EXHIBIT 1
APS Healthcare, Inc.
_________ Shares
Common Stock
($.001 Par Value)
UNDERWRITING AGREEMENT
________ __, 2001
UNDERWRITING AGREEMENT
________ __, 2001
UBS Warburg LLC
CIBC World Markets Corp.
As representatives of the several Underwriters
named in SCHEDULE A hereto
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c/o UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
APS Healthcare, Inc., a Delaware corporation (the "COMPANY"), proposes to
issue and sell to the Underwriters named in SCHEDULE A annexed hereto (the
"UNDERWRITERS") an aggregate of _________ shares (the "FIRM SHARES") of Common
Stock, $.001 par value per share, of the Company (the "COMMON STOCK"). In
addition, solely for the purpose of covering over-allotments, the Company
proposes to grant to the Underwriters the option to purchase from the Company up
to an additional ______ shares of Common Stock (the "ADDITIONAL SHARES"). The
Firm Shares and the Additional Shares are hereinafter collectively sometimes
referred to as the "Shares". The Shares are described in the Prospectus which is
referred to below.
The Company hereby acknowledges that in connection with the proposed
offering of the Shares, it has requested UBS Warburg LLC ("UBSW") to administer
a directed share program (the "DIRECTED SHARE PROGRAM") under which up to
_________ Firm Shares, or 5% of the Firm Shares, to be purchased by you (the
"RESERVED SHARES") shall be reserved for sale by you at the initial public
offering price to the Company's officers, directors, employees, and consultants
and others having a relationship with the Company (the "DIRECTED SHARE
PARTICIPANTS") as part of the distribution of the Shares by the Underwriters,
subject to the terms of this Agreement, the applicable rules, regulations and
interpretations of the National Association of Securities Dealers, Inc. ("NASD")
and all other applicable laws, rules and regulations. The number of Shares
available for sale to the general public will be reduced to the extent that
Directed Share Participants purchase Reserved Shares. You may offer any Reserved
Shares not purchased by Directed Share Participants to the general public on the
same basis as the other Shares being issued and sold hereunder. The Company has
supplied UBSW with the names, addresses and telephone numbers of the individuals
or other entities which the Company has designated to be participants in the
Directed Share Program. It is understood that any number of those designated to
participate in the Directed Share Program may decline to do so.
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The Company has filed, in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations thereunder (collectively,
the "ACT"), with the Securities and Exchange Commission (the "COMMISSION") a
registration statement on Form S-1 (File No. 333- ) including a prospectus,
relating to the Shares. The Company has furnished to you, for use by the
Underwriters and by dealers, copies of one or more preliminary prospectuses
(each thereof being herein called a "PRELIMINARY PROSPECTUS") relating to the
Shares. Except where the context otherwise requires, the registration statement,
as amended when it becomes effective, including all documents filed as a part
thereof, and including any information contained in a prospectus subsequently
filed with the Commission pursuant to Rule 424(b) under the Act and deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule
430(A) under the Act, and also including any registration statement filed
pursuant to Rule 462(b) under the Act with respect to the offering contemplated
by the Registration Statement, is herein called the Registration Statement, and
the prospectus, in the form filed by the Company with the Commission pursuant to
Rule 424(b) under the Act on or before the second business day after the date
hereof (or such earlier time as may be required under the Act) or, if no such
filing is required, the form of final prospectus included in the Registration
Statement at the time the Registration Statement became effective, is herein
called the Prospectus.
The Company and the Underwriters agree as follows:
1. SALE AND PURCHASE. Upon the basis of the representations and warranties
and subject to the terms and conditions herein set forth, the Company agrees to
sell to the respective Underwriters and each of the Underwriters, severally and
not jointly, agrees to purchase from the Company the aggregate number of Firm
Shares set forth opposite the name of such Underwriter in SCHEDULE A attached
hereto, in each case at a purchase price of $____ per Share. The Company is
advised by you that the Underwriters intend (i) to make a public offering of
their respective portions of the Firm Shares as soon after the effective date of
the Registration Statement as in your judgment is advisable and (ii) initially
to offer the Firm Shares upon the terms set forth in the Prospectus. You may
from time to time increase or decrease the public offering price after the
initial public offering to such extent as you may determine.
In addition, the Company hereby grants to the several Underwriters the
option to purchase, and upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from the Company, ratably
in accordance with the number of Firm Shares to be purchased by each of them,
all or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm Shares, at the
same purchase price per share to be paid by the Underwriters to the Company for
the Firm Shares. This option may be exercised by you on behalf of the several
Underwriters at any time and from time to time on or before the thirtieth day
following the date hereof, by written notice to the Company. Such notice shall
set forth the aggregate number of Additional Shares as to which the option is
being exercised and the date and time when the Additional Shares are to be
delivered (such date and time being herein referred to as the additional time of
purchase); PROVIDED, HOWEVER, that the additional time of purchase shall not be
earlier than the time of purchase (as
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defined below) nor earlier than the second business day1 after the date on which
the option shall have been exercised nor later than the tenth business day after
the date on which the option shall have been exercised. The number of Additional
Shares to be sold to each Underwriter shall be the number which bears the same
proportion to the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such Underwriter on
SCHEDULE A hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as you may determine to eliminate fractional shares).
2. PAYMENT AND DELIVERY. Payment of the purchase price for the Firm Shares
shall be made to the Company by Federal Funds wire transfer against delivery of
the certificates for the Firm Shares to you through the facilities of the
Depository Trust Company ("DTC") for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on _________ __, 2001 (unless another time shall be agreed to by you
and the Company or unless postponed in accordance with the provisions of Section
8 hereof). The time at which such payment and delivery are actually made is
hereinafter sometimes called the time of purchase. Certificates for the Firm
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify on the second business day preceding the time
of purchase. For the purpose of expediting the checking of the certificates for
the Firm Shares by you, the Company agrees to make such certificates available
to you for such purpose at least one full business day preceding the time of
purchase.
Payment of the purchase price for the Additional Shares shall be made at
the additional time of purchase in the same manner and at the same office as the
payment for the Firm Shares. Certificates for the Additional Shares shall be
delivered to you in definitive form in such names and in such denominations as
you shall specify no later than the second business day preceding the additional
time of purchase. For the purpose of expediting the checking of the certificates
for the Additional Shares by you, the Company agrees to make such certificates
available to you for such purpose at least one full business day preceding the
additional time of purchase.
Deliveries of the documents described in Section 6 below with respect to
the purchase of the Shares shall be made at the offices of Xxxxx Xxxxxxxxxx LLP,
1301 Avenue of the Americas, New York, New York at 9:00 a.m., New York time, on
the date of the closing of the purchase of the Firm Shares or the Additional
Shares, as the case may be.
3. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to each of the Underwriters that:
(a) The Company has not received, and has no notice of, any order of
the Commission preventing or suspending the use of any Preliminary
Prospectus, or instituting proceedings for that purpose, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act. When the Registration
Statement became or becomes effective, the Registration Statement and the
Prospectus complied or will comply in all material respects with the
provisions of the
-----------------------
(1) As used herein "business day" shall mean a day on which the New York
Stock Exchange is open for trading.
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Act, and the Registration Statement did not or will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and the Prospectus did not or will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading and the
Prospectus, any Preliminary Prospectus and any supplement thereto or
prospectus wrapper prepared in connection therewith, at their respective
times of issuance and at the time of closing, complied and will comply in
all material respects with any applicable laws or regulations of
jurisdictions in which the Prospectus and such preliminary prospectus, as
amended or supplemented, if applicable, are distributed in connection with
the offer and sale of the Shares, PROVIDED, HOWEVER, that the Company makes
no representation or warranty with respect to any statement contained in
the Registration Statement or the Prospectus in reliance upon and in
conformity with information concerning the Underwriters and furnished in
writing by or on behalf of any Underwriter through you to the Company
expressly for use in the Registration Statement or the Prospectus. The
Company has not distributed directly or indirectly any offering material in
connection with the offering or sale of the Shares other than the
Registration Statement, the Preliminary Prospectus, the Prospectus or any
other materials, if any, permitted by the Act.
(b) As of the date of this Agreement, the Company has an authorized
and outstanding capital stock as set forth under the heading entitled
"Actual" in the section of the Registration Statement and the Prospectus
entitled "Capitalization" and, as of the time of purchase, and assuming the
receipt and application of the net proceeds as described under the section
of the Registration Statement and the Prospectus entitled "Use of
Proceeds," the Company shall have an authorized and outstanding capital
stock as set forth under the heading entitled "Pro Forma As Adjusted" in
the section of the Registration Statement and the Prospectus entitled
"Capitalization." All of the outstanding shares of capital stock have been
duly and validly authorized and issued and are fully paid and
non-assessable, have been issued in compliance with all federal and state
securities laws and have not have been issued in violation of any
preemptive right, resale right, right of first refusal or similar right.
(c) The Company has been duly organized and is validly existing as a
corporation and is in good standing under the laws of the State of
Delaware, with full power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement;
(d) The Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to so qualify in any
such jurisdiction would not individually or in the aggregate have a
material adverse effect on the business, prospects, properties, condition
(financial or otherwise) or results of operation of the Company and the
Subsidiaries (as defined herein), taken as a whole (a "MATERIAL ADVERSE
EFFECT"). The Company does not have any subsidiaries (as defined in the
Act) other than those subsidiaries listed on Schedule B hereto (such listed
subsidiaries, the "SUBSIDIARIES"). The Company owns 100% of the outstanding
capital
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stock of each of the Subsidiaries. Other than the Subsidiaries, the Company
does not own, directly or indirectly, any shares of stock or any other
equity or long-term debt securities of any corporation or have any equity
interest in any firm, partnership, limited liability company, joint
venture, association or other entity except as contemplated by the
Prospectus and set forth in the Registration Statement and the Prospectus.
Complete and correct copies of the certificate of incorporation and bylaws
or other organizational documents of the Company and the Subsidiaries and
all amendments thereto have been delivered to you, and except as described
in the Prospectus and set forth in the exhibits to the Registration
Statement, no changes therein will be made subsequent to the date hereof
and prior to the time of purchase or, if later, the additional time of
purchase. Each of the Subsidiaries has been duly organized and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with the requisite corporate power and
authority to own, lease and operate its properties and to conduct its
business, except where the failure to be so organized or existing would
not, individually or in the aggregate, have a Material Adverse Effect. The
Subsidiaries are duly qualified or licensed to do business as foreign
corporations in good standing in each jurisdiction where the ownership or
leasing of the properties or the conduct of their business requires such
qualification or license, except where the failure to so qualify or be
licensed would not, individually or in the aggregate, have a Material
Adverse Effect. All of the outstanding capital stock of each of the
Subsidiaries has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company subject to no security interest,
other encumbrance or adverse claims. No options, warrant or other rights to
purchase, agreements or other obligations to issue or rights to convert any
obligation into shares of capital stock or ownership interests in the
Subsidiaries are outstanding.
(e) Neither the Company nor any of the Subsidiaries nor, to the
knowledge of the Company, any of the physicians, medical institutions or
other health care providers or any of the health care payors with whom the
Company or any of the Subsidiaries directly or indirectly contract, is in
violation of any law, ordinance, administrative or governmental rule or
regulation applicable to the Company or the Subsidiaries or related o the
conduct of their respective businesses or of any decree of any court or
governmental agency or body applicable to the Company or the Subsidiaries
or related to the conduct of their respective businesses, except for such
violations that could not, individually or in the aggregate, have a
Material Adverse Effect. Without limiting the foregoing, the Company and
the Subsidiaries do not violate any applicable provisions of federal or
state laws governing Medicare or any state Medicaid programs, including,
without limitation, Sections 1320a-7a and 1320a-7b of Title 42 of the
United States Code; no individual with an ownership or control interest, as
defined in 42 U.S.C. Section 1320a-3(a)(3), in the Company or any of the
Subsidiaries, or who is an officer, director or managing employee as
defined in 42 U.S.C. Section 1320a-5(b), of the Company or any of the
Subsidiaries is a person described in 42 U.S.C. Section 1320a-7(b)(8)(B);
and the Company's and each of the Subsidiaries' business practices do no
violate any federal or state laws regarding physician ownership of (or
financial relationship with) and referral to entities providing healthcare
related goods or services, or laws requiring disclosure of financia1
interests held by physicians in entities to which they may refer patients
for the provisions of health care related goods or services.
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(f) Neither the Company nor any of the Subsidiaries is in breach or
violation of, or in default under (and no event has occurred which with
notice, lapse of time, or both would result in any breach or violation of,
or constitute a default under), its charter or by-laws or other
organizational documents or in the performance or observance of any
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any lease, contract or other agreement or instrument to
which the Company or any of the Subsidiaries is a party or by which any of
them or any of their properties is bound or affected, the effect of which
would individually or in the aggregate have a Material Adverse Effect. The
execution, delivery and performance of this Agreement and the issuance and
sale of the Shares contemplated hereby and by the Registration Statement
will not conflict with, or result in any breach or violation of or
constitute a default under (nor constitute any event which with notice,
lapse of time, or both would result in any breach or violation of, or
constitute a default under), any provisions of the charter or by-laws or
other organizational documents of the Company or any of the Subsidiaries or
under any provision of any license, permit, franchise, indenture, mortgage,
deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any lease, contract or other agreement or instrument to
which the Company or any of the Subsidiaries is a party or by which any of
them or their properties may be bound or affected, or under any federal,
state, local or foreign law, regulation or rule or any decree, judgment or
order applicable to the Company any of the Subsidiaries, the result of
which would individually or in the aggregate have a Material Adverse
Effect; the execution, delivery and performance of this Agreement and the
issuance and sale of the Shares contemplated hereby and by the Registration
Statement will not result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to any indenture, mortgage, deed of trust, bank loan
or credit agreement or other evidence of indebtedness, or any lease,
contract or other agreement or instrument to which the Company or any of
the Subsidiaries is a party or by which any of their properties is bound or
affected, the result of which could individually or in the aggregate have a
Material Adverse Effect.
(g) This Agreement has been duly authorized, executed and delivered by
the Company and is a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms.
(h) The capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
Registration Statement and Prospectus. The certificates for the Shares are
in due and proper form and conform in all material respects to the
requirements of the Delaware General Corporation Law. The holders of the
Shares will not be subject to personal liability by reason of being such
holders.
(i) The Shares have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be duly and
validly issued, fully paid and non-assessable.
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(j) No approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency is required in connection with the
execution, delivery and performance by the Company of this Agreement, the
issuance and sale of the Shares contemplated hereby and by the Registration
Statement, other than registration of the Shares under the Act, which has
been or will be effected by the Company, and any necessary qualification
under the securities or blue sky laws of the various jurisdictions in which
the Shares are being offered by the Underwriters or under the rules and
regulations of the NASD.
(k) Except as set forth in the Registration Statement and the
Prospectus: (i) no person has the right, contractual or otherwise, to cause
the Company to issue to it, or register pursuant to the Act, any shares of
capital stock or other equity interests; and (ii) no person has any
preemptive rights, co-sale rights, rights of first refusal or other rights
to purchase any shares of Common Stock. No person has the right,
contractual or otherwise, to cause the Company to register under the Act
any shares of capital stock or other equity interests as a result of the
filing or effectiveness of the Registration Statement or the sale of the
Shares as contemplated thereby.
(l) Ernst & Young LLP, whose report on the financial statements of the
Company are filed with the Commission as part of the Registration Statement
and Prospectus, are independent public accountants as required by the Act.
(m) Each of the Company and the Subsidiaries has all necessary
licenses, permits, franchises, authorizations, consents and approvals, and
made all necessary filings required under any federal, state, local or
foreign law, regulation or rule, and has obtained all necessary
authorizations, consents and approvals from other persons, in order to
conduct its business; and neither the Company nor any of the Subsidiaries
is in violation of, or in default under, any such license, permit,
franchise, authorization, consent or approval, the effect of which could
individually or in the aggregate have a Material Adverse Effect.
(n) All legal or governmental proceedings, all statutes and
regulations and all contracts, leases or documents of a character required
to be described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement have been so described or
filed as required.
(o) There are no private or governmental actions, suits, claims,
investigations or proceedings pending, threatened or, to the knowledge of
the Company, contemplated, to which the Company or any of the Subsidiaries
or any of their directors or officers is subject or of which any of their
properties is subject, whether at law, in equity or before or by any
federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency.
(p) The audited consolidated financial statements of the Company
included in the Registration Statement and the Prospectus present fairly
the consolidated financial position and results of operations of the
Company as of the dates and for the periods indicated; such financial
statements have been prepared in conformity with generally
7
accepted accounting principles applied on a consistent basis during the
periods involved; the pro forma financial statements and other pro forma
financial data included in the Registration Statement and the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of Regulation S-X of the Securities Act, and the pro forma
adjustments have been properly applied to the historical amounts in the
compilation of those statements; and the other financial and statistical
data set forth in the Registration Statement and the Prospectus are
accurately presented and prepared on a basis consistent with such financial
statements and the books and records of the Company. There are no financial
statements (historical or pro forma) that are required to be included in
the Registration Statement and the Prospectus that are not included as
required.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
(i) any material adverse change, or any development involving a prospective
material adverse change, in the business, prospects, properties, condition
(financial or otherwise) or results of operations of the Company and all of
the Subsidiaries, taken as a whole, (ii) any transaction which is material
to the Company and the Subsidiaries, taken as a whole, (iii) the incurrence
by the Company or any of the Subsidiaries of any obligation, direct or
contingent, and whether or not in the ordinary course of business, which is
material to the Company and the Subsidiaries, taken as a whole, (iv) any
change in the capital stock or other equity interest or outstanding
indebtedness of the Company or the Subsidiaries or (v) any dividend or
distribution of any kind declared, paid or made on the capital stock or
other equity interest of the Company. Neither the Company nor any of the
Subsidiaries has any contingent obligations which are material to the
Company and the Subsidiaries, taken as a whole, and that are not disclosed
in the Registration Statement.
(r) The Company has obtained for the benefit of the Underwriters the
agreement (a "LOCK-UP AGREEMENT") of each of its officers and directors and
each of its holders of Common Stock and securities convertible into or
exchangeable or exercisable for Common Stock (including options and
warrants) not to sell, offer to sell, contract to sell, hypothecate,
pledge, grant any option to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock for a period of one hundred
and eighty (180) days after the date of the Prospectus without the prior
written consent of UBSW.
(s) Each of the Company and the Subsidiaries has good and marketable
title to all property (real and personal) described in the Prospectus as
being owned by them, free and clear of all liens, claims, security
interests or other encumbrances except such as are described in the
Registration Statement and the Prospectus and except as would not
individually or in the aggregate have a Material Adverse Effect. All the
property being held under lease by the Company and the Subsidiaries is held
thereby under valid, subsisting and enforceable leases.
(t) Each of the Company and the Subsidiaries is insured by insurers of
recognized financial responsibility against such losses and risks and in
such amount as are customary in the business in which it is engaged. All
policies of insurance insuring the
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Company, the Subsidiaries or any of their businesses, assets, employees,
officers and directors are in full force and effect, and each of the
Company and the Subsidiaries is in compliance with the terms of such
policies in all material respects. There are no claims by the Company or
the Subsidiaries under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation of
rights clause.
(u) Except as described in the Prospectus, neither the Company nor any
of the Subsidiaries has either given or received any communication
regarding the termination of, or intent not to renew, any of the contracts
or agreements referred to or described in, or filed as an exhibit to, the
Registration Statement, and no such termination or non-renewal has been
threatened by the Company, any of the Subsidiaries or any other party to
any such contract or agreement, including without limitation any contract
or agreement between or among the Company and/or any of the Subsidiaries
and (i) Coventry Health Care, Inc. or any subsidiary or affiliate thereof,
(ii) Priority Health Network or any subsidiary or affiliate thereof, (iii)
Humana Health Plans of Puerto Rico, Inc., Humana Health Plan, Inc. (a
health maintenance corporation), Humana Insurance Company, Humana Insurance
Company of Kentucky (collectively referred to as "HUMANA"), (iv) Motorola
Inc., (v) the State of Maryland or (vi) the State of Georgia.
(v) All statistical and market-related data included in the Prospectus
are based on or derived from sources that the Company believes to be
reliable and accurate, and the Company has obtained the written consent to
the use of such data from such sources to the extent required.
(w) Neither the Company, nor any of the Subsidiaries nor any of their
respective affiliates has taken, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder (collectively, the "EXCHANGE ACT")
or otherwise, in stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Shares.
(x) The Company owns or has obtained licenses (which such licenses are
enforceable against the Company and, to the Company's best knowledge, the
other parties thereto) for the patents, patent applications, inventions,
technology, trademarks, trademark registrations, service marks, service
xxxx registrations, trade names, copyrights, trade secrets and rights
described in the Prospectus as being owned or used by or licensed to the
Company or the Subsidiaries or necessary for the conduct of their
respective businesses as currently conducted (collectively, the
"Intellectual Property"), and the Company is not aware of any claim to the
contrary or any challenge by any other person to the rights of the Company
and the Subsidiaries with respect to the Intellectual Property.
(y) Neither the Company nor any of the Subsidiaries has sustained
since the date of the latest audited financial statements included in the
Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise
than as disclosed in the Prospectus or other than any loss or
9
interference which individually or in the aggregate would not have a
Material Adverse Effect.
(z) Neither the Company nor any of the Subsidiaries has violated any
federal, state, local or foreign law or regulation relating to
discrimination in the hiring, promotion or pay of employees or any
applicable wages and hours laws, nor any provisions of the Employee
Retirement Income Security Act of 1976, as amended, or the rules and
regulations promulgated thereunder or any similar act or law, except as
would not individually or in the aggregate result in a Material Adverse
Effect.
(aa) Neither the Company nor any of the Subsidiaries has violated any
foreign, federal, state, local or foreign law or regulation relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants, except as would not
individually or in the aggregate result in a Material Adverse Effect.
(bb) The Company and each of the Subsidiaries has made timely payments
to the physicians, medical institutions or other health care providers or
any of the health care payors with whom the Company and/or any of the
Subsidiaries directly or indirectly contract, as required by relevant
statutory or contractual obligations, except for any untimely payments that
could not, individually or in the aggregate, have a Material Adverse
Effect.
(cc) The Company and each of the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(dd) Each of the Company and each of the Subsidiaries has filed all
federal, state, local and foreign tax returns and tax forms required to be
filed. Such returns and forms are complete and correct in all material
respects, and all taxes shown by such returns or otherwise assessed that
are due or payable have been paid, except such taxes as are being contested
in good faith and as to which adequate reserves have been provided. All
payroll withholdings required to be made by the Company and the
Subsidiaries with respect to employees have been made. The charges,
accruals and reserves on the books of the Company and the Subsidiaries in
respect of any tax liability for any year not finally determined are
adequate to meet any assessments or reassessments for additional taxes.
There have been no tax deficiencies asserted and, to the knowledge of the
Company, no tax deficiency might be reasonably asserted or threatened
against the Company or any of the Subsidiaries that could individually or
in the aggregate have a Material Adverse Effect.
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(ee) Neither the Company nor any of the Subsidiaries exercises any
influence or control over the practice of medicine by the physicians,
medical institutions and other health care providers with which it directly
or indirectly contracts or represents to the public that it offers medical
services; and each of the Company and each of the Subsidiaries contracts
with these health care providers as independent contractors to provide
medical services and is not engaged in the practice of medicine.
(ff) Except as disclosed in the Prospectus, there are no Medicare,
Medicaid, or any other recoupment or recoupments of any governmental or
private health care payor being sought, threatened, requested or claimed
against the Company, any of the Subsidiaries or to the Company's knowledge,
any physician, medical institution or health care provider with which the
Company or any of the Subsidiaries directly or indirectly contracts, which
individually or in the aggregate could result in a Material Adverse Effect.
(gg) Immediately after the issuance and sale of the Shares to the
Underwriters, no shares of preferred stock of the Company shall be issued
and outstanding, and no holder of any shares of capital stock, securities
convertible into or exchangeable or exercisable for capital stock or
options, warrants or other rights to purchase capital stock or any other
securities of the Company shall have any existing or future right to
acquire any shares of preferred stock of the Company.
(hh) The Company is not, and after the offering and sale of the
Shares, will not be, an "investment company" or a "promoter," "principal
underwriter" for or an entity "controlled" by an "investment company," as
such terms are defined in the Investment Company Act of 1940, as amended
(the "INVESTMENT COMPANY ACT").
In addition, any certificate signed by any officer of the Company,
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Shares shall be deemed to be a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
4. CERTAIN COVENANTS. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as you may designate and to
maintain such qualifications in effect so long as required for the
distribution of the Shares; PROVIDED, HOWEVER, that the Company shall not
be required to qualify as a foreign corporation or to consent to the
service of process under the laws of any such state (except service of
process with respect to the offering and sale of the Shares); and to
promptly advise you of the receipt of any notification with respect to the
suspension of the qualification of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose;
11
(b) to make available to the Underwriters in New York City, as soon as
practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many copies
of the Prospectus (or of the Prospectus as amended or supplemented if the
Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriters may
request for the purposes contemplated by the Act; in case any Underwriter
is required to deliver a prospectus beyond the nine-month period referred
to in Section 10(a)(3) of the Act in connection with the sale of the
Shares, the Company will prepare promptly upon request and at its cost such
amendment or amendments to the Registration Statement and such prospectuses
as may be necessary to permit compliance with the requirements of Section
10(a)(3) of the Act;
(c) to advise you promptly and (if requested by you) to confirm such
advice in writing, (i) when the Registration Statement has become effective
and when any post-effective amendment thereto becomes effective and (ii) if
Rule 430A under the Act is used, when the Prospectus is filed with the
Commission pursuant to Rule 424(b) under the Act (which the Company agrees
to file in a timely manner under such Rules);
(d) to advise you promptly, and to confirm such advice in writing, of
any request by the Commission for amendments or supplements to the
Registration Statement or Prospectus or for additional information with
respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order suspending the effectiveness of the Registration
Statement and, if the Commission should enter a stop order suspending the
effectiveness of the Registration Statement, to use its best efforts to
obtain the lifting or removal of such order as soon as possible; to advise
you promptly of any proposal to amend or supplement the Registration
Statement or Prospectus and to file no such amendment or supplement to
which you shall object in writing;
(e) subject to Section 4(o) hereof, to file promptly all reports and
any definitive proxy or information statement required to be filed by the
Company with the Commission in order to comply with the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of
a prospectus is required in connection with the offering or sale of the
shares, and to promptly notify you of such filing;
(f) if necessary or appropriate, to file in a timely fashion a
registration statement pursuant to Rule 462(b) under the Act;
(g) to furnish to you and, upon request, to each of the other
Underwriters for a period of five years from the date of this Agreement (i)
copies of any reports or other communications which the Company shall send
to its stockholders or shall from time to time publish or publicly
disseminate, (ii) copies of all annual, quarterly and current reports filed
with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form
as may be designated by the Commission, (iii) copies of documents or
reports filed with any national securities exchange on which any class of
securities of the Company is listed, and (iv) such other information as you
may reasonably request regarding the Company or the Subsidiaries as soon as
such communications, documents or information becomes available;
12
(h) to advise the Underwriters promptly of the occurrence of any event
known to the Company within the time during which a Prospectus relating to
the Shares is required to be delivered under the Act which would require
the making of any change in the Prospectus then being used so that the
Prospectus would not include an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they are made, not misleading, and,
during such time, to prepare, file (subject to Section 4(d) hereof) and
furnish promptly to the underwriters, at the Company's expense, such
amendments or supplements to such Prospectus as may be necessary to reflect
any such change and to furnish you a copy of such proposed amendment or
supplement before filing any such amendment or supplement with the
Commission;
(i) to make generally available to its security holders, and to
deliver to you, as soon as practicable an earnings statement of the Company
(which will satisfy the provisions of Section 11(a) of the Act) covering a
period of twelve months beginning after the effective date of the
Registration Statement (as defined in Rule 158(c) of the Act) and ending
not later than fifteen (15) months thereafter;
(j) to furnish to its stockholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, stockholders' equity and of cash flow of the Company
for such fiscal year, accompanied by a copy of the certificate or report
thereon of nationally recognized independent certified public accountants);
(k) to furnish to you such number of conformed copies of the
Registration Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto) as you shall reasonably
request;
(l) to furnish to you as early as practicable prior to the time of
purchase and the additional time of purchase, as the case may be, but not
later than two (2) business days prior thereto, a copy of the latest
available quarterly (if available) or monthly unaudited interim
consolidated financial statements, if any, of the Company and the
Subsidiaries, which have been read by the Company's independent certified
public accountants, as stated in their letter to be furnished pursuant to
Section 6(e) hereof;
(m) to apply the net proceeds from the sale of the Shares in the
manner set forth under the caption "Use of Proceeds" in the Prospectus;
(n) to pay all costs, expenses, fees and taxes in connection with (i)
the preparation and filing of the Registration Statement, each Preliminary
Prospectus, the Prospectus, and any amendments or supplements thereto, and
the printing and furnishing of copies of each thereof to the Underwriters
and to dealers (including costs of mailing and shipment), (ii) the
registration, issue, sale and delivery of the Shares, (iii) the producing,
word processing and/or printing of this Agreement, any agreement Among
Underwriters, any dealer agreements, any Powers of Attorney and any closing
documents (including compilations thereof) and the reproduction and/or
printing and furnishing of copies of each thereof to the Underwriters and
(except closing documents) to dealers
13
(including costs of mailing and shipment), (iv) the qualification of the
Shares for offering and sale under state laws and the determination of
their eligibility for investment under state law as aforesaid (including
the reasonable legal fees and filing fees and other disbursements of
counsel for the Underwriters) and the printing and furnishing of copies of
any blue sky surveys or legal investment surveys to the Underwriters and to
dealers, (v) any listing of the Shares on any securities exchange or
qualification of the Shares for quotation on the National Association of
Securities Dealers Automated Quotation National Market System ("NASDAQ")
and any registration thereof under the Exchange Act, (vi) the review of the
public offering of the Shares by the NASD, including the associated filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters, and (vii) the performance of the Company's other obligations
hereunder;
(o) to furnish to you, before filing with the Commission subsequent to
the effective date of the Registration Statement and during the period
referred to in paragraph (h) above, a copy of any document proposed to be
filed pursuant to Section 13, 14 or 15(d) of the Exchange Act;
(p) not to sell, offer to sell, contract to sell, hypothecate, pledge,
grant any option to sell or otherwise dispose of, directly or indirectly,
any shares of Common Stock or securities convertible into or exchangeable
or exercisable for Common Stock or options, warrants or other rights to
purchase Common Stock or any other shares of the Company that are
substantially similar to Common Stock or file a registration statement
under the Act relating to the offer and sale of any shares of Common Stock
or securities convertible into or exchangeable or exercisable for Common
Stock or options, warrants or other rights to purchase Common Stock or any
other shares of the Company that are substantially similar to Common Stock
for a period of one hundred and eighty (180) days after the date hereof
(the "LOCK-UP PERIOD"), without the prior written consent of UBSW, except
for (i) the registration of the Shares and the sales to the Underwriters
pursuant to this Agreement, (ii) issuances of Common Stock upon the
exercise of outstanding options or warrants as disclosed in the
Registration Statement and the Prospectus to persons who have entered into
Lock-Up Agreements with the Underwriters and (iii) the issuance of employee
stock options not exercisable during the Lock-up Period pursuant to stock
option plans described in the Registration Statement and the Prospectus;
and
(q) to use its best efforts to cause the Common Stock to be listed for
quotation on the NASDAQ.
5. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. The Company agrees that if the
Shares are not delivered for any reason other than the termination of this
Agreement pursuant to subsections (ii), (iii) or (iv) of the second paragraph of
Section 7 hereof or the last paragraph of Section 8 hereof or the default by one
or more of the Underwriters in its or their respective obligations hereunder, it
shall, in addition to paying the amounts described in Section 4(n) hereof,
reimburse the Underwriters for all of the out-of-pocket accountable expenses
actually incurred by the Underwriters, including the reasonable fees and
disbursements of their counsel.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and
warranties of the
14
Company on the date hereof and at the time of purchase as if made at the time of
purchase (and the several obligations of the Underwriters at the additional time
of purchase are subject to the accuracy of the representations and warranties of
the Company on the date hereof and at the time of purchase (unless previously
waived) and at the additional time of purchase, as the case may be, as if made
at such time), the timely performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of Xxxxxxx
Xxxxxx & Green, P.C., counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of the other
Underwriters and in form reasonably satisfactory to Xxxxx Xxxxxxxxxx LLP,
counsel for the Underwriters, stating that:
(i) the Company has been duly incorporated and is validly
existing as a corporation and is in good standing under the laws of
the State of Delaware, with full power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement and the Prospectus, to execute and deliver this
Agreement and to issue, sell and deliver the Shares as herein
contemplated;
(ii) the Subsidiaries have been duly incorporated and are validly
existing as corporations in good standing under the laws of their
respective jurisdiction of incorporation with the requisite corporate
power and authority to own, lease and operate their respective
properties and to conduct their respective business;
(iii) the Company and each of the Subsidiaries are duly qualified
to do business as foreign corporations and are in good standing in
each jurisdiction in which the ownership or leasing of their
properties or the conduct of their business requires such
qualification, except where the failure to so qualify would not
individually or in the aggregate have a Material Adverse Effect;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Shares have been duly authorized and, when issued and
delivered to and paid for by the Underwriters, will be validly issued,
fully paid and non-assessable;
(vi) the Company has authorized and outstanding shares of capital
stock as set forth in the Registration Statement and the Prospectus;
the outstanding shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid, nonassessable
and free of any preemptive rights, resale rights, rights of first
refusal and similar rights under the Delaware General Corporation Law
or under any contract, agreement or instrument described in or filed
as an exhibit to the Registration Statement or
15
otherwise known to such counsel; the Shares when issued will be free
of any preemptive rights, resale rights, rights of first refusal and
similar rights under the Delaware General Corporation Law or under any
contract, agreement or instrument described in or filed as an exhibit
to the Registration Statement or otherwise known to such counsel; the
certificates for the Shares are in due and proper form and conform in
all material respects to the requirements of the Delaware General
Corporation Law, and the holders of the Shares will not be subject to
personal liability by reason of being such holders;
(vii) all of the outstanding shares of capital stock of each of
the Subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable, are owned by the Company and are not
subject to any perfected security interest or, to such counsel's
knowledge, any other encumbrance or adverse claim; to such counsel's
knowledge, no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert
any obligation into shares of capital stock or ownership interests in
the Subsidiaries are outstanding;
(viii) the capital stock of the Company, including the Shares,
conforms to the description thereof contained in the Registration
Statement and Prospectus;
(ix) the Registration Statement and the Prospectus (except as to
the financial statements and schedules and other financial and
statistical data contained therein, as to which such counsel need
express no opinion) comply as to form in all material respects with
the requirements of the Act;
(x) the Registration Statement has become effective under the Act
and, to such counsel's knowledge, no stop order proceedings with
respect thereto are pending or threatened under the Act and any
required filing of the Prospectus, and any supplement thereto pursuant
to Rule 424 under the Act has been made in the manner and within the
time period required by such Rule 424;
(xi) no approval, authorization, consent or order of or filing
with any federal, state or local governmental or regulatory
commission, board, body, authority or agency is required in connection
with the execution, delivery and performance of this Agreement, the
issuance and sale of the Shares and the consummation of the
transactions contemplated hereby and by the Registration Statement,
other than those that have been obtained under the Act and other than
any necessary qualification under the state securities or blue sky
laws of the various jurisdictions in which the Shares are being
offered by the Underwriters, as to which such qualification such
counsel need express no opinion;
(xii) the execution, delivery and performance of this agreement
by the Company and the transactions contemplated hereby and by the
Registration Statement do not and will not conflict with, or result in
any breach of, or constitute a default under (nor constitute any event
which with notice, lapse of time, or both, would result in any breach
of, or constitute a default under) (A) any
16
provisions of the charter or by-laws or other organizational documents
of the Company or any of the Subsidiaries, (B) any provision of any
license, permit, franchise, indenture, mortgage, deed of trust, bank
loan or credit agreement or other evidence of indebtedness, or any
lease, contract or other agreement or instrument to which the Company
or any of the Subsidiaries is a party or by which their respective
properties may be bound or affected that is described in or filed as
an exhibit to the Registration Statement or is otherwise known by such
counsel or (C) any federal, state, local or foreign law, regulation or
rule, or any decree, judgment or order applicable to the Company or
the Subsidiaries;
(xiii) to such counsel's knowledge, neither the Company nor any
of the Subsidiaries is in violation of its charter or by-laws, nor is
any of them in breach of or in default under (nor has any event
occurred which with notice, lapse of time, or both would result in any
breach of, or constitute a default under), any license, permit,
franchise, indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any lease, contract or
other agreement or instrument to which the Company or any of the
Subsidiaries is or was a party or by which any of them or their
respective properties may be bound or affected or in violation of any
federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company or any of the
Subsidiaries, the effect of which would individually or in the
aggregate have a Material Adverse Effect;
(xiv) to such counsel's knowledge, there are no contracts,
licenses, agreements, leases or documents of a character which are
required to be filed as exhibits to the Registration Statement or to
be described in the Prospectus which have not been so filed or
described;
(xv) to such counsel's knowledge, except as described in the
Prospectus or as would not, individually or in the aggregate, have a
Material Adverse Effect, there are no private or governmental actions,
suits, claims, investigations or proceedings pending, threatened or
contemplated to which the Company or any of the Subsidiaries or any of
their officers is subject or of which any of their properties is
subject, whether at law, in equity or before or by any federal, state,
local or foreign governmental or regulatory commission, board, body,
authority or agency;
(xvi) the Company is not, and after the offering and sale of the
Shares, will not be, an "investment company," or a "promoter,"
"principal underwriter" for or an entity controlled by an "investment
company," as such terms are defined in the Investment Company Act;
(xvii) the statements in the Registration Statement and
Prospectus in the second, third and fourth paragraphs under the
caption "Management's discussion and analysis of financial condition
and results of operations -- Liquidity and capital resources", under
the caption "Business -- Client contracts", under the caption
"Business -- Network contracts", in the fourth sentence under the
caption "Business
17
-- Information systems", in the second and third sentences under the
caption "Business -- Properties", under the caption "Business -- Legal
proceedings", under the caption "Management", under the caption
"Related party transactions", under the caption "Description of
securities" and under the caption "Shares eligible for future sale",
insofar as they are descriptions of contracts, agreements or other
legal documents, or refer to statements of law or legal conclusions,
are accurate in all material respects and present fairly the
information required to be shown;
(xviii) to such counsel's knowledge, immediately after the
issuance and sale of the Shares to the Underwriters, no holder of any
shares of capital stock or other securities (including options and
warrants) of the Company described in the Registration Statement shall
have any right to acquire any shares of preferred stock of the
Company;
(xix) to such counsel's knowledge, the Company and each of the
Subsidiaries has made timely payments to physicians, medical
institutions or other health care providers or any of the health care
payors with whom the Company or any of the Subsidiaries directly or
indirectly contract, as required by relevant statutory or contractual
obligations, except where untimely payments could not, individually or
in the aggregate, have a Material Adverse Effect; and
(xx) to such counsel's knowledge, no person has the right,
pursuant to the terms of any contract, agreement or other instrument
described in or filed as an exhibit to the Registrations Statement, to
cause the Company to register under the Act any shares of capital
stock or other equity interests as a result of the filing or
effectiveness of the Registration Statement or the sale of the Shares
as contemplated hereby; and to the knowledge of such counsel, except
as described in the Registration Statement and Prospectus, no person
is entitled to registration rights with respect to shares of capital
stock or other securities of the Company.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriters at which the contents of the
Registration Statement and Prospectus were discussed and, although such
counsel is not passing upon and does not assume responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or Prospectus (except as and to the extent stated in
subparagraphs (ix) and (xi) above), on the basis of the foregoing nothing
has come to the attention of such counsel that causes them to believe that
the Registration Statement or any amendment thereto at the time such
Registration Statement or amendment became effective contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus or any supplement thereto at the date of
such Prospectus or such supplement, and at all times up to and including
the time of purchase or additional time of purchase, as the case may be,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that
18
such counsel need express no opinion with respect to the financial
statements and schedules and other financial and statistical data included
in the Registration Statement or Prospectus).
(b) The Company shall furnish to you at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of Xxxxxxx
Xxxxxx & Green, P.C., counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of the other
Underwriters and in form reasonably satisfactory to Xxxxx Xxxxxxxxxx LLP,
counsel for the Underwriters, stating that:
(i) to such counsel's knowledge, except as disclosed in the
Prospectus, there are no Medicare, Medicaid, or any other recoupment
or recoupments of any governmental or private health care payor being
sought, threatened, requested or claimed against the Company, any of
the Subsidiaries or to such counsel's knowledge, any physician,
medical institution or health care provider with whom the Company or
any of the Subsidiaries directly or indirectly contracts, which
individually or in the aggregate could result in a Material Adverse
Effect.
(ii) to such counsel's knowledge, the Company and the
Subsidiaries do not violate any applicable provisions of federal or
state laws governing Medicare or any state Medicaid programs,
including, without limitation, Sections 1320a-7a and 1320a-7b of
Title 42 of the United States Code; no individual with an ownership
or control interest, as defined in 42 U.S.C. Section 1320a-3(a)(3),
in the Company or any of the Subsidiaries, or who is an officer,
director or managing employee as defined in 42 U.S.C. Section
1320a-5(b), of the Company or any of the Subsidiaries is a person
described in 42 U.S.C. Section 1320a-7(b)(8)(B); and the Company's and
each of the Subsidiaries' business practices do not violate any
federal or state laws regarding physician ownership of (or financial
relationship with) and referral to entities providing healthcare
related goods or services, or laws requiring disclosure of financia1
interests held by physicians in entities to which they may refer
patients for the provisions of health care related goods or services;
(iii) to such counsel's knowledge the statements in the
Registration Statement and the Prospectus under the captions "Risk
factors -- We face various restrictions under state and federal laws,
which may change and adversely affect us", "Risk factors -- State and
federal laws that protect patient health information may increase our
costs and limit our right to collect and use that information", "Risk
factors -- Some states require companies that assume financial risk
for health care costs to obtain licenses that can be costly and
restrictive", "Risk factors -- Recent types of legislation may make
it harder to control our costs", "Risk factors -- Our contracts with
government agencies are subject to a complex procurement process,
generally may be terminated at the convenience of the agencies and
typically require us to comply with governmental regulations and
policies" and "Business -- Regulation," insofar as such statements
constitute
19
summaries of regulatory matters with respect to the Company and the
Subsidiaries, as of the date of the Prospectus and as of the date of
such opinion, are in all material respects accurate and complete
statements or summaries of the matters therein set forth; and nothing
has come to such counsel's attention that causes such counsel to
believe that the above-described portions of the Prospectus, at the
date of the Prospectus or at the date of such opinion, contained or
contains an untrue statement of material fact or omitted or omits to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(c) You shall have received at the time of purchase and at the additional
time of purchase, as the case may be, the favorable opinion of Xxxxx Xxxxxxxxxx
LLP, counsel for the Underwriters, dated the time of purchase or the additional
time of purchase, as the case may be, with respect to the issuance and sale of
the Shares by the Company, the Registration Statement, the Prospectus (together
with any supplement thereto) and such other related matters as the Underwriters
may require.
(d) You shall have received from Ernst & Young LLP, letters dated,
respectively, the date of this Agreement and the time of purchase and additional
time of purchase, as the case may be, and addressed to the Underwriters (with
reproduced copies for each of the Underwriters) in the forms heretofore approved
by Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters.
(e) No amendment or supplement to the Registration Statement or Prospectus
shall be filed prior to the time the Registration Statement becomes effective to
which you object in writing.
(f) The Registration Statement shall become effective, or if Rule 430A
under the Act is used, the Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) under the Act, at or before 5:30 P.M., New York City
time, on the date of this Agreement, unless a later time (but not later than
5:30 P.M., New York City time, on the second full business day after the date of
this Agreement) shall be agreed to by the Company and you in writing or by
telephone, confirmed in writing; PROVIDED, HOWEVER, that the Company and you and
any group of Underwriters, including you, who have agreed hereunder to purchase
in the aggregate at least fifty percent (50%) of the Firm Shares may from time
to time agree on a later date.
(g) Prior to the time of purchase or the additional time of purchase, as
the case may be, (i) no stop order with respect to the effectiveness of the
Registration Statement shall have been issued under the Act or proceedings
initiated under Section 8(d) or 8(e) of the Act; (ii) the Registration Statement
and all amendments thereto, or modifications thereof, if any, shall not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
and (iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall not contain an untrue statement of a
material fact or
20
omit 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 are
made, not misleading.
(h) Between the time of execution of this Agreement and the time of
purchase or the additional time of purchase, as the case may be, (i) no material
and unfavorable change, or any development involving a prospective material and
adverse change, financial or otherwise (other than as specifically identified in
the Registration Statement and Prospectus), in the business, properties,
condition or results of operations of the Company and the Subsidiaries, taken as
a whole, shall occur or become known and (ii) no transaction which is material
and unfavorable to the Company shall have been entered into by the Company or
any of the Subsidiaries.
(i) The Company will, at the time of purchase or additional time of
purchase, as the case may be, deliver to you a certificate of its Chief
Executive Officer and its Chief Financial Officer to the effect that the
representations and warranties of the Company as set forth in this Agreement are
true and correct as of each such date, that the Company has performed such of
their obligations under this Agreement as are to be performed at or before the
time of purchase and at or before the additional time of purchase, as the case
may be, and the conditions set forth in paragraphs (e), (f) and (g) of this
Section 6 have been met.
(j) You shall have received signed Lock-Up Agreements, dated the date of
this Agreement, from each of the officers and directors of the Company, each of
the holders of Common Stock and securities convertible into or exchangeable or
exercisable for Common Stock, stating that such persons will not sell, offer to
sell, contract to sell, hypothecate, pledge, grant any option to sell or
otherwise dispose of, directly or indirectly, any shares of Common Stock or
securities convertible into or exchangeable or exercisable for Common Stock or
options, warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common Stock for a
period of one hundred and eighty (180) days after the date of the Prospectus
without the prior written consent of UBSW.
(k) The Company shall have furnished to you such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement and the Prospectus as of the time of purchase and the
additional time of purchase, as the case may be, as you may reasonably request.
(l) The Shares shall have been approved for listing for quotation on
NASDAQ, subject only to notice of issuance at or prior to the time of purchase
or the additional time of purchase, as the case may be.
21
7. EFFECTIVE DATE OF AGREEMENT; TERMINATION. This Agreement shall become
effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of you or any group of Underwriters
(which may include you) which has agreed to purchase in the aggregate at least
fifty percent (50%) of the Firm Shares, (i) if, since the time of execution of
this Agreement or the respective dates as of which information is given in the
Registration Statement and Prospectus, there has been any material adverse and
unfavorable change, or any development involving a prospective material adverse
change, financial or otherwise (other than as specifically identified in the
Registration Statement and Prospectus), in the business, prospects, properties,
condition or results of operations of the Company and the Subsidiaries taken as
a whole, which would, in your judgment or in the judgment of such group of
Underwriters, make it impracticable to market the Shares, or, (ii) if, at any
time prior to the time of purchase or, with respect to the purchase of any
Additional Shares, the additional time of purchase, as the case may be, trading
in securities on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market shall have been suspended or limitations or minimum
prices shall have been established on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market, or (iii) if a banking moratorium
shall have been declared either by the United States or New York State
authorities, or (iv) if the United States shall have declared war in accordance
with its constitutional processes or there shall have occurred any material
outbreak or escalation of hostilities or other national or international
calamity or crisis of such magnitude in its effect on the financial markets of
the United States as, in your judgment or in the judgment of such group of
Underwriters, to make it impracticable to market the Shares.
If you or any group of Underwriters elects to terminate this Agreement as
provided in this Section 7, the Company and each other Underwriter shall be
notified promptly by letter or telegram.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 4(n), 5 and 9 hereof), and the Underwriters shall be under
no obligation or liability to the Company under this Agreement (except to the
extent provided in Section 9 hereof) or to one another hereunder.
8. INCREASE IN UNDERWRITERS' COMMITMENTS. Subject to Sections 6 and 7, if
any Underwriter shall default in its obligation to take up and pay for the Firm
Shares to be purchased by it hereunder (otherwise than for a reason sufficient
to justify the termination of this Agreement under the provisions of Section 7
hereof) and if the number of Firm Shares which all Underwriters so defaulting
shall have agreed but failed to take up and pay for does not exceed ten percent
(10%) of the total number of Firm Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the aggregate number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares
agreed to be purchased by all
22
such defaulting Underwriters, as hereinafter provided. Such Shares shall be
taken up and paid for by such non-defaulting Underwriter or Underwriters in such
amount or amounts as you may designate with the consent of each Underwriter so
designated or, in the event no such designation is made, such Shares shall be
taken up and paid for by all non-defaulting Underwriters pro rata in proportion
to the aggregate number of Firm Shares set opposite the names of such
non-defaulting Underwriters in SCHEDULE A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Firm Shares hereunder unless all of the Firm Shares are purchased
by the Underwriters (or by substituted Underwriters selected by you with the
approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the Underwriters or
by the Company for a defaulting Underwriter or Underwriters in accordance with
the foregoing provision, the Company or you shall have the right to postpone the
time of purchase for a period not exceeding five (5) business days in order that
any necessary changes in the Registration Statement and Prospectus and other
documents may be effected.
The term Underwriter as used in this Agreement shall refer to and include
any Underwriter substituted under this Section 8 with like effect as if such
substituted Underwriter had originally been named in SCHEDULE A.
If the aggregate number of Shares which the defaulting Underwriter or
Underwriters agreed to purchase exceeds ten percent (10%) of the total number of
Shares which all Underwriters agreed to purchase hereunder, and if neither the
non-defaulting Underwriters nor the Company shall make arrangements within the
five (5) business day period stated above for the purchase of all the Shares
which the defaulting Underwriter or Underwriters agreed to purchase hereunder,
this Agreement shall be terminated without further act or deed and without any
liability on the part of the Company to any non-defaulting Underwriter and
without any liability on the part of any non-defaulting Underwriter to the
Company. Nothing in this paragraph, and no action taken hereunder, shall relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
9. INDEMNITY AND CONTRIBUTION.
(a)The Company agrees to indemnify, defend and hold harmless each
Underwriter, its partners, directors and officers, and any person who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing persons
from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, any such
Underwriter or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the
Company) or in a Prospectus (the term Prospectus for the purpose of this Section
9 being deemed to include any Preliminary Prospectus, the
23
Prospectus and the Prospectus as amended or supplemented by the Company), or
arises out of or is based upon any omission or alleged omission to state a
material fact required to be stated in either such Registration Statement or
Prospectus or necessary to make the statements made therein not misleading,
except insofar as any such loss, damage, expense, liability or claim arises out
of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information furnished in
writing by or on behalf of any Underwriter through you to the Company expressly
for use with reference to such Underwriter in such Registration Statement or
such Prospectus or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information required
to be stated in such Registration Statement or such Prospectus or necessary to
make such information not misleading or (ii) any untrue statement or alleged
untrue statement made by the Company in Section 3 of this Agreement or the
failure by the Company to perform when and as required any agreement or covenant
contained herein or (iii) any untrue statement or alleged untrue statement of
any material fact contained in any audio or visual materials provided by the
Company or based upon written information furnished by or on behalf of the
Company including, without limitation, slides, videos, films, tape recordings,
used in connection with the marketing of the Shares, or (iv) the Directed Share
Program, provided that, the Company shall not be responsible for any loss,
damage, expense, liability, or claim that is finally judicially determined to
have resulted from the bad faith or gross negligence of the Underwriters in
conducting the Directed Share Program.
If any action, suit or proceeding (together, a "PROCEEDING") is brought
against an Underwriter or any such person in respect of which indemnity may be
sought against the Company pursuant to the foregoing paragraph, such Underwriter
or such person shall promptly notify the Company in writing of the institution
of such Proceeding and the Company shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses; PROVIDED, HOWEVER, that the omission
to so notify the Company shall not relieve the Company from any liability which
the Company may have to any Underwriter or any such person or otherwise. Such
Underwriter or such person shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such Underwriter or of such person unless the employment of such
counsel shall have been authorized in writing by the Company in connection with
the defense of such Proceeding or the Company shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
defend such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from, additional to or in conflict with those available to the
Company (in which case the Company shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties), in
any of which events such fees and expenses shall be borne by the Company and
paid as incurred (it being understood, however, that the Company shall not be
liable for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). The Company shall not be liable for any settlement of any
Proceeding effected without the written consent of the Company but if settled
with the written consent of the Company, the Company agrees to indemnify and
hold harmless any Underwriter and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to
24
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second sentence of this paragraph, then the indemnifying party agrees
that it shall be liable for any settlement of any Proceeding effected without
its written consent if (i) such settlement is entered into more than sixty (60)
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least thirty (30)
days' prior notice of its intention to settle. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission
of fault, culpability or a failure to act, by or on behalf of such indemnified
party.
(b) In connection with the offer and sale of the Reserved Shares, the
Company agrees to pay UBSW, at its request, the full purchase price of all
Reserved Shares which were subject to a properly confirmed agreement to purchase
and for which any Directed Share Participant failed to pay therefor and accept
delivery thereof.
(c) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its directors and officers, and any person who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing persons
from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, the Company or
any such person may incur under the Act, the Exchange Act, the common law or
otherwise, insofar as such loss, damage, expense, liability or claim arises out
of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information furnished in
writing by or on behalf of such Underwriter through you to the Company expressly
for use with reference to such Underwriter in the Registration Statement (or in
the Registration Statement as amended by any post-effective amendment thereof by
the Company) or in a Prospectus.
If any Proceeding is brought against the Company or any such person in
respect of which indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Company or such person shall promptly notify such
Underwriter in writing of the institution of such Proceeding and such
Underwriter shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; PROVIDED, HOWEVER, that the omission to so
notify such Underwriter shall not relieve such Underwriter from any liability
which such Underwriter may have to the Company or any such person or otherwise.
The Company or such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
the Company or such person unless the employment of such counsel shall have been
authorized in writing by such Underwriter in connection with the defense of such
Proceeding or such Underwriter shall not have, within a reasonable period of
time in light of the circumstances, employed counsel to have charge of the
defense of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to or in conflict with those available to such
Underwriter (in
25
which case such Underwriter shall not have the right to direct the defense of
such Proceeding on behalf of the indemnified party or parties, but such
Underwriter may employ counsel and participate in the defense thereof but the
fees and expenses of such counsel shall be at the expense of such Underwriter),
in any of which events such fees and expenses shall be borne by such Underwriter
and paid as incurred (it being understood, however, that such Underwriter shall
not be liable for the expenses of more than one separate counsel (in addition to
any local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). No Underwriter shall be liable for any settlement of any such
Proceeding effected without the written consent of such Underwriter but if
settled with the written consent of such Underwriter, such Underwriter agrees to
indemnify and hold harmless the Company and any such person from and against any
loss or liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than sixty (60) days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least thirty (30) days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened Proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such Proceeding.
(d) If the indemnification provided for in this Section 9 is unavailable to
an indemnified party under subsections (a), (b) or (c) of this Section 9 in
respect of any losses, damages, expenses, liabilities or claims referred to
therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, damages, expenses, liabilities or
claims (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other hand
from the offering of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the Underwriters
on the other in connection with the statements or omissions which resulted in
such losses, damages, expenses, liabilities or claims, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be in the
same respective proportions as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and the total underwriting discounts and commissions received by
the Underwriters, bear to the aggregate public offering price of the Shares. The
relative fault of the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to
26
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, damages, expenses, liabilities and claims
referred to in this subsection shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating, preparing to defend or defending any Proceeding.
(e) The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in subsection (c) above. Notwithstanding
the provisions of this Section 9, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by such Underwriter and distributed to the public were offered to
the public exceeds the amount of any damage which such Underwriter has otherwise
been required to pay by reason of such untrue statement or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to their respective underwriting commitments
and not joint.
(f) The indemnity and contribution agreements contained in this Section 9
and the covenants, warranties and representations of the Company contained in
this Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of any Underwriter, its partners, directors
or officers or any person (including each partner, officer or director of such
person) who controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, or by or on behalf of the Company its
directors or officers or any person who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, and shall survive
any termination of this Agreement or the issuance and delivery of the Shares.
The Company and each Underwriter agree promptly to notify each other of the
commencement of any Proceeding against it and, in the case of the Company,
against any of the Company's officers or directors in connection with the
issuance and sale of the Shares, or in connection with the Registration
Statement or Prospectus.
10. NOTICES. Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing or by telegram and, if to the
Underwriters, shall be sufficient in all respects if delivered or sent to UBS
Warburg LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000-0000, Attention: Syndicate
Department and, if to the Company, shall be sufficient in all respects if
delivered or sent to the Company at the offices of the Company at 0000 Xxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxx, M.D.,
Chief Executive Officer.
27
11. GOVERNING LAW; CONSTRUCTION. This Agreement and any claim, counterclaim
or dispute of any kind or nature whatsoever arising out of or in any way
relating to this Agreement ("CLAIM"), directly or indirectly, shall be governed
by, and construed in accordance with, the laws of the State of New York. The
Section headings in this Agreement have been inserted as a matter of convenience
of reference and are not a part of this Agreement.
12. SUBMISSION TO JURISDICTION. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company hereby consents to personal jurisdiction, service and venue
in any court in which any Claim arising out of or in any way relating to this
Agreement is brought by any third party against UBSW or any indemnified party.
Each of UBSW and the Company (on their respective behalves and, to the extent
permitted by applicable law, on behalf of their respective stockholders and
affiliates) waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. The Company agrees that a final judgment
in any such action, proceeding or counterclaim brought in any such court shall
be conclusive and binding upon the Company and may be enforced in any other
courts in the jurisdiction of which the Company is or may be subject, by suit
upon such judgment.
13. PARTIES AT INTEREST. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters and the Company and to the
extent provided in Section 9 hereof the controlling persons, directors and
officers referred to in such section, and their respective successors, assigns,
heirs, personal representatives and executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
14. COUNTERPARTS. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Underwriters, the Company and their successors and assigns and any successor or
assign of any substantial portion of the Company's, and any of the Underwriters'
respective businesses and/or assets.
16. MISCELLANEOUS. UBSW, an indirect, wholly owned subsidiary of UBS AG, is
not a bank and is separate from any affiliated bank, including any U.S. branch
or agency of UBS AG. Because UBSW is a separately incorporated entity, it is
solely responsible for its own contractual obligations and commitments,
including obligations with respect to sales and purchases of securities.
Securities sold, offered or recommended by UBSW are not deposits, are not
insured by the Federal Deposit Insurance Corporation, are not guaranteed by a
branch or agency, and are not otherwise an obligation or responsibility of a
branch or agency.
28
A lending affiliate of UBSW may have lending relationships with issuers of
securities underwritten or privately placed by UBSW. To the extent required
under the securities laws, prospectuses and other disclosure documents for
securities underwritten or privately placed by UBSW will disclose the existence
of any such lending relationships and whether the proceeds of the issue will be
used to repay debts owed to affiliates of UBSW.
29
If the foregoing correctly sets forth the understanding among the Company
and the Underwriters, please so indicate in the space provided below for the
purpose, whereupon this letter and your acceptance shall constitute a binding
agreement among the Company and the Underwriters, severally.
Very truly yours,
APS HEALTHCARE, INC.
By:
----------------------------------
Name:
Title:
Accepted and agreed to as of the
date first above written, on behalf of
themselves and the other several Underwriters
named in SCHEDULE A
UBS WARBURG LLC
CIBC WORLD MARKETS CORP.
By: UBS WARBURG LLC
By:
---------------------------
Name:
Title: Managing Director
By:
---------------------------
Name:
Title: Director
30
SCHEDULE A
Number of
Underwriter Firm shares
----------- -----------
UBS Warburg LLC..........................................
CIBC World Markets Corp..................................
-------------
Total......................
=============
31
