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EXHIBIT 1.1
2,500,000 SHARES EXECUTION COPY
RENAL CARE GROUP, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
November 18, 1996
Equitable Securities Corporation
Xxxxxxxxx & Xxxxx, LLC
Xxxxxx Xxxxxx & Company, Inc.
Xxxxxxx & Company, Inc.
As Representatives of the
several Underwriters named
in Schedule A
c/o Equitable Securities Corporation
Xxxxxxxxx Xxxx Xxxxxx, Xxxxx 000
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
Renal Care Group, Inc., a Delaware corporation (the "Company"), and
certain stockholders of the company named in Schedule B hereto (the "Selling
Stockholders") propose to sell to the several underwriters (the "Underwriters")
for whom you are acting as representatives (the "Representatives") an aggregate
of 2,500,000 shares (the "Firm Shares") of the Company's common stock, $.01 par
value (the "Common Stock"). The respective amounts of the Firm Shares to be
purchased by the several Underwriters are set forth opposite their names in
Schedule A hereto. The Company also propose to sell at the Underwriters'
option an aggregate of up to 375,000 and the Selling Stockholders additional
shares of the Company's Common Stock (the "Option Shares") as set forth below.
As the Representatives, you have advised the Company (a) that you are
authorized to enter into this Agreement on behalf of the several Underwriters,
and (b) that the several Underwriters are willing, acting severally and not
jointly, to purchase the numbers of Firm Shares set forth opposite their
respective names in Schedule A, plus their pro rata portion of the Option
Shares if you elect to exercise the over-allotment option in whole or in part
for the accounts of the several Underwriters. The Firm Shares and the Option
Shares (to the extent the aforementioned option is exercised) are herein
collectively called the "Shares."
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In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. Representations and Warranties of the Company. The Company represents
and warrants as follows:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, and may have
filed an amendment or amendments thereto, on Form S-1 (No. 333-13813),
for the registration of the Shares under the Securities Act of 1933, as
amended (the "Act"). Such registration statement, including the
prospectus, financial statements and schedules, exhibits and all other
documents filed as a part thereof, as amended at the time of
effectiveness of the registration statement, including any information
deemed to be a part thereof as of the time of effectiveness pursuant to
paragraph (b) of Rule 430A of the rules and regulations of the Commission
under the Act (the "Rules and Regulations"), as well as any registration
statement filed by the Company pursuant to Rule 462(b) of the Rules and
Regulations, is herein called the "Registration Statement" and the
prospectus, in the form first filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations or filed as part of the Registration
Statement at the time of effectiveness if no Rule 424(b) filing is
required, is herein called the "Prospectus." The term "Preliminary
Prospectus" as used herein means a preliminary prospectus as described in
Rule 430 of the Rules and Regulations. Copies of the Registration
Statement, including any amendments thereto, any Preliminary Prospectuses
contained therein and the exhibits, financial statements and schedules,
as finally amended and revised, have heretofore been delivered by the
Company to you.
(b) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement; the
Company is duly qualified to transact business in all jurisdictions in
which the conduct of its business requires such qualification, except
where the failure to so qualify would not have a material adverse effect
on the financial condition, results of operations or business of the
Company and the Subsidiaries (as defined herein) taken as a whole.
(c) All of the Company's current subsidiaries are listed on Exhibit
21.1 to the Registration Statement (hereinafter collectively referred to
as the "Subsidiaries"). Each Subsidiary has been duly incorporated, and
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with power or authority to own or
lease its properties and conduct its business as described in the
Registration
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Statement. Each Subsidiary is duly qualified to transact business in all
jurisdictions in which the conduct of its business requires such
qualification. The outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, and are fully
paid and non-assessable. Such shares of capital stock in each Subsidiary
are wholly owned by the Company free and clear of all liens, encumbrances
and security interests, except as disclosed in the Registration
Statement. No options, warrants or other rights to purchase, agreements
or other obligations to issue or other rights to convert any obligations
into shares of capital stock or ownership interests in the Subsidiaries
are outstanding, except to the extent set forth in the Registration
Statement, including the exhibits thereto.
(d) The outstanding shares of Common Stock have been duly
authorized and validly issued and are fully paid and non-assessable; the
Shares to be issued and sold by the Company have been duly authorized and
when issued and paid for as contemplated herein will be validly issued,
fully paid and non-assessable. No person or entity holds a right to
require or participate in the registration under the Act of shares of
Common Stock of the Company which right has not been waived by the holder
thereof as to the offering contemplated hereby and by the Registration
Statement, or satisfied by participation by such holder in the offering.
No person or entity has any preemptive or other right of participation or
first refusal with respect to any of the Shares or the issue or sale
thereof by the Company, which rights have not been waived.
(e) The Shares conform with the statements concerning them set
forth in the Registration Statement.
(f) The Commission has not issued an order preventing or suspending
the use of any Preliminary Prospectus or Prospectus relating to the
proposed offering of the Shares nor instituted proceedings for that
purpose. The Registration Statement and the Prospectus and any
amendments or supplements thereto, as of their respective effective or
issue dates, in all material respects conform or will conform, as the
case may be, to the requirements of the Act and the Rules and
Regulations. Neither the Registration Statement nor any amendment
thereto, as of its effective date, nor any Preliminary Prospectus,
Prospectus or any supplement thereto, as of its issue date, contains or
will contain, as the case may be, any untrue statement of a material fact
or omits or will omit to state any material fact required to be stated
therein or necessary to make the statements therein (as to the
Prospectus, in light of the circumstances under which they were made) not
misleading; provided, however, that the Company makes no representations
or warranties as to information contained in or omitted from the
Registration Statement or the Prospectus, or any such amendment or
supplement, in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives, specifically for use in the preparation thereof.
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(g) The historical financial statements of the Company and the
Founding Companies (as defined in the Registration Statement),
together with related notes and schedules as set forth in the
Registration Statement, present fairly in all material respects the
combined financial position and the results of operations and cash flows
of the Company and the Founding Companies, as the case may be, at the
indicated dates and for the indicated periods. Such financial statements
have been prepared in accordance with generally accepted principles of
accounting, consistently applied throughout the periods involved, and all
adjustments necessary for a fair presentation of results for such periods
have been made. The pro forma combining financial statements set forth
in the Registration Statement fairly present in all material respects the
information required to be presented therein, and such statements meet
the requirements of the Act. No other financial statements or schedules
of the Company or the Founding Companies are required by the Act or the
Rules and Regulations to be included in the Registration Statement or the
Prospectus. The summary financial and statistical data included in the
Registration Statement present fairly in all material respects the
information shown therein and, as to the financial data, have been
compiled on a basis consistent with the financial statements presented
therein.
(h) There is no litigation or governmental or third-party payor
audit, investigation or other proceeding ("Proceeding") pending or, to
the best knowledge of the Company, threatened against the Company or any
of the Subsidiaries which the Company has reason to believe is likely to
result in any material adverse change in the business or condition of the
Company and of the Subsidiaries taken as a whole, except as set forth in
the Registration Statement, including, without limitation, any such
Proceeding pursuant to federal or state laws or regulations (i)
prohibiting the payment or receipt of remuneration for patient referrals,
(ii) prohibiting the filing of false claims, (iii) prescribing conditions
of participation for certification by the Medicare and Medicaid programs
and state kidney fund programs or standards for licensure or health
planning approval or (iv) providing for coverage and reimbursement under
the Medicare and Medicaid and state kidney fund programs.
(i) The Company and the Subsidiaries have good and marketable title
to all of the properties and assets reflected in the financial statements
included in the Registration Statement (or as described in the
Registration Statement) hereinabove described, subject to no lien,
mortgage, pledge, charge or encumbrance of any kind except those
reflected in such financial statements (or as disclosed in the
Registration Statement) or which are not material in amount. The Company
and the Subsidiaries occupy leased properties under valid and binding
leases
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except where the failure to have such leases or agreements would not
have a material adverse effect on the Company and its Subsidiaries taken
as a whole.
(j) The Company and the Subsidiaries have filed all federal, state
and foreign income tax returns which have been required to be filed and
have paid all taxes indicated by said returns and all assessments
received by them or any of them to the extent that such taxes have become
due, except where the failure to do so would not have a material adverse
effect on the Company and its Subsidiaries taken as a whole.
(k) Since the respective dates as of which information is given in
the Registration Statement, as it may be amended or supplemented, there
has not been any material adverse change or, to the knowledge of the
Company, any development involving a prospective material adverse change
in or affecting the condition, financial or otherwise, of the Company and
its Subsidiaries taken as a whole or the earnings, business affairs,
management, or business prospects of the Company and its Subsidiaries
taken as a whole, whether or not occurring in the ordinary course of
business, and there has not been any material transaction entered into by
the Company or the Subsidiaries, other than transactions in the ordinary
course of business or changes and transactions contemplated by the
Registration Statement, as it may be amended or supplemented. The
Company and the Subsidiaries taken as a whole have no material contingent
obligations which are not disclosed in the Registration Statement, as it
may be amended or supplemented.
(l) Neither the Company nor any of the Subsidiaries is, or with the
giving of notice or lapse of time or both, will be, in violation of or in
default under its Articles of Incorporation or Bylaws or under any
agreement, lease, contract, indenture or other instrument or obligation
to which it is a party or by which it or any of its properties is bound
except for such defaults as do not have a material adverse effect on the
business or financial condition of the Company and the Subsidiaries taken
as a whole. The consummation of the transactions contemplated herein and
the fulfillment of the terms hereof will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, (A) any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company or any Subsidiary is a party, except for
any such breach or default which would not have a material adverse effect
on the Company and the Subsidiaries, taken as a whole, or (B) the
Articles of Incorporation or Bylaws of the Company or any Subsidiary or
any order, rule or regulation applicable to the Company or any Subsidiary
of any court or of any regulatory body or administrative agency or other
governmental body having jurisdiction over the Company or any Subsidiary
or any of their respective properties or assets.
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(m) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery
by the Company of this Agreement and the consummation of the transactions
contemplated herein (except (i) such additional steps as may be required
by the NASD or may be necessary to qualify the Shares for public offering
by the Underwriters under state securities or Blue Sky laws and (ii) such
approvals, consents, orders, authorizations, designations, declarations
and filings the absence of which does not and will not have a material
adverse effect on the business or financial condition of the Company and
the Subsidiaries taken as a whole) has been obtained or made as of the
Closing Date (as hereinafter defined), or the Option Closing Date (as
hereinafter defined), as the case may be, and is in full force and effect
as of the Closing Date, or Option Closing Date, as the case may be. All
consents and waivers from all other persons required in connection with
the execution and delivery by the Company of this Agreement and the
consummation of the transactions contemplated herein have been obtained
or made and are in full force and effect as of the Closing Date (except
such consents and waivers the absence of which do not and will not have a
material adverse effect on the business or financial condition of the
Company and the Subsidiaries taken as a whole).
(n) To the best knowledge of the Company, the Company and each of
the Subsidiaries has conducted its business in material compliance with
all the laws, rules and regulations of the jurisdictions in which each
such entity is conducting business. Without limiting the foregoing, the
Company and each of the Subsidiaries, and each of the professional
employees of the Company and each Subsidiary, owns or possesses and is in
compliance with the terms, provisions and conditions of all permits,
licenses, franchises, operating certificates, orders, authorizations,
registrations, qualifications, consents or approvals (including
certificates of need, licenses, pharmacy licenses, Medicare and Medicaid
provider agreements, accreditations and other similar documentation, or
approvals of any local health departments of any Authority (as
hereinafter defined)), of any court, arbitrator or arbitral body, or any
federal, state, local or foreign governmental agency or self-regulatory
authority, department or commission, or any other board, bureau, review
board, instrumentality or similar organization, domestic or foreign, or
any applicable private accrediting organizations (collectively,
"Authority") (hereinafter collectively, "Permits") necessary to own and
use the properties and assets of the Company and each of the
Subsidiaries, respectively, and to conduct their respective businesses,
except where the failure to comply, individually or in the aggregate,
would not have a material adverse effect on the Company and the
Subsidiaries, taken as a whole; as to the Company and each Subsidiary,
each such Permit of and from such Authorities is valid and in full force
and effect and there is no Proceeding pending or, to the Company's
knowledge, threatened (or any reasonable basis therefor) which may cause
any such Permit of and from all Authorities to be revoked, withdrawn,
canceled, suspended or not renewed.
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(o) The Company and its officers and directors, and, to the best
knowledge of the Company, persons who provide professional services
under agreements with the Company and the employees of the Subsidiaries
have not, on behalf of the Company:
(i) knowingly and willfully made or caused to be made a false
statement or representation of a material fact in any application for any
benefit or payment;
(ii) knowingly and willfully made or caused to be made any false
statement or representation of a material fact for use in determining
rights to any benefit or payment;
(iii) presented or caused to be presented a claim for reimbursement
under CHAMPUS, Medicare, Medicaid or other state health care program that
is (A) for an item or service that the person presenting or causing to be
presented knows or should know was not provided as claimed, or (B) for an
item or service and the person presenting knows or should know that the
claim is false or fraudulent;
(iv) failed to disclose knowledge of the occurrence of any event
affecting the initial or continued right of a claimant to any benefit or
payment on its own behalf or on behalf of another, with intent to
fraudulently secure such benefit or payment in a greater amount or
quantity than is due or when no such benefit or payment is authorized if
such event results in an improper benefit to the Company; or
(v) knowingly and willfully made or caused to be made or induced or
sought to induce the making of any false statement or representation (or
knowingly and willfully omitted to state a fact required to be stated
therein or necessary to make the statements contained therein not
misleading) of a material fact with respect to (i) the conditions or
operations of a facility in order that the facility may qualify for
CHAMPUS, Medicare, Medicaid or other state health care program
certification, or (ii) information required to be provided under Section
1124A of the Social Security Act (42 U.S.C. Section 1320a-3a).
(p) No person who immediately following the Closing Date will have a
direct or indirect ownership interest (as those terms are defined in 42
C.F.R. Section 1001.1001) in the Company of 5% or more (a "Major
Investor"), (1) has had a civil monetary penalty
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assessed against it under 42 U.S.C. Section 1320a-7a; (2) has been
excluded from participation in the Medicare program or a State health
care program as defined in 42 U.S.C. Section 1320a-7(h) ("State Health
Care Program"); or (3) has been convicted (as that term is defined in 42
C.F.R. Section 1001.2) of any of the following categories of offenses as
described in 42 U.S.C. Section 1320a-7(a) or (b)(1), (2), (3):
(A) criminal offenses relating to the delivery of an item or service
under Medicare or any State Health Care Program;
(B) criminal offenses under federal or state law relating to patient
neglect or abuse in connection with the delivery of a health care item or
service;
(C) criminal offenses under federal or state law relating to fraud,
theft, embezzlement, breach of fiduciary responsibility, or other
financial misconduct in connection with the delivery of a health care
item or service or with respect to any act or omission in a program
operated by or financed in whole or in part by any federal, state or
local government agency;
(D) criminal offenses under federal or state laws relating to the
interference with or obstruction of any investigation into any criminal
offense described in (A) through (C) above; or
(E) criminal offenses under federal or state law relating to the
unlawful manufacture, distribution, prescription or dispensing of a
controlled substance.
(q) To the best knowledge of the Company and except as disclosed in
the Prospectus, there are no Medicare, Medicaid or CHAMPUS recoupment or
recoupments of any other third-party payor being sought, threatened,
requested or claimed against the Company or any Subsidiary.
(r) Ernst & Young LLP, Xxxxx & Xxxxxx, P.C. and Xxxxx, Xxxxx &
Xxxxxx, X.X., who have certified the financial statements filed with the
Commission as part of the Registration Statement, are independent public
accountants as required by the Act and the Rules and Regulations.
(s) Neither the Company nor, to the Company's knowledge, any of its
affiliates or subsidiaries, has taken or may take, directly or
indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of stock to facilitate the
sale or resale of the Shares.
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(t) The Company is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, and the Company is
not, nor will be, subject to regulation under said act.
(u) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter
92-198, An Act Relating to Disclosure of Doing Business with Cuba, and
the Company further agrees that if it commences engaging in business with
the government of Cuba or with any person or affiliate located in Cuba
after the date the Registration Statement becomes or has become effective
with the Commission or with the Florida Department of Banking and Finance
(the "Department"), whichever date is later, or if the information
reported in the Prospectus, if any, concerning the Company's business
with Cuba or with any person or affiliate located in Cuba changes in any
material way, the Company will, if required by Florida law, provide the
Department notice of such business or change, as appropriate, in a form
acceptable to the Department.
(v) No labor dispute with the employees of the Company or any
Subsidiary exists or, to the best knowledge of the Company, is threatened
or imminent that could result in a material adverse change in or
affecting the condition, financial or otherwise, of the Company and the
Subsidiaries taken as a whole, except as described in or contemplated by
the Prospectus.
(w) The Company and, to the best knowledge of the Company, each
of the 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;
neither the Company nor, to the best knowledge of the Company, any
Subsidiary has been refused any insurance coverage sought or applied for;
and neither the Company nor, to the best knowledge of the Company, any
Subsidiary 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 materially and adversely
change or affect the condition, financial or otherwise, of the Company
and the Subsidiaries taken as a whole, except as disclosed in or
contemplated by the Registration Statement.
(x) No Subsidiary of the Company is currently prohibited, directly
or indirectly, from paying any dividends to the Company, from making any
other distribution on such Subsidiary's capital stock, from repaying to
the Company any loans or advances to such Subsidiary from the Company or
from transferring any of such Subsidiary's property or assets to the
Company or any other Subsidiary of the Company, except as described in or
contemplated by the Prospectus.
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(y) Each certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
(z) The Company and each of the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (A) transactions are executed in accordance with management's
general or specific authorizations; (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain assets
accountability; (C) access to assets is permitted only in accordance with
management's general or specific authorization; and (D) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(aa) This Agreement and the transactions contemplated herein have
been duly and validly authorized by the Company and this Agreement has
been duly and validly executed and delivered by the Company.
(bb) The Company has obtained from each of the persons listed on
Schedule C their agreement, in the form attached hereto as Exhibit A,
that for a period of 180 days from the date of this Agreement they will
not, without the prior consent of Equitable Securities Corporation,
offer, sell or dispose of any shares of Common Stock of the Company, or
any securities convertible into, exercisable for, or exchangeable for
any shares of Common Stock or derivative therefrom owned by them.
(cc) All offers and sales of shares of the Company's capital stock
(including securities convertible into, or exercisable or exchangeable
for, shares of the Company's capital stock) made by the Company after the
date of closing of its initial public offering (the "IPO") were, unless
registered under the Act, exempt from the registration requirements of
the Act, and were the subject of an available exemption from the
requirements of all applicable state securities or Blue Sky laws.
2. Representations, Warranties and Agreements of the Selling
Stockholders. Each Selling Stockholder severally represents, warrants
and agrees that:
(a) The Selling Stockholder has, and immediately prior to the
Closing Date or the Option Closing Date, as the case may be (each as
defined in Section 3 hereof) the Selling Stockholder will have, good and
valid title to the shares of Common Stock to be sold by the Selling
Stockholder hereunder on such Closing Date or the Option Closing Date, as
the case may be, free and clear of all liens, encumbrances, equities,
claims, security interests
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or other restrictions whatsoever (including any restrictions on
transfer); and upon delivery of such shares and payment therefor pursuant
hereto, good and valid title to such shares, free and clear of all liens,
encumbrances, equities or claims, will pass to the several Underwriters
who have purchased such shares in good faith and without notice of any
such lien, encumbrance, equity or claim or any other adverse claim within
the meaning of the Uniform Commercial Code. Except for this Agreement,
there are no outstanding options, warrants, rights, or other agreements
or arrangements requiring the Selling Stockholder at any time to
transfer any Shares to be sold hereunder by the Selling Stockholder.
(b) The Selling Stockholder has placed in custody under a custody
agreement (the "Custody Agreement" and, together with all other similar
agreements executed by the other Selling Stockholders, the "Custody
Agreements") with First Union National Bank of North Carolina, as
custodian (the "Custodian"), for delivery under this Agreement,
certificates in negotiable form (with signature guaranteed by a
commercial bank or trust company having an office or correspondent in the
United States or a member firm of the New York or American Stock
Exchanges) representing the Shares to be sold by the Selling Stockholder
hereunder.
(c) The Selling Stockholder has duly and irrevocably executed and
delivered a power of attorney (the "Power of Attorney" and, together with
all other similar agreements executed by the other Selling Stockholders,
the "Powers of Attorney") appointing one or more other persons as
attorneys-in-fact, with full power of substitution, and with full
authority (exercisable by any one or more of them) to execute and deliver
this Agreement on behalf of such Selling Stockholder and to take such
other action as may be necessary or desirable to carry out the provisions
hereof on behalf of the Selling Stockholder.
(d) The Selling Stockholder has, and at all times through the
Closing Date or the Option Closing Date, as the case may be will have,
full legal right and power and all authorizations and approvals required
by law to execute, deliver and perform this Agreement, the Power of
Attorney and the Custody Agreement. This Agreement, the Power of
Attorney and the Custody Agreement have been duly authorized (if
applicable), executed and delivered by or on behalf of such Selling
Stockholder and are and at all times through the Closing Date will be the
legal, valid and binding agreements of such Selling Stockholder,
enforceable against such Selling Stockholder in accordance with their
terms (except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, or other similar laws relating to
creditors' rights generally, and general equitable principles relating to
the availability of remedies, and as rights to indemnity or contribution
may be limited by state or federal securities laws and the public policy
underlying such laws).
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(e) The execution, delivery and performance of this Agreement, the
Power of Attorney and the Custody Agreement by the Selling Stockholder
and the consummation by the Selling Stockholder of the transactions
contemplated hereby and thereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default (or result in acceleration of any obligation, termination of any
right or creation of any lien or encumbrance) under, any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Selling Stockholder is a party or by which the
Selling Stockholder is bound or to which any of the property or assets of
the Selling Stockholder is subject, nor will such actions result in any
violation of the provisions of the organizational documents of the
Selling Stockholder (if applicable) or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Selling Stockholder or the property or assets of
the Selling Stockholder; and, except for the registration of the Shares
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required by the NASD or under
the Exchange Act and applicable state securities laws in connection with
the purchase and distribution of the Shares by the Underwriters, no
consent, approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement, the Power of
Attorney or the Custody Agreement by the Selling Stockholder and the
consummation by the Selling Stockholder of the transactions contemplated
hereby and thereby.
(f) The Registration Statement, each Preliminary Prospectus, the
Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein do not, and the Prospectus and any
amendments or supplements to or documents incorporated by reference in
the Registration Statement or the Prospectus, when they become effective
or are filed with the Commission or were first used to confirm sales of
the Firm Shares, as the case may be, will not, contain any untrue
statement of a material fact regarding the Selling Stockholder or omit to
state any material fact regarding the Selling Stockholder required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that no representation or warranty is made
as to information contained in or omitted from the Registration Statement
or the Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein.
(g) The representations and warranties of such Selling Stockholder
in the Custody Agreement and the Power of Attorney, are, and on the
Closing Date of Option Closing Date, as the case may be, will be, true
and correct.
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(h) There is not pending or, to the knowledge of such Selling
Stockholder, threatened against the Selling Stockholder any action, suit
or proceeding which (i) questions the validity of this Agreement or of
any action taken or to be taken by the Selling Stockholder pursuant to or
in connection with this Agreement or (ii) is required to be disclosed in
or incorporated by reference in the Registration Statement which is not
so disclosed or incorporated.
(i) The Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to stabilize or manipulate
the price of any security of the Company, or which might in the future
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 pursuant to the distribution
contemplated by this Agreement.
3. Purchase, Sale and Delivery of the Firm Shares. On the basis of the
representations, warranties and covenants herein contained, and subject to the
conditions herein set forth, the Company agrees to sell 1,063,598 shares of the
Firm Shares and each Selling Stockholder agrees to sell the number of Firm
Shares set opposite its name in Schedule B hereto, severally and not jointly,
to the Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase, at a price of $30.48 per share, the number of Firm Shares set
forth opposite the name of each Underwriter in Schedule A hereof, subject to
adjustments in accordance with Section 11 hereof. Each Underwriter shall be
obligated to purchase from the Company, and from each Selling Stockholder, that
number of shares of the Firm Shares which represents the same proportion of the
number of shares of the Firm Shares to be sold by the Company, and by each
Selling Stockholder, as the number of shares of the Firm Shares set forth
opposite the name of such Underwriter in Schedule A represents of the total
number of shares of the Firm Shares to be purchased by all of the Underwriters
pursuant to this Agreement. The respective purchase obligations of the
Underwriters with respect to the Firm Shares shall be rounded among the
Underwriters to avoid fractional shares, as the Representatives may determine.
Payment for the Firm Shares to be sold hereunder is to be made in New York
Clearing House (next day) funds by wire transfer to an account specified by the
Company and by certified or bank cashier's checks drawn to the order of the
Company (at the Company's discretion) and the Selling Stockholders, as
applicable, against delivery of certificates therefor to the Representatives
for the several accounts of the Underwriters. Such payment and delivery are to
be made at the offices of Equitable Securities Corporation, Xxxxxxxxx Xxxx
Xxxxxx, Xxxxx 000, 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx, at 10:00 a.m.,
Nashville time, on the third business day after the date of this Agreement,
unless otherwise required by the Commission pursuant to Rule 15c6-1 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or at such
other time and date not later than five business days thereafter as you and the
Company shall agree upon, such time and date being herein referred to as the
"Closing Date." (As used herein, "business day" means a day on which the New
York
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Stock Exchange is open for trading and on which banks in New York are open for
business and not permitted by law or executive order to be closed.) The
certificates for the Firm Shares will be delivered in such denominations and
registered in such manner as the Representatives request in writing not later
than the second full business day prior to the Closing Date, and will be made
available for inspection by the Representatives at least one business day prior
to the Closing Date.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
and the Selling Stockholders hereby grants an option to the several
Underwriters to purchase the Option Shares at the price per share as set forth
in the first paragraph of this Section 3. The maximum number of Option Shares
to be sold by the Company and the Selling Stockholders is 375,000. The option
granted hereby may be exercised in whole or in part but only once and at any
time upon written notice given within 30 days after the date of this Agreement,
by you, as Representatives of the several Underwriters, to the Company setting
forth the number of Option Shares as to which the several Underwriters are
exercising the option, the names and denominations in which the Option Shares
are to be registered and the time and date at which such certificates are to be
delivered. The time and date at which certificates for Option Shares are to be
delivered shall be determined by the Representatives but shall not be earlier
than three nor later than 10 full business days after the exercise of such
option, nor in any event prior to the Closing Date (such time and date being
herein referred to as the "Option Closing Date"). If the date of exercise of
the option is three or more days before the Closing Date, the notice of
exercise shall set the Closing Date as the Option Closing Date. The number of
Option Shares to be purchased by each Underwriter shall be in the same
proportion to the total number of Option Shares being purchased as the number
of Firm Shares being purchased by such Underwriter bears to the total number of
Firm Shares to be sold hereunder, adjusted by you in such manner as to avoid
fractional shares. The number of Option Shares to be sold by the Company and the
Selling Stockholders shall be allocated as follows: (i) 75% of the Option
Shares shall be sold by the Company to the Underwriters and (ii) 25% of the
Option Shares shall be sold to the Underwriters by the Selling Stockholder
allocated among them as provided in the various agreements under which they are
entitled to participate in the offering contemplated hereby. The option with
respect to the Option Shares granted hereunder may be exercised only to cover
over-allotments in the sale of the Firm Shares by the Underwriters. You, as
Representatives of the several Underwriters, may cancel such option at any time
prior to its expiration by giving written notice of such cancellation to the
Company. To the extent, if any, that the option is exercised, payment for the
Option Shares shall be made on the Option Closing Date in New York Clearing
House (next day) funds by wire transfer to an account specified by the Company
and by certified or bank cashier's checks drawn to the order of the Company (at
the Company's discretion) and the Selling Stockholders as applicable, for the
Option Shares to be sold by it against delivery of certificates therefor at the
offices of Equitable Securities Corporation, Xxxxxxxxx Xxxx Xxxxxx, Xxxxx 000,
511 Union Street, Nashville, Tennessee.
4. Offering by the Underwriters. It is understood that the several
Underwriters are to make a public offering of the Firm Shares as soon as the
Representatives deem it advisable to do so. The Firm Shares are to be offered
to the public at the public offering price set forth in the Prospectus. To the
extent, if at all, that any Option Shares are purchased pursuant to Section 3
hereof, the Underwriters will offer them to the public on the foregoing terms.
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It is further understood that you will act as the Representatives for the
Underwriters in the offering and sale of the Shares in accordance with an
Agreement Among Underwriters entered into by you and the several other
Underwriters.
5. Covenants of the Company. The Company covenants and agrees with the
several Underwriters that:
(a) If the Registration Statement has not yet been declared
effective, the Company will use its best efforts to cause the
Registration Statement and any amendments thereto to become effective as
promptly as possible, and if Rule 430A is used or the filing of the
Prospectus is otherwise required under Rule 424(b), the Company will file
the Prospectus (properly completed if Rule 430A has been used) pursuant
to Rule 424(b) within the prescribed time period and will provide
evidence reasonably satisfactory to you of such timely filing. In
addition, the Company will (A) not file any amendment to the Registration
Statement or supplement to the Prospectus of which the Representatives
shall not previously have been advised and furnished with a copy or to
which the Representatives shall have reasonably objected in writing or
which is not in compliance with the Rules and Regulations, and (B) file
on a timely basis all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission prior
to the termination of the offering of the Shares by the Underwriters.
(b) The Company will advise the Representatives promptly when the
Registration Statement or any post-effective amendment thereto shall have
become effective; of the receipt of any comments from the Commission; of
any request of the Commission for amendment of the Registration Statement
or for supplement to the Prospectus or for any additional information, or
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the use of the Prospectus
or of the institution of any proceedings for that purpose, and the
Company will use its best efforts to prevent the issuance of any such
stop order preventing or suspending the use of the Prospectus and to
obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with the Representatives in
endeavoring to qualify the Shares for sale under the securities laws of
such jurisdictions as the Representatives may reasonably have designated
in writing and will make such applications, file such documents, and
furnish such information as may be reasonably required for that purpose,
provided the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction where it is not now so qualified or required to file such a
consent. The Company will, from time to time, prepare and file such
statements, reports, and other documents, as are or may be
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required to continue such qualifications in effect for so long a period
as the Representatives may reasonably request for distribution of the
Shares.
(d) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any Preliminary
Prospectus as the Representatives may reasonably request. The Company
will deliver to, or upon the order of, the Representatives during the
period when delivery of a Prospectus is required under the Act, as many
copies of the Prospectus in final form, or as thereafter amended or
supplemented, as the Representatives may reasonably request. The Company
will deliver to the Representatives at or before the Closing Date, three
signed copies of the Registration Statement and all amendments thereto
including all exhibits filed therewith, and will deliver to the
Representatives such number of copies of the Registration Statement, but
without exhibits, and of all amendments thereto, as the Representatives
may reasonably request.
(e) The Company will comply to the best of its ability with the Act
and the Rules and Regulations, and the Exchange Act and the rules and
regulations of the Commission thereunder, so as to permit the completion
of the distribution of the Shares as contemplated in this Agreement and
the Prospectus. If during the period in which a prospectus is required
by law to be delivered by an Underwriter or dealer any event shall occur
as a result of which, in the judgment of the Company or in the opinion of
counsel for the Underwriters, it becomes necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of
the circumstances existing at the time the Prospectus is delivered to a
purchaser, not misleading, or, if it is necessary at any time to amend or
supplement the Prospectus to comply with any law, the Company promptly
will prepare and file with the Commission an appropriate amendment to the
Registration Statement or supplement to the Prospectus, so that the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so that the
Prospectus will comply with applicable law.
(f) The Company will make generally available to its security
holders, not later than 18 months after the effective date of the
Registration Statement, an earnings statement (which need not be audited)
covering a period of at least 12 consecutive months beginning after the
effective date of the Registration Statement, which earnings statement
shall satisfy the requirements of Section 11(a) of the Act and Rule 158
of the Rules and Regulations.
(g) The Company will, for a period of five years from the Closing
Date, deliver to the Representatives copies of annual reports and copies
of all other documents, reports and information (including similar
documents, reports and information with respect to significant
subsidiaries, as that term is defined in the Rules and Regulations, which
are not consolidated in the Company's financial statements) furnished by
the Company to its
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stockholders generally or filed with any securities exchange pursuant to
the requirements of such exchange or with the Commission pursuant to the
Act or the Exchange Act.
(h) No offering, sale, short sale or other disposition of any Common
Stock of the Company or other securities convertible into or exchangeable
or exercisable for Common Stock or derivative of Common Stock will be
made for a period of 180 days after the date of this Agreement, directly
or indirectly, by the Company otherwise than hereunder or with the prior
written consent of Equitable Securities Corporation except that the
Company may, without such consent, issue shares of Common Stock (or other
securities convertible into or exchangeable or exercisable for Common
Stock or derivatives therefrom) in connection with the acquisition of
another business (whether in an asset purchase, stock purchase, merger,
joint venture or other type of transaction), issue shares or options to
directors pursuant to the Company's director stock option plan, issue
shares or options pursuant to its stock purchase and option plans
described in the Prospectus, and issue shares upon the exercise of
options and warrants or the conversion of securities outstanding on the
date of this Agreement and described in the Prospectus.
(i) The Company will use its best efforts to list, subject to notice
of issuance, the Shares on the Nasdaq Stock Market's National Market (the
"Nasdaq National Market").
(j) The Company will apply the net proceeds from the sale of the
Shares for the purposes set forth in the Prospectus.
(k) The Company will file with the Commission such reports on Form
SR as may be required pursuant to Rule 463 of the Rules and Regulations.
6. Further Agreements of the Selling Stockholders. Each Selling
Stockholder agrees:
(a) To execute and deliver a written lockup agreement pursuant to
which such Selling Stockholder agrees not to, directly or indirectly,
offer for sale, sell or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the future of)
any shares of Common Stock (other than the Shares), without the prior
written consent of Equitable Securities Corporation for a period of 180
days after the Closing Date;
(b) That the Shares to be sold by the Selling Stockholder hereunder,
which are represented by the certificates held in custody for the Selling
Stockholder, are subject to the interest of the Underwriters in such
Shares pursuant to this Agreement, that the arrangements made by the
Selling Stockholder for such custody are to that extent irrevocable, and
that the obligations of the Selling Stockholder hereunder shall not be
terminated by any act of the Selling Stockholder, by operation of law, by
the death or
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incapacity of any individual Selling Stockholder or, in the case of a
trust, by the death or incapacity of any executor or trustee or the
termination of such trust, or the occurrence of any other event; and
(c) To deliver to the Representatives prior to the Closing Date a
properly completed and executed United States Treasury Department Form
W-8 (if the Selling Stockholder is a non-United States person) or Form
W-9 (if the Selling Stockholder is a United States person).
Each Selling Stockholder consents to the use, in accordance with the
provisions of the Act and with the securities laws of the jurisdictions
in which the Shares are offered by the Underwriters and by all dealers to
whom the Shares may be sold, of each Preliminary Prospectus furnished by
the Company, the Prospectus and any amendment or supplement thereto, both
in connection with the offering and sale of the Shares and for such
period of time thereafter as the Prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer.
7. Cost and Expenses. The Company will pay all costs, expenses and fees
incident to the performance of the obligations of the Company and the Selling
Stockholders under this Agreement, including, without limiting the generality
of the foregoing, the following: accounting fees of the Company; the fees and
disbursements of counsel for the Company; the cost of printing and delivering
to, or as requested by, the Underwriters copies of the Registration Statement,
Preliminary Prospectuses, the Prospectus, and any supplements or amendments
thereto; the filing fees of the Commission; NASD filing fees; the listing fee
of the Nasdaq National Market and the expenses, including the reasonable fees
and disbursements (not to exceed $25,000) of counsel for the Underwriters,
incurred in connection with the qualification of the Shares under state
securities or Blue Sky laws. Any transfer taxes imposed on the sale of the
Shares to the several Underwriters will be paid by the Company or by the
Selling Stockholders, in accordance with the respective sales of their Shares
to the Underwriters. The Selling Stockholders shall also pay the fees and
expenses of their respective counsel and their respective share of underwriting
discounts and commissions. The Company shall not be required to pay for any of
the Underwriters' expenses (other than those related to qualification under
state securities or Blue Sky laws and NASD review) except that, if this
Agreement shall not be consummated because the conditions in Section 8 hereof
are not satisfied, or because this Agreement is terminated by the
Representatives pursuant to Section 8 hereof, or by reason of any failure,
refusal or inability on the part of the Company to perform any undertaking or
satisfy any condition of this Agreement or to comply with any of the terms
hereof on its part to be performed, unless such failure to satisfy said
condition or to comply with said terms results from the act or omission of
any Underwriter, then the Company shall reimburse the several Underwriters for
reasonable out-of-pocket expenses, including fees and disbursements of counsel,
reasonably incurred in connection with investigating, marketing and proposing
to market the Shares or in contemplation of performing their obligations
hereunder; but the Company shall not in any event be liable to any of the
several
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Underwriters for damages on account of loss of anticipated profits from the
sale by them of the Shares.
8. Conditions of Obligations of the Underwriters. The several obligations
of the Underwriters to purchase the Firm Shares on the Closing Date and the
Option Shares, if any, on the Option Closing Date are subject to the accuracy,
as of the Closing Date or the Option Closing Date, as the case may be, of the
representations and warranties of the Company and Selling Stockholders
contained herein, and to the performance by the Company and Selling
Stockholders of their respective covenants and obligations hereunder and to the
following additional conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective and any and all filings required by
Rule 424 and Rule 430A of the Rules and Regulations shall have been made,
and any request of the Commission for additional information (to be
included in the Registration Statement or otherwise) shall have been
disclosed to the Representatives and complied with to their reasonable
request. No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued, and no
proceedings for that purpose shall have been taken or, to the best
knowledge of the Company, shall be contemplated by the Commission.
(b) The respective counsel for the Selling Stockholders shall have
furnished to the Representatives their written opinions, as counsel to
the Selling Stockholder(s) for whom they are acting as counsel, addressed
to the Underwriters and dated the Closing Date or the Option Closing
Date, as the case may be, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Selling Stockholder (if an entity) has full right, power and
authority to execute, deliver and perform this Agreement, the Power of
Attorney and the Custody Agreement. This Agreement, the Power of
Attorney and the Custody Agreement have been duly authorized (if the
Selling Stockholder is an entity), executed and delivered by or on behalf
of such Selling Stockholder and are the legal, valid and binding
agreements of such Selling Stockholder, enforceable against such Selling
Stockholder in accordance with their terms (except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, or
other similar laws relating to creditors' rights generally, and general
equitable principles relating to the availability of remedies, and as
rights to indemnity or contribution may be limited by state or federal
securities laws and the public policy underlying such laws).
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(ii) The execution, delivery and performance of this Agreement, the
Power of Attorney and the Custody Agreement by the Selling Stockholder
and the consummation by the Selling Stockholder of the transactions
contemplated hereby and thereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which the Selling
Stockholder is a party or by which the Selling Stockholder is bound, nor
will such actions result in any violation of the provisions of the
organizational documents of the Selling Stockholder (if an entity) or any
statute or any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over the Selling
Stockholder; and, except for such consents, approvals, authorizations,
registrations or qualifications as may be required under the Act or
applicable state securities laws in connection with the purchase and
distribution of the Shares by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such court
or governmental agency or body is required for the execution, delivery
and performance of this Agreement, the Power of Attorney or the Custody
Agreement by the Selling Stockholder and the consummation by the Selling
Stockholder of the transactions contemplated hereby and thereby; and
(iii) Assuming that each of the Underwriters at the Closing Time is
a "bona fide purchaser" (as defined in Article 8 of the Uniform
Commercial Code in the applicable jurisdiction), upon delivery of a
certificate or certificates therefor and payment of the purchase price
therefor by the Underwriters in accordance with this Agreement, the
Selling Stockholder will transfer to the Underwriters all of the Selling
Stockholder's interest in and to the shares (or warrants) free and clear
of any adverse claim (within the meaning of Section 8-302 of the
Uniform Commercial Code in the applicable jurisdiction).
In rendering such opinions, such counsel may (i) state that their
opinions are limited to matters governed by the Federal laws of the
United States of America, the jurisdiction in which the Selling
Stockholder is organized or resident and (ii) in rendering the opinion in
Section 8(b)(ii) above, rely upon a certificate of such Selling
Stockholder in respect of matters of fact as to the existence of any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Selling Stockholder is a party or by which the
Selling Stockholder is bound, provided, however, that such counsel shall
furnish copies thereof to the Representatives and state that they believe
that both the Underwriters and they are justified in relying upon such
certificate. Such counsel shall also have furnished to the
Representatives a written statement, addressed to the Underwriters and
dated the Closing Date or the Option Closing Date, as the case may be, in
form and substance
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satisfactory to the Representatives, to the effect that (x) such counsel
has acted as counsel to such Selling Stockholder in connection with the
preparation of the Registration Statement, and (y) based on the
foregoing, no facts have come to the attention of such counsel which lead
them to believe that the Registration Statement, as of the effective
date, contained any untrue statement of a material fact relating to such
Selling Stockholder or omitted to state a material fact regarding the
Selling Stockholder required to be stated therein or necessary in order
to make the statements therein not misleading.
(c) The Representatives shall have received on the Closing Date or
the Option Closing Date, as the case may be, the opinion of Xxxxxx &
Bird, counsel for the Company, dated the Closing Date or the Option
Closing Date, as the case may be, addressed to the Underwriters to the
effect that:
(i) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus. The Company is duly qualified
to transact business in all jurisdictions in which the conduct of its
business as described in the Prospectus and based on inquiry of officers
of the Company requires such qualification, or in which the failure to
qualify would have a material adverse effect upon the business of the
Company and the Subsidiaries taken as a whole, based, as to matters of
fact, upon a certificate of officers of the Company.
(ii) Each of the Subsidiaries is a corporation validly existing and
in good standing under the laws of its jurisdiction of incorporation as
of the respective dates specified in such opinion letter and has the
corporate power and corporate authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus.
Each such Subsidiary is authorized to transact business as a foreign
corporation in each jurisdiction identified on a Schedule to such opinion
letter, as of the respective dates of the certificates specified therein.
All of the outstanding shares of capital stock of Renal West, L.C. (a)
have been duly authorized and are validly issued, fully paid and
nonassessable, and (b) to such counsel's knowledge, were not issued in
violation of any preemptive rights under such Subsidiary's charter or
under the laws of the jurisdiction of its incorporation or in violation
of any similar contractual rights. The opinion in the last sentence may
come from local counsel reasonably acceptable to the Representatives.
(iii) The Company has authorized and outstanding capital stock as
set forth under the caption "Capitalization" in the Prospectus; the
authorized shares of its
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Common Stock have been duly authorized; the outstanding shares of its
Common Stock have been duly authorized and validly issued and are fully
paid and non-assessable; all of the Shares conform to the description
thereof contained in the Prospectus; the certificates for the Shares are
in due and proper form; the shares of Common Stock, including the Option
Shares, if any, to be sold by the Company pursuant to this Agreement have
been duly authorized and will be validly issued, fully paid and
non-assessable when issued and paid for as contemplated by this
Agreement; and no preemptive rights of shareholders exist with respect to
any of the Shares or the issue and sale thereof.
(iv) The Registration Statement has become effective under the Act
and, to the best of the knowledge of such counsel, no stop order
proceedings with respect thereto have been instituted or are pending or
threatened under the Act.
(v) The Registration Statement, all Preliminary Prospectuses, the
Prospectus and each amendment or supplement thereto comply as to form in
all material respects with the requirements of the Act and the applicable
rules and regulations thereunder (except that such counsel need express
no opinion as to the financial statements and schedules and other
financial and statistical information included therein).
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(vi) The execution and delivery by the Company of this Agreement
and the consummation of the transactions herein and therein contemplated
do not and will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, the Articles of
Incorporation or Bylaws, as amended, of the Company or any Subsidiary, or
any agreement, lease, contract, indenture, instrument or obligation to
which the Company or any of the Subsidiaries is a party or by which the
Company or any of the Subsidiaries may be bound, and which is filed as
an exhibit to the Registration Statement.
(vii) This Agreement has been duly authorized, executed and
delivered by the Company.
(viii) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body is necessary in connection with the execution and
delivery by the Company of this Agreement and the consummation of the
transactions contemplated herein (other than as may be required by the
NASD or as required by state securities and Blue Sky laws as to which
such counsel need express no opinion) except such as have been obtained
or made. No consents or waivers
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from any other person are required in connection with the execution and
delivery of this Agreement and the consummation of the transactions
contemplated herein and therein, except such as have been obtained or
made.
(ix) The Shares to be sold under this Agreement to the Underwriters
have been duly approved for listing on the Nasdaq National Market.
(x) To the best knowledge of such counsel, no person or entity
holds a right to require or participate in the registration under the Act
of shares of Common Stock of the Company which right has not been waived
by the holder thereof as to the offering contemplated hereby and by the
Registration Statement, or satisfied by participation by such holder
in the offering.
(xi) The Company is not and, upon consummation of the transactions
contemplated hereby, will not be an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(xii) To the best knowledge of such counsel, all offers and sales
of shares of the Company's capital stock (including securities
convertible into, or exchangeable or exercisable for, shares of the
Company's capital stock) made by the Company in connection with its
acquisition of Main Line Suburban Dialysis, Inc. and RenalWest, L.C.,
were exempt from the registration requirements of the Act, and were the
subject of an available exemption from the requirements of all applicable
state securities or Blue Sky laws. Nothing has come to the attention of
such counsel that would cause it to believe that the Company has made
any other offers or sales of shares of the Company's capital stock
(including securities convertible into, or exchangeable or exercisable
for, shares of the Company's capital stock) which were subject to the
registration requirements of the Act or of applicable State Securities
or Blue Sky laws and which were not so registered.
(xiii) Except as described in or contemplated by the Prospectus, to
the best knowledge of such counsel, there are no outstanding securities
of the Company convertible or exchangeable into or evidencing the right
to purchase or subscribe for any shares of capital stock of the Company
and there are no outstanding or authorized options, warrants or rights of
any character obligating the Company to issue any shares of its capital
stock or any securities convertible or exchangeable into or evidencing
the right to purchase or subscribe for any shares of such stock; and
except as described in the Prospectus, to the best knowledge of such
counsel, there is no holder of any securities of the Company or any other
person who has the right, contractual or otherwise, to cause the Company
to sell or otherwise issue to them, or to permit them to underwrite the
sale of, any of the Shares or the right to have any Common Stock or other
securities of the Company included in the Registration Statement or the
right, as a result of the filing of the Registration Statement, to
require registration under the Act of any Common Stock or other
securities of the Company.
In rendering such opinion, Xxxxxx & Bird may rely as to matters governed
by the laws of states other than Delaware or federal laws solely on local
counsel in such jurisdictions, provided that in each case Xxxxxx & Bird
shall state that they believe that they and the Underwriters are
justified in relying on such other counsel. In addition to the matters
set
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forth above, such opinion shall also include a statement to the effect
that, although such counsel has not independently verified and is not
passing upon the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, nothing has
come to the attention of such counsel which leads them to believe that
(i) the Registration Statement, as of the time it became effective under
the Act (but after giving effect to the changes incorporated pursuant to
Rule 430A under the Act), or as of the Closing Date or the Option Closing
Date contained (or contains) an untrue statement of a material fact or
omitted (or omits) to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus or any amendment or supplement thereto, on the date it was
filed pursuant to Rule 424(b), or as of the Closing Date and the Option
Closing Date, as the case may be, contained (or contains), an untrue
statement of a material fact or omitted (or omits) to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading (except that such counsel need express no view as to
financial statements, notes and schedules included therein and other
financial and statistical information included therein), or (ii) there
are any contracts or documents of a character 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 referred to
therein or so filed).
(d) The Representatives shall have received on the Closing Date or
the Option Closing Date, as the case may be, an opinion of counsel
reasonably acceptable to the Representatives and addressed to the
Underwriters of counsel reasonably acceptable to the Representatives and
addressed to the Underwriters to the effect that, to the best of such
counsel's knowledge, each of the Company's dialysis centers in
Mississippi and Arizona currently holds (or has pending renewal
applications for) any licenses or permits required under state law
authorizing such dialysis center to furnish nephrology services as
described under the heading "Business--Operations" in the Prospectus.
(e) The Representatives shall have received from Xxxxx & Xxxxxxx
L.L.P., counsel for the Underwriters, an opinion dated the Closing Date
or the Option Closing Date, as the case may be, with respect to the
incorporation of the Company, the validity of the Shares being delivered
to the Underwriters, the Registration Statement, the Prospectus and any
other related matters as you may reasonably request. Such counsel shall
have received such documents and information as they may reasonably
request to enable them to pass upon such matters. In rendering such
opinion, counsel for the Underwriters may rely as to all matters governed
other than by Delaware or federal laws on the opinions of counsel
referred to in Paragraphs (b) and (c) of this Section 8.
(f) The Representatives shall have received at or prior to the
Closing Date from counsel for the Underwriters a memorandum or summary,
in form and substance satisfactory to the Representatives, with respect
to the qualification for offering and sale by the Underwriters of the
Shares under the state securities or Blue Sky laws of such jurisdictions
as the Representatives may reasonably have designated to the Company.
(g) The Representatives shall have received, on the Closing Date or
the Option Closing Date, as the case may be, a signed letter from Ernst &
Young LLP, Xxxxx & Xxxxxx, P.C. and Xxxxx, Xxxxx & Xxxxxx, X.X.,
independent public accountants for the Company, dated the Closing Date or
the Option Closing Date, as the case may be, which
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shall confirm, on the basis of a review in accordance with the procedures
set forth in the letter signed by such firm and dated and delivered to
the Representatives on the date hereof, that nothing has come to their
attention during the period from the date five days prior to the date
hereof, to a date not more than five days prior to the Closing Date or
the Option Closing Date, as the case may be, which would require any
change in their letter dated the date hereof if it were required to be
dated and delivered on the Closing Date or the Option Closing Date, as
the case may be. All such letters shall be in form and substance
satisfactory to the Representatives.
(h) The Representatives shall have received on the Closing Date or
the Option Closing Date, as the case may be, a certificate or
certificates on behalf of the Company of the chief executive officer and
the principal financial and accounting officer of the Company to the
effect that, as of the Closing Date or the Option Closing Date, as the
case may be:
(i) The Registration Statement has become effective under
the Act, and no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for such
purpose have been taken or are, to such person's knowledge, contemplated
by the Commission.
(ii) The representations and warranties of the Company
contained in Section 1 hereof are true and correct as of the Closing
Date or the Option Closing Date, as the case may be.
(iii) Such person has carefully examined the Registration
Statement and the Prospectus and, in such person's opinion, as of the
effective date of the Registration Statement, the statements contained in
the Registration Statement were true and correct in all material respects,
and the Registration Statement and Prospectus did not omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein (as to the Prospectus, in light of the
circumstances under which they were made) not misleading and, to his
knowledge, since the effective date of the Registration Statement, no
event has occurred which should have been set forth in a supplement to or
an amendment of the Prospectus which has not been so set forth in such
supplement or amendment.
(i) Each Selling Stockholder (or the attorneys-in-fact on behalf of
the Selling Stockholders) shall have furnished to the Representatives on
the Closing Date or the Option Closing Date, as the case may be, a
certificate, dated the Closing Date or the Option Closing Date, as the
case may be, signed by, or on behalf of, the Selling Stockholder (or
attorneys-in-fact) stating that the representations, warranties and
agreements of the Selling Stockholder contained herein are true and
correct as of the Closing Date or the Option Closing Date, as the case
may be, and that the Selling
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Stockholder has complied with all agreements contained herein to be
performed by the Selling Stockholder at or prior to the Closing Date or
Option Closing Date, as the case may be.
(j) The Company and the Selling Stockholders shall have furnished to
the Representatives such further certificates and documents confirming
the representations and warranties contained herein and related matters
as the Representatives may reasonably have requested.
(k) The Firm Shares and Option Shares, if any, shall have been
approved for listing upon notice of issuance on the Nasdaq National
Market.
(l) All filings required to have been made pursuant to Rules 424 or
430A under the Act shall have been made.
(m) Since the respective dates as of which information is given in
the Registration Statement and Prospectus, there shall not have been any
material adverse change or any development involving a prospective
adverse change in or affecting the condition, financial or otherwise, of
the Company or the earnings, business affairs, management or business
prospects of the Company whether or not arising in the ordinary course of
business.
(n) The Company shall have delivered to you written lock-up
agreements from the officers, directors and shareholders of the Company
listed on Schedule C pursuant to which such persons agree with you not to
offer, sell or dispose of any Common Stock of the Company, or any
securities convertible into or exercisable or exchangeable therefor or
derivative therefrom, for a period of 180 days after the date of this
Agreement, directly or indirectly, except with the prior consent of
Equitable Securities Corporation.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all
material respects reasonably satisfactory to the Representatives and to
Xxxxx & Xxxxxxx L.L.P., counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 8 shall
not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be
terminated by the Representatives by notifying the Company and Selling
Stockholders of such termination in writing or by telegram at or prior
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to the Closing Date or Option Closing Date (but only the Option Shares
with respect to the Option Closing Date), as the case may be.
In such event, the Company, the Selling Stockholders and the Underwriters
shall not be under any obligation to each other (except to the extent
provided in Sections 7 and 10 hereof).
9. Conditions of the Obligations of the Company. The obligations of the
Company and the Selling Stockholders to sell and deliver the Shares required to
be delivered as and when specified in this Agreement are subject to the
conditions that at the Closing Date or the Option Closing Date, as the case may
be, no stop order suspending the effectiveness of the Registration Statement
shall have been issued and in effect and no proceedings therefor shall have
been initiated or threatened.
10. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Act against any losses, claims, damages or
liabilities to which such Underwriter or such controlling person may become
subject under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (as to the Prospectus, in light of
the circumstances under which they were made) not misleading, and will
reimburse each Underwriter and each such controlling person upon demand for any
legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending any such loss,
claim, damage, liability, action or proceeding and expenses reasonably incurred
in responding to a subpoena or governmental inquiry whether or not such
underwriter or controlling person is a party to the related action or
proceeding; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement, or omission
or alleged omission made in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or such amendment or supplement, in reliance upon
and in conformity with written information furnished to the Company by or
through the Representatives specifically for use in the preparation thereof.
The Company shall not be liable to any Underwriter pursuant to this subsection
(a) with respect to any Prospectus to the extent that such loss, claim, damage
or liability of such Underwriter results from the fact that such Underwriter
sold securities in any case where delivery of a Prospectus is required by the
Act if the Company has previously furnished copies of the Prospectus or any
amendment or supplement thereto to such Underwriter and the loss, claim, damage
or liability of such Underwriter results from an untrue statement or omission
of a material fact contained in, or the omission of a material
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fact from, the Preliminary Prospectus or an earlier Prospectus which was
corrected in the Prospectus or any amendment or supplement thereto and such
Underwriter failed to deliver such corrected Prospectus to a purchaser of
Shares as required by the Act. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Selling Stockholder, severally and not jointly with other Selling
Stockholders, shall indemnify and hold harmless each Underwriter, its officers
and employees, and each person, if any, who controls any Underwriter within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Shares), to which that Underwriter, officer, employee or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon (i) any untrue statement or alleged untrue statement of a material
fact regarding such Selling Stockholder contained in the Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state in the
Preliminary Prospectus, Registration Statement or the Prospectus, or in any
amendment or supplement thereto, any material fact regarding such Selling
Stockholder required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse each Underwriter, its officers and
employees and each such controlling person for any legal or other expenses
reasonably incurred by that Underwriter, its officers and employees or
controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Selling Stockholder shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or in any
such amendment or supplement in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion
therein; provided, further, that as to any Preliminary Prospectus or the
Prospectus, this indemnity agreement shall not inure to the benefit of any
Underwriter, its officers, employees or any person controlling that Underwriter
on account of any loss, claim, damage, liability or action arising from the
sale of Shares to any person by that Underwriter if that Underwriter failed to
send or give a copy of the Prospectus, or an amendment or supplement thereto,
to that person within the time required by the Securities Act, and the untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in such Preliminary Prospectus or the
Prospectus was corrected in the Prospectus or the amendment or supplement
thereto and provided, further, that the liability of each Selling Stockholder
shall be limited to the net proceeds received by such Selling Stockholder upon
the sale of the Shares. The foregoing indemnity agreement is in addition to
any liability which the Selling Stockholders may otherwise have to any
Underwriter or any officer, employee or controlling person of that Underwriter.
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(c) Each Underwriter will indemnify and hold harmless the Company, each of
its directors, each of its officers who have signed the Registration Statement,
each Selling Stockholder and each person, if any, who controls the Company or
Selling Stockholder within the meaning of the Act, against any losses, claims,
damages or liabilities to which the Company or any such director, officer,
Selling Stockholder or controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; and will
reimburse any legal or other expenses reasonably incurred by the Company or any
such director, officer, Selling Stockholder or controlling person in connection
with investigating or defending any such loss, claim, damage, liability, action
or proceeding; provided, however, that each Underwriter will be liable in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Representatives
specifically for use in the preparation thereof. This indemnity agreement will
be in addition to any liability which such Underwriter may otherwise have.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 10, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing. No indemnification provided for in this
Section 10 shall be available to any party who shall fail to give notice as
provided in this Section 10(d) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
prejudiced by the failure to give such notice, but the failure to give such
notice shall not relieve the indemnifying party or parties from any liability
which it or they may have to the indemnified party for contribution or
otherwise than on account of the provisions of this Section 10. In case any
such proceeding shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party
(approval of such counsel shall not be unreasonably withheld or delayed by the
indemnified party) and shall pay as incurred the reasonable 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 at its own expense. Notwithstanding the foregoing, the indemnifying
party shall pay as incurred the reasonable fees and expenses of the counsel
retained by the indemnified party in the event (i) the indemnifying party and
the indemnified party shall have
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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 reasonably
potential conflicts of interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by you in the case of parties indemnified
pursuant to Section 10(a) and 10(b) and by the Company in the case of parties
indemnified pursuant to Section 10(c). 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. In addition, the indemnifying party will not, without the prior
written consent of the indemnified party, settle or compromise or consent to
the entry of any judgment in any pending or threatened claim, action or
proceeding, of which indemnification may be sought hereunder (whether or not
any indemnified party is an actual potential party to such claim, action or
proceeding) unless such settlement, compromise or consent includes an
unconditional release of the indemnified party from all liability arising out
of such claim, action or proceeding.
(e) If the indemnification provided for in this Section 10 is unavailable
to or insufficient to hold harmless an indemnified party under Section 10(a),
10(b) or 10(c) above in respect of any losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company and
Selling Stockholder on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under Section 10(d) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Selling
Stockholders on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions or proceedings in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
and the Selling Stockholders bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or
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alleged omission to state a material fact relates to information supplied by
the Company and the Selling Stockholders on the one hand or the Underwriters on
the other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this Section 10(e)
were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
Section 10(e). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to above in this Section 10(e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (e), (i) no Underwriter shall
be required to contribute any amount in excess of the underwriting discounts
and commissions applicable to the Shares purchased by such Underwriter,
(ii) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation and (iii) no Selling
Stockholder shall be required to contritute any amount in excess of the net
proceeds received by such Selling Stockholder from the Underwriters upon the
sale of the Shares. The Underwriters' obligations in this Section 10(e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 10 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon him or it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join him or it as
an additional defendant in any such proceeding in which such other contributing
party is a party.
11. Default by Underwriters. If on the Closing Date or the Option Closing
Date, as the case may be, any Underwriter shall fail to purchase and pay for
the portion of the Shares which such Underwriter has agreed to purchase and pay
for on such date (otherwise than by reason of any default on the part of the
Company), you, as Representatives of the Underwriters, shall use your best
efforts to procure within 24 hours thereafter one or more of the other
Underwriters, or any others, to purchase from the Company and the Selling
Stockholders such amounts as may be agreed upon and upon the terms set forth
herein, the Firm Shares or Option Shares, as the case may be, which the
defaulting Underwriter or Underwriters failed to purchase. If during such 24
hours you, as such Representatives, shall not have procured such other
Underwriters, or any others, to purchase the Firm Shares or Option Shares, as
the case may be, agreed to be purchased by the defaulting Underwriter or
Underwriters, then (a) if the aggregate number of shares with respect to which
such
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default shall occur does not exceed 10% of the Firm Shares or Option Shares, as
the case may be, covered hereby, the other Underwriters shall be obligated,
severally, in proportion to the respective numbers of Firm Shares or Option
Shares, as the case may be, which they are obligated to purchase hereunder, to
purchase the Firm Shares or Option Shares, as the case may be, which such
defaulting Underwriter or Underwriters failed to purchase, or (b) if the
aggregate number of shares of Firm Shares or Option Shares, as the case may be,
with respect to which such default shall occur exceeds 10% of the Firm Shares
or Option Shares, as the case may be, covered hereby, the Company or you as the
Representatives of the Underwriters will have the right, by written notice
given within the next 24-hour period to the parties to this Agreement, to
terminate this Agreement without liability on the part of the nondefaulting
Underwriters or of the Company except to the extent provided in Section 10
hereof. In the event of a default by any Underwriter or Underwriters, as set
forth in this Section 11, the Closing Date or Option Closing Date, as the case
may be, may be postponed for such period, not exceeding seven days, as you, as
Representatives, may determine in order that the required changes in the
Registration Statement or in the Prospectus or in any other documents or
arrangements may be effected. The term "Underwriter" includes any person
substituted for a defaulting Underwriter. Any action taken under this Section
11 shall not relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
12. Notices. All communications hereunder shall be in writing and, except
as otherwise provided herein, will be mailed, delivered or telegraphed and
confirmed as follows: if to the Underwriters, to Equitable Securities
Corporation, Xxxxxxxxx Xxxx Xxxxxx, Xxxxx 000, 000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000, Attention: X. Xxxxx Sweat, with a copy to Xxxxx & Xxxxxxx
L.L.P., Columbia Square, 000 Xxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000,
Attention: Xxxxx X. Xxxxx, Esq.; if to the Company, to Renal Care Group, Inc.,
0000 Xxxx Xxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxx X.
Xxxxxx, Xx., with a copy to Xxxxxx & Bird, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000-0000, Attention: Xxxxxx X. Xxxxxx, Esq.; if to any Selling
Stockholder, to such Selling Stockholder at the address set forth on Schedule B
hereto.
13. Termination. This Agreement may be terminated by you by notice to the
Company as follows:
(a) At any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, any material adverse change, or
any development, to the reasonable belief of the Representatives, involving a
prospective material adverse change, in or affecting the condition, financial
or otherwise, of the Company and its Subsidiaries taken as a whole or the
earnings, business affairs, management or business prospects of the Company and
its Subsidiaries taken as a whole, whether or not arising in the ordinary
course of business, (ii) any outbreak or escalation of hostilities or
declaration of war or national emergency after the date hereof or other
national or international calamity or crisis or change in economic or political
conditions if the effect of such
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outbreak, escalation, declaration, emergency, calamity, crisis or change on the
financial markets of the United States would, in your reasonable judgment, make
the offering or delivery of the Shares impracticable or inadvisable, (iii)
suspension of trading in securities on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq Stock Market or limitation on prices
(other than limitations on hours or numbers of days of trading) for securities
on either such Exchange or the Nasdaq Stock Market, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
your reasonable opinion materially and adversely affects or will materially and
adversely affect the business or operations of the Company, or (v) declaration
of a banking moratorium by either federal or New York State authorities.
(b) As provided in Sections 8 and 9 of this Agreement.
This Agreement also may be terminated by you, by notice to the Company, as
to any obligation of the Underwriters to purchase the Option Shares, upon the
occurrence at any time prior to the Option Closing Date of any of the events
described in subparagraph (a) above or as provided in Sections 8 and 11 of this
Agreement.
14. Successors. This Agreement has been and is made solely for the
benefit of the Underwriters, the Company and the Selling Stockholders and their
respective successors, executors, administrators, heirs and assigns, and the
officers, directors and controlling persons referred to herein, and no other
person will have any right or obligation hereunder. The term "successors"
shall not include any purchaser of the Shares merely because of such purchase.
No purchaser of Shares from any Underwriter shall be deemed a successor or
assign merely because of such purchase.
15. Miscellaneous. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Company or its directors or officers, or the Selling Stockholders and (c)
delivery of and payment for the Shares under this Agreement.
The Company, the Selling Stockholders and the Underwriters acknowledge and
agree that the only information furnished or to be furnished by any Underwriter
to the Company for inclusion in any Prospectus or the Registration Statement
consists of the information set forth in the last paragraph on the front cover
page (insofar as such information relates to the Underwriters), information
provided in connection with Item 502(d) of Regulation S-K under the Act and
information under the caption "Underwriting" in the Prospectus.
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This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Tennessee, without giving effect to its principles of
conflicts of law.
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Stockholders and the several Underwriters in accordance with its terms.
It is understood that your acceptance of this letter on behalf of each of
the Underwriters is pursuant to the authority set forth in a form of Agreement
Among Underwriters, the form of which shall be submitted to the Company for
examination, upon request.
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Very truly yours,
RENAL CARE GROUP, INC.
By: _______________________________
Xxxxxx Xxxxx
Executive Vice President, Chief
Financial Officer, Treasuer and
Secretary
The Selling Stockholders named in
Schedule B to this Agreement
By: _______________________________
Xxxxxx Xxxxx, Attorney-in-fact
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date
first above written.
Equitable Securities Corporation
Xxxxxxxxx & Xxxxx LLC
Xxxxxx Xxxxxx & Company, Inc.
Xxxxxxx & Company, Inc.
As Representatives of the several
Underwriters listed on Schedule A
By: Equitable Securities Corporation
By: ______________________________
Authorized Signatory
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SCHEDULE A
SCHEDULE OF UNDERWRITERS
UNDERWRITER NUMBER OF FIRM SHARES
-----------
TO BE PURCHASED
---------------------
Equitable Securities Corporation ........................... 937,500
Xxxxxxxxx & Xxxxx LLC ...................................... 750,000
Xxxxxx Xxxxxx & Company, Inc................................ 500,000
Xxxxxxx & Company, Inc...................................... 312,500
Total ..................................... 2,500,000
---------
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SCHEDULE B
NAME AND ADDRESS NUMBER OF SHARES
OF SELLING STOCKHOLDER OF FIRM STOCK
---------------------- ------------------
Xxxxx X. Xxxxxxxx 27,300
Xxxxxxx X. Xxxxxxx, M.D. 72,173
Xxxxxx X. Xxxxxx, M.D. 49,299
Xxxxxxx X. XxXxxxxx, M.D. 31,900
W. Xxx Xxxxxxxx, M.D 40,000
Kidney Care, Inc. 158,339
Xxxxxxx X. and Xxxx Xxxxxxxx Family Trust 62,563
Bimbaum Family Trust 62,563
Xxxxxxx X. Xxxxx Family Trust 134,954
Xxxxx Family Trust 19,599
Xxxxx X. Xxxxxx, Xx. M.D. 49,299
Xxxxx X. Xxxxxx, Xx. M.D. 32,866
Xxxxxxxx Xxx Xxxxxx 5,524
Xxxxxx X. Xxxxxx, M.D. 30,000
Xxxx X. Xxxx, M.D 25,900
Xxxxxx X. Xxx, M.D. 5,000
Xxxxxxx X. Xxxxx, M.D. 2,000
Xxxxxx X. Xxxxxx 10,616
Xxx X. Xxxxxx, Xx., M.D. 32,866
Xxxx X. Xxxxxx & Xxxxxx X. Xxxxxx Revocable Trust 20,168
Xxxxxx X. Xxxxxx, Xx., M.D. 19,333
Xxxxxx X. Xxxx, M.D. 6,500
Xxxxx Xxxxxxxxx 30,333
Xxxxxxx X. Xxxxxxx 30,000
Xxxxxx X. Xxxxxx 569
X'Xxxxx Family Trust 28,984
Packer Family Trust 62,563
Xxxxxx X. Xxxxxx 1,231
Xxxxx X. Xxxxxxxx, M.D. 134,954
Xxxxxx X. Xxxx, M.D. 5,000
Xxxxx X. Xxxxxxxxx, M.D. 24,857
Xxxxxxx X. Xxxxx & Xxxx Xxxxx Family Trust 60,000
Xxxx Family Trust 50,760
Xxxx X. Xxxxx, Xx., M.D. 45,828
Xxxxx Xxx, M.D. 62,563
39
SCHEDULE C
SCHEDULE OF PERSONS SUBJECT TO LOCK-UP AGREEMENTS
C.R.A. Xxxxx
Xxxxxxx and Xxxx Xxxxxxxx Family Trust
Xxxxxx Xxxx
Bimbaum Family Trust
Xxxxx Family Revocable Trust
Xxxx X. Xxxxx, M.D.
Xxx X. Xxxxxx
Xxxx Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, M.D.
Xxxxxx X. Xxxxxxx, M.D.
Xxxx X. Xxxx, M.D.
Xxx Xxxxxxx
Xxxxxxx Xxxxx, M.D., Ph.D.
Xxx Xxxxxx Sr., M.D.
Xxxxxx Xxxxx
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxx, M.D.
Xxxx Trust
Kidney Care, Inc. Foundation
Xxxxx Xxxxxxxxx
Xxxxxx X. Xxxxxx, M.D.
Xxxxxxx X. XxXxxxxx, M.D.
W. Xxx Xxxxxxxx, M.D.
Xxxxxxx Xxxxxxx, M.D.
Xxxxxx Family Trust
Xxxxx Xxxxxxxx, M.D.
Xxxxxx X. Xxxx, M.D.
Xxxxxxx Xxxxxxxxx, M.D
Xxxxx Xxxxxxxxx, M.D.
Miles Xxxxxx
Xxxxxxx Xxxxx and Xxxx Xxxxx Family Trust
Xxxxxxx Xxxxxx
Vanderbilt University
Xxxx X. Xxxxx, M.D.
Xxxxx Xxx, M.D.
40
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
