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EXHIBIT 1.1
VISION TWENTY-ONE, INC.
2,800,000 Shares(1)
Common Stock
UNDERWRITING AGREEMENT
, 1997
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PRUDENTIAL SECURITIES INCORPORATED
WHEAT, FIRST SECURITIES, INC.
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Vision Twenty-One, Inc., a Florida corporation (the "Company") hereby
confirms its agreement with the several underwriters named in Schedule 1 hereto
(the "Underwriters"), for whom you have been duly authorized to act as
representatives (in such capacities, the "Representatives"), as set forth below.
If you are the only Underwriters, all references herein to the Representatives
shall be deemed to be to the Underwriters.
1. Securities. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the several Underwriters an
aggregate of 2,800,000 shares (the "Firm Securities") of the Company's Common
Stock, par value $0.001 per share ("Common Stock"). The Company also proposes to
sell to the several Underwriters not more than 420,000 additional shares of
Common Stock if requested by the Underwriters as provided in Section 3 of this
Agreement. Any and all shares of Common Stock to be purchased by the
Underwriters pursuant to such option are
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(1) Plus an option to purchase from the Company up to 420,000 additional
shares to cover over-allotments.
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referred to herein as the "Option Securities," and the Firm Securities and any
Option Securities are collectively referred to herein as the "Securities."
2. Representations and Warranties of the Company.
(a) The Company represents and warrants to, and agrees
with, each of the several Underwriters that:
(i) A registration statement on Form S-1 (File No.
333-_______) with respect to the Securities, including a prospectus
subject to completion, has been filed by the Company with the
Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (the "Act"), and one or more amendments to such
registration statement may have been so filed. After the execution of
this Agreement, the Company will file with the Commission either (A) if
such registration statement, as it may have been amended, has been
declared by the Commission to be effective under the Act, either (1) if
the Company relies on Rule 434 under the Act, a Term Sheet (as
hereinafter defined) relating to the Securities, that shall identify
the Preliminary Prospectus (as hereinafter defined) that it supplements
containing such information as is required or permitted by Rules 434,
430A and 424(b) under the Act or (2) if the Company does not rely on
Rule 434 under the Act, a prospectus in the form most recently included
in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement), with
such changes or insertions as are required by Rule 430A under the Act
or permitted by Rule 424(b) under the Act, and in the case of either
clause (A)(1) or (A)(2) of this sentence as have been provided to and
approved by the Representatives prior to the execution of this
Agreement, or (B) if such registration statement, as it may have been
amended, has not been declared by the Commission to be effective under
the Act, an amendment to such registration statement, including a form
of prospectus, a copy of which amendment has been furnished to and
approved by the Representatives prior to the execution of this
Agreement. The Company may also file a related registration statement
with the Commission pursuant to Rule 462(b) under the Act for the
purpose of registering certain additional Securities, which
registration shall be effective upon filing with the Commission. As
used in this Agreement, the term "Original Registration Statement"
means the registration statement initially filed relating to the
Securities, as amended at the time when it was or is declared
effective, including (A) all financial schedules and exhibits thereto
and (B) any information omitted therefrom pursuant to Rule 430A under
the Act and included in the Prospectus (as hereinafter defined); the
term "Rule 462(b) Registration Statement" means any registration
statement filed with the Commission pursuant to Rule 462(b) (including
the Registration Statement and any Preliminary Prospectus or Prospectus
incorporated therein at the time such Registration Statement becomes
effective); the term "Registration Statement" includes both the
Original Registration Statement and any Rule 462(b) Registration
Statement; the term "Preliminary Prospectus" means each prospectus
subject to completion filed with the Registration Statement or any
amendment thereto (including the prospectus subject to completion, if
any,
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included in the Registration Statement or any amendment thereto at the
time it was or is declared effective); the term "Prospectus" means:
(A) if the Company relies on Rule 434 under the
Act, the Term Sheet relating to the Securities that is first
filed pursuant to Rule 424(b)(7) under the Act, together with
the Preliminary Prospectus identified therein that such Term
Sheet supplements;
(B) if the Company does not rely on Rule 434
under the Act, the prospectus first filed with the Commission
pursuant to Rule 424(b) under the Act; or
(C) if the Company does not rely on Rule 434
under the Act and if no prospectus is required to be filed
pursuant to Rule 424(b) under the Act, the prospectus included
in the Registration Statement.
The term "Term Sheet" means any abbreviated Term Sheet that satisfies
the requirements of Rule 434 under the Act. Any reference in this
Agreement to the "date" of a Prospectus that includes a Term Sheet
shall mean the date of such Term Sheet.
(ii) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. When any Preliminary
Prospectus was filed with the Commission it (A) contained all
statements required to be stated therein in accordance with, and
complied in all material respects with the requirements of, the Act and
the rules and regulations of the Commission thereunder, and (B) did not
include 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.
When the Registration Statement or any amendment thereto was or is
declared effective, it (A) contained or will contain all statements
required to be stated therein in accordance with, and complied or will
comply in all material respects with the requirements of, the Act and
the rules and regulations of the Commission thereunder and (B) did not
or will not include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not
misleading. When the Prospectus or any Term Sheet that is a part
thereof or any amendment or supplement to the Prospectus is filed with
the Commission pursuant to Rule 424(b) (or, if the Prospectus or part
thereof or such amendment or supplement is not required to be so filed,
when the Registration Statement or the amendment thereto containing
such amendment or supplement to the Prospectus was or is declared
effective) and on the Firm Closing Date and any Option Closing Date
(both as hereinafter defined), the Prospectus, as amended or
supplemented at any such time, (A) contained or will contain all
statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements
of, the Act and the rules and regulations of the Commission thereunder
and (B) did not or will not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
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statements therein, in the light of the circumstances under which they
were made, not misleading. The foregoing provisions of this paragraph
(ii) do not apply to statements or omissions made in any Preliminary
Prospectus, the Registration Statement or any amendment thereto or the
Prospectus or any amendment or supplement thereto in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein.
(iii) If the Company has elected to rely on Rule 462(b) and
the Rule 462(b) Registration Statement has not been declared effective
(i) the Company has filed a Rule 462(b) Registration Statement in
compliance with and that is effective upon filing pursuant to Rule
462(b) and has received confirmation of its receipt and (ii) the
Company has given irrevocable instructions for transmission of the
applicable filing fee in connection with the filing of the Rule 462(b)
Registration Statement, in compliance with Rule 111 promulgated under
the Act or the Commission has received payment of such filing fee.
(iv) The Company, each of its subsidiaries, including
Block Vision (as defined in the Registration Statement), (collectively,
"Subsidiaries") and, to the Company's knowledge, each of the eye care
entities with which the Company has a management agreement
(collectively, the "Eye Care Entities") have been duly organized and
are validly existing as corporations in good standing under the laws of
their respective jurisdictions of incorporation and are duly qualified
to transact business as foreign corporations and are in good standing
under the laws of all other jurisdictions where the ownership or
leasing of their respective properties or the conduct of their
respective businesses requires such qualification, except where the
failure to be so qualified does not amount to a material liability or
disability to the Company.
(v) The Company, each of its Subsidiaries and, to the
Company's knowledge, each Eye Care Entity have full power (corporate
and other) to own or lease their respective properties and conduct
their respective businesses to the extent described in the Registration
Statement and the Prospectus or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus; and the Company has full power
(corporate and other) to enter into this Agreement and to carry out all
the terms and provisions hereof to be carried out by it.
(vi) The issued shares of capital stock of each of the
Company's Subsidiaries have been duly authorized and validly issued,
are fully paid and nonassessable and are owned beneficially by the
Company free and clear of any security interests, liens, encumbrances,
equities or claims.
(vii) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus. All of the
issued shares of capital stock of the Company have been duly authorized
and validly issued and are fully paid and nonassessable. The Company's
Firm Securities and Option Securities have been duly authorized and at
the Firm Closing Date or
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the Option Closing Date, as the case may be, after payment therefor in
accordance herewith, will be validly issued, fully paid and
nonassessable. No holders of outstanding shares of capital stock of the
Company are entitled as such to any preemptive or other rights to
subscribe for any of the Securities, and no holder of securities of the
Company has any right which has not been fully exercised or waived to
require the Company to register the offer or sale of any securities
owned by such holder under the Act in the public offering contemplated
by this Agreement.
(viii) The capital stock of the Company conforms in all
material respects to the description thereof contained in the
Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus.
(ix) The financial statements and schedules of the Company
and its Subsidiaries included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present, on the basis stated therein,
the financial position of the Company and its Subsidiaries and the
results of operations and cash flows as of the respective dates and for
the respective periods therein specified. Such financial statements and
schedules have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved (except as otherwise noted therein). The unaudited pro forma
financial data presented in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and the summaries of those unaudited pro forma
financial statements contained in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) together
with the related notes thereto, included in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) include all adjustments necessary to
present fairly the pro forma financial information at the dates and for
the periods indicated, and all assumptions used in preparing such pro
forma financial data are reasonable. The selected financial data set
forth under the caption "Selected Financial Data" in the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) fairly present, on the basis stated in the Prospectus (or
such Preliminary Prospectus), the information included therein.
(x) Ernst & Young, LLP who has audited certain financial
statements of the Company and delivered their report with respect to
the Company's audited financial statements and schedules included in
the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and Price
Waterhouse LLP who has audited certain financial statements and of
Block Vision and delivered their report with respect to Block Vision's
audited financial statements and schedules included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), are, to the
knowledge of the Company, independent public accountants as required by
the Act and the applicable rules and regulations thereunder.
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(xi) The execution and delivery of this Agreement have
been duly authorized by the Company, and this Agreement has been duly
executed and delivered by the Company and is the valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms.
(xii) No legal or governmental proceedings are pending to
which the Company, any of its Subsidiaries or, to the Company's
knowledge, any of the Eye Care Entities is a party or to which the
property of the Company, any of its Subsidiaries or, to the Company's
knowledge, any of the Eye Care Entities is subject that are required to
be described in the Registration Statement or the Prospectus and are
not described therein (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) and, to the knowledge of the
Company, no such proceedings have been threatened against the Company,
any of its Subsidiaries or, to the Company's knowledge, any of the Eye
Care Entities or with respect to any of their respective properties; no
contract or other document is required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit
to the Registration Statement that is not described therein (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
or filed as required; after due inquiry, management of the Company does
not know of any legal or governmental proceedings pending against any
optometrist or ophthalmologist practicing in any Eye Care Entity (an
"Affiliated Provider"), which could reasonably be expected to result in
a material adverse change in the condition (financial or otherwise),
business prospects, net worth or results of operations of the Company.
(xiii) The issuance, offering and sale of the Securities to
the Underwriters by the Company pursuant to this Agreement, the
compliance by the Company with the other provisions of this Agreement
and the consummation of the other transactions herein contemplated do
not (A) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as
have been obtained, such as may be required under state securities or
blue sky laws and, if the registration statement filed with respect to
the Securities (as amended) is not effective under the Act as of the
time of the execution hereof, such as may be required (and shall be
obtained as provided in this Agreement) under the Act, or (B) conflict
with or result in a breach or violation of any material terms and
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, lease or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries or any of its properties are bound, or the
charter documents or bylaws of the Company, or any statute or any
judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator applicable to the Company or
any of its Subsidiaries.
(xiv) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus), (A) neither the Company, its Subsidiaries nor, to the
Company's knowledge, any of the Eye Care Entities has sustained any
material loss or
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interference with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental
proceeding and there has not been any material adverse change, or, to
the knowledge of the Company, any development involving a prospective
material adverse change, in the condition (financial or otherwise),
management, business prospects, net worth, or results of operations of
the Company or any of its Subsidiaries; (B) neither the Company nor its
Subsidiaries has incurred any material liability or obligation, direct
or contingent, nor entered into any material transaction not in the
ordinary course of business; (C) the Company has not purchased any of
its outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock; and (D)
there has not been any material change in the capital stock, short-term
debt or long-term debt of the Company, except in each case as described
in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(xv) The Company has not, directly or indirectly, (A)
taken any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities or (B) since
the filing of the Registration Statement (I) sold, bid for, purchased,
or paid anyone any compensation for soliciting purchases of, the
Securities or (II) paid or agreed to pay to any person any compensation
for soliciting another to purchase any other securities of the Company.
(xvi) The Company and each of its Subsidiaries have good
and marketable title to all tangible personal property owned by each of
them, in each case free and clear of any security interests, liens,
encumbrances, equities, claims and other defects, except which do not
materially and adversely affect the value of such property and do not
interfere with the use made or proposed to be made of such property by
the Company or any of its Subsidiaries, and any real property and
buildings held under lease by the Company and each of its Subsidiaries
are held under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the use made
or proposed to be made of such property and buildings by the Company or
any of its Subsidiaries, in each case except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(xvii) No labor dispute with the employees of the Company,
or any of its Subsidiaries or, to the Company's knowledge, any Eye Care
Entity exists or is threatened or imminent that could result in a
material adverse change in the condition (financial or otherwise),
business prospects, net worth or results of operations of the Company
or any of its Subsidiaries, except as described in or contemplated by
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus).
(xviii) The Company, each of its Subsidiaries and, to the
Company's knowledge, the Eye Care Entities own or possess, or can
acquire on reasonable terms, all material patents,
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patent applications, trademarks, service marks, trade names, licenses,
copyrights and proprietary or other confidential information currently
employed by them in connection with their respective businesses, and
neither the Company, any of its Subsidiaries nor, to the Company's
knowledge, any Eye Care Entity has received any notice of, or has any
reasonable belief that its use constitutes, a material infringement of
or conflict with asserted rights of any third party with respect to any
of the foregoing which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a material
adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company or any of
its Subsidiaries, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(xix) The Company, each of its Subsidiaries and, to the
Company's knowledge, each Eye Care Entity is insured by insurers of
recognized financial responsibility against such losses and risks and
in such amounts as are ordinary and customary in the business in which
it is engaged; neither the Company, any of its Subsidiaries nor, to the
Company's knowledge, any Eye Care Entity has been refused any insurance
coverage sought or applied for; and neither the Company, any of its
Subsidiaries nor, to the Company's knowledge, any Eye Care Entity has
any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not materially and adversely affect
the condition (financial or otherwise), business prospects, net worth,
or results of operations of the Company, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(xx) The Company and each of its Subsidiaries, and, to the
Company's knowledge, the Affiliated Providers and the Eye Care Entities
possess all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities
necessary to conduct their respective businesses, and neither the
Company, any of it Subsidiaries nor, to the Company's knowledge, any
Eye Care Entity has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a material
adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company or any of
its Subsidiaries, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(xxi) The Company and each of its Subsidiaries will conduct
their operations in a manner that will not subject it to registration
as an investment company under the Investment Company Act of 1940, as
amended, and this transaction will not cause the Company or any of its
Subsidiaries to become an investment company subject to registration
under such Act.
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(xxii) The Company and each of its Subsidiaries 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
on the Company or any of its Subsidiaries) 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 described in or
contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(xxiii) Neither the Company, any of its Subsidiaries nor, to
the Company's knowledge, any of the Eye Care Entities is in violation
of any federal or state law or regulation relating to (i) the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants or to the storage, handling or transportation of hazardous
or toxic material ("Environmental Laws") or (ii) occupational safety
and health and the Company, each of its Subsidiaries and, to the
Company's knowledge, the Eye Care Entities have received all permits,
licenses or other approvals required of them under applicable federal
and state occupational safety and health and Environmental Laws and
regulations to conduct their respective businesses, and the Company,
each of its Subsidiaries and, to the Company's knowledge, each Eye Care
Entity is in compliance with all terms and conditions of any such
permit, license or approval, except any such violation of law or
regulation, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals which would not, singly or in the
aggregate, result in a material adverse change in the condition
(financial or otherwise), business prospects, net worth or results of
operations of the Company, any of its Subsidiaries or, to the Company's
knowledge, any of the Eye Care Entities, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus). Neither the
Company, any of its Subsidiaries nor, to the Company's knowledge, any
of the Eye Care Entities have any pending or threatened Environmental
Law or occupational safety and health claims against it nor are there
circumstances with respect to any property or operations of the
Company, any of its Subsidiaries or, to the Company's knowledge, any of
the Eye Care Entities that could reasonably be anticipated to form the
basis of an Environmental Law or occupational safety and health claim
against the Company, any of its Subsidiaries or any Eye Care Entity
which, singly or in the aggregate, result in a material adverse change
in the condition (financial or otherwise), business prospects, net
worth or results of operations of the Company, any of its Subsidiaries
or any of the Eye Care Entities, except as described in or contemplated
by the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus).
(xxiv) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company, in the course of
which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or
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approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review,
the Company has reasonably concluded that such associated costs and
liabilities would not, singly or in the aggregate, have a material
adverse effect on the Company.
(xxv) Each certificate signed by any officer of the Company
and delivered to the Representatives or counsel for the Underwriters
pursuant to this Agreement shall be deemed to be a representation and
warranty by the Company to each Underwriter as to the matters covered
thereby.
(xxvi) Neither the Company nor any of its Subsidiaries owns
any shares of stock or any other equity securities of any corporation
or have any equity interest in any firm, partnership, association or
other entity, except as described in or contemplated by the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(xxvii) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with management's general or
specific authorizations; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(C) access to assets is permitted only in accordance with management's
general or specific authorization; and (D) the recorded accountability
for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(xxviii) No default exists on the part of the Company, any of
its Subsidiaries or, to the Company's knowledge, any Eye Care Entity,
and no event has occurred which, with notice or lapse of time or both,
would constitute a default on the part of the Company, any of its
Subsidiaries or, to the Company's knowledge, any Eye Care Entity in the
due performance and observance of any material term, covenant or
condition of any indenture, mortgage, deed of trust, lease, services
and support agreement or other agreement or instrument to which the
Company, any of its Subsidiaries or any Eye Care Entity is a party or
by which the Company, any of its Subsidiaries or any Eye Care Entity or
any of their respective properties are bound or may be affected in any
material adverse respect with regard to the property, business or
operations of the Company or any of its Subsidiaries.
(xxix) Subject to the qualifications relating to the
uncertainty of the interpretation of governmental regulations relating
to the corporate practice of optometry and ophthalmology described in
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), the Company, each of its Subsidiaries
and, to the Company's knowledge, each Eye Care Entity and their
respective operations comply in all material respects with all
applicable laws and regulations, including, without limitation, those
relating to the practice of eye care (including the management or
operation of eye care centers), the splitting of professional fees with
optometrists and ophthalmologists, the ownership or
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control of the assets of an eye care practice, the employment of
optometrists and ophthalmologists or other personnel, the content of
advertising, the making of payments in consideration for referrals of
patients, limitations on tasks that may be delegated by an Affiliated
Provider to other staff members, the business of insurance and
reimbursement by governmental agencies. The Company has not been made
aware of, or been put on notice that, any Affiliated Provider, since
the date of his affiliation with the Company, is not practicing in
material compliance with all such laws and regulations.
(xxx) Except for the sale of 2,100,000 shares of Common
Stock in connection with the Company's initial public offering on
August 18, 1997, all offers and sales of the Company's capital stock
prior to the date hereof, including without limitation all offers and
sales in connection with the 1996 Acquisitions, the 1997 Acquisitions
and the Block Acquisition (as defined in the Registration Statement),
were at all relevant times exempt from the registration requirements of
the Act and were the subject of an available exemption from the
registration requirements of all applicable state securities or blue
sky laws.
(xxxi) Each of the agreements providing for a transaction
that is part of the 1996 Acquisitions, the 1997 Acquisitions and the
Block Acquisition has been duly authorized, executed and delivered by
the Company and, to the knowledge of the Company, constitutes the valid
and legally binding obligation of each of the other parties thereto,
and is enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law); there are no statutory or contractual rights of
dissent or appraisal with respect to the transfer of any of the
properties in the 1996 Acquisitions, the 1997 Acquisitions and the
Block Acquisition; and the 1996 Acquisitions, the 1997 Acquisitions and
the Block Acquisition conformed, in all material respects, to the
description thereof contained in the Registration Statement.
(xxxii) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), there are no outstanding (A) securities or obligations of
the Company or any of its Subsidiaries convertible into or exchangeable
for any capital stock of the Company or any of its Subsidiaries, (B)
warrants, rights or options to subscribe for or purchase from the
Company or any of its Subsidiaries any such capital stock or any such
convertible or exchangeable securities or obligations, or (C)
obligations of the Company or any of its Subsidiaries to issue any
shares of capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or options.
(xxxiii) The Company has not distributed and, prior to the
later of (A) the Firm Closing Date and (B) the completion of the
distribution of the Securities, will not distribute any offering
material in connection with the offering and sale of the Securities
other than the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the
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Prospectus or any supplement or amendment thereto, or any materials, if
any permitted by the Act.
3. Purchase, Sale and Delivery of the Securities.
(a) On the basis of the representations, warranties, agreements
and covenants herein contained and subject to the terms and conditions herein
set forth, the Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters, severally and not jointly, agrees to purchase from the
Company at a purchase price of $_____ per share, the number of Firm Securities
set forth opposite the name of such Underwriter in Schedule 1 hereto. The Firm
Securities shall consist of 2,800,000 shares of Common Stock. The number of Firm
Securities to be purchased by each Underwriter from the Company shall be as
nearly as practicable in the same proportion to the total number of Firm
Securities being sold by the Company as the total number of Firm Securities to
be purchased by such Underwriter bears to the total number of Firm Securities to
be purchased by the Underwriters hereunder. One or more certificates in
definitive form for the Firm Securities that the several Underwriters have
agreed to purchase hereunder, and in such denomination or denominations and
registered in such name or names as the Representatives request upon notice to
the Company at least 48 hours prior to the Firm Closing Date, shall be delivered
by or on behalf of the Company to the Representatives for the respective
accounts of the Underwriters, against payment by or on behalf of the
Underwriters of the purchase price therefor by wire transfer in same-day funds
(the "Purchase Funds") to the order of the Company. Such delivery of and payment
for the Firm Securities shall be made at the offices of King & Spalding, 000
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, 00000 at 9:30 A.M., New York City time, on
August 22, 1997; or at such other place, time or date as the Representatives and
the Company may agree upon or as the Representatives may determine pursuant to
Section 9 hereof, such time and date of delivery against payment being herein
referred to as the "Firm Closing Date." The Company will make such certificate
or certificates for the Firm Securities and the Option Securities, as the case
may be, available for checking and packaging by the Representatives at the
offices in New York, New York of the Company's transfer agent or registrar or of
Prudential Securities Incorporated at least 24 hours prior to the Firm Closing
Date or the Option Closing Date, as the case may be.
(b) For the purpose of covering any over-allotments in connection
with the distribution and sale of the Firm Securities as contemplated by the
Prospectus, the Company hereby grants to the several Underwriters an option to
purchase, severally and not jointly, the Option Securities. The purchase price
to be paid for any Option Securities shall be the same price per share as the
price per share for the Firm Securities set forth above in paragraph (a) of this
Section 3. The option granted hereby may be exercised as to all or any part of
the Option Securities from time to time within thirty days after the date of the
Prospectus (or, if such 30th day shall be a Saturday or Sunday or a holiday, on
the next business day thereafter when the New York Stock Exchange is open for
trading). The Underwriters shall not be under any obligation to purchase any of
the Option Securities prior to the exercise of such option. The Representatives
may from time to time exercise the option granted hereby by giving notice in
writing or by telephone (confirmed in writing) to the Company setting forth the
aggregate number of Option Securities as to which the several Underwriters are
then
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exercising the option and the date and time for delivery of and payment for such
Option Securities. Any such date of delivery shall be determined by the
Representatives but shall not be earlier than two business days or later than
five business days after such exercise of the option and, in any event, shall
not be earlier than the Firm Closing Date. The time and date set forth in such
notice, or such other time on such other date as the Representatives and the
Company may agree upon or as the Representatives may determine pursuant to
Section 9 hereof, is herein called the "Option Closing Date" with respect to
such Option Securities. Upon exercise of the option as provided herein, the
Company shall become obligated to sell to each of the several Underwriters, and,
subject to the terms and conditions herein set forth, each of the Underwriters
(severally and not jointly) shall become obligated to purchase from the Company,
the same percentage of the total number of the Option Securities as to which the
several Underwriters are then exercising the option as such Underwriter is
obligated to purchase of the aggregate number of Firm Securities, as adjusted by
the Representatives in such manner as they deem advisable to avoid fractional
shares. If the option is exercised as to all or any portion of the Option
Securities, one or more certificates in definitive form for such Option
Securities, and payment therefor, shall be delivered on the related Option
Closing Date in the manner, and upon the terms and conditions, set forth in
paragraph (a) of this Section 3 with respect to the sale of the Firm Securities,
except that reference therein to the Firm Securities and the Firm Closing Date
shall be deemed, for purposes of this paragraph (b), to refer to such Option
Securities and Option Closing Date, respectively.
(c) The Company hereby acknowledges that the wire transfer by or
on behalf of the Underwriters of the purchase price for any Securities does not
constitute closing of a purchase and sales of the Securities. Only execution and
delivery of a receipt for Securities by the Underwriters indicates completion of
the closing of a purchase of the Securities from the Company. Furthermore, in
the event that the Underwriters wire funds to the Company prior to the
completion of the closing of a purchase of the Securities, the Company hereby
acknowledges that until the Underwriters execute and deliver a receipt for the
Securities, by facsimile or otherwise, the Company will not be entitled to the
Purchase Funds and shall return the Purchase Funds to the Underwriters as soon
as practicable (by wire transfer of same-day funds) upon demand. In the event
that the closing of a purchase of the Securities is not completed and the
Purchase Funds are not returned by the Company to the Underwriters on the same
day the Purchase Funds were received by the Company, the Company agrees to
reimburse the Underwriters for each day the Purchase Funds are not returned, in
same-day funds, interest on the amount of Purchase Funds in an amount equal to
each day's interest, based on an annual interest rate, simple interest,
representing the Underwriters' cost of financing as reasonably determined by
Prudential Securities Incorporated. Upon satisfactory receipt of the Securities
by the Underwriters in accordance with all the terms of this Agreement and the
compliance by the Company with all the terms of this Agreement to be performed
on or before the Closing Date, the Underwriters shall execute the receipt
described above for the Securities.
(d) It is understood that either of you, individually and not as
one of the Representatives, may (but shall not be obligated to) make payment on
behalf of any Underwriter or Underwriters for any of the Securities to be
purchased by such Underwriter or Underwriters. No such payment shall relieve
such Underwriter or Underwriters from any of its or their obligations hereunder.
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4. Offering by the Underwriters. Upon your authorization of the
release of the Firm Securities, the several Underwriters propose to offer the
Firm Securities for sale to the public upon the terms set forth in the
Prospectus.
5. Covenants of the Company. The Company covenants and agrees
with each of the Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto to become effective as promptly as
possible. If required, the Company will file the Prospectus or any Term Sheet
that constitutes a part thereof and any amendment or supplement thereto with the
Commission in the manner and within the time period required by Rules 434 and
424(b) under the Act. During any time when a prospectus relating to the
Securities is required to be delivered under the Act, the Company (A) will
comply with all requirements imposed upon it by the Act and the rules and
regulations of the Commission thereunder to the extent necessary to permit the
continuance of sales of or dealings in the Securities in accordance with the
provisions hereof and of the Prospectus, as then amended or supplemented, and
(B) will not file with the Commission the Prospectus, Term Sheet or the
amendment referred to in the second sentence of Section 2(a)(i) hereof, any
amendment or supplement to such Prospectus, Term Sheet or any amendment to the
Registration Statement or any Rule 462(b) Registration Statement of which the
Representatives shall not previously have been advised and furnished with a copy
for a reasonable period of time prior to the proposed filing and as to which
filing the Representatives shall not have given their consent, such consent not
to be unreasonably withheld. The Company will prepare and file with the
Commission, in accordance with the rules and regulations of the Commission,
promptly upon request by the Representatives or counsel for the Underwriters,
any amendments to the Registration Statement or any Rule 462(b) Registration
Statement or amendments or supplements to the Prospectus that may be necessary
or advisable in connection with the distribution of the Securities by the
several Underwriters, and will use its best efforts to cause any such amendment
to the Registration Statement to be declared effective by the Commission as
promptly as possible. The Company will advise the Representatives, promptly
after receiving notice thereof, of the time when the Registration Statement or
any amendment thereto has been filed or declared effective or the Prospectus or
any amendment or supplement thereto has been filed and will provide evidence
satisfactory to the Representatives of each such filing or effectiveness.
(b) The Company will advise the Representatives, promptly after
receiving notice or obtaining knowledge thereof, of (A) the issuance by the
Commission of any stop order suspending the effectiveness of the Original
Registration Statement or any Rule 462(b) Registration Statement or any
amendment thereto or any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
(B) the suspension of the qualification of the Securities for offering or sale
in any jurisdiction, (C) the institution, threatening or contemplation of any
proceeding for any such purpose or (D) any request made by the Commission for
amending the Original Registration Statement or any Rule 462(b) Registration
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Statement, for amending or supplementing the Prospectus or for additional
information. The Company will use its best efforts to prevent the issuance of
any such stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(c) The Company will arrange for the qualification of the
Securities for offering and sale under the securities or blue sky laws of such
jurisdictions as the Representatives may designate and will continue such
qualifications in effect for as long as may be necessary to complete the
distribution of the Securities, provided, however, that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction.
(d) If, at any time prior to the later of (A) the final date when
a prospectus relating to the Securities is required to be delivered under the
Act or (B) the Option Closing Date, any event occurs as a result of which the
Prospectus, as then amended or supplemented, would 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, or if for any other reason it is necessary at any time to
amend or supplement the Prospectus to comply with the Act or the rules or
regulations of the Commission thereunder, the Company will promptly notify the
Representatives thereof and, subject to Section 5 hereof, will prepare and file
with the Commission, at the Company's expense, an amendment to the Registration
Statement or an amendment or supplement to the Prospectus that corrects such
statement or omission or effects such compliance.
(e) The Company will, without charge, provide (A) to the
Representatives and to counsel for the Underwriters as many signed copies of the
registration statement originally filed with respect to the Securities and each
amendment thereto and any Rule 462(b) Registration Statement (in each case
including exhibits thereto) as the Representatives and counsel to the
Underwriters may reasonably request, (B) to each other Underwriter, a conformed
copy of such Registration Statement and any Rule 462(b) Registration Statement
and each amendment thereto (in each case without exhibits thereto) and (C) so
long as a prospectus relating to the Securities is required to be delivered
under the Act, as many copies of each Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto as the Representatives may reasonably
request; without limiting the application of clause (C) of this sentence, the
Company, not later than (1) 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 10:00 AM, New York City time, on such date or (2) 2:00 PM, New York
City time, on the business day following the date of determination of the public
offering price, if such determination occurred after 10:00 AM, New York City
time, on such date, will deliver to the Underwriters, without charge, as many
copies of the Prospectus and any amendment or supplement thereto as the
Representatives may reasonably request for purposes of confirming orders that
are expected to settle on the Firm Closing Date.
(f) The Company, as soon as practicable, will make generally
available to its securityholders and to the Representatives an earnings
statement of the Company that satisfies the provisions of Section 11(a) of the
Act and Rule 158 thereunder.
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(g) The Company will apply the net proceeds from the sale of the
Securities as set forth under "Use of Proceeds" in the Prospectus.
(h) The Company will not, directly or indirectly, without the
prior written consent of Prudential Securities Incorporated, on behalf of the
Underwriters, offer, sell, offer to sell, contract to sell, pledge, grant any
option to purchase or otherwise sell or dispose (or announce any offer, sale,
offer of sale, contract of sale, pledge, grant of any option to purchase or
other sale or disposition) of any shares of Common Stock or any securities
convertible into, or exchangeable or exercisable for, Common Stock or other
stock of the Company, or any right to purchase or acquire Common Stock or other
capital stock of the Company for a period of 180 days after the date hereof,
except (A) as otherwise pursuant to this Agreement, (B) for issuances pursuant
to the exercise of employee and affiliated professional stock options
outstanding on the date hereof, issuances pursuant to the exercise of stock
options granted hereafter pursuant to the Company's 1996 Incentive Plan and
Affiliated Professionals Stock Plan so long as such options are not exercised
within 180 days after the date hereof, and except that the Company may file
registration statements at any time after the date hereof related to the resale
of such shares of the Company's Common Stock issued pursuant to the Company's
1996 Incentive Plan and the Affiliated Professionals Stock Plan, (C) issuances
pursuant to the exercise of warrants outstanding on the date hereof, or (D) in
connection with acquisitions by the Company, provided that any Common Stock so
issued shall not be transferable by the recipient thereof for a period of 180
days after the date hereof.
(i) The Company will not, directly or indirectly, (A) take any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (B) (I) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Securities or (II) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company.
(j) The Company, during the period when the Prospectus is required
to be delivered under the Act or the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder (the "Exchange
Act"), will file all documents required to be filed with the Commission pursuant
to Section 13, 14 or 15 of the Exchange Act within the time periods required by
the Exchange Act and the rules and regulations thereunder.
(k) The Company will cause the Securities to be duly included for
quotation on The Nasdaq Stock Market's National Market (the "Nasdaq Stock
Market") prior to the Firm Closing Date. The Company will use it best efforts to
ensure that the Securities remain included for quotation on the Nasdaq Stock
Market following the Firm Closing Date.
(l) During a period of five years from the effective date of the
Registration Statement, the Company will furnish to you and, upon request, to
each of the other Underwriters, without charge, (A) copies of all reports or
other communications (financial or other) furnished to
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securityholders, (B) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any national
securities exchange, and (C) such additional publicly available information
concerning the business and financial condition of the Company, if any, as you
may reasonably request.
(m) If at any time during the 25-day period after the Registration
Statement becomes effective or the period prior to the Option Closing Date, any
rumor, publication or event relating to or affecting the Company shall occur as
a result of which in your opinion the market price of the Common 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, to the extent consistent with the Act and
the rules and regulations thereunder, prepare, consult with you concerning the
substance of, and disseminate a press release or other public statement (unless
counsel for the Company provides a written opinion that such press release or
public statement is inconsistent with the Act) reasonably satisfactory to you,
responding to or commenting on such rumor, publication or event.
(n) If the Company elects to rely on Rule 462(b), the Company
shall both file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with Rule
111 promulgated under the Act by the earlier of (i) 10:00 P.M. New York City
time on the date of this Agreement and (ii) the time confirmations are sent or
given, as specified by Rule 462(b)(2).
(o) The Company will obtain the agreements described in Section
8(h) hereof prior to the Firm Closing Date.
6. Expenses. The Company will pay all costs and expenses incident
to the performance of the obligations of the Company under this Agreement,
whether or not the transactions contemplated herein are consummated or this
Agreement is terminated pursuant to Section 11 hereof, including all costs and
expenses incident to (a) the printing or other production of documents with
respect to the transactions, including any costs of printing the registration
statement originally filed with respect to the Securities and any amendment
thereto, any Rule 462(b) Registration Statement, any Preliminary Prospectus and
the Prospectus and any amendment or supplement thereto, this Agreement and any
blue sky memoranda, (b) all arrangements relating to the delivery to the
Underwriters of copies of the foregoing documents, (c) the fees and
disbursements of the counsel, the accountants and any other experts or advisors
retained by the Company, (d) preparation, issuance and delivery to the
Underwriters of any certificates evidencing the Securities, including transfer
agent's and registrar's fees and the Custodian's fees, (e) the qualification of
the Securities under state securities and blue sky laws, including filing fees
and fees and disbursements of counsel for the Underwriters relating thereto, (f)
the filing fees of the Commission and the National Association of Securities
Dealers, Inc. relating to the Securities, (g) any quotation of the Securities on
the Nasdaq Stock Market and (h) the expenses of the Company in connection with
any meetings with prospective investors in the Securities. Any transfer taxes
imposed on the sale of the Securities
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to the several Underwriters will be paid by the Company. 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 7 hereof is not satisfied,
because this Agreement is terminated pursuant to Section 11(a)(i) and (a)(ii)
hereof or because of any failure, refusal or inability on the part of the
Company to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder 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 counsel fees and disbursements) that
shall have been incurred by them in connection with the proposed purchase and
sale of the Securities. The Company shall not in any event be liable to any of
the Underwriters for the loss of anticipated profits from the transactions
covered by this Agreement.
7. Conditions of the Underwriters' Obligations. The obligations
of the several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company contained herein as of the date
hereof and as of the Firm Closing Date, as if made on and as of the Firm Closing
Date, to the accuracy of the statements of the Company's officers made pursuant
to the provisions hereof, to the performance by the Company of its covenants and
agreements hereunder and to the following additional conditions:
(a) If the Original Registration Statement or any amendment
thereto filed prior to the Firm Closing Date has not been declared effective as
of the time of execution hereof, the Original Registration Statement or such
amendment and, if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have been declared effective not later than
the earlier of (i) 11:00 A.M., New York City time, on the date on which the
amendment to the registration statement originally filed with respect to the
Securities or to the Registration Statement, as the case may be, containing
information regarding the initial public offering price of the Securities has
been filed with the Commission and (ii) the time confirmations are sent or given
as specified by Rule 462(b)(2) or, with respect to the Original Registration
Statement, such later time and date as shall have been consented to by the
Representatives; if required, the Prospectus or any Term Sheet that constitutes
a part thereof and any amendment or supplement thereto shall have been filed
with the Commission in the manner and within the time period required by Rules
434 and 424(b) under the Act; no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto shall have been issued, and no
proceedings for that purpose shall have been instituted or threatened or, to the
knowledge of the Company or the Representatives, shall be contemplated by the
Commission; and the Company shall have complied with any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise).
(b) The Representatives shall have received an opinion, dated the
Firm Closing Date, of Xxxxxxxx, Loop & Xxxxxxxx, counsel for the Company, to the
effect that:
(i) the Company, each of its Subsidiaries and, to such
counsel's knowledge, each Eye Care Entity have been duly organized and
are validly existing as corporations in good standing under the laws of
their respective jurisdictions of incorporation and are duly
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qualified to transact business as foreign corporations and are in good
standing under the laws of all other jurisdictions where the ownership
or leasing of their respective properties or the conduct of their
respective businesses requires such qualification, except where the
failure to be so qualified does not amount to a material liability or
disability to the Company or any of its Subsidiaries;
(ii) the Company, each of its Subsidiaries and, to such
counsel's knowledge, each Eye Care Entity have corporate power to own
or lease their respective properties and conduct their respective
businesses as described in the Registration Statement and the
Prospectus, and the Company has corporate power to enter into this
Agreement and to carry out all the terms and provisions hereof to be
carried out by it;
(iii) the issued shares of capital stock of each of the
Company's Subsidiaries have been duly authorized and validly issued,
are fully paid and nonassessable and are owned beneficially by the
Company free and clear of any security interests, liens, encumbrances,
equities or claims;
(iv) the Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus; all of the issued shares
of capital stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable and were not issued in
violation of or subject to any preemptive rights or, to the best
knowledge of such counsel, other rights to subscribe for or purchase
securities; the Firm Securities have been duly authorized by all
necessary corporate action of the Company and, when issued and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be validly issued, fully paid and nonassessable; the
Firm Securities have been duly included for quotation on the Nasdaq
National Market; no holders of outstanding shares of capital stock of
the Company are entitled as such to any preemptive or, to the best
knowledge of such counsel, to other rights to subscribe for any of the
Securities; and, to the best knowledge of such counsel, except as
described in the Registration Statement and the Prospectus, no holders
of securities of the Company are entitled to have such securities
registered under the Registration Statement;
(v) the statements set forth under the heading
"Description of Capital Stock" in the Prospectus, insofar as such
statements purport to summarize the material provisions of the capital
stock of the Company, provide a summary of such material provisions to
the extent required by the Act, and the statements set forth under the
headings "Business Management Agreements," "Business - Governmental
Regulations" and "Certain Transactions" in the Prospectus, insofar as
such statements constitute a summary of the agreements and matters
referred to therein, provide a summary of such agreements and matters
to the extent required by the Act;
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(vi) the execution and delivery of this Agreement have
been duly authorized by all necessary corporate action of the Company
and this Agreement has been duly executed and delivered by the Company;
(vii) (A) to the best knowledge of such counsel, no legal
or governmental proceedings are pending to which the Company, any of
its Subsidiaries or any of the Eye Care Entities is a party or to which
the property of the Company, any of its Subsidiaries or any of the Eye
Care Entities is subject that are required to be described in the
Registration Statement or the Prospectus and are not described therein,
and, to the best knowledge of such counsel, no such proceedings have
been threatened against the Company, any of its Subsidiaries or any of
the Eye Care Entities or with respect to any of their respective
properties and (B) such counsel does not know of any contract or other
document of a character that is required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit
to the Registration Statement that is not described therein or filed as
required;
(viii) the issuance, offering and sale of the Securities to
the Underwriters by the Company pursuant to this Agreement, the
compliance by the Company with the other provisions of this Agreement
and the consummation of the other transactions herein contemplated do
not (A) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as
have been obtained and such as may be required under state securities
or blue sky laws, or (B) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, lease or other
agreement or instrument known to such counsel to which the Company is a
party or by which the Company or any of its properties are bound, or
the charter documents or by-laws of the Company, or any statute or any
judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator known to such counsel and
applicable to the Company, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and subject, as
to enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law);
(ix) the Registration Statement is effective under the
Act; any required filing of the Prospectus or any Term Sheet that
constitutes a part thereof pursuant to Rules 434 and 424(b) has been
made in the manner and within the time period required by Rules 434 and
424(b); and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement or any
amendment thereto has been issued, and no proceedings for that purpose
have been instituted or threatened or are contemplated by the
Commission;
(x) The Original Registration Statement filed with
respect to the Securities and each subsequent amendment thereto and the
Prospectus (in each case, other than the financial statements and other
financial information and schedules contained therein, as to which such
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counsel need express no opinion) comply as to form in all material
respects with the applicable requirements of the Act and the rules and
regulations of the Commission thereunder;
(xi) to the best knowledge of such counsel, the Company,
each of its Subsidiaries, the Affiliated Providers and the Eye Care
Entities possess all certificates, authorizations and permits issued by
the appropriate federal, state or foreign regulatory authorities
necessary to conduct their respective businesses, and, to the best
knowledge of such counsel, the Company has not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
result in a material adverse change in the condition (financial or
otherwise), business prospects, net worth or results of operations of
the Company, except as described in or contemplated by the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus);
(xii) the Company is not an "investment company" under the
Investment Company Act of 1940, as amended, and consummation of the
transactions herein contemplated will not cause the Company to become
an investment company subject to registration under such Act;
(xiii) to the best knowledge of such counsel, the Company
does not own any shares of stock or any other equity securities of any
corporation or have any equity interest in any firm, partnership,
association or other entity, except as described in or contemplated by
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus);
(xiv) to the best knowledge of such counsel, except for the
sale of 2,100,000 shares of Common Stock in connection with the
Company' initial public offering on August 18, 1997, all offers and
sales of the Company's capital stock prior to the date hereof,
including without limitation all offers and sales in connection with
the 1996 Acquisitions, the 1997 Acquisitions and the Block Acquisition,
were at all relevant times exempt from the registration requirements of
the Act, and were the subject of an available exemption from the
registration requirements of all applicable state securities or blue
sky laws;
(xv) each of the agreements providing for a transaction
that is part of the 1996 Acquisitions, the 1997 Acquisitions and the
Block Acquisition has been duly authorized, executed and delivered by
the Company and, to the best knowledge of such counsel, constitutes the
valid and legally binding obligation of each of the other parties
thereto; to such counsel's knowledge, are no statutory or contractual
rights of dissent or appraisal with respect to the transfer of any of
the properties in the 1996 Acquisitions, the 1997 Acquisitions and the
Block Acquisition; and the 1996 Acquisitions, the 1997 Acquisitions and
the Block Acquisition conformed in all material respects to the extent
required by the Act to the description thereof contained in the
Registration Statement; and
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(xvi) to the best knowledge of such counsel, except as
disclosed in the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus), there are no outstanding (A)
securities or obligations of the Company convertible into or
exchangeable for any capital stock of the Company, (B) warrants, rights
or options to subscribe for or purchase from the Company any such
capital stock or any such convertible or exchangeable securities or
obligations, or (C) obligations of the Company to issue any shares of
capital stock, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options.
Such counsel shall also state that (other than as to the
financial statements and information and related schedules therein, as
to which such counsel shall express no opinion) they have no reason to
believe (A) that the Registration Statement, as of its effective date,
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading and (B) that the Prospectus, as
of its date or the date of such opinion, included or includes any
untrue statement of a material fact or omitted or omits 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.
Such counsel shall also state that no facts have come to their
attention that cause them to believe that the Company and the Eye Care
Entities are not conducting their respective business in material
compliance with the laws, rules and regulations applicable thereto,
including, without limitation, those relating to the practice of
optometry and ophthalmology (including the management or operation of
eye care centers), the splitting of professional fees with
non-optometrists or non-ophthalmologists, the ownership or control of
the assets of an eye care practice, the employment of optometrists or
ophthalmologists or other personnel, the content of advertising,
limitations on tasks that may be delegated by any optometrist or
ophthalmologist to other staff members, the business of insurance and
reimbursement by governmental agencies; and nothing has come to their
attention that causes them to believe that the provisions of the
service, consulting and management agreements and other business
arrangements entered into by the Company described in the Prospectus,
or the operations of the Company in accordance with the terms thereof,
are not in material compliance with applicable laws and governmental
regulations.
In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and public
officials.
References to the Registration Statement and the Prospectus in
this paragraph (b) shall include any amendment or supplement thereto at
the date of such opinion.
(c) The Representatives shall have received an opinion, dated the
Firm Closing Date, of King & Spalding, counsel for the Underwriters, with
respect to the issuance and sale of the Firm Securities, the Registration
Statement and the Prospectus, and such other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such
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documents as they may reasonably request for the purpose of enabling them to
pass upon such matters.
(d) The Representatives shall have received from Ernst & Young LLP
and Price Waterhouse LLP, as applicable, a letter or letters dated,
respectively, the date hereof and the Firm Closing Date, in form and substance
satisfactory to the Representatives, to the effect that:
(i) they are independent accountants with respect to the
Company within the meaning of the Act and the applicable rules and
regulations thereunder;
(ii) in their opinion, the audited financial statements
and schedules of the Company and Block Vision, as the case may be,
included in the Registration Statement and the Prospectus comply in
form in all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations;
(iii) on the basis of their limited review in accordance
with standards established by the American Institute of Certified
Public Accountants of any interim unaudited financial statements of the
Company and Block Vision, as the case may be, included in the
Registration Statement and the Prospectus, carrying out certain
specified procedures (which do not constitute an examination made in
accordance with generally accepted auditing standards) that would not
necessarily reveal matters of significance with respect to the comments
set forth in this paragraph (iii), a reading of the minute books of the
stockholders, the board of directors and any committees thereof of the
Company and Block Vision, as the case may be, officials of the Company
and Block Vision, as the case may be, and inquiries of certain
officials of the Company and Block Vision, as the case may be, who have
responsibility for financial and accounting matters, nothing came to
their attention that caused them to believe that:
(A) the unaudited financial statements of the
Company and Block Vision, as the case may be, included in the
Registration Statement and the Prospectus do not comply in
form in all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations thereunder or 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;
(B) at a specific date not more than five
business days prior to the date of such letter, there was any
change in long-term debt of the Company or Block Vision or any
decreases in net current assets or stockholders' equity of the
Company or Block Vision, in each case compared with amounts
shown on the September 30, 1997 unaudited consolidated balance
sheet included in the Registration Statement and the
Prospectus, or for the period from September 30, 1997 to such
specified date there were any decreases, as compared with the
prior comparable period, in net
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revenues, income before income taxes or net income of the
Company or Block Vision, except in all instances for changes,
decreases or increases set forth in such letter;
(iv) they have carried out certain specified procedures
(as requested by the Representatives), not constituting an audit, with
respect to certain amounts, percentages and financial information that
are derived from the general accounting records of the Company and
Block Vision, as the case may be, and are included in the Registration
Statement and the Prospectus, and have compared such amounts,
percentages and financial information with such records of the Company
and Block Vision, as the case may be, or with information derived from
such records and have found them to be in agreement, excluding any
questions of legal interpretation; and
(v) on the basis of a reading of the unaudited pro forma
financial data included in the Registration Statement and the
Prospectus, carrying out certain specified procedures that would not
necessarily reveal matters of significance with respect to the comments
set forth in this paragraph (v), inquiries of certain officials of the
Company and Block Vision, as the case may be, who have responsibility
for financial and accounting matters and proving the arithmetic
accuracy of the application of the pro forma adjustments to the
historical amounts in the unaudited pro forma financial data, nothing
came to their attention that caused them to believe that the unaudited
pro forma financial data do not comply in form in all material respects
with the applicable accounting requirements of Rule 11-02 of Regulation
S-X or that the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of such data.
In the event that the letters referred to above set forth any
such changes, decreases or increases, it shall be a further condition
to the obligations of the Underwriters that (A) such letters shall be
accompanied by a written explanation from the Company and Block Vision,
as the case may be, as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (B) such
changes, decreases or increases do not, in the sole judgment of the
Representatives, make it impractical or inadvisable to proceed with the
purchase and delivery of the Securities as contemplated by the
Registration Statement, as amended as of the date hereof.
References to the Registration Statement and the Prospectus in
this paragraph (d) with respect to either letter referred to above
shall include any amendment or supplement thereto at the date of such
letter.
(e) The Representatives shall have received a certificate, dated
the Firm Closing Date, of the principal executive officer and the principal
financial or accounting officer of the Company to the effect that:
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(i) the representations and warranties of the Company in
this Agreement are true and correct as if made on and as of the Firm
Closing Date; the Registration Statement, as amended as of the Firm
Closing Date, does not include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein not misleading, and the Prospectus, as amended or supplemented
as of the Firm Closing Date, does not include 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; and the Company has performed all
covenants and agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Firm Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or, to
the best of the Company's knowledge, are contemplated by the
Commission; and
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
the Company has not sustained any material loss or interference with
its businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding, and there has not been
any material adverse change, or any development involving a prospective
material adverse change, in the condition (financial or otherwise),
management, business prospects, net worth or results of operations of
the Company, except as described in or contemplated by the Prospectus
(exclusive of any amendment or supplement thereto).
(f) The Representatives shall have received from each person who
is a director or officer of the Company an agreement to the effect that such
person or entity will not, directly or indirectly, without the prior written
consent of Prudential Securities Incorporated, on behalf of the Underwriters,
offer, sell, offer to sell, contract to sell, pledge, grant any option to
purchase or otherwise sell or dispose (or announce any offer, sale, pledge,
offer of sale, contract of sale, grant of an option to purchase or other sale or
disposition) of any shares of Common Stock or any securities convertible into,
or exchangeable or exercisable for, shares of Common Stock or other capital
stock of the Company, or any right to purchase or acquire Common Stock or other
capital stock of the Company for a period of 180 days after the date of this
Agreement, except for bona fide gifts or transfers effected by such stockholders
other than on any securities exchange or in the over-the-counter market to
donees or transferees that agree to be bound by similar agreements. In addition,
the Representatives shall have also received from certain non-affiliates of the
Company holding 1,254,470 shares of Common Stock contractual 180-day lock-up
agreements from the date of the initial public offering on August 18, 1997
similar to the above agreements which prohibit the direct or indirect
disposition of shares of Common Stock without the prior written consent of
Prudential Securities Incorporated until the expiration of such lock-up
agreements. Prudential
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Securities Incorporated may, in its sole discretion, at any time and without
notice, release all or any portion of the shares of Common Stock subject to such
agreements.
(g) On or before the Firm Closing Date, the Representatives and
counsel for the Underwriters shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Company.
(h) Prior to the commencement of the offering of the Securities,
the Securities shall have been included for trading on the Nasdaq Stock Market.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and
pay for any Option Securities shall be subject, in their discretion, to each of
the foregoing conditions to purchase the Firm Securities, except that all
references to the Firm Securities and the Firm Closing Date shall be deemed to
refer to such Option Securities and the related Option Closing Date,
respectively.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made
by the Company in Section 2 of this Agreement,
(ii) any untrue statement or alleged untrue statement of
any material fact contained in (A) the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto or (B) any application or other
document, or any amendment or supplement thereto, executed by the
Company or based upon written information furnished by or on behalf of
the Company filed in any jurisdiction in order to qualify the
Securities under the securities or blue sky laws thereof or filed with
the Commission or any securities association or securities exchange
(each an "Application"),
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(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or
any Application a material fact required to be stated therein or
necessary to make the statements therein not misleading, or
(iv) any untrue statement or alleged untrue statement of
any material fact contained in any audio or visual materials derived
solely from information supplied by the Company to be used in
connection with the marketing of the Securities, including without
limitations, slides, videos, films and tape recordings,
and will reimburse, as incurred, each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred
by such Underwriter or such controlling person in connection with
investigating, defending against or appearing as a third-party witness
in connection with 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 untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto or any Application in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives specifically for use therein;
and provided, further, that the Company will not be liable to any
Underwriter or any person controlling such Underwriter with respect to
any such untrue statement or omission made in any Preliminary
Prospectus that is corrected in the Prospectus (or any amendment or
supplement thereto) if the person asserting any such loss, claim,
damage or liability purchased Securities from such Underwriter but was
not sent or given a copy of the Prospectus (as amended or supplemented)
at or prior to the written confirmation of the sale of such Securities
to such person in any case where such delivery of the Prospectus (as
amended or supplemented) is required by the Act, unless such failure to
deliver the Prospectus (as amended or supplemented) was a result of
noncompliance by the Company with Section 5(a)(iv) of this Agreement.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have. The Company will not, without the prior
written consent of the Underwriter or Underwriters purchasing, in the
aggregate, more than fifty percent of the Securities, 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 any such
Underwriter or any person who controls any such Underwriter within the
meaning of Section 15 of the 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
all of the Underwriters and such controlling persons from all liability
arising out of such claim, action, suit or proceeding.
(d) Each Underwriter, severally and not jointly, will indemnify
and hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and each
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person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Company, any such director or officer of the Company or
any such controlling person of the Company may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, or any Application or (ii) the omission
or the alleged omission to state therein a material fact required to be stated
in the Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or any
Application necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives specifically for use therein; and,
subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or any action
in respect thereof. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
(e) 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 of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 8 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same
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jurisdiction arising out of the same general allegations or circumstances,
designated by the Representatives in the case of paragraph (a) of this Section
8, representing the indemnified parties under such paragraph (a) who are parties
to such action or actions) or (ii) the indemnifying party does not promptly
retain counsel satisfactory to the indemnified party or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. After such notice from the indemnifying party
to such indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying party.
(f) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 8 is unavailable or insufficient,
for any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged 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 on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters, the parties'
relative intents, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances. The Company and the Underwriters agree that it
would not be equitable if the amount of such contribution were determined by pro
rata or per capita allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
into account the equitable considerations referred to above in this paragraph
(f). Notwithstanding any other provision of this paragraph (f), no Underwriter
shall be obligated to make contributions hereunder that in the aggregate exceed
the total public offering price of the Securities purchased by such Underwriter
under this Agreement, less the aggregate amount of any damages that such
Underwriter has otherwise been required to pay in respect of the same or any
substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the Prudential Securities Incorporated Master Agreement Among Underwriters.
For purposes of
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this paragraph (f), each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement and
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company.
9. Default of Underwriters. If one or more Underwriters default
in their obligations to purchase Firm Securities or Option Securities hereunder
and the aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or Option
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If one or more Underwriters so default with respect to an aggregate
number of Securities that is more than ten percent of the aggregate number of
Firm Securities or Option Securities, as the case may be, to be purchased by all
of the Underwriters at such time hereunder, and if arrangements satisfactory to
the Representatives are not made within 36 hours after such default for the
purchase by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives) of the Securities with respect to
which such default occurs, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company other than as provided
in Section 10 hereof. In the event of any default by one or more Underwriters as
described in this Section 9, the Representatives shall have the right to
postpone the Firm Closing Date or the Option Closing Date, as the case may be,
established as provided in Section 3 hereof for not more than seven business
days in order that any necessary changes may be made in the arrangements or
documents for the purchase and delivery of the Firm Securities or Option
Securities, as the case may be. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 9. Nothing herein shall relieve any defaulting Underwriter from
liability for its default.
10. Survival. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company and its
officers and the several Underwriters set forth in this Agreement or made by or
on behalf of them, respectively, pursuant to this Agreement shall remain in full
force and effect, regardless of (i) any investigation made by or on behalf of
the Company, any of its officers or directors, any Underwriter or any
controlling person referred to in Section 8 hereof and (ii) delivery of and
payment for the Securities. The respective agreements, covenants, indemnities
and other statements set forth in Sections 6 and 8 hereof shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement.
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11. Termination.
(a) This Agreement may be terminated with respect to the Firm
Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company given prior to the Firm Closing Date or
the related Option Closing Date, respectively, in the event that the Company
shall have failed, refused or been unable to perform all obligations and satisfy
all conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Firm Closing Date or such Option Closing Date,
respectively,
(i) the Company shall have, in the sole judgment of the
Representatives, sustained any material loss or interference with its
business or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding or there shall have
been any material adverse change, or any development involving a
prospective material adverse change (including without limitation a
change in management or control of the Company), in the condition
(financial or otherwise), business prospects, net worth or results of
operations of the Company, except as described in or contemplated by
the Prospectus (exclusive of any amendment or supplement thereto);
(ii) trading in the Common Stock shall have been suspended
by the Commission or the Nasdaq Stock Market;
(iii) trading in securities generally on the New York Stock
Exchange or the Nasdaq Stock Market shall have been suspended or
minimum or maximum prices shall have been established on any such
exchange or market system;
(iv) a banking moratorium shall have been declared by New
York or United States authorities; or
(v) there shall have been (A) an outbreak or escalation
of hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or (C) any other calamity or crisis or
material adverse change in general economic, political or financial
conditions having an effect on the United States financial markets
that, in the sole judgment of the Representatives, makes it impractical
or inadvisable to proceed with the public offering or the delivery of
the Securities as contemplated by the Registration Statement, as
amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 11
shall be without liability of any party to any other party except as provided in
Section 10 hereof.
12. Information Supplied by Underwriters. The statements set forth
in the last paragraph on the front cover page and in the first and third
paragraphs under the heading "Underwriting" in any Preliminary Prospectus or the
Prospectus (to the extent such statements relate to the Underwriters)
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constitute the only information furnished by any Underwriter through the
Representatives to the Company for the purposes of Sections 2(a)(ii) and 8
hereof. The Underwriters confirm that such statements (to such extent) are
correct.
13. Notices. All communications hereunder shall be in writing and,
if sent to any of the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to Prudential Securities
Incorporated, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity
Transactions Group; if sent to the Company, shall be delivered or sent by mail,
telex or facsimile transmission and confirmed in writing to the Company at 0000
Xxxxx Xxxxx Xxxx, Xxxxx, Xxxxxxx 00000, Attention: Xxxxxxxx X. Xxxxxxxx, with a
copy to Xxxxxxxx, Loop & Xxxxxxxx, 000 X. Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx,
Xxxxx 0000, Xxxxx, Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx, Esq.
14. Successors. This Agreement shall inure to the benefit of and
shall be binding upon the several Underwriters, the Company and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company contained in Section 8 of this Agreement shall
also be for the benefit of any person or persons who control any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Underwriters contained in Section 8 of this
Agreement shall also be for the benefit of the directors of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act. No purchaser of Securities from any
Underwriter shall be deemed a successor because of such purchase.
15. Applicable Law. The validity and interpretation of this
Agreement, and the terms and conditions set forth herein, shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to any provisions relating to conflicts of laws.
16. Counterparts. 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.
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If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Company and each
of the several Underwriters.
Very truly yours,
VISION TWENTY-ONE, INC.
By:
-------------------------------
Xxxxxxxx X. Xxxxxxxx
Chief Executive Officer
The foregoing Agreement
is hereby confirmed and
accepted as of the date
first above written.
PRUDENTIAL SECURITIES INCORPORATED
WHEAT, FIRST SECURITIES, INC.
By: PRUDENTIAL SECURITIES INCORPORATED
By:
------------------------------
Xxxx-Xxxxxx Canfin
Managing Director
For itself and on behalf of the Representatives.
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SCHEDULE 1
UNDERWRITERS
Number of
Firm
Securities to
Underwriter be Purchased
----------- ------------
Prudential Securities Incorporated...........................................
Wheat, First Securities, Inc. ...............................................
Total.....................................................2,800,000
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