectus or the Prospectus.
12. Effectiveness;
Defaulting Underwriters.
This
Agreement shall become effective upon the execution and delivery hereof by
the
parties hereto.
If,
on
the Closing Date or an Option Closing Date, as the case may be, any one or
more
of the Underwriters shall fail or refuse to purchase Shares that it has or
they
have agreed to purchase hereunder on such date, 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 the
Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Shares set forth opposite
their respective names in Schedule II bears to the aggregate number of Firm
Shares set forth opposite the names of all such non-defaulting Underwriters,
or
in such other proportions as you may specify, to purchase the Shares which
such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the number of Shares that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 11 by an amount in excess of one-ninth of such number
of Shares without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm
Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares
to
be purchased, and arrangements satisfactory to you, the Company and the Selling
Shareholders for the purchase of such Firm Shares are not made within 36 hours
after such default, this Agreement shall terminate without liability on the
part
of any non-defaulting Underwriter, the Company or the Selling Shareholders.
In
any such case either you or the relevant Sellers 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, in the Time
of
Sale Prospectus, in the Prospectus or in any other documents or arrangements
may
be effected. If, on an Option Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Additional Shares and the aggregate number
of
Additional Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Additional Shares to be purchased on such
Option Closing Date, the non-defaulting Underwriters shall have the option
to
(i) terminate their obligation hereunder to purchase the Additional Shares
to be
sold on such Option Closing Date or (ii) purchase not less than the number
of
Additional Shares that such non-defaulting Underwriters would have been
obligated to purchase in the absence of such default. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability
in
respect of any default of such Underwriter under this Agreement.
If
this
Agreement shall be terminated by the Underwriters, or any of them, because
of
any failure or refusal on the part of any Seller to comply with the terms or
to
fulfill any of the conditions of this Agreement, or if for any reason any Seller
shall be unable to perform its obligations under this Agreement, the Sellers
will reimburse the Underwriters or such Underwriters as have so terminated
this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the reasonable fees and disbursements of their counsel) reasonably
incurred by such Underwriters in connection with this Agreement or the offering
contemplated hereunder.
13. Entire
Agreement.
(a) This
Agreement, together with any contemporaneous written agreements and any prior
written agreements (to the extent not superseded by this Agreement) that relate
to the offering of the Shares, represents the entire agreement between the
Company and the Underwriters with respect to the preparation of any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the
offering, and the purchase and sale of the Shares.
(b) The
Company acknowledges that in connection with the offering of the Shares: (i)
the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary
duties to, the Company or any other person, (ii) the Underwriters owe the
Company only those duties and obligations set forth in this Agreement and prior
written agreements (to the extent not superseded by this Agreement), if any,
and
(iii) the Underwriters may have interests that differ from those of the Company.
14. Counterparts.
This
Agreement may be signed in two or more counterparts, each of which shall be
an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument.
15. Applicable
Law.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York.
16. Headings.
The
headings of the sections of this Agreement have been inserted for convenience
of
reference only and shall not be deemed a part of this Agreement.
17. Notices.
All
communications hereunder shall be in writing and effective only upon receipt
and
if to the Underwriters shall be delivered, mailed or sent to you at the address
set forth in Schedule II hereto; and if to the Company shall be delivered,
mailed or sent to the address set forth in Schedule II hereto.
[The
remainder of this page has been left blank intentionally.]
|
Very
truly yours,
|
|
|
By:
/s/
Xxxxxxxx
Xxxxxxx
|
|
|
Xxxxxxxx
Xxxxxxx
|
|
|
Senior
Vice President and General Counsel
|
|
|
TOWERBROOK
INVESTORS L.P.
|
|
|
By:
/s/ Xxxxxxxx
Xxxxxxxx
|
|
|
Xxxxxxxx
Xxxxxxxx
|
|
|
Attorney-in-Fact
|
|
|
The
Selling Shareholders named in Schedule I-B hereto, acting
severally
|
|
|
By:
/s/ Xxxxxxxx
Xxxxxxx
|
|
|
Xxxxxxxx
Xxxxxxx
|
|
|
Attorney-in-Fact
|
|
Accepted
as of the date hereof
|
|
|
Xxxxxx
Xxxxxxx & Co. Incorporated
|
|
|
Xxxxxxx,
Sachs & Co.
|
|
|
Xxxxxx
Brothers Inc.
|
|
|
Wachovia
Capital Markets, LLC
|
|
|
Acting
severally on behalf of themselves and the several
|
|
|
Underwriters
named in Schedule II hereto.
|
|
|
By:
Xxxxxx Xxxxxxx & Co. Incorporated
|
|
|
By:
/s/ Xxxxxxx
Xxxxx
|
|
|
Xxxxxxx
Xxxxx
Managing
Director
|
SCHEDULE
I-A
|
Selling
Shareholder
|
Number
of Shares To Be Sold
|
||
|
TowerBrook
Investors L.P.
|
4,000,000
|
||
|
Total
|
4,000,000
|
SCHEDULE
I-B
|
Selling
Shareholder
|
Number
of Shares To Be Sold
|
||
|
Xxxx
X. Xxxxx
|
193,000
|
||
|
Xxxxx
Xxxxxx
|
5,000
|
||
|
Alif
Hourani
|
5,000
|
||
|
Xxxxx
Xxxx Xxxx-Xxxx, Xx.
|
15,000
|
||
|
Xxxx
Xxxxxxx
|
49,000
|
||
|
Xxxxxxxx
Xxxxxxx
|
35,000
|
||
|
Xxxxx
Xxxxxxxxx
|
48,000
|
||
|
Total
|
350,000
|
SCHEDULE
I-C
|
Selling
Shareholder
|
Number
of Additional Shares To Be Sold
|
||
|
Xxxx
X. Xxxxx
|
28,950
|
||
|
Xxxxx
Xxxxxx
|
750
|
||
|
Alif
Hourani
|
750
|
||
|
Xxxxx
Xxxx Xxxx-Xxxx, Xx.
|
2,250
|
||
|
Xxxx
Xxxxxxx
|
7,350
|
||
|
Xxxxxxxx
Xxxxxxx
|
5,250
|
||
|
Xxxxx
Xxxxxxxxx
|
7,200
|
||
|
TowerBrook
Investors L.P.
|
600,000
|
||
|
Total
|
652,500
|
SCHEDULE
II
|
Underwriter
|
Number
of Firm Shares To Be Purchased
|
||
|
Xxxxxx
Xxxxxxx & Co. Incorporated
|
1,818,750
|
||
|
Xxxxxxx,
Sachs & Co.
|
1,818,750
|
||
|
Xxxxxx
Brothers Inc.
|
727,500
|
||
|
Wachovia
Capital Markets, LLC
|
485,000
|
||
|
Total:
|
4,850,000
|
SCHEDULE
III
Time
of Sale Prospectus
|
1.
|
Preliminary
Prospectus issued February 27, 2006
|
SCHEDULE
IV
Time
of Sale Information
|
4,850,000
Shares
|
|
|
Issuer:
|
|
|
Symbol:
|
WCG
|
|
Size:
|
$191,866,000
|
|
Shares
offered by the Issuer:
|
500,000
shares
|
|
Selling
Stockholders:
|
4,350,000
shares
|
|
Greenshoe:
|
727,500
shares; option to purchase additional shares from WellCare Health
Plans,
Inc. and the selling stockholders.
|
|
Price
to public
|
$39.56
per share
|
|
Trade
date:
|
March
7, 2006
|
|
Closing
date:
|
March
13, 2006
|
|
CUSIP:
|
00000X000
|
|
Underwriters:
|
Xxxxxx
Xxxxxxx & Co. Incorporated
|
|
Xxxxxxx,
Sachs & Co.
|
|
|
Xxxxxx
Brothers Inc
|
|
|
Wachovia
Capital Markets, LLC
|
A
copy of
the prospectus supplement relating to this offering may be obtained by
contacting Xxxxxx Xxxxxxx & Co. Incorporated, 000 Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000; Attention: Prospectus Department or by email
at
xxxxxxxxxx@xxxxxxxxxxxxx.xxx.
EXHIBIT
A
OPINION
OF XXXXX & XXXXXXX L.L.P.
EXHIBIT
B
OPINION
OF THE GENERAL COUNSEL FOR THE COMPANY
EXHIBIT
C
OPINION
OF XXXXXXXX & XXXXX LLP
EXHIBIT
D
OPINION
OF ROPES & XXXX LLP
EXHIBIT
E
FORM
OF LOCK-UP LETTER
