EXHIBIT 1.1
Form of Underwriting Agreement
Unilab Corporation
6,700,000 Shares
Common Stock
($.01 par value)
Underwriting Agreement
New York, New York
June __, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
Credit Suisse First Boston Corporation
U.S. Bancorp Xxxxx Xxxxxxx Inc.
As Representatives of the several Underwriters,
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Unilab Corporation, a corporation organized under the laws of Delaware (the
"Company"), proposes to sell to the several underwriters named in Schedule I
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), 6,700,000 shares of Common Stock, $.01 par value ("Common
Stock") of the Company (said shares to be issued and sold by the Company being
hereinafter called the "Underwritten Securities"). The Company also proposes to
grant to the Underwriters an option to purchase up to 1,005,000 additional
shares of Common Stock to cover over-allotments (the "Option Securities"; the
Option Securities, together with the Underwritten Securities, being hereinafter
called the "Securities").
To the extent there are no additional Underwriters listed on Schedule I
other than you, the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall mean either
the singular or plural as the context requires. The use of the neuter in this
Agreement shall include the feminine and masculine wherever appropriate.
Certain terms used herein are defined in Section 17 hereof.
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It is understood and agreed that Xxxxxxx Xxxxx Xxxxxx Inc. ("SSB") and
Credit Suisse First Boston Corporation ("CSFB") are joint book-running managers
(together, the "Joint Managers") and any determinations or other actions to be
made under this Agreement by you or the Representatives shall require the
consent of both SSB and CSFB.
As part of the offering contemplated by this Agreement, SSB and CSFB (in
such capacities, the "Designated Underwriters") have agreed to reserve out of
the Securities set forth opposite their names on Schedule I to this Agreement,
up to 335,000 shares, for sale to the Company's directors, officers, employees,
and other parties associated with the Company (collectively, "Participants"), as
set forth in the Prospectus under the heading "Underwriting" (the "Directed
Share Program"). The Securities to be sold by the Designated Underwriters
pursuant to the Directed Share Program (the "Directed Shares") will be sold by
the Designated Underwriters pursuant to this Agreement at the public offering
price. Any Directed Shares not confirmed orally or by-email for purchase by any
Participants by the time specified in the materials distributed to Participants
in connection with the Directed Share Program will be offered to the public by
the Designated Underwriters as set forth in the Prospectus.
1. Representations and Warranties.
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The Company represents and warrants to, and agrees with, each
Underwriter as set forth below in this Section 1.
(a) The Company has prepared and filed with the Commission a registration
statement (file number 333-60154) on Form S-1, including a related
preliminary prospectus, for registration under the Act of the offering and
sale of the Securities. The Company may have filed one or more amendments
thereto, including a related preliminary prospectus, each of which has
previously been furnished to you. The Company will next file with the
Commission either (1) prior to the Effective Date of such registration
statement, a further amendment to such registration statement (including
the form of final prospectus) or (2) after the Effective Date of such
registration statement, a final prospectus in accordance with Rules 430A
and 424(b). In the case of clause (2), the Company has included in such
registration statement, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Act and the rules
thereunder to be included in such registration statement and the
Prospectus. As filed, such amendment and form of final prospectus, or such
final prospectus, shall contain all Rule 430A Information, together with
all other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall
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contain only such specific additional information and other changes (beyond
that contained in the latest Preliminary Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or will, and when the
Prospectus is first filed (if required) in accordance with Rule 424(b) and
on the Closing Date (as defined herein) and on any date on which Option
Securities are purchased, if such date is not the Closing Date (a
"settlement date"), the Prospectus (and any supplements thereto) will,
comply in all material respects with the applicable requirements of the Act
and the rules thereunder; on the Effective Date and at the Execution Time,
the Registration Statement did not or will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b), and on the Closing Date and any settlement date, the
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
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however, that the Company makes no representations or warranties as to the
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information contained in or omitted from the Registration Statement, or the
Prospectus (or any supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto).
(c) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
full corporate power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign corporation
and is in good standing under the laws of the State of California and each
other jurisdiction which requires such qualification, except where the
failure to be so qualified or in good standing in any such other
jurisdiction would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company whether or not arising from transactions in the ordinary course
of business (a "Material Adverse Effect").
(d) The Company has no subsidiaries and does not own any shares of capital
stock or other securities of or interests in any other Person.
(e) The Company's authorized equity capitalization is as set forth in the
Prospectus. The capital stock of the Company conforms in all material
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respects to the description thereof contained in the Prospectus. The
outstanding shares of Common Stock have been duly and validly authorized
and issued and are fully paid and nonassessable. The Securities being sold
hereunder by the Company have been duly and validly authorized, and, when
issued and delivered to and paid for by the Underwriters pursuant to this
Agreement, will be fully paid and nonassessable. The Securities being sold
hereunder by the Company are duly listed, and admitted and authorized for
trading, subject to official notice of issuance and evidence of
satisfactory distribution on the Nasdaq National Market. The certificates
for the Securities are in valid and sufficient form; the holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Securities; and, except as
set forth in the Prospectus, no options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to convert
any obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding.
(f) There is no franchise, contract or other document of a character required
to be described in the Registration Statement or Prospectus, or to be filed
as an exhibit thereto, which is not described or filed as required; and the
statements in the Prospectus under the headings "Business - Quality
Assurance", "Business - Governmental Regulation" and "Business - Legal
Proceedings", insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are accurate and
fair summaries of such legal matters, agreements, documents or proceedings.
(g) This Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms.
(h) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended.
(i) No consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions
contemplated herein, except such as have been obtained under the Act and
such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein and in the Prospectus.
(j) Neither the issue and sale of the Securities nor the consummation of any
other of the transactions herein contemplated nor the fulfillment of the
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terms hereof will conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company pursuant to, (i) the charter or by-laws of the Company, (ii)
the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company is a party or bound or to which
its property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any of its
properties; except, in the case of clause (ii) or (iii), for any such
conflict, breach, violation or imposition that would not have a Material
Adverse Effect.
(k) Except for those rights contained in the Stockholders Agreement, dated as
of November 23, 1999, and the Investor Stockholders Agreement, dated as of
November 23, 1999, among the Company and the stockholders of the Company
party thereto, no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(l) The historical financial statements and schedules of the Company included
in the Prospectus and the Registration Statement present fairly in all
material respects the financial condition, results of operations and cash
flows of the Company as of the dates and for the periods indicated, comply
as to form with the applicable accounting requirements of the Act and have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as
otherwise noted therein). The selected financial data set forth under the
caption "Selected Financial Data" in the Prospectus and Registration
Statement fairly present, on the basis stated in the Prospectus and the
Registration Statement, the information included therein.
(m) Except as set forth in the Prospectus, no action, suit or proceeding by or
before any court or governmental agency, authority or body or any
arbitrator, including, without limitation, the United States Healthcare
Financing Administration ("HCFA"), the Department of Health and Human
Services (the "HHS"), the Department of Justice (the "DOJ"), the Office of
the Inspector General (the "OIG") and the United States Food and Drug
Administration (the "FDA"), involving the Company or its property is
pending or, to the best knowledge of the Company, threatened that (i) could
have a material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby or (ii) could
have a Material Adverse Effect.
(n) The Company owns or leases all such properties as are necessary to the
conduct of its operations as presently conducted.
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(o) The Company is not in violation or default of (i) any provision of its
charter or bylaws, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or
bound or to which its property is subject, or (iii) except as set forth in
the Prospectus, any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company or
any of its properties; except, in the case of clause (ii) or (iii), for any
such violation or default that would not have a Material Adverse Effect.
(p) Each of Deloitte & Touche LLP and Xxxxxx Xxxxxxxx LLP, who have certified
certain financial statements of the Company and delivered their reports
with respect to the audited consolidated financial statements and schedules
included in the Prospectus, are independent public accountants with respect
to the Company within the meaning of the Act and the applicable published
rules and regulations thereunder.
(q) There are no transfer taxes or other similar fees or charges under Federal
law or the laws of any state, or any political subdivision thereof,
required to be paid in connection with the execution and delivery of this
Agreement or the issuance by the Company of the Securities.
(r) The Company has filed all foreign, Federal, state and local tax returns
that are required to be filed or has requested extensions thereof (except
in any case in which the failure so to file would not have a Material
Adverse Effect) and has paid all taxes required to be paid by it and any
other assessment, fine or penalty levied against it, to the extent that any
of the foregoing is due and payable, except for any such assessment, fine
or penalty that is currently being contested in good faith or as would not
have a Material Adverse Effect.
(s) No labor problem or dispute with the employees of the Company exists or is
threatened or imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its principal
suppliers, contractors or customers, in each case that could have a
Material Adverse Effect.
(t) The Company is insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent and
customary in the business in which it is engaged; and the Company has no
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business at a
cost that would not have
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a Material Adverse Effect, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(u) Except as set forth in the Prospectus, (A) the Company possesses all
permits, licenses, provider numbers, certificates, approvals, consents,
orders, certifications (including, without limitation, clinical laboratory
licenses, certification under the Clinical Laboratories Improvement Act of
1967, as amended in 1988 ("CLIA") and certifications required by the FDA
and the State of California and under the Medicare, MediCal and Medicaid
programs), accreditations (including, without limitation, accreditation by
CLIA and the College of American Pathologists ("CAP")) and other
authorizations (collectively, "Governmental Licenses") issued by, and have
made all declarations and filings with, the appropriate Federal, state,
local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by the Company (including, without limitation,
Governmental Licenses as are required (i) under such Federal and state
healthcare laws as are applicable to the Company and (ii) with respect to
the clinical laboratories operated by the Company that participate in the
Medicare, MediCal and/or Medicaid programs, to receive reimbursement
thereunder), except where the failure to possess such Governmental Licenses
or to make such declarations and filings would not result in a Material
Adverse Effect; the Company is in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so to comply
would not, individually and in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect would
not have a Material Adverse Effect; and (B) the Company has not received
any notice of proceedings relating to the revocation or modification of any
such Governmental Licenses which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(v) The Company maintains a system of internal accounting controls sufficient
to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences.
(w) The Company has not taken, directly or indirectly, any action designed to
or that would constitute or that might reasonably be expected to cause
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or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
(x) Except as set forth in the Prospectus, the Company and each of the clinical
laboratories owned, leased or operated by it (i) are in compliance with any
and all applicable foreign, Federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses, (iii) have not
received notice of any actual or potential liability for the investigation
or remediation of any disposal or release of hazardous or toxic substances
or wastes, pollutants or contaminants, and (iv) are not subject to
liabilities and costs associated with compliance by them with Environmental
Laws, except where such non-compliance with Environmental Laws, failure to
receive required permits, licenses or other approvals, or liabilities or
costs would not, individually and in the aggregate, have a Material Adverse
Effect. Neither the Company nor any of the clinical laboratories owned,
leased or operated by it has received notice that it has been named as a
"potentially responsible party" under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, in any
proceeding currently pending.
(y) The Company has fulfilled its obligations, if any, under the minimum
funding standards of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Employee Retirement
Income Security Act of 1974 ("ERISA") and the regulations and published
interpretations thereunder with respect to each "plan" (as defined in
Section 3(3) of ERISA and such regulations and published interpretations)
in which employees of the Company are eligible to participate and each such
plan is in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations. The Company has not incurred any unpaid liability to the
Pension Benefit Guaranty Corporation (other than for the payment of
premiums in the ordinary course) or to any such plan under Title IV of
ERISA.
(z) The Company owns, possesses, licenses or has other rights to use, on
reasonable terms, all patents, patent applications, trade and service
marks, trade and service xxxx registrations, trade names, copyrights,
licenses, inventions, trade secrets, technology, know-how and other
intellectual property (collectively, the "Intellectual Property") necessary
for the conduct of the Company's business as now conducted or as proposed
in the Prospectus to be conducted; and the Company has not received any
notice of infringement of or conflict with asserted rights of others with
respect to any Intellectual Property, which infringement or
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conflict, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(aa) Except as set forth in the Prospectus, neither the Company nor, to the
knowledge of the Company, any officer, director, stockholder, employee or
other agent of the Company, has engaged, directly or indirectly, in any
activity which is prohibited under Federal Medicare and Medicaid statutes
or any other Federal health care or other law or any regulations
promulgated pursuant to such statutes, or related state or local statutes
or regulations or any rules of professional conduct, including but not
limited to the following: (i) knowingly and willfully making or causing to
be made a false statement or representation of a material fact in any
application for, or for use in determining rights to, any benefit or
payment under the Medicare or Medicaid program or from any third party;
(ii) failing to disclose knowledge by a claimant of the occurrence of any
event affecting the initial or continued right to any benefit or payment
under the Medicare or Medicaid program or from any third party on its own
behalf or on behalf of another, with intent to secure such benefit or
payment fraudulently; (iii) in the absence of an applicable safe harbor
regulation, knowingly and willfully offering, paying, soliciting or
receiving any remuneration (including any kickback, bribe or rebate), in
cash or in kind (a) in return for referring an individual to a person for
the furnishing or arranging for the furnishing of any item or service for
which payment may be made in whole or in part by Medicare or Medicaid or
any third party or (b) in return for purchasing, leasing or ordering or
arranging for or recommending the purchasing, leasing or ordering of any
good, facility, service or item for which payment may be made in whole or
in part by Medicare or Medicaid or any third party; (iv) knowingly and
willfully referring an individual to a person with which they have
ownership or certain other financial arrangements (where applicable Federal
or state law prohibits such referrals); and (v) knowingly and willfully
violating any enforcement initiative instituted by any governmental agency
(including, without limitation, the OIG and the DOJ), except for any such
activities which would not, individually and in the aggregate, result in a
Material Adverse Effect.
(bb) The Company has not failed to file with applicable regulatory authorities
(including, but not limited to, CLIA, the FDA, the CAP, Medicare, MediCal
and Medicaid) any statement, report, information or form required by any
applicable law, regulation or order, except where the failure to file or to
be so in compliance would not, individually and in the aggregate, have a
Material Adverse Effect. No deficiencies have been asserted by any
regulatory commission, agency or authority with respect to any such filings
or submissions, except for any such failures to be in compliance or
deficiencies which would not, individually and in the aggregate, have a
Material Adverse Effect.
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(cc) The Company has established a compliance program (including a written
compliance policy) to assist the Company and its directors, officers and
employees in complying with applicable regulatory agency guidelines
(including, without limitation, those regulations and guidelines published
by HCFA), and to provide compliance policies governing applicable areas for
independent clinical laboratories (including, without limitation, patient
confidentiality, diagnosis coding and anti-kickback statutes).
(dd) The accounts receivable of the Company have been adjusted to reflect
material changes in the reimbursement policies of third party payors such
as Medicare, Medicaid, MediCal, private insurance companies, health
maintenance organizations, preferred provider organizations, managed care
systems and other third party payors. The accounts receivable of the
Company, after giving effect to the allowance for doubtful accounts,
relating to such third party payors do not materially exceed amounts the
Company is entitled to receive.
(ee) Except as disclosed in the Registration Statement and the Prospectus, the
Company (i) does not have any material lending or other relationship with
any bank or lending affiliate of any of the Representatives and (ii) does
not intend to use any of the proceeds from the sale of the Securities
hereunder to repay any outstanding debt owed to any affiliate of any of the
Representatives.
(ff) The Company has not offered, or caused the Underwriters to offer,
Securities to any person pursuant to the Directed Share Program with the
specific intent to unlawfully influence (i) a customer or supplier of the
Company to alter the customer's or supplier's level or type of business
with the Company, or (ii) a trade journalist or publication to write or
publish favorable information about the Company or its products.
(gg) The stock split, as described in the Prospectus, has been duly and validly
authorized by all necessary corporate action by the Company's stockholders
and board of directors.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale.
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(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell
to each
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Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at a purchase price of $[___________] per share,
the amount of the Underwritten Securities set forth opposite such
Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants
an option to the several Underwriters to purchase, severally and not
jointly, up to [___________] Option Securities at the same purchase price
per share as the Underwriters shall pay for the Underwritten Securities.
Said option may be exercised only to cover over-allotments in the sale of
the Underwritten Securities by the Underwriters. Said option may be
exercised in whole or in part at any time on or before the 30th day after
the date of the Prospectus upon written or telegraphic notice by the
Representatives to the Company setting forth the number of shares of the
Option Securities as to which the several Underwriters are exercising the
option and the settlement date. The number of Option Securities to be
purchased by each Underwriter shall be the same percentage of the total
number of shares of the Option Securities to be purchased by the several
Underwriters as such Underwriter is purchasing of the Underwritten
Securities, subject to such adjustments as you in your absolute discretion
shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten
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Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 10:00 AM, New York City time, on June [_],
2001, or at such time on such later date not more than three Business Days after
the foregoing date as the Representatives shall designate, which date and time
may be postponed by agreement among the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the respective aggregate purchase prices of the Securities
being sold by the Company to or upon the order of the Company by wire transfer
payable in same-day funds to the account specified by the Company. Delivery of
the Underwritten Securities and the Option Securities shall be made through the
facilities of The Depository Trust Company unless the Representatives shall
otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by
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wire transfer payable in same-day funds to the account specified by the Company.
If settlement for the Option Securities occurs after the Closing Date, the
Company will deliver to the Representatives on the settlement date for the
Option Securities, and the obligation of the Underwriters to purchase the Option
Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several Underwriters
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propose to offer the Securities for sale to the public as set forth in the
Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
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(a) The Company will use its best efforts to cause the Registration Statement,
if not effective at the Execution Time, and any amendment thereof, to
become effective. Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which the Joint Managers, acting jointly, reasonably object. Subject to
the foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 424(b), the Company will cause the Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Representatives of
such timely filing. The Company will promptly advise the Representatives
(1) when the Registration Statement, if not effective at the Execution
Time, shall have become effective, (2) when the Prospectus, and any
supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement
shall have been filed with the Commission, (3) when, prior to termination
of the offering of the Securities, any amendment to the Registration
Statement shall have been filed or become effective, (4) of any request by
the Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any supplement
to the Prospectus or for any additional information, (5) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (6) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the institution or threatening of any
proceeding for such
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purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is required to
be delivered under the Act, any event occurs as a result of which the
Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Prospectus to comply with the Act or the rules
thereunder, the Company promptly will (1) notify the Representatives of any
such event, (2) prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 5, an amendment or supplement
which will correct such statement or omission or effect such compliance,
and (3) supply any supplemented Prospectus to you in such quantities as you
may reasonably request in writing; provided that in case any Underwriter is
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required to deliver a Prospectus in connection with sales of any of the
Securities at any time nine months or more after the Execution Time, any
preparation and delivery of any amended or supplemented Prospectus shall be
at the expense of such Underwriter.
(c) As soon as practicable, the Company will make generally available to its
security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters four signed copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Prospectus and the Prospectus and any supplement
thereto as the Representatives may reasonably request in writing.
(e) The Company will arrange, if necessary, for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may reasonably designate in writing and will maintain such
qualifications in effect so long as required for the distribution of the
Securities; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities, in
any jurisdiction where it is not now so subject.
14
(f) The Company will not, without the prior written consent of the Joint
Managers, offer, sell, contract to sell, pledge, or otherwise dispose of,
(or enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
Company or any affiliate of the Company or any person in privity with the
Company or any affiliate of the Company) directly or indirectly, including
the filing (or participation in the filing) of a registration statement
with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, any other shares of
Common Stock or any securities convertible into, or exercisable, or
exchangeable for, shares of Common Stock; or publicly announce an intention
to effect any such transaction, for a period of 180 days after the date of
this Agreement, provided, however, that the Company may issue and sell
-------- -------
Common Stock pursuant to any employee stock option plan, stock ownership
plan or dividend reinvestment plan of the Company in effect at the
Execution Time, the Company may issue Common Stock issuable upon the
conversion of securities or the exercise of warrants outstanding at the
Execution Time and the Company may issue or sell Common Stock as
consideration for acquisitions by the Company as long as the recipients of
such Common Stock have agreed in writing to be bound by the terms of lock-
up agreements substantially in the form of Exhibit A hereto providing for a
lock-up period ending 180 days after the date of this Agreement.
(g) The Company agrees to pay the costs and expenses relating to the following
matters: (i) the preparation, printing or reproduction and filing with the
Commission of the Registration Statement (including financial statements
and exhibits thereto), each Preliminary Prospectus, the Prospectus, and
each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Registration
Statement, each Preliminary Prospectus, the Prospectus, and all amendments
or supplements to any of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the
Securities; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of the
Securities; (iv) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of
the Securities; (v) the registration of the Securities under the Exchange
Act and the listing of the Securities on the Nasdaq National Market; (vi)
any registration or qualification of the Securities for offer and sale
under the securities or blue sky laws of the several states (including
filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such registration and qualification); (vii) any
filings required to be
15
made with the National Association of Securities Dealers, Inc. (including
filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (viii) the transportation and other
expenses incurred by or on behalf of Company representatives in connection
with presentations to prospective purchasers of the Securities; (ix) the
fees and expenses of the Company's accountants and the fees and expenses of
counsel (including local and special counsel) for the Company; and (x) all
other costs and expenses incident to the performance by the Company of its
obligations hereunder.
(h) In connection with the Directed Share Program, the Company will ensure that
the Directed Shares will be restricted to the extent required by the
National Association of Securities Dealers, Inc. (the "NASD") or the NASD
rules from sale, transfer, assignment, pledge or hypothecation for a period
of three months following the date of the effectiveness of the Registration
Statement. The Designated Underwriters will notify the Company as to which
Participants will need to be so restricted. The Company will direct the
transfer agent to place stop transfer restrictions upon such Securities for
such period of time. The Company will direct the removal of such transfer
restrictions upon the expiration of such period of time.
(i) The Company will pay all fees and disbursements of counsel incurred by the
Designated Underwriters in connection with the Directed Share Program and
stamp duties, similar taxes or duties or other taxes, if any, incurred by
the Designated Underwriters in connection with the Directed Share Program.
6. Conditions to the Obligations of the Underwriters. The obligations of the
-------------------------------------------------
Underwriters to purchase the Underwritten Securities and the Option Securities,
as the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the Execution Time,
the Closing Date and any settlement date pursuant to Section 3 hereof, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b), the Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the
16
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Skadden, Arps, Slate, Xxxxxxx &
Xxxx, counsel for the Company, and Xxxxx X. Xxx, General Counsel of the
Company, to have furnished to the Representatives their opinions, dated the
Closing Date and addressed to the Representatives, in the form attached
hereto as Exhibits B and C, respectively.
(c) The Company shall have requested and caused Xxxxxx, Xxxxx & Xxxxxxx, Inc.,
special regulatory counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, in the form attached hereto as Exhibit D.
(d) The Representatives shall have received from Debevoise & Xxxxxxxx, counsel
for the Underwriters, such opinion or opinions, dated the Closing Date and
addressed to the Representatives, with respect to the issuance and sale of
the Securities, the Registration Statement, the Prospectus (together with
any supplement thereto) and other related matters as the Representatives
may reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of
the Company, signed by the Chief Executive Officer and the Chief Financial
Officer of the Company, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Prospectus, any supplements to the Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company in this Agreement are
true and correct on and as of the Closing Date with the same effect as if
made on the Closing Date and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted
or, to the Company's knowledge, threatened; and
(iii)since the date of the most recent financial statements included in the
Prospectus (exclusive of any supplement thereto), there has been no
Material Adverse Effect.
(f) The Company shall have requested and caused Deloitte & Touche LLP and
Xxxxxx Xxxxxxxx LLP to have furnished to the Representatives letters, at
the
17
Execution Time and at the Closing Date, dated respectively as of the
Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are independent
accountants within the meaning of the Act and the applicable rules and
regulations adopted by the Commission thereunder and stating in effect
that:
(i) in their opinion the audited financial statements and financial statement
schedules included in the Registration Statement and the Prospectus and
reported on by them comply as to form in all material respects with the
applicable accounting requirements of the Act and the related rules and
regulations adopted by the Commission;
(ii) in the case of Deloitte & Touche LLP, on the basis of a reading of the
latest unaudited financial statements made available by the Company;
carrying out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments set
forth in such letter; a reading of the minutes of the meetings of the
stockholders, directors and committees of the board of directors of the
Company; and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company as to
transactions and events subsequent to December 31, 2000, nothing came to
their attention which caused them to believe that:
(1) any unaudited financial statements included in the Registration Statement
and the Prospectus do not comply as to form in all material respects with
applicable accounting requirements of the Act and with the related rules
and regulations adopted by the Commission with respect to registration
statements on Form S-1; and said unaudited financial statements are not in
conformity with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements
included in the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to December 31, 2000, there were any
changes, at a specified date not more than five days prior to the date of
the letter, in the long-term debt of the Company or capital stock of the
Company or decreases in the stockholders' equity of the Company or
decreases in working capital of the Company as compared with the amounts
shown on the December 31, 2000 balance sheet included in the Registration
Statement and the Prospectus, or for the period from January 1, 2001 to
such specified date there were any decreases, as compared with the
corresponding period in the preceding year in revenue, operating income,
income before tax benefit and
18
extraordinary item or in total or per share amounts of net income of the
Company, except in all instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied by an explanation by
the Company as to the significance thereof unless said explanation is not
deemed necessary by the Representatives; and
(3) the information included in the Registration Statement and Prospectus in
response to Regulation S-K, Item 301 (Selected Financial Data) and Item 402
(Executive Compensation) is not in conformity with the applicable
disclosure requirements of Regulation S-K.
(iii)they have performed certain other specified procedures as a result of which
they determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of the
Company) set forth in the Registration Statement and the Prospectus,
including the information set forth under the captions "Summary Financial
Data" and "Selected Financial Data" in the Prospectus, agrees with the
accounting records of the Company, excluding any questions of legal
interpretation.
References to the Prospectus in this paragraph (f) include any
supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (f) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto) the effect of which, in
any case referred to in clause (i) or (ii) above, is, in the sole judgment
of the Joint Managers, acting jointly, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Registration Statement (exclusive of
any amendment thereof) and the Prospectus (exclusive of any supplement
thereto).
(h) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, customary closing and secretary
certificates and documents as the Representatives may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in
the rating of any of the Company's debt securities by any "nationally
19
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating that
does not indicate the direction of the possible change.
(j) The Securities shall have been duly approved for quotation on the Nasdaq
National Market, and satisfactory evidence of such actions shall have been
provided to the Representatives.
(k) Prior to the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto from
each executive officer and director of the Company and each stockholder,
addressed to the Representatives.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Debevoise & Xxxxxxxx, counsel for the Underwriters,
at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the Securities
---------------------------------------
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through
SSB on demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been reasonably incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and each
person who controls any Underwriter within the meaning of either the Act or
the
20
Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such
-------- -------
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion therein; provided further that with respect to any untrue
-------- -------
statement or omission of material fact made in any Preliminary Prospectus,
the indemnity agreement contained in this Section 8(a) shall not inure to
the benefit of any Underwriter from whom the person asserting any such
loss, claim, damage or liability purchased the Securities concerned, to the
extent that any such loss, claim, damage or liability of such Underwriter
occurs under the circumstance where it shall have been determined by a
court of competent jurisdiction by final and non-appealable judgment that
(w) the Company had previously furnished copies of the Prospectus to the
Representatives, (x) delivery of the Prospectus was required by the Act to
be made to such person, (y) the untrue statement or omission of a material
fact contained in the Preliminary Prospectus was corrected in the
Prospectus and (z) there was not sent or given to such person, at or prior
to the written confirmation of the sale of such Securities to such person,
a copy of the Prospectus. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) The Company agrees to indemnify and hold harmless each of the Designated
Underwriters, the directors, officers, employees and agents of such
Designated Underwriters and each person who controls such Designated
Underwriters within the meaning of either the Act or the Exchange Act
("Designated Underwriter Entities"), from and against any and all losses,
claims, damages and liabilities to which they may become subject under the
Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim), insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) arise out of or
are based upon any untrue statement or alleged untrue statement of a
material fact contained in any material
21
prepared by or with the consent of the Company for distribution to
Participants in connection with the Directed Share Program or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; (ii)
are caused by the failure of any Participant to pay for and accept delivery
of Directed Shares allocated by the Company to such Participant; or (iii)
relate to, arise out of, or occur in connection with the Directed Share
Program, provided that, in the case of clause (i) the Company will not be
--------
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Designated Underwriter specifically for
inclusion therein and that in the case of clause (iii) the Company will not
be liable to the extent that such loss, claim, damage or liability results
from the gross negligence or willful misconduct of such Designated
Underwriter.
(c) Each Underwriter severally and not jointly agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the Company
by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability
which any Underwriter may otherwise have. The Company acknowledges that
the statements set forth in the last paragraph of the cover page regarding
delivery of the Securities and, under the heading "Underwriting", the
sentences related to concessions and reallowances and the paragraphs
related to stabilization, syndicate covering transactions and penalty bids
in any Preliminary Prospectus and the Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Prospectus or the Prospectus.
(d) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a), (b) or (c)
above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a), (b), or (c)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in
22
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
-------- -------
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right
to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict
of interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding. Notwithstanding anything
contained herein to the contrary, if indemnity may be sought pursuant to
Section 8(b) hereof in respect of such action or proceeding, then in
addition to such separate firm for the indemnified parties, the
indemnifying party shall be liable for the reasonable fees and expenses of
not more than one separate firm (in addition to any local counsel) for each
Designated Underwriter, the directors, officers, employees and agents of
such Designated Underwriter, and all persons, if any, who control such
Designated Underwriter within the meaning of either the Act or the Exchange
Act for the defense of any losses, claims, damages and liabilities arising
out of the Directed Share Program.
(e) In the event that the indemnity provided in paragraph (a), (b), or (c) of
this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the
Company and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by
the Company, and by the Underwriters from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
-------- -------
provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in
23
excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and of the Underwriters in
connection with the statements or omissions which resulted in such Losses
as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) received by each of them, and
benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on
the cover page of the Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one
hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (e), 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. For purposes of this Section 8, each
person who controls an Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter,
and each person who controls the Company within the meaning of either the
Act or the Exchange Act, each officer of the Company who shall have signed
the Registration Statement and each director of the Company shall have the
same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (e).
9. Default by an Underwriter. If any one or more Underwriters shall fail to
-------------------------
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
-------- -------
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such
24
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Joint Managers, acting jointly, by notice given to
the Company by the Joint Managers, acting jointly, prior to delivery of and
payment for the Securities, if at any time prior to such time (i) trading in the
Company's Common Stock shall have been suspended by the Commission or the Nasdaq
National Market or trading in securities generally on the New York Stock
Exchange or the Nasdaq National Market shall have been suspended or limited or
minimum prices shall have been established on such Exchange or the Nasdaq
National Market, (ii) a banking moratorium shall have been declared either by
Federal or New York State authorities or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the Joint
Managers, acting jointly, impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Prospectus
(exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
------------------------------------------
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective
-------
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to Xxxxxxx Xxxxx Xxxxxx Inc., General Counsel (fax no.: (212) 816-
7912) and confirmed to the General Counsel, Xxxxxxx Xxxxx Barney Inc., at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General Counsel and to
Credit Suisse First Boston Corporation, Managing Director, (fax no.: (310) 282-
6178) and confirmed to the Managing Director, Credit Suisse First Boston
Corporation, at 2121 Avenue of the Xxxxx/Xxx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx,
00000, Attention: Managing Director, and copied to Debevoise & Xxxxxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, XX, 00000, Attention:
25
Xxxxx X. Xxxxxxxx, or, if sent to the Company, will be mailed, delivered or
telefaxed to Unilab Corporation (fax no.: (000) 000-0000) and confirmed to the
General Counsel, Unilab Corporation at 00000 Xxxxxx Xxxxxx, Xxxxxxx, XX 000000,
Attention: Xxxxx X. Xxx, Esq.
13. Successors. This Agreement will inure to the benefit of and be binding
----------
upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
--------------
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more counterparts,
------------
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only and
--------
shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement, shall
-----------
have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date (which shall be the date of the
Prospectus) and time that this Agreement is executed and delivered by the
parties hereto.
26
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above and any preliminary prospectus included
in the Registration Statement at the Effective Date that omits Rule 430A
Information.
"Prospectus" shall mean the prospectus relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
27
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
Unilab Corporation
By:
-------------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxxxx Xxxxx Barney Inc.
Credit Suisse First Boston Corporation
U.S. Bancorp Xxxxx Xxxxxxx Inc.
By: Xxxxxxx Xxxxx Barney Inc.
By:
-------------------------------------
Name:
Title:
By: Credit Suisse First Boston
Corporation
By:
-------------------------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing Agreement.
SCHEDULE I
----------
Number of Underwritten
Underwriters Securities to be Purchased
------------ --------------------------
Xxxxxxx Xxxxx Xxxxxx Inc.
Credit Suisse First Boston Corporation
U.S. Bancorp Xxxxx Xxxxxxx Inc.
------------
Total..............................
============
[Form of Lock-Up Agreement] EXHIBIT A
[Letterhead of stockholder of
Unilab Corporation]
Unilab Corporation
------------------
Public Offering of Common Stock
-------------------------------
, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
Credit Suisse First Boston Corporation
As Representatives of the
several Underwriters,
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), among Unilab Corporation,
a Delaware corporation (the "Company"), and each of you as representatives of a
group of Underwriters named therein, relating to an underwritten public offering
of Common Stock, $.01 par value (the "Common Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Xxxxxxx Xxxxx Xxxxxx Inc. and Credit Suisse First Boston Corporation,
offer, sell, contract to sell, pledge or otherwise dispose of, (or enter into
any transaction which is designed to, or might reasonably be expected to, result
in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the undersigned or any
affiliate of the undersigned or any person in privity with the undersigned or
any affiliate of the undersigned), directly or indirectly, including the filing
(or participation in the filing) of a registration statement with the Securities
and Exchange Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Securities and Exchange Commission promulgated thereunder
with respect to, any shares of capital
2
stock of the Company or any securities convertible into, or exercisable or
exchangeable for such capital stock, or publicly announce an intention to effect
any such transaction, for a period of 180 days after the date of the
Underwriting Agreement, other than shares of Common Stock disposed of as bona
fide gifts approved by Xxxxxxx Xxxxx Barney Inc. and Credit Suisse First Boston
Corporation.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
Yours very truly,
[Signature of stockholder/officer/director]
[Name and address of stockholder/officer/director]
