9,000,000 SHARES
UNITED SURGICAL PARTNERS INTERNATIONAL, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
[INSERT DATE]
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX BROTHERS INC.
XX XXXXX SECURITIES CORPORATION
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. INTRODUCTORY. United Surgical Partners International, Inc., a
Delaware corporation ("COMPANY"), proposes to issue and sell 9,000,000 shares
("FIRM SECURITIES") of its Common Stock, par value $.01 per share
("SECURITIES"), and also proposes to issue and sell to the Underwriters, at the
option of the Underwriters, an aggregate of not more than 1,350,000 additional
shares ("OPTIONAL SECURITIES") of its Securities as set forth below. The Firm
Securities and the Optional Securities are herein collectively called the
"OFFERED SECURITIES". As part of the offering contemplated by this Agreement,
Credit Suisse First Boston (the "DESIGNATED UNDERWRITER") has agreed to reserve
out of the Firm Securities purchased by it under this Agreement, up to 357,500
shares, for sale to the Company's directors, officers, employees and other
parties associated with the Company (collectively, "PARTICIPANTS"), as set
forth in the Prospectus (as defined herein) under the heading "Underwriting"
(the "DIRECTED SHARE PROGRAM"). The Firm Securities to be sold by the
Designated Underwriter pursuant to the Directed Share Program (the "DIRECTED
SHARES") will be sold by the Designated Underwriter pursuant to this Agreement
at the public offering price. Any Directed Shares not subscribed for by the end
of the business day on which this Agreement is executed will be offered to the
public by the Underwriters as set forth in the Prospectus. The Company hereby
agrees with the several Underwriters named in Schedule A hereto
("UNDERWRITERS") as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-55442) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (i)
has been declared effective under the Securities Act of 1933 ("ACT")
and is not proposed to be amended or (ii) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
("INITIAL REGISTRATION STATEMENT") has
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been declared effective, either (i) an additional registration
statement ("ADDITIONAL REGISTRATION STATEMENT") relating to the
Offered Securities may have been filed with the Commission pursuant to
Rule 462(b) ("RULE 462(b)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Offered Securities
all have been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional registration
statement or (ii) such an additional registration statement is
proposed to be filed with the Commission pursuant to Rule 462(b) and
will become effective upon filing pursuant to such Rule and upon such
filing the Offered Securities will all have been duly registered under
the Act pursuant to the initial registration statement and such
additional registration statement. If the Company does not propose to
amend the initial registration statement or if an additional
registration statement has been filed and the Company does not propose
to amend it, and if any post-effective amendment to either such
registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent amendment
(if any) to each such registration statement has been declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) ("RULE 462(c)") under the Act or, in the case
of the additional registration statement, Rule 462(b). For purposes of
this Agreement, "EFFECTIVE TIME" with respect to the initial
registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement
means (i) if the Company has advised the Representatives that it does
not propose to amend such registration statement, the date and time as
of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution
and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule
462(c), or (ii) if the Company has advised the Representatives that it
proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such
registration statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the
Commission. If an additional registration statement has not been filed
prior to the execution and delivery of this Agreement but the Company
has advised the Representatives that it proposes to file one,
"EFFECTIVE TIME" with respect to such additional registration
statement means the date and time as of which such registration
statement is filed and becomes effective pursuant to Rule 462(b).
"EFFECTIVE DATE" with respect to the initial registration statement or
the additional registration statement (if any) means the date of the
Effective Time thereof. The initial registration statement, as amended
at its Effective Time, including all information contained in the
additional registration statement (if any) and deemed to be a part of
the initial registration statement as of the Effective Time of the
additional registration statement pursuant to the General Instructions
of the Form on which it is filed and including all information (if
any) deemed to be a part of the initial registration statement as of
its Effective Time pursuant to Rule 430A(b) ("RULE 430A(b)") under the
Act, is hereinafter referred to as the "INITIAL REGISTRATION
STATEMENT". The additional registration statement, as amended at its
Effective Time, including the contents of the initial registration
statement incorporated by reference therein and including all
information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT". The Initial Registration Statement and the Additional
Registration Statement are herein referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT". The form of prospectus relating to the Offered Securities,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("RULE 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, is hereinafter
referred to as the "PROSPECTUS". No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act.
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(b) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (i) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
("RULES AND REGULATIONS") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
(ii) on the Effective Date of the Additional Registration Statement (if
any), each Registration Statement conformed, or will conform, in all
material respects to the requirements of the Act and the Rules and
Regulations and did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) on the date of
this Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which the
Prospectus is included, each Registration Statement and the Prospectus
will conform, in all material respects to the requirements of the Act
and the Rules and Regulations, and neither of such documents includes,
or will include, any untrue statement of a material fact or omits, or
will omit, to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made (in the case of the Prospectus
only), not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act and the Rules
and Regulations, neither of such documents will include any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made
(in the case of the Prospectus only), not misleading, and no Additional
Registration Statement has been or will be filed. The two preceding
sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(b) hereof.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not,
individually or in the aggregate, have a material adverse effect on the
business, condition (financial or otherwise), properties or results of
operations of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect"). Exhibit A attached hereto is a true,
complete and correct list of the direct and indirect subsidiaries of
the Company representing, in the aggregate, 90% or more of the
Company's total pro forma revenues and assets, on a consolidated basis,
for 2000 (each such subsidiary a "Significant Subsidiary", and
collectively, the "Significant Subsidiaries").
(d) Each subsidiary of the Company that is a corporation has been
duly incorporated and is an existing corporation in good standing under
the laws of the jurisdiction of its incorporation, with corporate power
and authority to own its properties and conduct its business as
described in the Prospectus; each such subsidiary is duly qualified to
do business as a foreign corporation in
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good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not,
individually or in the aggregate, have a Material Adverse Effect; all
of the issued and outstanding capital stock of each such subsidiary of
the Company has been duly authorized and validly issued and is fully
paid and nonassessable, and except as disclosed in the Prospectus, the
outstanding capital stock of each such subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(e) Each subsidiary of the Company that is a partnership has been
duly organized and is an existing partnership in good standing, where
applicable, under the laws of the jurisdiction of its organization,
with the partnership power and authority to own its properties and
conduct its business as described in the Prospectus; each such
subsidiary is duly qualified to do business as a foreign partnership in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not,
individually or in the aggregate, have a Material Adverse Effect; and
except as disclosed in the Prospectus, all of the partnership interests
in each such subsidiary held directly or indirectly by the Company are
free and clear of all liens, encumbrances and defects.
(f) Each subsidiary of the Company that is a limited liability has
been duly organized and is an existing limited liability company in
good standing under the laws of the jurisdiction of its organization,
with the limited liability company power and authority to own its
properties and conduct its business as described in the Prospectus;
each such subsidiary is duly qualified to do business as a foreign
limited liability company in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to be so
qualified would not, individually or in the aggregate, have a Material
Adverse Effect; and except as disclosed in the Prospectus, all of the
limited liability company interests in each such subsidiary held
directly or indirectly by the Company are free and clear of all liens,
encumbrances and defects.
(g) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and, when the Offered
Securities have been delivered and paid for in accordance with this
Agreement on each Closing Date (as defined below), such Offered
Securities will have been, validly issued, fully paid and nonassessable
and will conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Securities.
(h) Except as specifically disclosed in the Prospectus, there are
no contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(i) Except as specifically disclosed in the Prospectus, there are
no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act. All such rights that are disclosed in the
Prospectus have been validly waived by the holders thereof.
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(j) The Offered Securities have been approved for listing on the
Nasdaq Stock Market's National Market, subject only to notice of
issuance.
(k) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body, any court, or any securities
industry self-regulatory organization is required for the consummation
of the transactions contemplated by this Agreement in connection with
the issuance and sale of the Offered Securities by the Company, except
such as have been obtained and made under the Act and the Securities
Exchange Act of 1934 (the "EXCHANGE ACT") and such as may be required
under state securities laws or the bylaws or rules and regulations of
the National Association of Securities Dealers, Inc. (the "NASD").
(l) The execution, delivery and performance of this Agreement by
the Company, and the issuance and sale of the Offered Securities by the
Company will not: (i) result in a breach or violation of any of the
terms and provisions of, or constitute a default under, (a) any
statute, rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the Company
or any subsidiary of the Company or any of their properties, (b) any
agreement or instrument to which the Company or any such subsidiary is
a party or by which the Company or any such subsidiary is bound or to
which any of the properties of the Company or any such subsidiary is
subject, or (c) the charter or by-laws of the Company or the charter,
by-laws or other organizational documents of any such subsidiary; (ii)
with respect to Health Care Laws (as hereinafter defined), violate or
conflict with any applicable statute, rule or regulation or any
judgment, decree or order of any court or governmental agency or body;
or (iii) result in the creation or imposition of any lien, charge,
claim or encumbrance upon any property or asset of the Company or its
subsidiaries, other than, in the case of breaches, violations,
conflicts or defaults described in clauses (i)(b) and (ii) and liens,
charges, claims or encumbrances described in clause (iii) that would
not, individually or in the aggregate, have a Material Adverse Effect;
and the Company has full power and authority to authorize, issue and
sell the Offered Securities as contemplated by this Agreement.
For purposes of this Agreement, the term "Health Care Laws" shall
mean those statutes, rules and regulations, judgments, decrees or
orders which are generally applicable to surgery centers and other
health care providers as a group as described under the headings "Risk
Factors--Our revenues may be adversely affected by pending changes in
the system of paying for outpatient surgical procedures under the
Medicare program"; "Risk Factors--New federal and state legislative and
regulatory initiatives relating to patient privacy could require us to
expend substantial sums acquiring and implementing new information
systems, which could negatively impact our financial results"; "Risk
Factors--If a federal or state agency asserts a different position or
enacts new laws or regulations regarding illegal remuneration under the
Medicare or Medicaid programs, we may be subject to civil and criminal
penalties, experience a significant reduction in our revenues or be
excluded from participation in the Medicare and Medicaid programs";
"Risk Factors--If physician self-referral laws are interpreted
differently or if other legislative restrictions are issued, we could
incur a significant loss of reimbursement revenue"; "Risk Factors--If
our designees for ownership at New York facilities are not approved or
if our operations in New York are found to not be in compliance with
New York law, our ability to operate in New York may be adversely
affected" and "Business--Government Regulation" in the Prospectus,
including, without limitation, (i) health care licensure, permit,
certificate of need and medical waste requirements, (ii) Titles XVIII,
XIX and XXI of the Social Security Act; (iii) the Anti-Kickback Statute
(as defined in the Prospectus) and the regulations promulgated
thereunder; (iv) the Xxxxx Law (as defined in the Prospectus) and the
regulations promulgated thereunder; (v) the Health Insurance
Portability and Accountability Act of 1996 and the regulations
promulgated
5
thereunder, and (vi) state statutes, rules and regulations concerning
matters similar to (ii) through (v) above.
(m) This Agreement has been duly authorized, executed and
delivered by the Company.
(n) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Prospectus, the Company and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them.
(o) The Company and its subsidiaries possess such certificates,
consents, exemptions, orders, licenses, authorities, accreditations or
permits issued by appropriate governmental agencies, self-regulatory
organizations, governmental and private accrediting bodies and courts
and other tribunals (collectively, the "PERMITS") necessary to conduct
the business now owned, operated or managed by them, including but not
limited to such Permits as are required (i) under Health Care Laws and
(ii) with respect to those facilities owned, operated or managed by the
Company or any of its subsidiaries that participate in Medicare and/or
Medicaid, to receive reimbursement thereunder, except for such failures
to have Permits which would not, individually or in the aggregate, have
a Material Adverse Effect. The Company and its subsidiaries have not
received any notice of proceedings relating to the revocation or
modification of any such Permit that, if determined adversely to the
Company or any of its subsidiaries, would, individually or in the
aggregate, result in a Material Adverse Effect. The Company and its
subsidiaries have fulfilled and performed all of their material
obligations with respect to such Permits, and no event or change in
condition has occurred which allows, or after notice or lapse of time
or both would allow, revocation or termination thereof or result in any
other material impairment of the rights of the holder of any such
Permit, except as to such qualifications as are set forth in the
Prospectus and except for such failures which would not, individually
or in the aggregate, result in a Material Adverse Effect. During the
period for which financial statements are included in the Prospectus,
denials by third party payors of claims for reimbursement for services
rendered by the Company have not had a Material Adverse Effect.
(p) The accounts receivable of the Company and its subsidiaries
are recorded based on established billing rates less estimates for
contractual allowances to reflect reimbursement arrangements with third
party payors such as Medicare, Medicaid, Blue Cross/Blue Shield,
private insurance companies, health maintenance organizations,
preferred provider organizations, managed care systems and other third
party payors. The accounts receivable relating to such third party
payors do not and shall not exceed amounts the Company and its
subsidiaries are entitled to receive, subject to adjustments to reflect
reimbursement arrangements with third party payors and normal discounts
in the ordinary course. Additionally, accounts receivable of the
Company and its subsidiaries are net of estimated allowances for
doubtful accounts.
(q) None of the Company or any of its subsidiaries, nor any of
their respective officers, directors or stockholders, or to the
knowledge of the Company, any employee or other agent of the Company or
its subsidiaries, has engaged on behalf of the Company or its
subsidiaries in any of the following: (i) knowingly and willfully
making or causing to be made a false statement or representation of a
material fact in any applications for any benefit or payment under the
Medicare or Medicaid program or from any third party (where applicable
Federal or state law prohibits such payments to third parties); (ii)
knowingly and willfully making or causing to be made any false
statement or representation of a material fact for use in determining
rights to any benefit or payment under the Medicare or Medicaid program
or from any third party (where applicable Federal or state law
prohibits such
6
payments to third parties); (iii) failing to disclose knowledge by a
claimant of the occurrence of any event affecting the initial or
continued right to any benefit or payment under the Medicare or
Medicaid program or from any third party (where applicable Federal or
state law prohibits such payments to third parties) on its own behalf
or on behalf of another, with intent to secure such benefit or payment
fraudulently; (iv) knowingly and willfully offering, paying,
soliciting or receiving any remuneration (including any kickback,
bribe or rebate), directly or indirectly, overtly or covertly, in cash
or in kind (a) in return for referring an individual to a Person for
the furnishing or arranging for the furnishing of any item or service
for which payment may be made in whole or in part by Medicare or
Medicaid or any third party (where applicable Federal or state law
prohibits such payments to third parties), or (b) in return for
purchasing, leasing or ordering or arranging for or recommending the
purchasing, leasing or ordering of any good, facility, service, or
item for which payment may be made in whole or in part by Medicare or
Medicaid or any third party (where applicable Federal or state law
prohibits such payments to third parties).
(r) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
is reasonably likely to have a Material Adverse Effect.
(s) The Company and its subsidiaries own, possess or can acquire
on reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential information
and other intellectual property (collectively, "INTELLECTUAL PROPERTY
RIGHTS") necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect
to any intellectual property rights that, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(t) Except as disclosed in the Prospectus, neither the Company nor
any of its subsidiaries is in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates any
real property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware
of any pending investigation which might lead to such a claim.
(u) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are, to the Company's knowledge,
threatened or contemplated.
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(v) The consolidated financial statements included in each
Registration Statement and the Prospectus present fairly, in all
material respects, the financial position of the entities presented and
their consolidated subsidiaries as of December 31, 2000 and 1999, in
the case of the Company, December 31, 2000, 1999 and 1998, in the case
of OrthoLink Physicians Corporation; and March 31, 2000, December 31,
1999 and 1998, in the case of Aspen Healthcare Holdings Limited and
their results of operations and cash flows for the years ended December
31, 2000 and 1999 and the period from February 27, 1998 (inception)
through December 31, 1998, in the case of the Company; the years ended
December 31, 2000, 1999 and 1998, in the case of Ortholink Physicians
Corporation; and the three-month period ended March 31, 2000, the year
ended December 31, 1999 and the ten month period ended December 31,
1998, in the case of Aspen Healthcare Holdings Limited, and such
consolidated financial statements have been prepared in conformity with
the accounting principles generally accepted in the United States of
America in the case of the Company and Ortholink Physicians
Corporation, and the United Kingdom in the case of Aspen Healthcare
Holdings Limited, applied on a consistent basis and the schedule
included in each Registration Statement, presents fairly, in all
material respects, the information set forth therein; and the
assumptions used in preparing the pro forma financial statements
included in each Registration Statement and the Prospectus provide a
reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, the
related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(w) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and there has been
no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(x) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(y) The Registration Statement, the Prospectus and any preliminary
prospectus comply, and any further amendments or supplements thereto
will comply, with any applicable laws or regulations of foreign
jurisdictions in which the Prospectus or any preliminary prospectus, as
amended or supplemented, if applicable, are distributed in connection
with the Directed Share Program, and no authorization, approval,
consent, license, order, registration or qualification of or with any
government, governmental instrumentality or court, other than such as
have been obtained, is necessary under the securities law and
regulations of foreign jurisdictions in which the Directed Shares are
offered outside the United States.
(z) The Company has not offered, or caused the Underwriters to
offer, any Offered Securities to any person pursuant to the Directed
Share Program with the specific intent to unlawfully influence (i) a
customer or supplier of the Company to alter the customer's or
supplier's level or type of business with the Company or (ii) a trade
journalist or publication to write or publish favorable information
about the Company or its products.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the
8
Company agrees to sell to the Underwriters, and the Underwriters agree,
severally and not jointly, to purchase from the Company, at a purchase price of
$ per share, the respective numbers of shares of Firm Securities set forth
opposite the names of the Underwriters in Schedule A hereto.
The Company will deliver the Firm Securities to the Representatives,
through the facilities of the Depository Trust Company ("DTC") unless the
Representatives shall otherwise instruct, for the accounts of the Underwriters,
against payment of the purchase price in Federal (same day) funds by official
bank check or checks or wire transfer to an account at a bank acceptable to
Credit Suisse First Boston Corporation ("CSFBC") drawn to the order of United
Surgical Partners International, Inc. at the office of Akin, Gump, Strauss,
Xxxxx & Xxxx, L.L.P., in Dallas, Texas, at 9:00 A.M., Central Standard Time, on
, or at such other time not later than seven full business days
thereafter as CSFBC and the Company determine, such time being herein referred
to as the "FIRST CLOSING DATE". For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, the First Closing Date (if later than the
otherwise applicable settlement date) shall be the settlement date for payment
of funds and delivery of securities for all the Offered Securities sold
pursuant to the offering. The certificates for the Firm Securities so to be
delivered will be in definitive form, in such denominations and registered in
such names as CSFBC requests and will be made available for checking and
packaging at the office of DTC or its designated custodian, unless the
Representatives shall otherwise instruct, at least 24 hours prior to the First
Closing Date.
In addition, upon written notice from CSFBC given to the Company from
time to time not more than 30 days subsequent to the date of the Prospectus,
the Underwriters may purchase all or less than all of the Optional Securities
at the purchase price per Security to be paid for the Firm Securities. The
Company agrees to sell to the Underwriters the number of shares of Optional
Securities specified in such notice and the Underwriters agree, severally and
not jointly, to purchase such Optional Securities. Such Optional Securities
shall be purchased for the account of each Underwriter in the same proportion
as the number of shares of Firm Securities set forth opposite such
Underwriter's name bears to the total number of shares of Firm Securities
(subject to adjustment by CSFBC to eliminate fractions) and may be purchased by
the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities shall
be sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by CSFBC to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing Date to the
Representatives, through the facilities of DTC unless the Representatives shall
otherwise instruct, for the accounts of the several Underwriters, against
payment of the purchase price therefor in Federal (same day) funds by official
bank check or checks or wire transfer to an account at a bank acceptable to
CSFBC drawn to the order of United Surgical Partners International, Inc., at
the above office of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P. The certificates
for the Optional Securities being purchased on each Optional Closing Date will
be in definitive form, in such denominations and registered in such names as
CSFBC requests upon reasonable notice prior to such Optional Closing Date and
will be made available for checking and packaging at the above office of DTC or
its designated custodian, unless the Representatives shall otherwise instruct,
at a reasonable time in advance of such Optional Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
9
5. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance
with subparagraph (1) (or, if applicable and if consented to by CSFBC,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this
Agreement or (B) the fifteenth business day after the Effective Date of
the Initial Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant to
Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and
an additional registration statement is necessary to register a portion
of the Offered Securities under the Act but the Effective Time thereof
has not occurred as of such execution and delivery, the Company will
file the additional registration statement or, if filed, will file a
post-effective amendment thereto with the Commission pursuant to and in
accordance with Rule 462(b) on or prior to 10:00 P.M., New York time,
on the date of this Agreement or, if earlier, on or prior to the time
the Prospectus is printed and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to by
CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any)
or the Prospectus and will not effect such amendment or supplementation
without CSFBC's consent; and the Company will also advise CSFBC
promptly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of a Registration Statement and
will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify CSFBC of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFBC's consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to
its securityholders an earnings statement covering a period of at least
12 months beginning after the Effective Date of the Initial
Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
10
quarter of the Company's fiscal year, "AVAILABILITY DATE" means the
90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of each
Registration Statement (five of which will be signed and will include
all exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be
delivered under the Act in connection with sales by any Underwriter or
dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as CSFBC requests. The
Prospectus shall be so furnished on or prior to 3:00 P.M., New York
time, on the business day following the later of the execution and
delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other documents shall be so furnished as
soon as available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as
required for the distribution; provided, however, that the Company will
not be required to arrange for the qualification of the Offered
Securities in any jurisdiction in which the Company would be required
to qualify to do business as a foreign corporation or to execute a
general consent to service of process in order to affect such
qualification.
(g) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year,
a copy of its annual report to stockholders for such year; and the
Company will furnish to the Representatives (i) as soon as available, a
copy of each report and any definitive proxy statement of the Company
filed with the Commission under the Securities Exchange Act of 1934 or
mailed to stockholders, and (ii) from time to time, such other
information concerning the Company as CSFBC may reasonably request,
which such other information shall be kept confidential by the
Underwriters to the extent requested by Company in writing at the time
of delivery of such information; provided that the Underwriters shall
have no such obligation with respect to any such information which (i)
prior to delivery to the Underwriters was already in their possession,
(ii) is or becomes otherwise publicly available, without breach of this
provision, (iii) becomes available to the Underwriters on a
non-confidential basis from a source other than the Company, provided
that, after reasonable inquiry, the Underwriters do not know that such
source is bound by a confidentiality agreement with, or obligation of
secrecy to, the Company or (iv) the Underwriters are legally compelled
to disclose such information.
(h) The Company will pay all expenses incident to the performance
of its obligations under this Agreement, for any filing fees and other
expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities for sale under
the laws of such jurisdictions as CSFBC designates and the printing of
memoranda relating thereto, for the filing fee incident to the review
by the NASD of the Offered Securities, for any travel expenses of the
Company's officers and employees and any other expenses of the Company
in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters.
(i) For a period of 180 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of,
11
directly or indirectly, or file with the Commission a registration
statement under the Act relating to, any additional shares of its
Securities or securities convertible into or exchangeable or
exercisable for any shares of its Securities, or publicly disclose
the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of CSFBC, except (i) the
filing of a registration statement on Form S-8 under the Act
registering securities issuable under any plan in effect on the date
hereof, (ii) issuances of Securities pursuant to the conversion or
exchange of convertible or exchangeable securities or the exercise
of warrants or options, in each case outstanding on the date hereof,
(iii) grants of employee stock options pursuant to the terms of a
plan in effect on the date hereof, (iv) issuances of Securities
pursuant to the exercise of employee stock options or (v) issuances
of Securities pursuant to the Company's employee stock purchase plan
pursuant to the terms of a plan in effect on the date hereof.
(j) In connection with the Directed Share Program, the Company
will ensure that the Directed Shares will be restricted to the extent
required by the NASD or the NASD rules from sale, transfer, assignment,
pledge or hypothecation for a period of three months following the date
of the effectiveness of the Registration Statement. The Designated
Underwriter will notify the Company as to which Participants will need
to be so restricted. The Company will direct the transfer agent to
place stop transfer restrictions upon such securities for such period
of time.
(k) The Company will pay all fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Share
Program and stamp duties, similar taxes or duties or other taxes, if
any, incurred by the underwriters in connection with the Directed Share
Program.
Furthermore, the Company covenants with the Underwriters that the
Company will comply with all applicable securities and other applicable
laws, rules and regulations in each foreign jurisdiction in which the
Directed Shares are offered in connection with the Directed Share
Program.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of KPMG
LLP, confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion the consolidated financial statements
and schedule audited by them and included in the Registration
Statements comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
12
(ii) if applicable, they have performed the procedures
specified by the American Institute of Certified Public
Accountants for a review of interim financial information as
described in Statement of Auditing Standards No. 71, Interim
Financial Information, as amended, on the unaudited financial
statements included in the Registration Statements;
(iii) on the basis of the review referred to in clause
(ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements
included in the Registration Statements do not comply
as to form in all material respects with the
applicable accounting requirements of the Act and the
related published Rules and Regulations or any
material modifications should be made to such
unaudited financial statements for them to be in
conformity with accounting principles generally
accepted in the United States of America;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net current assets or net assets, as
compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(C) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year in
consolidated net operating income in the total or per
share amounts of consolidated net income;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter,
(iv) the pro forma financial statement, together with
related notes, forming part of the Registration Statements (as
hereinafter defined) and the Prospectus (and any supplement or
amendment thereto) have been prepared consistent with the
historical statements, except for the pro forma adjustments
specified therein, and give effect to assumptions made on a
reasonable basis and present fairly the historical and
proposed transactions contemplated by the Registration
Statements and this Agreement; and
(v) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures
13
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement
with such results, except as otherwise specified in such
letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "REGISTRATION STATEMENTS"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time, and (iii) "PROSPECTUS" shall mean the prospectus
included in the Registration Statements.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or such later date as shall have
been consented to by CSFBC. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and
delivery of this Agreement, such Effective Time shall have occurred not
later than 10:00 P.M., New York time, on the date of this Agreement or,
if earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have
been consented to by CSFBC. If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, the Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of a Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representatives, shall be contemplated
by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or
event involving a prospective change, in the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries taken as one enterprise which, in the judgment of
a majority in interest of the Underwriters including the
Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities; (ii) any downgrading in
the rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange or The Nasdaq National Market, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of
any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal or New York authorities, Spanish authorities or United Kingdom
authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress
or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the
Underwriters including the Representatives, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or
14
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxx & Xxxxxx L.L.P., counsel for the Company, to
the effect that:
(i) The Company is validly existing as a corporation in
good standing under the laws of the State of Delaware, with
the corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure
to be so qualified would not, individually or in the
aggregate, have a Material Adverse Effect;
(ii) Each Significant Subsidiary of the Company that is a
corporation is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, with the corporate power and authority to own
its properties and conduct its business as described in the
Prospectus; each such Significant Subsidiary is duly qualified
to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification, except where the failure to be so qualified
would not, individually or in the aggregate, have a Material
Adverse Effect; and the outstanding shares of capital stock of
each such Significant Subsidiary have been duly authorized and
validly issued and are fully paid and nonassessable; and to
such counsel's knowledge, except as disclosed in the
Prospectus, all of the outstanding shares of capital stock of
each such Significant Subsidiary are owned free from all
liens, encumbrances and defects;
(iii) Each Significant Subsidiary of the Company that is a
partnership is validly existing as a partnership in good
standing, where applicable, under the laws of the jurisdiction
of its organization, with the partnership power and authority
to own its properties and conduct its business as described in
the Prospectus; and each such Significant Subsidiary is duly
qualified to do business as a foreign partnership in good
standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified
would not, individually or in the aggregate, have a Material
Adverse Effect; and to such counsel's knowledge, except as
disclosed in the Prospectus, all of the partnership interests
in each such Significant Subsidiary held directly or
indirectly by the Company are free and clear of all liens,
encumbrances and defects;
(iv) Each Significant Subsidiary of the Company that is a
limited liability company is validly existing as a limited
liability company in good standing under the laws of the
jurisdiction of its organization, with the limited liability
company power and authority to own its properties and conduct
its business as described in the Prospectus; and each such
Significant Subsidiary company is duly qualified to do
business as a foreign limited liability company in good
standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified
would not, individually, or in the aggregate, have a Material
Adverse Effect; and to such counsel's knowledge, except as
disclosed in the Prospectus, all the limited liability company
interests in each such Significant Subsidiary held
15
directly or indirectly by the Company are free and clear of
all liens, encumbrances and defects;
(v) The Offered Securities have been duly authorized and,
when issued and delivered on such Closing Date to the
Underwriters against payment therefor in accordance with this
Agreement, will be validly issued, fully paid and
nonassessable and will conform to the description thereof
contained in the Prospectus; and all other outstanding shares
of the capital stock of the Company have been duly authorized
and validly issued, are fully paid and nonassessable and
conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Securities under the
Delaware General Corporation Law or any material contract
filed as an exhibit to the Registration Statement or, to such
counsel's knowledge, any other agreement or arrangement to
which the Company is a party or by which the Company is bound;
(vi) Except as specifically disclosed in the Prospectus,
there are no contracts, agreements or understandings known to
such counsel between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the
Company to include such securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act. All such rights
that are disclosed in the Prospectus have been validly waived
by the holders thereof;
(vii) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the
application of the proceeds thereof as described under the
caption "Use of Proceeds" in the Prospectus will not be,
required to be registered as an "investment company" as such
term is defined in the Investment Company Act of 1940;
(viii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body, any court, or
any securities industry self-regulatory organization is
required for the consummation of the offering contemplated by
this Agreement, except such as have been obtained or made
under the Act and the Exchange Act and such as may be required
under state securities laws or the bylaws or rules and
regulations of the NASD;
(ix) The execution, delivery and performance of this
Agreement by the Company and the issuance and sale of the
Offered Securities by the Company pursuant to this Agreement
will not: (i) result in a breach or violation of any of the
terms and provisions of, or constitute a default under, (a)
any statute, rule, regulation or order of any governmental
agency or body or any court having jurisdiction over the
Company or any Significant Subsidiary of the Company or any of
their properties, (b) any agreement or instrument filed as an
exhibit to the Registration Statement or, to the knowledge of
such counsel, any agreement or arrangement by which the
Company or any such Significant Subsidiary is bound or to
which any of the properties of the Company or any such
Significant Subsidiary is subject, or (c) the charter or
by-laws of the Company or the charter, bylaws or other
organizational documents of any such Significant Subsidiary;
(ii) with respect to Health Care Laws, violate or conflict
with any applicable statute, rule or regulation, or any
judgment, decree or order of any court or governmental agency
or
16
body known to such counsel; or (iii) result in the creation
or imposition of any lien, charge, claim or encumbrance upon
any property or asset of the Company or its Significant
Subsidiaries, except in the case of breaches, violations,
conflicts or defaults described in clauses (i)(b) and (ii) and
liens, charges, claims or encumbrances described in clause
(iii) that would not, individually or in the aggregate, have a
Material Adverse Effect; and the Company has full corporate
power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement;
(x) The Initial Registration Statement was declared
effective under the Act, the Additional Registration Statement
(if any) was filed and became effective under the Act, the
Prospectus either was filed with the Commission pursuant to
the subparagraph of Rule 424(b) specified in such opinion on
the date specified therein or was included in the Initial
Registration Statement or the Additional Registration
Statement (as the case may be), and, to the knowledge of such
counsel, no stop order suspending the effectiveness of a
Registration Statement or any part thereof has been issued and
no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and each Registration
Statement and the Prospectus, and each amendment or supplement
thereto, as of their respective effective or issue dates,
complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations; the
descriptions in the Registration Statements and Prospectus
under the captions "Risk Factors--Our revenues may be reduced
by pending changes in the system of paying for outpatient
surgical procedures under the Medicare program"; "Risk
Factors--New federal and state legislative and regulatory
initiatives relating to patient privacy could require us to
expend substantial sums acquiring and implementing new
information systems, which could negatively impact our
financial results"; "Risk Factors--If a federal or state
agency asserts a different position or enacts new laws or
regulations regarding illegal remuneration under the Medicare
or Medicaid programs, we may be subject to civil and criminal
penalties, experience a significant reduction in our revenues
or be excluded from participation in the Medicare and Medicaid
programs"; "Risk Factors--If physician self-referral laws are
interpreted differently or if other legislative restrictions
are issued, we could incur a significant loss of reimbursement
revenues"; "Risk Factors--If our designees for ownership at
New York facilities are not approved or if our operations in
New York are found to not be in compliance with New York law,
we may be unable to continue or expand our operations in New
York"; "Business--Government Regulation," "Management";
"Certain Relationships and Related Transactions"; "Description
of Capital Stock"; "Shares Eligible for Future Sale"; and
"Material United States Federal Tax Consequences to Non-United
States Holders of Common Stock" of statutes, legal and
governmental proceedings and contracts and other documents are
accurate in all material respects and fairly present the
information required to be shown; and such counsel do not know
of any legal or governmental proceedings required to be
described in a Registration Statement or the Prospectus that
are not described as required or of any contracts or documents
of a character required to be described in a Registration
Statement or the Prospectus or to be filed as exhibits to a
Registration Statement that are not described and filed as
required; it being understood that such counsel need express
no opinion as to the financial statements, the notes and
schedules thereto or other financial information and data
contained in the Registration Statements or the Prospectus;
and
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
17
Such counsel shall also provide a statement to the effect that such
counsel have participated in conferences with officers and representatives of
the Company, representatives of the independent public accountants for the
Company, the Underwriters and counsel for the Underwriters at which the contents
of the Prospectus and related matters were discussed and such counsel have no
reason to believe that any part of a Registration Statement as of its effective
date or any amendment thereto made prior to such Closing Date on the date of
such amendment (except, in each case, for financial statements, the notes and
schedules thereto and other financial information and data included therein or
omitted therefrom, as to which such counsel makes no statement), 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, or that the Prospectus or any amendment or supplement thereto, as of
the date thereof or as of such Closing Date, contained any untrue statement of a
material fact or omitted 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.
The opinion of Xxxxxx & Xxxxxx L.L.P. described in Section 6(d) above
shall be rendered to the Representatives at the request of the Company and shall
so state therein. Such opinion may, solely as it relates to the application of
laws other than the laws of the United States and jurisdictions in which they
are admitted, to the extent such counsel deems proper and to the extent
specified in such opinion, be given in reliance on or directly from separate
legal counsel reasonably acceptable to the Underwriters and their legal counsel.
Such opinion may, with respect to Sections 6(d)(ii) (as to corporate
subsidiaries of the Company), (iii) (as to partnership subsidiaries of the
Company), (iv) (as to limited liability company subsidiaries of the Company),
(v) (as to outstanding shares of capital stock of the Company other than the
Offered Securities), and (ix) (as to subsidiaries of the Company), be given
directly from Nossaman, Guthner, Xxxx & Xxxxxxx, LLP.
(e) The Representatives shall have received from Akin, Gump,
Strauss, Xxxxx & Xxxx, L.L.P., counsel for the Underwriters, such
opinion or opinions, dated such Closing Date, with respect to the
incorporation of the Company, the validity of the Offered Securities
delivered on such Closing Date, the Registration Statements, the
Prospectus and other related matters as the Representatives may
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters. In rendering such opinion, such counsel may rely as to
matters involving the application of laws other than the laws of the
United States and jurisdictions in which they are admitted, to the
extent such counsel deems proper and to the extent specified in such
opinion, if at all, upon the opinion or opinions of counsel described
in Section 6(d).
(f) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to their knowledge after reasonable investigation, shall
state that: the representations and warranties of the Company in this
Agreement are true and correct; the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; no stop order
suspending the effectiveness of any Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission; the Additional Registration Statement
(if any) satisfying the requirements of subparagraphs (1) and (3) of
Rule 462(b) was filed pursuant to Rule 462(b), including payment of the
applicable filing fee in accordance with Rule 111(a) or (b) under the
Act, prior to the time the Prospectus was printed and distributed to
any Underwriter; and, subsequent to the dates of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, properties or results of operations of the
18
Company and its subsidiaries taken as a whole except as set forth in
or contemplated by the Prospectus or as described in such certificate.
(g) The Representatives shall have received a letter, dated such
Closing Date, of KPMG LLP which meets the requirements of subsection
(a) of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to such
Closing Date for the purposes of this subsection.
(h) On or prior to the date of this Agreement, the Representatives
shall have received lockup letters from each of the executive officers,
directors and stockholders of the Company listed on EXHIBIT B attached
hereto.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. CSFBC may in its sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters hereunder,
whether in respect of an Optional Closing Date or otherwise.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter 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 any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements made therein, in the light of the
circumstances under which they were made (in the case of the Prospectus only),
not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(b) below; and provided, further, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from any preliminary
prospectus, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Offered Securities
concerned, to the extent that a prospectus relating to such Offered Securities
was required to be delivered by such Underwriter under the Act in connection
with such purchase and any such loss, claim, damage or liability of such
Underwriter results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Offered
Securities to such person, a copy of the Prospectus (exclusive of material
incorporated by reference therein) if the Company had previously furnished
copies thereof to such Underwriter.
The Company agrees to indemnify and hold harmless the Designated
Underwriter and each person, if any, who controls the Designated Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act (the "DESIGNATED ENTITIES"), from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by
19
any untrue statement or alleged untrue statement of a material fact contained
in any material prepared by or with the consent of the Company for
distribution to Participants in connection with the Directed Share Program or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; (ii) caused by the failure of any Participant to pay for and
accept delivery of Directed Shares that the Participant agreed to purchase;
or (iii) related to, arising out of, or in connection with the Directed Share
Program, other than losses, claims, damages or liabilities (or expenses
relating thereto) that are finally judicially determined to have resulted
from the bad faith or gross negligence of the Designated Entities.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, against any
losses, claims, damages, or liabilities to which 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 any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements made therein,
in the light of the circumstances under which they were made (in the case of the
Prospectus only), 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 will reimburse any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of (i) the following
information in the Prospectus furnished on behalf of each Underwriter: (A) the
concession and reallowance figures appearing in the fourth paragraph under the
caption "Underwriting", (B) the information related to discretionary sales
contained in the sixth paragraph under the caption "Underwriting", and (C) the
information related to stabilizing transactions appearing in the 15th paragraph
under the caption "Underwriting"; and (ii) the following information in the
Prospectus furnished on behalf of CSFBC: the factors CSFBC would consider in
deciding whether to release any securities subject to lock-up letters.
(c) Promptly after receipt by an indemnified party under this Section
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
subsection (a) or (b) above, 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 subsection (a) or (b) above. 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 (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. Notwithstanding anything contained herein to
the contrary, if indemnity may be sought pursuant to the last paragraph in
Section 7 (a) hereof in respect of such action or proceeding, then in addition
to such separate firm for the indemnified parties, the indemnifying party shall
be liable for the reasonable fees and expenses of not more than one separate
firm (in addition to any local counsel) for the Designated Underwriter for the
defense of any losses, claims, damages and liabilities arising out of the
Directed Share Program, and all
20
persons, if any, who control the Designated Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless
such settlement (i) includes an unconditional release of such indemnified
party from all liability on any claims that are the subject matter of such
action and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified
party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities 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 net 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 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 and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed a Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
8. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters
21
are obligated to purchase on such Closing Date, CSFBC may make arrangements
satisfactory to the Company for the purchase of such Offered Securities by
other persons, including any of the Underwriters, but if no such arrangements
are made by such Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder,
to purchase the Offered Securities that such defaulting Underwriters agreed
but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate number of shares of Offered
Securities with respect to which such default or defaults occur exceeds 10%
of the total number of shares of Offered Securities that the Underwriters are
obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC and the Company for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or
the Company, except as provided in Section 9 (provided that if such default
occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement,
the term "Underwriter" includes any person substituted for an Underwriter
under this Section. Nothing herein will relieve a defaulting Underwriter from
liability for its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Underwriters pursuant to Section 7 shall
remain in effect, and if any Offered Securities have been purchased hereunder
the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Offered Securities
by the Underwriters is not consummated for any reason other than solely because
of the termination of this Agreement pursuant to Section 8 or the occurrence of
any event specified in clause (iii), (iv) or (v) of Section 6(c), the Company
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Transactions Advisory
Group, or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 00000 Xxxxxxx Xxxx, Xxxxx 000 Xxxxx, Xxxxxx, Xxxxx 00000,
Attention: Xxxxxx X. Xxxxx; provided, however, that any notice to an Underwriter
pursuant to Section 7 will be mailed, delivered or telegraphed and confirmed to
such Underwriter.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. REPRESENTATION OF UNDERWRITERS. The Representatives will act for
the several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives jointly or by CSFBC will be binding
upon all the Underwriters.
22
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
23
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
UNITED SURGICAL PARTNERS INTERNATIONAL, INC.
By
-----------------------------------------
Xxxxxx X. Xxxxx
Chief Executive Officer and
Chairman of the Board
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX BROTHERS INC.
XX XXXXX SECURITIES CORPORATION
Acting on behalf of themselves and as the Representatives of
the several Underwriters
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
------------------------------------
Xxxxxxx X. Xxxxx
Director
24
SCHEDULE A
NUMBER OF
UNDERWRITER FIRM SECURITIES
----------- ---------------
Credit Suisse First Boston Corporation..................
Xxxxxx Brothers Inc.....................................
XX Xxxxx Securities Corporation.........................
[Others]................................................
------------
Total........................ 9,000,000
============
25
EXHIBIT A
SIGNIFICANT SUBSIDIARIES OF THE COMPANY
EXHIBIT A
SIGNIFICANT SUBSIDIARIES
Arlington Surgicare Partners, Ltd.
Aspen Healthcare Holdings, Ltd.
Aspen Healthcare, Ltd.
Centro de Patologia Celular, S.A.
Centro Radiologico S.L.
Clinica Maternal Nuestra Senora de la Esperanza, S.A.
Clinica Xxxxxxx Xxxxxxx X.X.
Clinica San Camilo, S.A.
Columbia Healthcare Corporation of Spain, S.L.
Columbia PDC of Dallas, Ltd.
Creekwood Surgery Center, L.P.
Dallas Surgical Partners, L.P.
Day-Op Management Company, Inc.
Day-Op Surgery Consulting Company, L.L.C.
Decatur Surgery Center, L.P.
Densitometria Oseo Computerizada, X.X.
Xxxxxx Surgicare Partners, Ltd.
DeSoto Surgicare Partners, Ltd.
Diagnosticos y Tratamientos Medicos, S.A.
Doctors Outpatient SurgiCenter, Ltd.
East-West Surgery Center, L.P.
Estudios Funcionales, S.A.
Fort Worth Surgical Hospital, L.L.P.
Frisco Medical Center, L.L.P.
Garland Surgicare Partners, Ltd.
Georgia Musculoskeletal Network, Inc.
Global Healthcare Partners, Ltd.
Grapevine Surgicare Partners, Ltd.
Health Horizons of Decatur, Inc.
Health Horizons of Kansas City, Inc.
Health Horizons of Murfreesboro, Inc.
Health Horizons of Nashville, Inc.
Hospitalizacion y Servicios, S.A.
Imagenes Diagnostic, S.A.
Instituto Dexeus, S.A.
Instituto Policlinico Santa Xxxxxx, X.X.
Xxxxx, S.A.
MedCenter Management Services, Inc.
Medical Documenting Systems, Inc.
Mesquite Surgicare Partners, Ltd.
Metroplex Surgicare Partners, Ltd.
Middle Tennessee Ambulatory Surgery Center, L.P.
Mountain Empire Surgery Center, L.P.
Neuro-Surgical Associates, Inc.
New Mexico Orthopaedic Surgery Center, L.P.
NYCAS Administrative Services, L.L.C.
OrthLink/New Mexico ASC, Inc.
OrthoExcel, Inc.
OrthoLink ASC Corporation
OrthoLink of Colorado, Inc.
OrthoLink Physicians Corporation
OrthoLink Securities Corp.
OrthoLink/Baptist ASC, LLC
OrthoLink/Georgia ASC, Inc.
OrthoLink/Murfreesboro ASC, LLC
OrthoLink/TN ASC, Inc.
OrthoLink/TOC, LLC
Parkway Surgery Center, LLC
Parkwest Surgery Center, L.P.
Physicians Pavilion, L.P.
Resonancia Nuclear Magnetica Santa Xxxxxx, X.X.
Xxxxxxxxxx Surgery Center, LLC
Southwest Spine Center, Inc.
Surgical Center of Dallas, Inc.
Tennessee Musculoskeletal Network, Inc.
Texas Health Venture Frisco, L.L.C.
Texas Health Venture Fort Worth, L.L.C.
Texas Health Venture Grapevine, L.L.C.
Texas Health Venture III, L.L.C.
Texas Health Venture IV, L.L.C.
Texas Health Venture V, L.L.C.
Texas Health Venture VI, L.L.C.
Texas Health Venture VII, L.L.C.
Texas Health Ventures Group, L.L.C.
Texas Outpatient Surgicare Center, Inc.
THVG Valley View L.L.C.
THVG/HealthFirst LLC
Toms River Surgery Center, L.L.C.
TOPS Specialty Hospital, Ltd.
Unidad de Recuperacion del Suelo Pelvico, S.L.
United Surgery Center Southeast Ltd.
United Surgical Partners Europe, S.L.
United Surgical Partners Holdings, Inc.
University Surgery Center Southeast, Ltd.
USP Xxxxxxxx, Inc.
USP Chevy Chase, Inc.
USP Dermoestetica S.A.
USP Domestic Holdings, Inc.
USP International Holdings, Inc.
USP Long Island, Inc.
USP Xxxxxx X.X.
USP Malaga S.L.
USP Manhattan, Inc.
USP Nevada Holdings, LLC
USP Nevada, Inc.
USP New Jersey, Inc.
USP North Texas, Inc.
USP Pasadena, Inc.
USP South Houston, Inc.
USP Texas, L.P.
USP Winter Park, Inc.
Warner Park Surgery Center, L.P.
EXHIBIT B
EXECUTIVE OFFICERS, DIRECTORS AND STOCKHOLDERS OF
THE COMPANY WHO HAVE EXECUTED LOCKUP LETTERS
EXHIBIT B
TO UNDERWRITING AGREEMENT
LOCKUPS
----------------------------------------------------------------
Name of
Stockholder
or Optionee
----------------------------------------------------------------
----------------------------------------------------------------
Xxxxxxxxx, Xxxx A. M.D.
----------------------------------------------------------------
Alexander, G. Xxxxxx
----------------------------------------------------------------
G. Xxxxxx Xxxxxxxxx Xx. C/F Kelsey Xxxxxxx Xxxxxxxxx
----------------------------------------------------------------
Xxxxxxxx, Xxxxx X.
----------------------------------------------------------------
Xxxxxxxx, Xxxxxx
----------------------------------------------------------------
Anvers L.P. by FSIF, LLC GP
----------------------------------------------------------------
Xxxxxxx, Xxxxx
----------------------------------------------------------------
Xxxxxx, Xxxxxxx X.
----------------------------------------------------------------
Baylor Health Care System
----------------------------------------------------------------
Xxxxxxx, Xxxx
----------------------------------------------------------------
Xxxx, Xxxxxxxx X.
----------------------------------------------------------------
Xxxxxxxx, Xxxxx
----------------------------------------------------------------
Xxxxxxxx, Xxxxx
----------------------------------------------------------------
Xxxxxxx, Xxxxx
----------------------------------------------------------------
Xxxxx, XxXxx
----------------------------------------------------------------
Xxxxxxxxxx, Xxxxxx
----------------------------------------------------------------
Xxxxxx, Xxxxx X.
----------------------------------------------------------------
Xxxx, Xxxxx X.
----------------------------------------------------------------
Xxxxx, Xxxx
----------------------------------------------------------------
Xxxxxxxx, Xxxxxxx
----------------------------------------------------------------
Xxxxxx, Xxxxx X.
----------------------------------------------------------------
Xxxx, Xxxxx
----------------------------------------------------------------
Xxxxxx, Xxxxxxx
----------------------------------------------------------------
CGJR II, L.P.
----------------------------------------------------------------
CGJR/MF III, L.P.
----------------------------------------------------------------
Xxxxxxx, Xxxx
----------------------------------------------------------------
Chick, Xxxxxx
----------------------------------------------------------------
Xxxxxxx, Xxxxxx
----------------------------------------------------------------
Xxxxxxx Associates, LLC
----------------------------------------------------------------
Xxxxxxxx, Xxxxx X.
----------------------------------------------------------------
Xxxxx, Xxxxxxx
----------------------------------------------------------------
Xxxxx, Xxx X.
----------------------------------------------------------------
xxXxxxxx, Xxxxxxx X.
----------------------------------------------------------------
XxXxxxxxxx, Dr. Xxxxx
----------------------------------------------------------------
Xxxxx, Xxxxx
----------------------------------------------------------------
Xxxxxx, Xxxxx
----------------------------------------------------------------
Xxxxx, Xxxxxxx
----------------------------------------------------------------
FFT Executive Partners I, L.P.
----------------------------------------------------------------
FFT Partners I, L.P.
----------------------------------------------------------------
Xxxxxxxxxxx, Xxxxxxx X., M.D.
----------------------------------------------------------------
Page 1 of 4
EXHIBIT B
TO UNDERWRITING AGREEMENT
LOCKUPS
----------------------------------------------------------------
Name of
Stockholder
or Optionee
----------------------------------------------------------------
Xxxx, Xxxx
----------------------------------------------------------------
Xxxxxx, Xxxx X.
----------------------------------------------------------------
Xxx, Xxxxx X., M.D.
----------------------------------------------------------------
Xxxxxx, Xxxxx X.
----------------------------------------------------------------
Xxxxxx, Xxxxxx X.
----------------------------------------------------------------
Xxxxxxxx, Xxxxxxxx
----------------------------------------------------------------
Xxxxxxx, Xxxxxx
----------------------------------------------------------------
Xxxxxxx, Xxxxxxx X.
----------------------------------------------------------------
Health Dream Team, S.C.
----------------------------------------------------------------
Xxxxxxx, Xxxxxx X.
----------------------------------------------------------------
Xxxxxx, Xxxx
----------------------------------------------------------------
Xxxxx, Xxxxx
----------------------------------------------------------------
Xxxxx, Xxxxxx
----------------------------------------------------------------
Xxxxxxxxxx, Xxxxxx
----------------------------------------------------------------
Xxxxxxxx, Xxxxx
----------------------------------------------------------------
Xxxxxxx, Xxxxx, A., III
----------------------------------------------------------------
Xxxxxxx, Xxxxxx X.
----------------------------------------------------------------
Xxxxxx, Xxxxxxx
----------------------------------------------------------------
Xxxxx, M. Xxxxxx Trust U/A DTD 8/31/90
----------------------------------------------------------------
Xxxxxxxx, Xxxxx
----------------------------------------------------------------
Xxxxxx, Xxxx X.
----------------------------------------------------------------
Xxxxx, Xxxx
----------------------------------------------------------------
L& W Co.
----------------------------------------------------------------
Xxxxxx, Xxxxxxxx
----------------------------------------------------------------
Xxx, Xxxxxxx
----------------------------------------------------------------
Xxxxxxx, X. Xxxxx
----------------------------------------------------------------
Xxxxxx, Xxxxxxx
----------------------------------------------------------------
XxXxxxxxx, Xxxxxx X.
----------------------------------------------------------------
XxXxxxxx, X. Xxxxxxx, III
----------------------------------------------------------------
McWhorrter, Xxxxxx X.
----------------------------------------------------------------
Xxxxx, Xxxxx
----------------------------------------------------------------
Xxxxxx, Xxxxxxx
----------------------------------------------------------------
Xxxxxx, Xxxxxx
----------------------------------------------------------------
Xxxxxx Partners, LTD -- Xxxxxxx Xxxxxx
----------------------------------------------------------------
Xxxxxx, Xxxxx
----------------------------------------------------------------
Xxxxx, Xxx
----------------------------------------------------------------
Xxxxxxxxx, Xxxxxx X.
----------------------------------------------------------------
Xxxxxx, Xxxxxxx
----------------------------------------------------------------
Xxxxxx, Xxx
----------------------------------------------------------------
Xxxxxx, Xxxxx Xxx
----------------------------------------------------------------
NGKE/USPI Partners
----------------------------------------------------------------
Page 2 of 4
EXHIBIT B
TO UNDERWRITING AGREEMENT
LOCKUPS
----------------------------------------------------------------
Name of
Stockholder
or Optionee
----------------------------------------------------------------
Xxxxxxxx, Xxxxxx X.
----------------------------------------------------------------
Xxxxxxxxx, Xxx, M.D.
----------------------------------------------------------------
Xxxxxxxx, Xxxxxxx X. and Xxxx X., as tenants in common
----------------------------------------------------------------
Xxxxx, Xxxxxxxx
----------------------------------------------------------------
Xxxxxx, Xxxxxx X.
----------------------------------------------------------------
Xxxx, Xxxx
----------------------------------------------------------------
Xxxx, Xxxxxx X.
----------------------------------------------------------------
Xxxxxxx, Xxxxx X., M.D.
----------------------------------------------------------------
Pounds, L. Xxxx
----------------------------------------------------------------
Xxxxxxx, Xxxx X.
----------------------------------------------------------------
Rather, Xxxxxxxx
----------------------------------------------------------------
Xxxxxxx, Xxxxx Xxx, M.D.
----------------------------------------------------------------
Xxxx, Xxxx III
----------------------------------------------------------------
Xxxxxxx, Xxxxxx
----------------------------------------------------------------
Rivid, LLC
----------------------------------------------------------------
Xxxx, Xxxxx X.
----------------------------------------------------------------
Row, Xxxxxx
----------------------------------------------------------------
Xxxxxxxx, Xxxxxxxx
----------------------------------------------------------------
Xxxxxxxxx, Xxxxxxx
----------------------------------------------------------------
Xxxxxxxxxx, Xxx
----------------------------------------------------------------
Select Investments--Xxxxx X. Xxxxxxxx
----------------------------------------------------------------
Xxxx, Xxxxx
----------------------------------------------------------------
Xxxxxxx, Xxx X.
----------------------------------------------------------------
Xxxxx, Xxxx
----------------------------------------------------------------
Xxxxxxx, Xxxxxxxx
----------------------------------------------------------------
Xxxxx, Xxxxxx X.
----------------------------------------------------------------
Xxxxx, Xxxxxx X.
----------------------------------------------------------------
Xxxxx, Xxxxxx Xxxxxxx (Trust)
----------------------------------------------------------------
Xxxxx, Xxxxxxxx Xxx (Trust)
----------------------------------------------------------------
Xxxxxxx, Xxxx X.
----------------------------------------------------------------
Xxxxxxx, Xxxx X.--Trustee XXX f/b/o
----------------------------------------------------------------
Xxxxxxx, Sale L. -- Xxxxxxx X. Xxxxxxx, a minor UTUGMA
----------------------------------------------------------------
Xxxxxxx, Xxxxx
----------------------------------------------------------------
Xxxxxxxx, Xxxxxxx X.
----------------------------------------------------------------
Xxxxx, Xxxxxxx
----------------------------------------------------------------
Xxxxx, Xxxxxxx X.
----------------------------------------------------------------
Xxxxxx, Xxxx X.
----------------------------------------------------------------
Swani, Sanjay
----------------------------------------------------------------
Xxxxxx, Xxxxxxx Xxxxxx
----------------------------------------------------------------
Xxxxxx, Xxxxxx
----------------------------------------------------------------
Xxxxxxxx, Xxxxxx X.
----------------------------------------------------------------
Page 3 of 4
EXHIBIT B
TO UNDERWRITING AGREEMENT
LOCKUPS
----------------------------------------------------------------
Name of
Stockholder
or Optionee
----------------------------------------------------------------
Xxxxxxx, Xxxx
----------------------------------------------------------------
Xxxxxx, Xxxx
----------------------------------------------------------------
Xxxxxxxxxx, Xxxxx
----------------------------------------------------------------
Xxxxxx, Xxxxx
----------------------------------------------------------------
Xxxxxx, Xxxxxxx Xxxx
----------------------------------------------------------------
WCAS Capital Partners III, L.P.
----------------------------------------------------------------
WCAS Healthcare Partners, L.P.
----------------------------------------------------------------
Xxxxxx, Xxxx X.
----------------------------------------------------------------
Welsh, Carson, Xxxxxxxx & Xxxxx VII, L.P.
----------------------------------------------------------------
Xxxxx, Xxxxxxx
----------------------------------------------------------------
Xxxxxxx, Xxxx X.
----------------------------------------------------------------
Xxxx, Xxxxx
----------------------------------------------------------------
Xxxxxx, Xxxxxxx X.
----------------------------------------------------------------
Xxxxxxxxxxx, Xxxx X.
----------------------------------------------------------------
Xxxxxxxxx, Xxxx
----------------------------------------------------------------
Xxxxxx, Xxxxxx X.
----------------------------------------------------------------
Xxxx, Xxxx
----------------------------------------------------------------
Xxxxx, Xxxxx X., M.D.
----------------------------------------------------------------
Page 4 of 4
