EXHIBIT 1.1
BMJ Medical Management, Inc.
4,000,000 Shares(1)
Common Stock
UNDERWRITING AGREEMENT
_____ __, 0000
XXXXXXXXX & XXXXX LLC
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXX XXXXX XXXXXX & COMPANY, LLC
x/x Xxxxxxxxx & Xxxxx LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
BMJ Medical Management, Inc. a Delaware corporation (herein called the
Company), proposes to issue and sell 4,000,000 shares of its authorized but
unissued Common Stock, $.001 par value (herein called the Common Stock) (said
4,000,000 shares of Common Stock being herein called the Underwritten Stock).
The Company proposes to grant to the Underwriters (as hereinafter defined) an
option to purchase up to 600,000 additional shares of Common Stock (herein
called the Option Stock and with the Underwritten Stock herein collectively
called the Stock). The Common Stock is more fully described in the Registration
Statement and the Prospectus hereinafter mentioned.
The Company hereby confirms the agreements made with respect to the
purchase of the Stock by the several underwriters, for whom you are acting,
named in Schedule I hereto (herein collectively called the Underwriters, which
term shall also include any underwriter purchasing Stock pursuant to Section
3(b) hereof). You represent and warrant that you have been authorized by each of
the other Underwriters to enter into this Agreement on its behalf and to act for
it in the manner herein provided.
1. Registration Statement. The Company has filed with the Securities
and Exchange Commission (herein called the Commission) a registration statement
on Form S-1 (No. 333-35759), including the related preliminary prospectus, for
the registration under the Securities Act of 1933, as amended (herein called the
Securities Act), of the Stock. Copies of such registration statement and of each
amendment thereto, if any, including the related preliminary prospectus (meeting
the requirements of Rule 430A of the rules and regulations of the Commission)
heretofore filed by the Company with the Commission have been delivered to you.
The term Registration Statement as used in this agreement shall mean
such registration statement, including all exhibits and financial statements,
all information omitted therefrom in reliance upon Rule 430A and contained in
the Prospectus referred to below, in the form in which it became effective, and
any registration statement filed pursuant to Rule 462(b) of the rules and
regulations of the Commission with respect to the Stock (herein called a Rule
462(b) registration statement), and, in the event of any amendment thereto after
the effective date of such registration statement (herein called the Effective
Date), shall also mean (from and after the effectiveness of such amendment) such
registration statement as so amended (including any Rule 462(b) registration
statement). The term Prospectus as used in this Agreement shall mean the
prospectus relating to the Stock first filed with the Commission pursuant to
Rule 424(b) and Rule 430A (or if no such filing is required, as included in the
Registration Statement) and, in the event of any supplement or amendment to such
prospectus after the Effective Date, shall also mean (from and after the filing
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(1) Plus an option to purchase from the Company up to 600,000 additional
shares to cover over-allotments.
with the Commission of such supplement or the effectiveness of such amendment)
such prospectus as so supplemented or amended. The term Preliminary Prospectus
as used in this Agreement shall mean each preliminary prospectus included in
such registration statement prior to the time it becomes effective.
The Registration Statement has been declared effective under the
Securities Act, and no post-effective amendment to the Registration Statement
has been filed as of the date of this Agreement. The Company has caused to be
delivered to you copies of each Preliminary Prospectus and has consented to the
use of such copies for the purposes permitted by the Securities Act.
2. Representations and Warranties of the Company.
(a) The Company hereby represents and warrants as follows:
(i) Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has full
corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement and
the Prospectus and as being conducted, and is duly qualified as a
foreign corporation and in good standing in all jurisdictions in which
the character of the property owned or leased or the nature of the
business transacted by it makes qualification necessary, except where
the failure to be so qualified would not have a material adverse
effect on the condition (financial or otherwise), earnings,
operations, business, business prospects, properties or results of
operations of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect").
(ii) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been
any material adverse change in the business, properties, financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, other than as set
forth in the Registration Statement and the Prospectus, and since such
dates, except in the ordinary course of business, neither the Company
nor any of its subsidiaries has entered into any material transaction
not referred to in the Registration Statement and the Prospectus.
(iii) The Registration Statement and the Prospectus comply, and on
the Closing Date (as hereinafter defined) and any later date on which
Option Stock is to be purchased, the Prospectus will comply, in all
material respects, with the provisions of the Securities Act and the
rules and regulations of the Commission thereunder; on the Effective
Date, the Registration Statement did not contain any untrue statement
of a material fact and did not 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 did not and, on the Closing Date and any later date on
which Option Stock is to be purchased, will not contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that none of the representations and warranties in this
subparagraph (iii) shall apply to statements in, or omissions from,
the Registration Statement or the Prospectus made in reliance upon and
in conformity with information herein or otherwise furnished in
writing to the Company by or on behalf of the Underwriters for use in
the Registration Statement or the Prospectus.
(iv) The Company has the requisite corporate power and authority
to enter into this Agreement and perform the transactions contemplated
hereby. This Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement on the
part of the Company, enforceable in accordance with its terms, except
(1) as such enforceability may be limited by nowor hereafter (A)
applicable bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or similar laws in effect which affect the
enforcement of creditors' rights generally and (B) general principles
of equity, regardless of whether enforceability is considered in a
proceeding at law or in equity; and (2) as rights to indemnity and
contribution may be limited under applicable law; the performance of
this Agreement and the consummation of the transactions herein
contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, (i) any
material bond, debenture, note or other evidence of indebtedness, or
under any material lease, contract, indenture, mortgage, deed of
trust, loan agreement, joint venture or other material agreement or
instrument to which the Company is a party or by which it or any of
its properties may
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be bound, (ii) the charter or bylaws of the Company, or (iii) any law,
order, rule, regulation, writ, injunction, judgment or decree of any
court, government or governmental agency or body, domestic or foreign,
having jurisdiction over the Company or its properties. No consent,
approval, authorization or order of or qualification with any court,
government or governmental agency or body, domestic or foreign, having
jurisdiction over the Company or its properties is required for the
execution and delivery of this Agreement and the consummation by the
Company of the transactions herein contemplated, except as may be
required under the Securities Act or under state or other securities
or Blue Sky laws, all of which requirements have been satisfied in all
material respects.
(v) There is not any pending or, to the best of the Company's
knowledge, threatened action, suit, claim or proceeding against the
Company or any of the Company's properties, assets or rights before
any court, government or governmental agency or body, domestic or
foreign, having jurisdiction over the Company or over its officers or
properties or otherwise which (i) if adversely decided, would (x)
result in a material adverse change in the operations, business,
financial condition, results of operations or business prospects of
the Company and its subsidiaries, taken as a whole, or (y) would
materially and adversely affect the Company's properties, assets or
rights, (ii) if adversely decided, would prevent consummation of the
transactions contemplated hereby, or (iii) is required to be disclosed
in the Registration Statement or Prospectus and is not so disclosed;
and there are no agreements, contracts, leases or documents of the
Company required to be described or referred to in the Registration
Statement or Prospectus or to be filed as exhibits to the Registration
Statement by the Securities Act or the Rules and Regulations which
have not been accurately described in all material respects or
referred to in the Registration Statement or Prospectus or filed as
exhibits to the Registration Statement.
(vi) The Stock, when issued and sold to the Underwriters as
provided herein, will be duly and validly issued, fully paid and
nonassessable and conforms to the description thereof in the
Prospectus. No further approval or authority of the stockholders or
the Board of Directors of the Company will be required for the
issuance and sale of the Stock as contemplated herein.
(vii) Ernst & Young, LLP, which has examined the financial
statements of the Company, together with the related schedules and
notes, as of September 30, 1997 and December 31, 1996 filed with the
Commission as a part of the Registration Statement, which are included
in the Prospectus, are independent accountants within the meaning of
the Securities Act and the Rules and Regulations; the audited
financial statements of the Company, together with the related
schedules and notes, and the unaudited financial information, forming
part of the Registration Statement and Prospectus, fairly present in
all material respects the financial position and the results of
operations of the Company at the dates and for the periods to which
they apply; and all audited financial statements of the Company,
together with the related schedules and notes, and the unaudited
consolidated financial information, filed with the Commission as part
of the Registration Statement, have been prepared in accordance with
generally accepted accounting principles ("GAAP") consistently applied
throughout the periods involved except as may be otherwise stated
therein. The selected and summary financial and statistical data
included in the Registration Statement present fairly in all material
respects the information shown therein and have been compiled on a
basis consistent with the audited financial statements presented
therein. No other financial statements or schedules are required to be
included in the Registration Statement.
(viii) Except as set forth in the Registration Statement and
Prospectus, (A) the Company has valid title to all properties and
assets described in the Prospectus as owned by it, free and clear of
any pledge, lien, security interest, encumbrance, claim or equitable
interest, other than such as would not have a Material Adverse
Effect, (B) the agreements to which the Company is a party described
in the Prospectus are valid agreements, enforceable against the
Company (as applicable) and, to the Company's knowledge, by the
Company against the other parties thereto, except as the enforcement
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors'
4
rights generally or by general equitable principles and, to their
knowledge, the other contracting party or parties thereto are not in
material breach or material default under any of such agreements, and
(C) the Company has valid and enforceable leases for all properties
described in the Prospectus as leased by it, except as the
enforcement, thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally or by general equitable
principles. Except as set forth in the Registration Statement and
Prospectus, the Company owns or leases all such properties as are
necessary to its operations as now conducted or as proposed to be
conducted, except where the failure to own or lease such properties
would not have a Material Adverse Effect.
(ix) The Company has timely filed all necessary federal, state and
foreign income and franchise tax returns and have paid all taxes shown
thereon as due, except for such taxes or tax assessments, if any, as
are being contested in good faith and as to which adequate reserves,
to the extent required by GAAP, have been provided; and there is no
tax deficiency that has been or, to the best of the Company's
knowledge, is reasonably likely to be asserted against the Company
that would have a Material Adverse Effect; and all tax liabilities are
adequately provided for on the books of the Company.
(x) The Company and its subsidiaries maintain insurance with
recognized insurers of the types and in the amounts generally adequate
for their respective business and consistent with insurance coverage
maintained by similar companies in similar businesses, including, but
not limited to, insurance covering real and personal property owned or
leased by the Company against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against, all of
which insurance is in full force and effect; the Company has not been
refused any insurance coverage sought or applied for; 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 a Material Adverse
Effect.
(xi) Neither the Company nor any of its subsidiaries is currently
involved in any material labor dispute, nor, to the knowledge of the
Company, is any material labor dispute threatened which, if such
dispute were to occur, would be reasonably likely to result in a
Material Adverse Effect. No collective bargaining agreement exists
with any of the Company's employees and, to the Company's knowledge,
no such agreement it imminent.
(xii) Neither the Company nor any of its subsidiaries is an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder.
(xiii) The Company has not distributed and will not distribute
prior to the later of (A) the Closing Date and (B) completion of the
distribution of the Stock any offering material in connection with the
offering and sale of the Stock other than any Preliminary
Prospectuses, the Prospectus, the Registration Statement and other
materials, if any, permitted by the Securities Act.
(xiv) The Company has not, at any time, (A) made any unlawful
contribution to any candidate for foreign office or failed to disclose
fully any contribution in violation of law, or (B) made any payment to
any federal or state governmental officer or official, or other person
charged with similar public or quasi-public duties, other than
payments required or permitted by the laws of the United States or any
jurisdiction thereof.
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(xv) The Company has not taken and will not take, directly or
indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the
price of the Common Stock to facilitate the sale or resale of the
Stock.
(xvi) Each officer, director and beneficial owner of shares of
Common Stock has agreed in writing that such person will not, for a
period of one hundred eighty (180) days after the date of the
Propsectus, sell, offer, contract to sell, grant any option to
purchase, or otherwise transfer or dispose of, any shares of Common
Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, otherwise than (A) as a bona fide gift
or gifts, provided by the donee or donees thereof agree in writing to
be bound by this restriction, or (B) with the prior written consent of
Xxxxxxxxx & Xxxxx LLC on behalf of the Underwriters. Furthermore, such
person will also agree and consent to the entry of stop transfer
instructions with the Company's transfer agent against the transfer of
the securities held by such person except in compliance with this
restriction. The Company has provided to counsel for the Underwriters
a complete and accurate list of all security holders of the Company
and the number and type of securities held by each security holder.
The Company has delivered to counsel for the Underwriters true,
accurate and complete copies of all of the agreements pursuant to
which its officers, directors and stockholders have agreed not to,
sell, offer, contract to sell, grant any option to purchase, or
otherwise transfer or dispose of, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common
Stock (herein called the Lock-Up Agreements) presently in effect.
(xvii) Except as set forth in the Registration Statement and
Prospectus, (A) the Company is in compliance with all rules, laws and
regulations relating to the use, treatment, storage and disposal of
toxic substances and protection of health or the environment (herein
called Environmental Laws) which are applicable to its business,
except to the extent that any failure to so comply would not have a
Material Adverse Effect, (B) the Company has received no notice from
any governmental authority or third party of an asserted claim under
Environmental Laws, which claim is required to be disclosed in the
Registration Statement, and (C) no property which is owned, leased or
occupied by the Company has been designated as a Superfund site
pursuant to the Comprehensive Response, Compensation, and Liability
Act of 1980, as amended (42 U.S.C. Section 9601, et seq.), or
otherwise designated as a contaminated site under applicable state or
local law.
(xviii) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management's general or
specific authorizations, (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets, (C) access to assets is permitted only in
accordance with management's general or specific authorization, and
(D) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(xix) There are no outstanding loans, advances (except normal
advances for business expenses in the ordinary course of business) or
guarantees of indebtedness by the Company to or for the benefit of any
of the officers or directors of the Company or any of the members of
the families of any of them, which are required to be disclosed in the
Registration Statement or Prospectus and are not so disclosed.
(xx) Prior to the Closing Date the Stock to be issued and sold by
the Company will be authorized and approved for quotation on the
Nasdaq National Market upon official notice of issuance.
(xxi) Except as set forth in the Registration Statement and
Prospectus, the Company is in compliance with all laws, Federal, state
and local, applicable to its business and has received all necessary
licenses and approvals including but not limited to the staff leasing
laws of the State of Texas (Tex. Lab. Code Xxx. Xxxxxx 1997 Section
91.001 et. seq.).
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(xxii) Neither the Company nor any of its subsidiaries or the
Existing Practices or any of their respective officers and directors
has engaged in any activities that are prohibited under federal
Medicare and Medicaid statutes (which include but are not limited to
42 U.S.C. Sections 1320a-7, 1302a-7(a) and 1320a-7b), the federal
CHAMPUS statute, the Federal False Claims Act (31 U.S.C. Section
3729), or the regulations promulgated pursuant to such federal
statutes, or related state or local statutes or regulations or which
are prohibited by rules of professional conduct.
(xxiii) The activities and operations of the Company and its
subsidiaries and the Existing Practices comply with the federal
Medicare and Medicaid statutes regarding health professional
self-referrals, 42 U.S.C. Section 1395nn and 42 U.S.C. Section 1396b,
and the regulations promulgated pursuant to such statutes, and all
similar state or local self-referral statutes and regulations in
effect in each state in which each of the Existing Practices is
located.
3. Purchase of the Stock by the Underwriters.
(a) On the basis of the representations and warranties and subject to
the terms and conditions herein set forth, the Company agrees to issue and sell
4,000,000 shares of the Underwritten Stock to the several Underwriters and each
of the Underwriters agrees to purchase from the Company the respective aggregate
number of shares of Underwritten Stock set forth opposite its name in Schedule
I. The price at which such shares of Underwritten Stock shall be sold by the
Company and purchased by the several Underwriters shall be $___ per share. In
making this Agreement, each Underwriter is contracting severally and not
jointly; except as provided in paragraphs (b) and (c) of this Section 3, the
agreement of each Underwriter is to purchase only the respective number of
shares of the Underwritten Stock specified in Schedule I.
(b) If for any reason one or more of the Underwriters shall fail or
refuse (otherwise than for a reason sufficient to justify the termination of
this Agreement under the provisions of Section 8 or 9 hereof) to purchase and
pay for the number of shares of the Stock agreed to be purchased by such
Underwriter or Underwriters, the Company shall immediately give notice thereof
to you, and the non-defaulting Underwriters shall have the right within 24 hours
after the receipt by you of such notice to purchase, or procure one or more
other Underwriters to purchase, in such proportions as may be agreed upon
between you and such purchasing Underwriter or Underwriters and upon the terms
herein set forth, all or any part of the shares of the Stock which such
defaulting Underwriter or Underwriters agreed to purchase. If the non-defaulting
Underwriters fail so to make such arrangements with respect to all such shares,
the number of shares of the Stock which each non-defaulting Underwriter is
otherwise obligated to purchase under this Agreement shall be automatically
increased on a pro rata basis to absorb the remaining shares which the
defaulting Underwriter or Underwriters agreed to purchase; provided, however,
that the non-defaulting Underwriters shall not be obligated to purchase the
shares which the defaulting Underwriter or Underwriters agreed to purchase if
the aggregate number of such shares of the Stock exceeds 10% of the total number
of shares of the Stock which all Underwriters agreed to purchase hereunder. If
the total number of shares of the Stock which the defaulting Underwriter or
Underwriters agreed to purchase shall not be purchased or absorbed in accordance
with the two preceding sentences, the Company shall have the right, within 24
hours next succeeding the 24-hour period above referred to, to make arrangements
with other underwriters or purchasers satisfactory to you for purchase of such
shares and portion on the terms herein set forth. In any such case, either you
or the Company shall have the right to postpone the Closing Date determined as
provided in Section 5 hereof for not more than seven business days after the
date originally fixed as the Closing Date pursuant to said Section 5 in order
that any necessary changes in the Registration Statement, the Prospectus or any
other documents or arrangements may be made. If neither the non-defaulting
Underwriters nor the Company shall make arrangements within the 24-hour periods
stated above for the purchase of all the shares of the Stock 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 (b), and no action taken hereunder, shall
relieve any defaulting Underwriter from liability in respect of any
7
default of such Underwriter under this Agreement.
(c) On the basis of the representations, warranties and covenants
herein contained, and subject to the terms and conditions herein set forth, the
Company grants an option to the several Underwriters to purchase, severally and
not jointly, up to 600,000 shares in the aggregate of the Option Stock from the
Company at the same price per share as the Underwriters shall pay for the
Underwritten Stock. Said option may be exercised only to cover over-allotments
in the sale of the Underwritten Stock by the Underwriters and may be exercised
in whole or in part at any time (but not more than once) on or before the
thirtieth day after the date of this Agreement upon written or facsimile notice
by you to the Company setting forth the aggregate number of shares of the Option
Stock as to which the several Underwriters are exercising the option. Delivery
of certificates for the shares of Option Stock, and payment therefor, shall be
made as provided in Section 5 hereof. The number of shares of the Option Stock
to be purchased by each Underwriter shall be the same percentage of the total
number of shares of the Option Stock to be purchased by the several Underwriters
as such Underwriter is purchasing of the Underwritten Stock, as adjusted by you
in such manner as you deem advisable to avoid fractional shares.
4. Offering by Underwriters.
(a) The terms of the initial public offering by the Underwriters of the
Stock to be purchased by them shall be as set forth in the Prospectus. The
Underwriters may from time to time change the public offering price after the
closing of the initial public offering and increase or decrease the concessions
and discounts to dealers as they may determine.
(b) The information set forth in the last paragraph on the front cover
page, the last paragraph of page 2 of the Prospectus and under "Underwriting" in
the Registration Statement, any Preliminary Prospectus and the Prospectus
relating to the Stock filed by the Company (insofar as such information relates
to the Underwriters) constitutes the only information furnished by the
Underwriters to the Company for inclusion in the Registration Statement, any
Preliminary Prospectus, and the Prospectus, and you on behalf of the respective
Underwriters represent and warrant to the Company that the statements made
therein are correct.
5. Delivery of and Payment for the Stock.
(a) Delivery of certificates for the shares of the Underwritten Stock
and the Option Stock (if the option granted by Section 3(c) hereof shall have
been exercised not later than 10:00 A.M., New York City time, on the date two
business days preceding the Closing Date), and payment therefor, shall be made
at the office of Cravath, Swaine & Xxxxx, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
x00x0, at 10:00 a.m., New York City time, on the fourth business day after the
date of this Agreement, or at such time on such other day, not later than seven
full business days after such fourth business day, as shall be agreed upon in
writing by the Company and you. The date and hour of such delivery and payment
(which may be postponed as provided in Section 3(b) hereof) are herein called
the Closing Date.
(b) If the option granted by Section 3(c) hereof shall be exercised
after 10:00 a.m., New York City time, on the date two business days preceding
the Closing Date, delivery of certificates for the shares of Option Stock, and
payment therefor, shall be made at the office of Cravath, Swaine & Xxxxx, 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx x0000 at 10:00 a.m., New York City time, on
the third business day after the exercise of such option.
(c) Payment for the Stock purchased from the Company shall be made to
the Company by wire transfer in immediately available funds. Such payment shall
be made upon delivery of certificates for the Stock to you for the respective
accounts of the several Underwriters against receipt therefor signed by you.
Certificates for the Stock to be delivered to you shall be registered in such
name or names and shall be in such denominations as you may request at least one
business day before the Closing Date, in the case of Underwritten Stock, and at
least one business day prior to the purchase thereof, in the case of the Option
Stock. Such certificates will be made available to the Underwriters for
inspection, checking and packaging at the offices of Lewco Securities
Corporation, 0 Xxxxxxxx, Xxx Xxxx, Xxx
0
Xxxx 00000 on the business day prior to the Closing Date or, in the case of the
Option Stock, by 3:00 p.m., New York time, on the business day preceding the
date of purchase.
It is understood that you, individually and not on behalf of the
Underwriters, may (but shall not be obligated to) make payment to the Company
for shares to be purchased by any Underwriter whose check shall not have been
received by you on the Closing Date or any later date on which Option Stock is
purchased for the account of such Underwriter. Any such payment by you shall not
relieve such Underwriter from any of its obligations hereunder.
6. Further Agreements of the Company. The Company covenants and agrees
as follows:
(a) The Company will (i) prepare and timely file with the Commission
under Rule 424(b) a Prospectus containing information previously omitted at the
time of effectiveness of the Registration Statement in reliance on Rule 430A and
(ii) not file any amendment to the Registration Statement or supplement to the
Prospectus of which you shall not previously have been advised and furnished
with a copy or to which you shall have reasonably objected in writing, [unless
the Company is otherwise advised by counsel that the Company is legally required
to file such amendment or supplement] or which is not in compliance with the
Securities Act or the rules and regulations of the Commission.
(b) The Company will promptly notify each Underwriter in the event of
(i) the request by the Commission for amendment of the Registration Statement or
for supplement to the Prospectus or for any additional information, (ii) the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement, (iii) the institution or notice of intended institution
of any action or proceeding for that purpose, (iv) the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Stock for sale in any jurisdiction, or (v) the receipt by it of notice of the
initiation or threatening of any proceeding for such purpose. The Company will
make every reasonable effort to prevent the issuance of such a stop order and,
if such an order shall at any time be issued, to obtain the withdrawal thereof
at the earliest possible moment.
(c) The Company will (i) on or before the Closing Date, deliver to you
a signed copy of the Registration Statement as originally filed and of each
amendment thereto filed prior to the time the Registration Statement becomes
effective and, promptly upon the filing thereof, a signed copy of each
post-effective amendment, if any, to the Registration Statement (together with,
in each case, all exhibits thereto unless previously furnished to you) and will
also deliver to you, for distribution to the Underwriters, a sufficient number
of additional conformed copies of each of the foregoing (but without exhibits)
so that one copy of each may be distributed to each Underwriter, (ii) as
promptly as possible deliver to you and send to the several Underwriters, at
such office or offices as you may designate, as many copies of the Prospectus as
you may reasonably request, and (iii) thereafter from time to time during the
period in which a prospectus is required by law to be delivered by an
Underwriter or dealer, likewise send to the Underwriters as many additional
copies of the Prospectus and as many copies of any supplement to the Prospectus
and of any amended prospectus, filed by the Company with the Commission, as you
may reasonably request for the purposes contemplated by the Securities Act.
(d) If at any time during the period in which a prospectus is required
by law to be delivered by an Underwriter or dealer any event relating to or
affecting the Company, or of which the Company shall be advised in writing by
you, shall occur as a result of which it is necessary, in the opinion of counsel
for the Company or of counsel for the Underwriters, to supplement or amend the
Prospectus in order to make the Prospectus not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser of the Stock,
the Company will forthwith prepare and file with the Commission a supplement to
the Prospectus or an amended prospectus so that the Prospectus as so
supplemented or amended will not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time such Prospectus
is delivered to such purchaser, not misleading. If, after the initial public
offering of the Stock by the Underwriters and during such period, the
Underwriters shall propose to vary the terms of offering thereof by reason of
changes in general market conditions or otherwise, you will advise the Company
in writing of the proposed variation, and, if in the opinion either of counsel
for the Company or of counsel for the Underwriters such proposed variation
requires that the
9
Prospectus be supplemented or amended, the Company will forthwith prepare and
file with the Commission a supplement to the Prospectus or an amended prospectus
setting forth such variation. The Company authorizes the Underwriters and all
dealers to whom any of the Stock may be sold by the several Underwriters to use
the Prospectus, as from time to time amended or supplemented, in connection with
the sale of the Stock in accordance with the applicable provisions of the
Securities Act and the applicable rules and regulations thereunder for such
period.
(e) Prior to the filing thereof with the Commission, the Company will
submit to you, for your information, a copy of any post-effective amendment to
the Registration Statement and any supplement to the Prospectus or any amended
prospectus proposed to be filed.
(f) The Company will cooperate, when and as requested by you, in the
qualification of the Stock for offer and sale under the securities or blue sky
laws of such jurisdictions as you may designate and, during the period in which
a prospectus is required by law to be delivered by an Underwriter or dealer, in
keeping such qualifications in good standing under said securities or blue sky
laws; provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified, or take any other action that
would subject it to general service of process or to taxation in respect of
doing business. The Company will, from time to time, prepare and file such
statements, reports, and other documents as are or may be required to continue
such qualifications in effect for so long a period as you may reasonably request
for distribution of the Stock.
(g) During a period of five years commencing with the date hereof, the
Company will furnish to you, and to each Underwriter who may so request in
writing, copies of all periodic and special reports furnished to stockholders of
the Company and of all information, documents and reports filed with the
Commission.
(h) Not later than the 45th day following the end of the fiscal quarter
first occurring after the first anniversary of the Effective Date, the Company
will make generally available to its security holders an earnings statement in
accordance with Section 11(a) of the Securities Act and Rule 158 thereunder.
(i) The Company agrees to pay all costs and expenses incident to the
performance of its obligations under this Agreement, including all costs and
expenses incident to (i) the preparation, printing and filing with the
Commission and the National Association of Securities Dealers, Inc. (the NASD)
of the Registration Statement, any Preliminary Prospectus and the Prospectus,
(ii) the furnishing to the Underwriters of copies of any Preliminary Prospectus
and of the several documents required by paragraph (c) of this Section 6 to be
so furnished, (iii) the preparation, printing and filing of all supplements and
amendments to the Prospectus referred to in paragraph (d) of this Section 6,
(iv) the furnishing to you and the Underwriters of the reports and information
referred to in paragraph (g) of this Section 6 and (v) the printing and issuance
of stock certificates, including the transfer agent's fees.
(j) The Company agrees to reimburse you, for the account of the several
Underwriters, for blue sky fees and related disbursements (including counsel
fees and disbursements and cost of printing memoranda for the Underwriters) paid
by or for the account of the Underwriters or their counsel in qualifying the
Stock under state securities or blue sky laws and the filing fee of the NASD.
(k) The Company hereby agrees that, without the prior written consent
of Xxxxxxxxx & Xxxxx LLC on behalf of the Underwriters, the Company will not,
for a period of 180 days following the commencement of the public offering of
the Stock by the Underwriters, directly or indirectly, (i) sell, offer, contract
to sell, grant any option to purchase, or otherwise transfer or dispose of, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock. The foregoing sentence shall not apply to (A) the
Stock to be sold to the Underwriters pursuant to this Agreement, (B) shares of
Common Stock issued by the Company upon the exercise of options granted under
the stock option plan of the Company (the Option Plan) or upon the exercise of
warrants outstanding as of the date hereof, all as described in the footnote to
the table under the caption "Capitalization" in the Preliminary Prospectus, (C)
options to purchase Common Stock granted under the Option Plan, and (D) Common
Stock
10
issued by the Company in connection with certain affiliation transactions,
provided that any such transferee agrees to be bound by the terms of the lock-up
agreement described in Section 9(j) herein.
(l) If at any time during the 25-day period after the Registration
Statement becomes effective any rumor, publication or event relating to or
affecting the Company shall occur as a result of which in your opinion the
market price for the Stock has been or is likely to be materially affected
(regardless of whether such rumor, publication or event necessitates a
supplement to or amendment of the Prospectus), the Company will, after written
notice from you advising the Company to the effect set forth above, forthwith
prepare, consult with you concerning the substance of, and disseminate a press
release or other public statement, reasonably satisfactory to you, responding to
or commenting on such rumor, publication or event.
(m) The Company has in the past conducted its affairs, and will in the
future conduct its affairs, in such a manner to ensure that the Company was not
and will not be an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, and the rules and regulations thereunder.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person (including each partner or officer thereof) who controls any
Underwriter within the meaning of Section 15 of the Securities Act from and
against any and all losses, claims, damages or liabilities, joint or several, to
which such indemnified parties or any of them may become subject under the
Securities Act, or the common law or otherwise, and the Company agrees to
reimburse each such Underwriter and controlling person for any legal or other
expenses (including, except as otherwise hereinafter provided, reasonable fees
and disbursements of counsel) incurred by the respective indemnified parties in
connection with defending against any such losses, claims, damages or
liabilities or in connection with any investigation or inquiry of, or other
proceeding which may be brought against, the respective indemnified parties, in
each case arising out of or based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(including the Prospectus as part thereof and any Rule 462(b) registration
statement) or any post-effective amendment thereto (including any Rule 462(b)
registration statement), or 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, or (ii) any untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus or the Prospectus (as
amended or as supplemented if the Company shall have filed with the Commission
any amendment thereof or supplement thereto) or the omission or alleged omission
to state therein 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, however, that (1) the indemnity agreements of the Company
contained in this paragraph (a) shall not apply to any such losses, claims,
damages, liabilities or expenses if such statement or omission was made in
reliance upon and in conformity with information furnished as herein stated or
otherwise furnished in writing to the Company by or on behalf of any Underwriter
for use in any Preliminary Prospectus or the Registration Statement or the
Prospectus or any such amendment thereof or supplement thereto and (2) the
indemnity agreement contained in this paragraph (a) with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages, liabilities or
expenses purchased the Stock which is the subject thereof (or to the benefit of
any person controlling such Underwriter) if at or prior to the written
confirmation of the sale of such Stock a copy of the Prospectus (or the
Prospectus as amended or supplemented) was not sent or delivered to such person
and the untrue statement or omission of a material fact contained in such
Preliminary Prospectus was corrected in the Prospectus (or the Prospectus as
amended or supplemented) unless the failure is the result of noncompliance by
the Company with paragraph (c) of Section 6 hereof. The indemnity agreements of
the Company contained in this paragraph(a) and the representations and
warranties of the Company contained in Section 2 hereof shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of any indemnified party and shall survive the delivery of and payment
for the Stock.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its officers who
11
signs the Registration Statement on his own behalf or pursuant to a power of
attorney, each of its directors, each other Underwriter and each person
(including each partner or officer thereof) who controls the Company or any such
other Underwriter within the meaning of Section 15 of the Securities Act, from
and against any and all losses, claims, damages or liabilities, joint or
several, to which such indemnified parties or any of them may become subject
under the Securities Act, the Exchange Act, or the common law or otherwise and
to reimburse each of them for any legal or other expenses (including, except as
otherwise hereinafter provided, reasonable fees and disbursements of counsel)
incurred by the respective indemnified parties in connection with defending
against any such losses, claims, damages or liabilities or in connection with
any investigation or inquiry of, or other proceeding which may be brought
against, the respective indemnified parties, in each case arising out of or
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (including the Prospectus as part
thereof and any Rule 462(b) registration statement) or any post-effective
amendment thereto (including any Rule 462(b) registration statement) or 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 or
(ii) any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (as amended or as supplemented if the Company shall
have filed with the Commission any amendment thereof or supplement thereto) or
the omission or alleged omission to state therein a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, if such statement or omission was made in
reliance upon and in conformity with information furnished as herein stated or
otherwise furnished in writing to the Company by or on behalf of such
indemnifying Underwriter for use in the Registration Statement or the Prospectus
or any such amendment thereof or supplement thereto. The indemnity agreement of
each Underwriter contained in this paragraph (b) shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any indemnified party and shall survive the delivery of and payment for the
Stock.
(c) Each party indemnified under the provision of paragraphs (a) and
(b) of this Section 7 agrees that, upon the service of a summons or other
initial legal process upon it in any action or suit instituted against it or
upon its receipt of written notification of the commencement of any
investigation or inquiry of, or proceeding against, it in respect of which
indemnity may be sought on account of any indemnity agreement contained in such
paragraphs, it will promptly give written notice (herein called the Notice) of
such service or notification to the party or parties from whom indemnification
may be sought hereunder. No indemnification provided for in such paragraphs
shall be available to any party who shall fail so to give the Notice if the
party to whom such Notice was not given was unaware of the action, suit,
investigation, inquiry or proceeding to which the Notice would have related and
was prejudiced by the failure to give the Notice, but the omission so to notify
such indemnifying party or parties of any such service or notification shall not
relieve such indemnifying party or parties from any liability which it or they
may have to the indemnified party for contribution or otherwise than on account
of such indemnity agreement. Any indemnifying party shall be entitled at its own
expense to participate in the defense of any action, suit or proceeding against,
or investigation or inquiry of, an indemnified party. Any indemnifying party
shall be entitled, if it so elects within a reasonable time after receipt of the
Notice by giving written notice (herein called the Notice of Defense) to the
indemnified party, to assume (alone or in conjunction with any other
indemnifying party or parties) the entire defense of such action, suit,
investigation, inquiry or proceeding, in which event such defense shall be
conducted, at the expense of the indemnifying party or parties, by counsel
chosen by such indemnifying party or parties and reasonably satisfactory to the
indemnified party or parties; provided, however, that (i) if the indemnified
party or parties reasonably determine that there may be a conflict between the
positions of the indemnifying party or parties and of the indemnified party or
parties in conducting the defense of such action, suit, investigation, inquiry
or proceeding or that there may be legal defenses available to such indemnified
party or parties different from or in addition to those available to the
indemnifying party or parties, then counsel for the indemnified party or parties
shall be entitled to conduct the defense to the extent reasonably determined by
such counsel to be necessary to protect the interests of the indemnified party
or parties and (ii) in any event, the indemnified party or parties shall be
entitled to have counsel chosen by such indemnified party or parties participate
in, but not conduct, the defense. If, within a reasonable time after receipt of
the Notice, an indemnifying party gives a Notice of Defense and the counsel
chosen by the indemnifying party or parties is reasonably satisfactory to the
indemnified party or parties, the indemnifying party or parties will not be
liable under paragraphs (a) through (c) of this Section 7 for any legal or other
expenses subsequently incurred by the indemnified party or parties in
12
connection with the defense of the action, suit, investigation, inquiry or
proceeding, except that (A) the indemnifying party or parties shall bear the
legal and other expenses incurred in connection with the conduct of the defense
as referred to in clause (i) of the proviso to the preceding sentence and (B)
the indemnifying party or parties shall bear such other expenses as it or they
have authorized to be incurred by the indemnified party or parties. If, within a
reasonable time after receipt of the Notice, no Notice of Defense has been
given, the indemnifying party or parties shall be responsible for any legal or
other expenses incurred by the indemnified party or parties in connection with
the defense of the action, suit, investigation, inquiry or proceeding.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) of this Section 7, then each 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 the losses, claims, damages or
liabilities referred to in paragraph (a) or (b) of this Section 7 (i) in such
proportion as is appropriate to reflect the relative benefits received by each
indemnifying party from the offering of the Stock 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 each indemnifying party in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, or actions in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Underwriters shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Stock received by
the Company and the total underwriting discount received by the Underwriters, as
set forth in the table on the cover page of the Prospectus, bear to the
aggregate public offering price of the Stock. Relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by each indemnifying party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission.
The parties agree that it would not be just and equitable if
contributions pursuant to this paragraph (d) were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to in the first sentence of this paragraph
(d). The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities, or actions in respect thereof, referred to in the first
sentence of this paragraph (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigation, preparing to defend or defending against any action or claim
which is the subject of this paragraph (d). Notwithstanding the provisions of
this paragraph (d), no Underwriter shall be required to contribute any amount in
excess of the underwriting discount applicable to the Stock purchased by such
Underwriter. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this paragraph (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
Each party entitled to contribution agrees that upon the service of a
summons or other initial legal process upon it in any action instituted against
it in respect of which contribution may be sought, it will promptly give written
notice of such service to the party or parties from whom contribution may be
sought, but the omission so to notify such party or parties of any such service
shall not relieve the party from whom contribution may be sought from any
obligation it may have hereunder or otherwise (except as specifically provided
in paragraph (c) of this Section 7).
(e) The Company will not, without the prior written consent of each
Underwriter, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not such Underwriter or any
person who controls such Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act is a party to such claim,
action, suit or proceeding) unless such settlement, compromise or consent
includes an unconditional release of such Underwriter and each such controlling
person from all liability arising out of such claim, action, suit or proceeding.
13
(f) In addition to its other obligations under this Section 7, the
indemnifying parties, hereby agree to reimburse on a quarterly basis any
indemnified party for all reasonable legal and other expenses incurred in
connection with investigating or defending any claim, action, investigation,
inquiry or other proceeding arising out of or based upon any statement or
omission, or any alleged statement or omission, described in paragraph (a) or
(b), as applicable, of this Section 7, notwithstanding the absence of a judicial
determination as to the propriety and enforceability of the obligations under
this Section 7(f) and the possibility that such payments might later be held to
be improper; provided, however, that (i) to the extent any such payment is
ultimately held to be improper, the persons receiving such payments shall
promptly refund them and (ii) such persons shall provide to the Company, upon
request, reasonable assurances of their ability to effect any refund, when and
if due.
8. Termination. This Agreement may be terminated by you at any time
prior to the Closing Date by giving written notice to the Company if after the
date of this Agreement trading in the Common Stock shall have been suspended, or
if there shall have occurred (i) the engagement in hostilities or an escalation
of major hostilities by the United States or the declaration of war or a
national emergency by the United States on or after the date hereof, (ii) any
outbreak of hostilities or other national or international calamity or crisis or
change in economic or political conditions if the effect of such outbreak,
calamity, crisis or change in economic or political conditions in the financial
markets of the United States would, in the Underwriters' reasonable judgment,
make the offering or delivery of the Stock impracticable, (iii) suspension of
trading in securities generally or a material adverse decline in value of
securities generally on the New York Stock Exchange, the American Stock
Exchange, the Nasdaq National Market, or limitations on prices (other than
limitations on hours or numbers of days of trading) for securities on either
such exchange or system, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of, or
commencement of any proceeding or investigation by, any court, legislative body,
agency or other governmental authority which in the Underwriters' reasonable
opinion materially and adversely affects or will materially or adversely affect
the business or operations of the Company, (3) (v) declaration of a banking
moratorium by either federal or New York State authorities or (vi) the taking of
any action by any federal, state or local government or agency in respect of its
monetary or fiscal affairs which in the Underwriters' reasonable opinion has a
material adverse effect on the securities markets in the United States. If this
Agreement shall be terminated pursuant to this Section 8, there shall be no
liability of the Company to the Underwriters and no liability of the
Underwriters to the Company; provided, however, that in the event of any such
termination the Company agrees to indemnify and hold harmless the Underwriters
from all costs or expenses incident to the performance of the obligations of the
Company under this Agreement, including all costs and expenses referred to in
paragraphs (i) and (j) of Section 6 hereof.
9. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters to purchase and pay for the Stock shall be subject to the
performance by the Company of all its obligations to be performed hereunder at
or prior to the Closing Date or any later date on which Option Stock is to be
purchased, as the case may be, and to the following further conditions:
(a) The Registration Statement shall have become effective; and no
stop order suspending the effectiveness thereof shall have been issued
and no proceedings therefor shall be pending or, to the Company's
knowledge, threatened by the Commission.
(b) The legality and sufficiency of the sale of the Stock
hereunder and the validity and form of the certificates representing
the Stock, all corporate proceedings and other legal matters incident
to the foregoing, and the form of the Registration Statement and of the
Prospectus (except as to the financial statements contained therein),
shall have been approved at or prior to the Closing Date by Cravath,
Swaine & Xxxxx,
14
counsel for the Underwriters.
(c) You shall have received (i) from X'Xxxxxxxx Graev & Karabell,
LLP, counsel for the Company, addressed to the Underwriters and dated
the Closing Date, covering the matters set forth in Annex A hereto;
(ii) from Proskauer Rose & Xxxxx Xxxxxxxxxx, special health care
counsel for the Company, addressed to the Underwriters and dated the
Closing Date, covering the matters set forth in Annex B hereto; and
(iii) if Option Stock is purchased at any date after the Closing Date,
additional opinions from each such counsel, addressed to the
Underwriters and dated such later date, confirming that the statements
expressed as of the Closing Date in such opinions remain valid as of
such later date.
(d) You shall be satisfied that (i) as of the Effective Date, the
statements made in the Registration Statement and the Prospectus were
true and correct and neither the Registration Statement nor the
Prospectus omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein,
respectively, not misleading, (ii) since the Effective Date, no event
has occurred which should have been set forth in a supplement or
amendment to the Prospectus which has not been set forth in such a
supplement or amendment, (iii) since the respective dates as of which
information is given in the Registration Statement in the form in which
it originally became effective and the Prospectus contained therein,
there has not been any material adverse change or any development
involving a prospective material adverse change in or affecting the
business, properties, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, and,
since such dates, except in the ordinary course of business, neither
the Company nor any of its subsidiaries has entered into any material
transaction not referred to in the Registration Statement in the form
in which it originally became effective and the Prospectus contained
therein, (iv) neither the Company nor any of its subsidiaries has any
material contingent obligations which are not disclosed in the
Registration Statement and the Prospectus, (v) there are not any
pending or known threatened legal proceedings to which the Company or
any of its subsidiaries is a party or of which property of the Company
or any of its subsidiaries is the subject which are material and which
are not disclosed in the Registration Statement and the Prospectus,
(vi) there are not any franchises, contracts, leases or other documents
which are required to be filed as exhibits to the Registration
Statement which have not been filed as required, and (vii) the
representations and warranties of the Company herein are true and
correct in all material respects as of the Closing Date or any later
date on which Option Stock is to be purchased, as the case may be.
(e) You shall have received on the Closing Date and on any later
date on which Option Stock is purchased a certificate, dated the
Closing Date or such later date, as the case may be, and signed by the
President and the Chief Financial Officer of the Company, stating that
the respective signers of said certificate have carefully examined the
Registration Statement in the form in which it originally became
effective and the Prospectus contained therein and any supplements or
amendments thereto, and that the statements included in clauses (i)
through (vii) of paragraph (d) of this Section 9 are true and correct.
(f) You shall have received from Ernst & Young LLC, a letter or
letters, addressed to the Underwriters and dated the Closing Date and
any later date on which Option Stock is purchased, confirming that they
are independent public accountants with respect to the Company within
the meaning of the Securities Act and the applicable published rules
and regulations thereunder and based upon the procedures described in
their letter delivered to you concurrently with the execution of this
Agreement (herein called the Original Letter), but carried out to a
date not more than five (5) business days prior to the Closing Date or
such later date on which Option Stock is purchased (i) confirming, to
the extent true, that the statements and conclusions set forth in the
Original Letter are accurate as of the Closing Date or such later date,
as the case may be, and (ii) setting forth any revisions and additions
to the statements and conclusions set forth in the Original Letter
15
which are necessary to reflect any changes in the facts described in
the Original Letter since the date of the Original Letter or to reflect
the availability of more recent financial statements, data or
information. The letters shall not disclose any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company or any of its subsidiaries which,
in your sole judgment, makes it impractical or inadvisable to proceed
with the public offering of the Stock or the purchase
of the Option Stock as contemplated by the Prospectus.
(g) You shall have been furnished evidence in usual written or
telegraphic form from the appropriate authorities of the several
jurisdictions, or other evidence satisfactory to you, of the
qualification referred to in paragraph (f) of Section 6 hereof.
(h) Prior to the Closing Date, the Stock to be issued and sold by
the Company shall have been duly authorized and approved for quotation
on the Nasdaq National Market.
(i) On or prior to the Closing Date, you shall have received from
all directors, officers, and beneficial holders of more than 5% of the
outstanding Common Stock stockholders agreements, in form reasonably
satisfactory to Xxxxxxxxx & Xxxxx LLC, stating that without the prior
written consent of Xxxxxxxxx & Xxxxx LLC on behalf of the Underwriters,
such person or entity will not, for a period of 180 days following the
commencement of the public offering of the Stock by the Underwriters,
directly or indirectly, (i), sell, offer, contract to sell, grant any
option to purchase, or otherwise transfer or dispose of, any shares of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, otherwise than as a bona fide gift or
gifts, provided that the donee or donees thereof agree in writing to be
bound by this restriction.
(j) On or prior to the Closing Date, you share have received from
the Company a certificate substantially in the form attached hereto as
Exhibit A certifying as to the Company's compliance and continued
compliance with certain health care laws and regulations.
All the agreements, opinions, certificates and letters mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if Cravath, Swaine & Xxxxx, counsel for the Underwriters,
shall be satisfied that they comply in form and scope.
In case any of the conditions specified in this Section 9 shall not be
fulfilled, this Agreement may be terminated by you by giving notice to the
Company. Any such termination shall be without liability of the Company to the
Underwriters and without liability of the Underwriters to the Company; provided,
however, that (i) in the event of such termination, the Company agrees to
indemnify and hold harmless the Underwriters from all costs or expenses incident
to the performance of the obligations of the Company under this Agreement,
including all costs and expenses referred to in paragraphs (i) and (j) of
Section 6 hereof, and (ii) if this Agreement is terminated by you because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein, to fulfill any of the conditions herein, or to comply with any
provision hereof other than by reason of a default by any of the Underwriters,
the Company will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the transactions
contemplated hereby.
10. Conditions of the Obligation of the Company. The obligation of the
Company to deliver the Stock shall be subject to the conditions that (a) the
Registration Statement shall have become effective and (b) no stop order
suspending the effectiveness thereof shall be in effect and no proceedings
therefor shall be pending or threatened by the Commission.
In case either of the conditions specified in this Section 10 shall not
be fulfilled, this Agreement may be terminated by the Company by giving notice
to you. Any such termination shall be without liability of the Company
16
to the Underwriters and without liability of the Underwriters to the Company;
provided, however, that in the event of any such termination the Company agrees
to indemnify and hold harmless the Underwriters from all costs or expenses
incident to the performance of the obligations of the Company under this
Agreement, including all costs and expenses referred to in paragraphs (i) and
(j) of Section 6 hereof.
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of the Company and the several Underwriters and, with
respect to the provisions of Section 7 hereof, the several parties (in addition
to the Company and the several Underwriters) indemnified under the provisions of
said Section 7, and their respective personal representatives, successors and
assigns. Nothing in this Agreement is intended or shall be construed to give to
any other person, firm or corporation any legal or equitable remedy or claim
under or in respect of this Agreement or any provision herein contained. The
term "successors and assigns" as herein used shall not include any purchaser, as
such purchaser, of any of the Stock from any of the several Underwriters.
12. Notices. Except as otherwise provided herein, all communications
hereunder shall be in writing or by Telegraph and, if to the Underwriters, shall
be mailed, telegraphed or delivered to Xxxxxxxxx & Xxxxx LLC, 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000; and if to the Company, shall be mailed,
telegraphed or delivered to it at its office 0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx
0000, Xxxx Xxxxx, Xxxxxxx 00000, Attention: President. All notices given by
telegraph shall be promptly confirmed by letter.
13. Miscellaneous. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Company or their respective directors or officers, and (c) delivery and
payment for the Stock under this Agreement; provided, however, that if this
Agreement is terminated prior to the Closing Date, the provisions of paragraph
(k) of Section 6 hereof shall be of no further force or effect.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
17
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please sign and return to the Company the enclosed duplicates of this
letter, whereupon this letter will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
BMJ MEDICAL MANAGEMENT, INC.
By __________________________
[Name]
[Title]
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
XXXXXXXXX & XXXXX LLC
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXX XXXXX XXXXXX & COMPANY, LLC
By Xxxxxxxxx & Xxxxx LLC
By __________________________
Managing Director
Acting on behalf of the several Underwriters,
including themselves, named in Schedule I hereto.
18
SCHEDULE I
UNDERWRITERS
Underwriters Number of
------------ Shares to be
Purchased
---------
Xxxxxxxxx & Xxxxx LLC....................................
Xxxxxxx Xxxxx & Associates Inc...........................
Xxxxx Xxxxx Xxxxxx & Company, LLC........................
-----------
Total........................................... 4,000,000
===========
19
ANNEX A
Matters to be Covered in the Opinion of X'Xxxxxxxx, Graev & Karabell, LLP
Counsel for the Company
1. The Company (i) is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware, (ii) is qualified
to do business in the States of Florida, California, Texas and Pennsylvania and
(iii) has the corporate power and authority to own or lease its properties and
to conduct its business as described in the prospectus.
2. Each of the subsidiaries listed on Annex I hereto is (i) a
corporation validly existing and in good standing under the laws of the state
of its jurisdiction and (ii) is qualified to do business in the states set forth
on Annex I.
3. The Registration Statement has been declared effective under the
Securities Act and no stop order suspending the effectiveness of the
Registration Statement has been issued, and to our actual knowledge, no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
4. To our actual knowledge, there are no contracts or other documents
of a character required to be filed as exhibits to the Registration Statement or
required to be described in the Registration Statement or the Prospectus which
are not also filed or described.
5. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
6. Based solely on our review of the Restated Certificate, the
corporate minute books and the stock transfer books of the Company, the capital
stock of the Company (immediately prior to the transactions contemplated by the
Underwriting Agreement) consisted of (i) shares of Common Stock, of which shares
were issued and outstanding; and (ii) shares of Preferred Stock, of which shares
were issued and outstanding; all of such outstanding shares of capital stock
have been duly and validly issued and are fully paid and non-assessable.
7. The Shares have been duly authorized, and when delivered to and paid
for by the Underwriters in accordance with the terms of the Underwriting
Agreement, will be validly issued, fully paid and nonassessable and the issuance
of the Shares is not subject to any preemptive or, to our actual knowledge,
similar rights.
8. To our actual knowledge, all registration rights attached to any of
the Company's shares are inapplicable to, or have been duly waived with respect
to, the offering contemplated by the Prospectus.
9. The issue and sale of the Shares and the performance by the Company
of its obligations under the Underwriting Agreement will not to our actual
knowledge (A) result in a breach or violation of any of the terms or provisions
of any agreement or instrument filed as an exhibit to the Registration Statement
or (B) result in any violation of the Restated Certificate or by the by-laws of
the Company or the provisions of the General Corporation Law of the State of
Delaware or any applicable New York or Federal court or governmental agency or
body having jurisdiction over the Company or any of its properties (except that
we render no opinion herein with respect to the compliance of the
indemnification or contribution provisions of the Underwriting Agreement with
the Federal securities laws).
10. No consent, approval, authorization order, of any New York or
Federal court or governmental agency or body is required for the sale and
issuance of the Shares or the performance by the Company of its obligations
under the Underwriting Agreement except such consents, approvals and
authorizations, as have been obtained under the Securities Act and such as may
be required under state securities or Blue Sky laws or under the rules of
20
the National Association of Securities Dealers, Inc. in connection with the
purchase and distribution of the Shares by the Underwriters.
11. To our actual knowledge, except as set forth in the Prospectus,
there are no legal or governmental proceedings pending or threatened to which
the Company is a party or to which any property of the Company is subject which
are required to be described in the Registration Statement and are not so
described.
12. The statements in the Prospectus under the caption "Management
Stock Option Plan," insofar as such statements constitute a summary of documents
referred to therein or matters of law, are accurate summaries and fairly and
correctly present, in all material respects, the information called for with
respect to such documents and matters.
13. The Registration Statement and the Prospectus (except for (A) the
financial statements, notes thereto and other financial information and
schedules included therein or omitted therefrom as to which we have not been
requested to express any opinion and (B) the matters described under the
captions "Risk-Factors-Government Regulation." "Business-Federal Law,"
"Business-State Law" and Business-Federal and State Initiatives" in the
Prospectus as to which we express no opinion and as to which you are receiving a
separate opinion dated the date hereof from Proskauer Rose LLP (the "Proskauer
Opinion")) appear on their face to have been appropriately responsive in all
material respects to the requirements of the Securities Act and the rules and
regulations promulgated thereunder.
14. The Shares to be issued and sold to the Underwriters in accordance
with the terms of the Underwriting Agreement have been approved for quotation on
the Nasdaq National Market subject to official notice of issuance.
Counsel rendering the foregoing opinion may rely as to questions of
law not involving the laws of the United States or of the State of Delaware,
upon opinions of local counsel satisfactory in form and scope to counsel for
the Underwriters. Copies of any opinions so relied upon shall be delivered to
the Representatives and to counsel for the Underwriters and the foregoing
opinion shall also state that counsel knows of no reason the Underwriters
are not entitled to rely upon the opinions of such local counsel.
21
ANNEX B
Matters to be Covered in the Opinion of Proskauer Xxxx Xxxxx & Xxxxxxxxxx
Special Health Care Counsel for the Company
10. We have acted as special health care regulatory counsel to BMJ Medical
Management, Inc., a Delaware corporation (the "Company"), in connection
with the issuance and sale by the Company of an aggregate of 4,000,000
shares of the Company's Common Stock, par value $.001 per share (the
"Shares"), including 600,000 Shares purchased pursuant to the
exercise of the over-allotment option set forth in Section 3 of the
Underwriting Agreement, dated [ ], 1998, among the Company,
Xxxxxxxxx & Xxxxx LLC, Xxxxxxx Xxxxx & Associates, Inc., and Xxxxx
Xxxxx Xxxxxx & Company, LLC (the "Underwriting Agreement"), by the
Underwriters named in Schedule 1 of the Underwriting Agreement. This
opinion is being delivered to you pursuant to Section 9(c)(ii) of the
Underwriting Agreement. Capitalized terms used but not defined herein
shall have the meanings ascribed thereto in the Underwriting Agreement.
Our opinion expressed below is limited to the law of the Commonwealth
of Pennsylvania, the States of California and Florida and the Federal
Law of the United States, and we do not express any opinion herein
concerning any other law.
Based upon our review of what we believe to be the relevant provisions
of federal and state statutes and regulations and, in the case of
Florida, the recent draft final order of the State of Florida Board of
Medicine (the "Draft Order"), in our opinion, the descriptions of those
provisions under the captions "Risk Factors--Government Regulation,"
"Business--Federal Law," "Business--State Law," and "Business--Federal
and State Initiatives" in the Prospectus, although not intended to be
complete summaries of such statutes or regulations or the Draft Order,
comply as to form in all material respects, with the requirements of
Form S-1 and Regulation C.
This opinion is given to you solely for your benefit and the benefit of
the Underwriters represented by you in connection with the issuance of
the Prospectus. This opinion may not be relied upon by you or such
Underwriters for any other purpose or furnished to, quoted or relied
upon by any other person, firm or corporation for any purpose without
our express written consent.:
22
200 We have served only as special health care regulatory counsel to BMJ
Medical Management, Inc., a Delaware corporation (the "Company"), and
have advised the Company in that capacity in regard to health care
regulatory requirements related to certain of its transactions in
connection with the issuance and sale by the Company of an aggregate of
4,000,000 shares of the Company's Common Stock, par value $.001 per
share (the "Shares"), including 600,000 Shares purchased, pursuant to
the exercise of the over-allotment option set forth in Section 3 of the
Underwriting Agreement, dated [ ], 1998 among the Company,
Xxxxxxxxx & Xxxxx, LLC, Xxxxxxx Xxxxx & Associates, Inc., and Xxxxx
Xxxxx Xxxxxx & Company, LLC (the "Underwriting Agreement"), by the
Underwriters named in Schedule 1 of the Underwriting Agreement. This
opinion is being delivered to you pursuant to Section 9(c)(ii) of the
Underwriting Agreement. Capitalized terms used but not defined herein
shall have the meanings ascribed thereto in the Underwriting Agreement.
In our capacity as special health care regulatory counsel, we
participated in conferences with certain officers of the Company
concerning the preparation of those portions of the Registration
Statement and the Prospectus referred to in the next paragraph.
Although we have not independently verified the accuracy or
completeness of the statements contained in the Registration Statement
or the Prospectus, and in view of the limitations inherent in our
limited engagement we cannot and do not assume responsibility or pass
on the accuracy of such statements except to the extent set forth in
our opinion letter to you dated [ ], 1998, no facts have
come to our attention that lead us to believe that the statements set
forth in the Registration Statement under the captions "Risk Factors--
Government Regulation," "Business--Federal Law," "Business--State
Law," and "Business--Federal and State Initiatives," at the time the
Registration Statement was declared effective, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Prospectus, with
respect to the above-specified text captions, at the time the
Registration Statement was declared effective, or on the date hereof,
contained or contains any untrue statement of a material fact or
omitted or omits to state any fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
23
ANNEX C
Form of Company Certificate on Health Care Law Compliance
1. To the best knowledge of the Company, the Company is in
compliance with the federal and state laws regulating group
practices, the corporate practice of medicine, fee splitting
and kick backs (the "Health Care Laws");
2. The Company will use its best efforts to continue to comply
with the Health Care Laws and any similar laws that may come
into effect from time to time;
3. The Company, within a reasonable time from the date hereof,
will develop and implement a corporate compliance program,
which will be structured in light of the United States
Sentencing Commission's Federal Sentencing Guidelines Manual
and which will include policies substantially similar to the
listed policies attached hereto as Exhibit A.
BMJ Medical Management, Inc.
-------------------------------
Name:
Title:
24
Exhibit A
PART 1: General Policies
Introduction (Corporate Compliance Policy Statement)
Code of Conduct
Acknowledgment and Disclosure Regarding the Corporate
Compliance Program and the Code of Conduct
Duties of Compliance Officers
Employee Training Policies and Procedures
Reporting of Potential Issues or Areas of Noncompliance
Federal and State Government Agency Audits, Interviews and
Searches
Records Management Policy
Drug Free Workplace Policy
Confidentiality Policy
Procurement Integrity Policy
Health Care Human Resources Policy
PART II. Specific Health Care Policies
Billing Policies
Billing and Reimbursement Policies and Procedures
Patient Co-insurance and Deductibles Policies and Procedures
Documentation and Preparation of CMNs, Written
Confirmation of Verbal Orders and Other Issues Related to
Physician Ordering Practices
Corporate Policy on Relationships with Billing Agents
Medicare reassignment and Waiver of
Liability Policies and Procedures
Corporate Policy on Billing for Dual Eligible Patients
Financial Relationships
Policy on Joint Ventures
Policy on Relationships with Vendors
Policy on Contractual and Other Financial Relationships/
Arrangements with Physicians, Other Health Care Providers
and Other Sources of patient Referrals
Corporate Policy on Participation in Managed Care Networks
Marketing Policies
Policy on Direct-to-Consumer Promotional Activities
Policy on Marketing Activities with Sources of patient
Referrals
Policy on Charitable Contributions and Grants
Policy on Compassionate Care
Operational Policies
25
Hazardous and Medical Waste Disposal Policy
