EXHIBIT 1.1
Alliance Imaging, Inc.
9,375,000 Shares(1)
Common Stock
($0.01 par value)
Underwriting Agreement
New York, New York
July [ ], 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
Deutsche Banc Alex. Xxxxx Inc.
X.X. Xxxxxx Securities Inc.
UBS Warburg LLC
As Representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Alliance Imaging, Inc., a corporation organized under the laws of
Delaware (the "Company"), proposes to issue and sell to the several parties
named in Schedule I hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, 9,375,000 shares of Common
Stock, par value $0.01 per share ("Common Stock"), of the Company (said shares
to be issued and sold by the Company being hereinafter called the "Underwritten
Securities"). The Company also proposes to grant to the Underwriters an option
to purchase up to 1,406,250 additional shares of Common Stock to cover
over-allotments (the "Option Securities"; the Option Securities, together with
the Underwritten Securities, being hereinafter called the "Securities"). To the
extent there are no additional Underwriters listed on Schedule I other than you,
the term Representatives as used herein shall mean you as the Underwriters, and
the terms
--------
(1) Plus an option to purchase from the Company, up to 1,406,250 additional
Securities to cover over-allotments.
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Certain terms used herein are defined in Section 17 hereof.
As part of the offering contemplated by this Agreement, Xxxxxxx
Xxxxx Xxxxxx Inc. has agreed to reserve out of the Securities set forth
opposite its name on the Schedule I to this Agreement, up to [ ]
shares for sale to the Company's directors, officers, and employees and other
parties associated with the Company (collectively, "Participants"), as set
forth in the Prospectus under the heading "Underwriting" (the "Directed Share
Program"). The Securities to be sold by Xxxxxxx Xxxxx Barney Inc. pursuant to
the Directed Share Program (the "Directed Shares") will be sold by Xxxxxxx
Xxxxx Xxxxxx Inc. pursuant to this Agreement at the public offering price.
Any Directed Shares not orally confirmed for purchase by any Participants by
the end of the business day immediately following the date on which this
Agreement is executed will be offered to the public by Xxxxxxx Xxxxx Barney
Inc. as set forth in the Prospectus.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to each Underwriter as set forth below in this Section 1.
(a) The Company has prepared and filed with the Commission
a registration statement (file number ) on Form S-1, including
a related preliminary prospectus, for registration under the Act of
the offering and sale of the Securities. The Company may have filed
one or more amendments thereto, including a related preliminary
prospectus, each of which has previously been furnished to you. The
Company will next file with the Commission either (1) prior to the
Effective Date of such registration statement, a further amendment
to such registration statement (including the form of final
prospectus) or (2) after the Effective Date of such registration
statement, a final prospectus in accordance with Rules 430A and
424(b). In the case of clause (2), the Company has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act
and the rules thereunder to be included in such registration
statement and the Prospectus. As filed, such amendment and form of
final prospectus, or such final prospectus, shall contain all Rule
430A Information, together with all other such required information,
and, except to the extent the Representatives shall agree in writing
to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in
the latest Preliminary Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined herein)
and on any date on which Option
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Securities are purchased, if such date is not the Closing Date (a
"settlement date"), the Prospectus (and any supplements thereto) will,
comply in all material respects with the applicable requirements of the
Act and the rules thereunder; on the Effective Date and at the
Execution Time, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date and
any settlement date, the Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; PROVIDED, HOWEVER, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement, or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto).
(c) The Company is not, and after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectus will not be, an "investment
company" within the meaning of the Investment Company Act.
(d) Each of the Company and its subsidiaries has been duly
organized and is validly existing in good standing under the laws of
the jurisdiction in which it is chartered or organized with full power
and authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Prospectus, and
is duly qualified to do business and is in good standing under the laws
of each jurisdiction which requires such qualification, except in each
case where it could not reasonably be expected to have a Material
Adverse Effect;
(e) All the outstanding shares of capital stock of each
wholly-owned subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and nonassessable, and, except
as otherwise set forth in the Prospectus, all outstanding shares of
capital stock of the Company's wholly-owned subsidiaries are owned by
the Company either directly or through wholly-owned subsidiaries free
and clear of any perfected security interest or any other security
interests, claims, liens or encumbrances;
(f) The Company's authorized equity capitalization is as set
forth in the Prospectus under the caption "Capitalization" as of the
date set forth therein; the capital stock of the Company conforms in
all material respects to the
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description thereof contained in the Prospectus; the outstanding shares
of Common Stock have been duly authorized and validly issued and are
fully paid and nonassessable; the Securities have been duly and validly
authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be fully paid and
nonassessable; the Securities are duly listed, and admitted and
authorized for trading, subject to official notice of issuance and
evidence of satisfactory distribution, on the New York Stock Exchange;
on the Closing Date the certificates for the Underwritten Securities
will be in valid and sufficient form; in the event that Option
Securities are purchased, on the Closing Date or any settlement date,
as applicable, the certificates for such Option Securities will be in
valid and sufficient form; the holders of outstanding shares of capital
stock of the Company are not entitled to preemptive or other rights to
subscribe for the Securities; and, except as set forth in the
Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding.
(g) The descriptions in the Prospectus (exclusive of any
supplement thereto) of statutes, and other laws, rules and regulations,
legal and governmental proceedings and contracts and other documents
are accurate and fairly present in all material respects the
information that is required to be described therein under the Act; and
there is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus,
or to be filed as an exhibit thereto, which is not described or filed
as required.
(h) The statements in the Prospectus under the headings
"Description of Capital Stock", "Shares Eligible for Future Sale",
"Description of Certain Indebtedness", "Risk Factors--Risks Related to
Government Regulation of Our Business", "Business--Regulation" and
"Business--Legal and Administrative Proceedings" insofar as such
statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of such
legal matters, agreements, documents or proceedings.
(i) This Agreement has been duly authorized, executed and
delivered by the Company;
(j) No consent, approval, authorization, filing, registration
with or order of any court or governmental agency or body is required
in connection with the transactions contemplated herein, except such as
have been obtained under the Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated herein and in the prospectus.
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(k) Except as otherwise described in the Prospectus, no
holders of securities of the Company have, or as a result of the
Redomiciliation Transactions will have rights to the registration of
such securities under the Registration Statement.
(l) Neither the execution and delivery of this Agreement, the
issue and sale of the Securities nor the consummation of any other of
the transactions herein contemplated nor the fulfillment of the terms
hereof (in each case with the receipt of any consents or waivers
thereunder obtained prior to the date hereof) will conflict with,
result in a breach or violation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, (i) the charter or by-laws or other
organizational documents, as applicable, of the Company or any of its
subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its
or their property is subject, or (iii) any statute, law, rule,
regulation, administrative manual provision, other regulatory guidance,
judgment, order or decree applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority (including government
fiscal agents) having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties, except in the case of
clauses (ii) and (iii) as could not reasonably be expected to have a
Material Adverse Effect.
(m) The consolidated historical financial statements, together
with the notes thereto, of the Company and its consolidated
subsidiaries included in the Prospectus and the Registration Statement
present fairly in all material respects the financial condition,
results of operations and cash flows of the Company as of the dates and
for the periods indicated, comply as to form with the applicable
accounting requirements of the Act and have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis throughout the periods involved (except as otherwise noted
therein). The selected financial data set forth under the caption
"Selected Consolidated Financial Data" in the Prospectus fairly
present, on the basis stated in the Prospectus, the information
included therein. The pro forma financial information included in the
Prospectus and the Registration Statement include assumptions that
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions and events described therein,
the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma adjustments reflect the proper
application of those adjustments to the historical financial statement
amounts included in the Prospectus and the Registration Statement.
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(n) Except as disclosed in the Prospectus, no action, suit,
proceeding or audit by or before any court or governmental agency,
authority (including government fiscal agents) or body or any
arbitrator involving the Company or any of its subsidiaries or its or
their property is pending or, to the best knowledge of the Company,
threatened that (i) could reasonably be expected to have a material
adverse effect on the performance of this Agreement, or the
consummation of any of the transactions contemplated hereby or (ii)
could reasonably be expected to have a Material Adverse Effect.
(o) Each of the Company and each of its subsidiaries owns or
leases all such properties as are necessary to the conduct of its
operations as presently conducted, except as could not otherwise
reasonably be expected to have a Material Adverse Effect.
(p) Neither the Company nor any subsidiary is in violation or
default of (i) any provision of its charter or by-laws or other
organizational documents, as applicable, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation, administrative
manual provision, other regulatory guidance, judgment, order or decree
of any court, regulatory body, administrative agency, governmental body
(including governmental fiscal agents), arbitrator or other authority
having jurisdiction over the Company or such subsidiary or any of its
properties, as applicable, except in the case of clauses (ii) and (iii)
as could not reasonably be expected to have a Material Adverse Effect.
(q) Each of Deloitte & Touche LLP and Ernst & Young LLP, who
have audited certain consolidated financial statements of the Company
and its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements included in
the Prospectus are independent public accountants with respect to the
Company within the meaning of the Act and the applicable rules and
regulations thereunder as adopted by the Commission.
(r) Except in any case in which the failure to do so could not
reasonably be expected to result in a Material Adverse Effect and
except as set forth in or contemplated by the Prospectus (exclusive of
any supplement thereto), (i) the Company has filed all foreign,
federal, state and local tax returns that are required to be filed or
has requested extensions thereof and (ii) has paid all taxes required
to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is currently being
contested in good faith.
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(s) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged.
(t) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such subsidiary's capital stock, from
repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary's property or
assets to the Company or any other subsidiary of the Company, except as
described in or contemplated by the Prospectus.
(u) The Company has not taken, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(v) Except in any case in which the failure to do so could not
reasonably be expected to result in a Material Adverse Effect and
except as set forth in or contemplated by the Prospectus (exclusive of
any supplement thereto), (i) the Company and its subsidiaries (A)
possess all licenses, certificates, permits, provider numbers,
approvals (including, without limitation, certificate of need
approvals), consents, orders, certifications (including, without
limitation, certification under the Medicare and Medicaid programs),
accreditations and other authorizations (collectively "Governmental
Licenses") issued by, and have made all declarations and filings with,
the appropriate federal, state or foreign regulatory authorities
necessary to conduct their respective businesses as presently
conducted, (including, without limitation, Governmental Licenses as are
required (x) under such federal and state healthcare laws as are
applicable to the Company and its subsidiaries and (y) with respect to
those facilities operated by the Company or any of its subsidiaries
that participate in the Medicare and/or Medicaid programs, to receive
reimbursement thereunder) and (B) are in compliance with the terms and
conditions of all such Governmental Licenses and all of the
Governmental Licenses and (ii) all of the Government Licenses are valid
and in full force and effect. Except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto), neither the
Company nor any such subsidiary has received any notice of proceedings
relating to the revocation or modification of any such Governmental
License which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, could reasonably be expected
to result in a Material Adverse Effect.
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(w) The Company and its subsidiaries have not violated any
foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), or any provision of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), except for violations which,
individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(x) The Company has no significant subsidiaries as defined by
Rule 1-02 of Regulation S-X.
(y) Except as described in the Prospectus, there are no
material Medicare or Medicaid recoupments or material recoupments of
any third-party payor (which for the avoidance of doubt excludes the
Company's wholesale clientele, including, without limitation, the
Company's hospital clients and medical group clients) being sought,
requested or claimed, or to the Company's knowledge, threatened against
the Company or any of its subsidiaries.
(z) To the Company's knowledge, no individual with an
ownership or control interest, as defined in 42 U.S.C. Section
320a-3(a)(3), in the Company or any of its subsidiaries, or any
managing employee of the Company or any of its subsidiaries, as defined
in 42 U.S.C. Section 1320a-5(b), is a person or entity excluded or
excludible from the Medicare program under 42 U.S.C. Sections 1320a7 or
1320a-7a or from any state Medicaid program.
(aa) Except in any case in which the failure to do so could
not reasonably be expected to result in a Material Adverse Effect and
except as set forth in or contemplated by the Prospectus (exclusive of
any supplement thereto), all reports, data, and information required to
be filed by the Company and its subsidiaries in connection with federal
Medicare and applicable state Medicaid programs have been timely filed
and are true and complete. There are no claims, actions or appeals
pending (and the Company and its subsidiaries have not made any filing
or submission that would result in any claims, actions or appeals)
before any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority (including governmental fiscal
agents) with respect to any state or federal Medicare or Medicaid
reports or claims filed by the Company or any of its subsidiaries on or
before the date hereof, or with respect to any disallowances by any
regulatory
8
body, administrative agency, governmental body or other authority
(including governmental fiscal agents) in connection with any audit or
any claims that, if adversely determined, would have a Material Adverse
Effect. Except as set forth in or contemplated by the Prospectus
(exclusive of any supplement thereto), no validation review or program
integrity review related to the Company or any of its subsidiaries has
been conducted by any regulatory body, administrative agency,
governmental body or other authority (including governmental fiscal
agents) in connection with federal Medicare or state Medicaid programs
within the past ten years which, if determined adversely to the Company
or any such subsidiary, could reasonably be expected to result in a
Material Adverse Effect, and no such reviews are scheduled, pending or
to the Company's knowledge, threatened against or affecting the Company
or any of its subsidiaries.
(bb) The Company has not offered, or caused the Underwriters
to offer, Securities to any person pursuant to the Directed Share
Program with the specific intent to unlawfully influence (i) a customer
or supplier of the Company to alter the customer's or supplier's level
or type of business with the Company or (ii) a trade journalist or
publication to write or publish favorable information about the Company
or its products or services.
(cc) Furthermore, the Company represents and warrants to
Xxxxxxx Xxxxx Xxxxxx Inc. that (i) 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 that
(ii) 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 laws and regulations of foreign
jurisdictions in which the Directed Shares are offered outside the
United States.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. PURCHASE AND SALE. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price
of $ per share, the amount of the Underwritten Securities set forth
opposite such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company hereby
grants an option to the several Underwriters to purchase, severally and
not jointly, up to Option Securities at the same purchase price per
share as the Underwriters shall pay for the Underwritten Securities.
Said option may be
9
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole
or in part at any time (but not more than once) on or before the 30th
day after the date of the Prospectus upon written or telegraphic notice
by the Representatives to the Company setting forth the number of
shares of the Option Securities as to which the several Underwriters
are exercising the option and the settlement date. The number of Option
Securities to be purchased by each Underwriter shall be the same
percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing
of the Underwritten Securities, subject to such adjustments as you in
your absolute discretion shall make to eliminate any fractional shares.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for
in Section 2(b) hereof shall have been exercised on or before the third
Business Day prior to the Closing Date) shall be made at 10:00 A.M., New York
City time, on [ ], 2001, or at such time on such later date not
more than three Business Days after the foregoing date as the Representatives
shall designate, which date and time may be postponed by agreement between
the Representatives and the Company or as provided in Section 9 hereof (such
date and time of delivery and payment for the Securities being herein called
the "Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of
the purchase price thereof to or upon the order of the Company by wire
transfer payable in same-day funds to an account specified by the Company.
Delivery of the Underwritten Securities and the Option Securities shall be
made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. If settlement for the
Option Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
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4. OFFERING BY INITIAL PURCHASERS. It is understood that the several
Underwriters propose to offer the Securities for sale to the public in the
United States and certain other investors in other countries as set forth in the
Prospectus.
5. AGREEMENTS. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a
copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the
Prospectus is otherwise required under Rule 424(b), the Company will
cause the Prospectus, properly completed, and any supplement thereto to
be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed. The Company will
promptly advise the Representatives (i) when the Registration
Statement, if not effective at the Execution Time, shall have become
effective, (ii) when the Prospectus, and any supplement thereto, shall
have been filed (if required) with the Commission pursuant to Rule
424(b) or when any Rule 462(b) Registration Statement shall have been
filed with the Commission, (iii) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iv) of any request by the
Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any
supplement to the Prospectus or for any additional information, (v) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (vi) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order or the suspension of any such qualification and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it
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shall be necessary to amend the Registration Statement or supplement
the Prospectus to comply with the Act or the rules thereunder, the
Company will (i) promptly notify the Representatives of any such event,
(ii) as soon as practicable, prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this Section 5, an
amendment or supplement which will correct such statement or omission
or effect such compliance; and (iii) thereafter, promptly supply any
supplemented Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so
long as delivery of a prospectus by an Under-writer or dealer may be
required by the Act, as many copies of each Preliminary Prospectus and
the Prospectus and any supplement thereto as the Representatives may
reasonably request.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate and will maintain
such qualifications in effect so long as required for the sale of the
Securities; PROVIDED that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale
of the Securities, in any jurisdiction where it is not now so subject.
The Company will promptly advise the Representatives of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(f) The Company will not, without the prior written consent of
Xxxxxxx Xxxxx Xxxxxx Inc., (i) offer, sell, contract to sell, pledge,
or otherwise dispose of, (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or
any affiliate of the Company) directly or indirectly, including the
filing (or participation in the filing) of a registration statement
with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or
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decrease a call equivalent position within the meaning of Section 16 of
the Exchange Act, any other shares of Common Stock or any securities
convertible into, or exercisable, or exchangeable for, shares of Common
Stock; (ii) publicly announce an intention to effect any such
transaction; or (iii) amend, waive, release any party from, or
otherwise fail to enforce any agreement which restricts the transfer of
shares of the Company's Common Stock where the effect of such
amendment, waiver, release or failure would be to permit such party to
offer, sell, contract to sell, pledge, or otherwise dispose of, or
enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition
or effective economic disposition due to cash settlement or otherwise)
of any shares of Common Stock or any securities covertible into, or
exercisable for, shares of Common Stock, in the case of clauses (i),
(ii) or (iii) for a period of 180 days after the date of the
Underwriting Agreement, PROVIDED, HOWEVER, that the Company may (x)
issue and sell Common Stock and options pursuant to any employee stock
option plan, stock ownership plan, stock purchase plan, dividend
reinvestment plan or other employee or director benefit plan of the
Company described in the Prospectus (upon the terms of such plan as
described in the Prospectus) and (y) issue Common Stock issuable upon
the exercise of options pursuant to any such plans.
(g) The Company will cooperate with the Representatives and
use its reasonable best efforts to permit the Securities to be eligible
for clearance and settlement through The Depository Trust Company.
(h) The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(i) The Company agrees to pay the costs and expenses relating
to the following matters: (i) the preparation, printing or reproduction
and filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary
Prospectus, the Prospectus, and each amendment or supplement to any of
them; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of
such copies of the Registration Statement, each Preliminary Prospectus,
the Prospectus, and all amendments or supplements to any of them, as
may, in each case, be reasonably requested for use in connection with
the offering and sale of the Securities; (iii) the preparation,
printing, authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection with
the original issuance and sale by the Company and the initial resale by
the Underwriters of the Securities; (iv) the printing (or reproduction)
and
13
delivery of this Agreement, any blue sky memorandum and all other
agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Securities; (v) the registration of
the Securities under the Exchange Act and the listing of the Securities
on the New York Stock Exchange; (vi) any registration or qualification
of the Securities for offer and sale under the securities or blue sky
laws of the several states (including filing fees and the reasonable
fees and expenses of one counsel for the Underwriters relating to such
registration and qualification); (vii) any filings required to be made
with the National Association of Securities Dealers, Inc. (including
filing fees and the reasonable fees and expenses of one counsel for the
Underwriters relating to such filings); (viii) the transportation and
other expenses incurred by or on behalf of Company representatives in
connection with presentations to prospective purchasers of the
Securities; (ix) the fees and expenses of the Company's accountants and
the fees and expenses of counsel (including local and special counsel)
for the Company; and (x) all other costs and expenses incurred by the
Company that are incidental to the performance by the Company of its
obligations hereunder.
(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 National Association of Securities Dealers, Inc. (the
"NASD") or the NASD rules from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of the
effectiveness of the Registration Statement. Xxxxxxx Xxxxx Barney Inc.
will notify the Company as to which Participants will need to be so
restricted. The Company will direct the removal of such transfer
restrictions upon the expiration of 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.
(l) The Company shall apply the proceeds from the offering of
the Securities as set forth under the heading "Use of Proceeds" in the
Prospectus
Furthermore, the Company covenants with Xxxxxxx Xxxxx Xxxxxx
Inc. 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.
14
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein at
the Execution Time, the Closing Date and any settlement date pursuant to Section
3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Prospectus,
or any supplement thereto, is required pursuant to Rule 424(b), the
Prospectus, and any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx &
Xxxxxxx, counsel for the Company, to furnish to the Representatives its
opinion, dated the Closing Date and addressed to the Representatives,
in the form attached hereto as Exhibit B.
(c) Xxxxxxx X. Xxxxxxxx, the Company's General Counsel, shall
have furnished to the Representatives his opinion, dated the Closing
Date and addressed to the Representatives in the form attached hereto
as Exhibit C.
(d) The Representatives shall have received from Cravath,
Swaine & Xxxxx, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with
respect to the issuance and sale of the Securities, the Registration
Statement, the Prospectus (together with any supplement thereto) and
other related matters as the Representatives may reasonably require,
and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such
matters.
15
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus, any amendment or supplement to the Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing
Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date; and
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any
amendment or supplement thereto), there has been no material
adverse change in the condition (financial or otherwise),
earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated by the Prospectus (exclusive of any
amendment or supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company
shall have requested and caused Deloitte & Touche to have furnished to
the Representatives letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to
the Representatives, confirming that they are independent auditors
within the meaning of the Act and the Exchange Act and the respective
applicable rules and regulations adopted by the Commission thereunder
and containing statements and information of the type ordinarily
included in auditor's "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in
the Registration Statement and the Prospectus.
(g) At the Execution Time, the Company shall have requested
and caused Ernst & Young LLP to have furnished to the Representatives,
letters, dated respectively as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent auditors within
the meaning of the Act and the Exchange Act and the applicable rules
and regulations adopted by the Commission thereunder and containing
statements and information of the type ordinarily included in auditor's
"comfort
16
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement
and the Prospectus.
(h) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Prospectus (exclusive of any
amendment or supplement thereto), there shall not have been (i) any
change or decrease specified in the letter or letters referred to in
paragraph (f) of this Section 6; or (ii) any change, or any development
involving a prospective change, in or affecting the condition
(financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any amendment
or supplement thereto) the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the judgment of the Representatives,
so material and adverse as to make it impractical or inadvisable to
market the Securities as contemplated by the Prospectus (exclusive of
any amendment or supplement thereto).
(i) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
(j) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of debt securities of the Company or
any of its subsidiaries by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act) or any notice given of any intended or potential decrease in any
such rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(k) The Securities shall have been listed and admitted and
authorized for trading on the New York Stock Exchange, and satisfactory
evidence of such actions shall have been provided to the
Representatives.
(l) At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit A
hereto (each a "Lock-up Letter") and addressed to the Representatives
from [ ] and each person who purchased shares pursuant to the
Directed Share Program.
17
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cravath, Swaine & Xxxxx, counsel for the
Underwriters, at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the Closing Date.
7. REIMBURSEMENT OF EXPENSES. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 10 hereof or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally through
Xxxxxxx Xxxxx Barney Inc. on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein, in reliance upon and in
18
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein;
PROVIDED FURTHER, that with respect to any untrue statement or omission of
material fact made in any Preliminary Prospectus, the indemnity agreement
contained in this Section 8(a) shall not inure to the benefit of any Underwriter
from whom the person asserting any such loss, claim, damage or liability
purchased the Securities concerned, to the extent that any such loss, claim,
damage or liability of such Underwriter occurs under the circumstance where it
shall be determined by a court of competent jurisdiction by final and
non-appealable judgment that (i) the Company had previously furnished copies of
the Prospectus to the Representatives, (ii) the untrue statement or omission of
a material fact contained in the Preliminary Prospectus was corrected in the
Prospectus and (iii) such loss, claim, damage or liability 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 Securities to such person, a copy of the
Prospectus. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of
its officers who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company by or
on behalf of such Underwriter through the Representatives specifically
for inclusion in the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page regarding
delivery of the Securities and, under the heading "Underwriting", (i)
the list of Underwriters and their respective participation in the sale
of the Securities; (ii) the sentences related to concessions and
reallowances; and (iii) the paragraph related to stabilization,
syndicate covering transactions and penalty bids in the Preliminary
Prospectus and the Prospectus, constitute the only information
furnished in writing by or on behalf of the Underwriters for inclusion
in the Preliminary Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under
paragraph (a), (b), (e) or (f) of this Section 8 unless and to the
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses; and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a), (b), (e)
or (f) above. The indemnifying party shall be entitled to appoint
19
counsel of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties except as set
forth below); PROVIDED, HOWEVER, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party
in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a
conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice
of the institution of such action; or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a),
(b), (e) or (f) of this Section 8 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, the Company and the
Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and by the Underwriters on the other from the offering of the
Securities; PROVIDED, HOWEVER, that in no case shall (i) any
Underwriter (except as may be provided in any agreement among the
Underwriters relating to the offering of the Securities) be responsible
for any amount in excess of the purchase underwriting discount or
commission applicable to the Securities purchased by such Underwriter
hereunder or (ii) UBS Warburg LLC (the "Independent Underwriter") in
its capacity as "qualified independent underwriter" (within the meaning
of National Association of Securities Dealers, Inc. Conduct Rule 2720)
be responsible for any amount in excess of the compensation received by
the Independent Underwriter for acting in such capacity. If the
20
allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally
shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company
on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such Losses, as well as
any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions in each case set forth on the
cover page of the Prospectus. Benefits received by the Independent
Underwriter in its capacity as "qualified independent underwriter"
shall be deemed to be equal to the compensation received by the
Independent Underwriter for acting in such capacity. Relative fault
shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or the Underwriters
on the other, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning
of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act and
each officer and director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
(e) The Company agrees to indemnify and hold harmless Xxxxxxx
Xxxxx Xxxxxx Inc., the directors, officers, employees and agents of
Xxxxxxx Xxxxx Barney Inc. and each person, who controls Xxxxxxx Xxxxx
Barney Inc. within the meaning of either the Act or the Exchange Act
("Xxxxxxx Xxxxx Xxxxxx Inc. Entities"), from and against any and all
losses, claims, damages and liabilities to which they may become
subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim),
insofar as such losses, claims damages or liabilities (or actions in
respect thereof) (i) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the prospectus wrapper material prepared by or with the consent of the
Company for distribution in foreign jurisdictions in connection with
the Directed Share Program attached to the Prospectus or any
preliminary
21
prospectus, or arise out of or are based upon any omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statement therein, when considered in
conjunction with the Prospectus or any applicable preliminary
prospectus, not misleading; (ii) are caused by the failure of any
Participant to pay for and accept delivery of the Directed Shares
allocated by the Company to such Participant; or (iii) relate to, arise
out of, or occur in connection with the Directed Share Program,
provided that, in the case of clause (i) the Company will not be liable
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein
in reliance upon and in conformity with written information furnished
to the Company by or on behalf of Xxxxxxx Xxxxx Barney Inc.
specifically for inclusion therein and that in the case of clause (iii)
the Company will not be liable to the extent that such loss, claim,
damage or liability results from the gross negligence or willful
misconduct of Xxxxxxx Xxxxx Xxxxxx Inc.
(f) Without limitation of and in addition to its obligations
under the other paragraphs of this Section 8, the Company agrees to
indemnify and hold harmless the Independent Underwriter, its directors,
officers, employees and agents and each person who controls Independent
Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject, insofar as
such losses, claims, damages or liabilities (or action in respect
thereof) arise out of or are based upon Independent Underwriter's
acting as a "qualified independent underwriter" (within the meaning of
National Association of Securities Dealers, Inc. Conduct Rule 2720) in
connection with the offering contemplated by this Agreement, and agrees
to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; PROVIDED, HOWEVER, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability
results from the gross negligence or willful misconduct of the
Independent Underwriter.
9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter hereunder and such failure to purchase shall constitute a
default in the performance of its or their obligations under this Agreement, the
remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the principal amount of Securities set forth
opposite their names on Schedule I hereto bears to the aggregate principal
amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; PROVIDED, HOWEVER, that in the event that the
aggregate principal amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of Securities set forth on Schedule I hereto, the remaining
Underwriters shall have the right to purchase
22
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company or any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange; (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities; or
(iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the sole judgment of the Representatives, impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Prospectus (exclusive of any amendment or supplement thereto).
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Xxxxxxx Xxxxx Xxxxxx Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Barney
Inc. at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General
Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to
Alliance Imaging, Inc. (fax no. (000) 000-0000) and confirmed to it at 0000
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx, 00000, attention of the
Legal Department.
23
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. HEADINGS. The section headings used herein are for convenience only
and shall not affect the construction hereof.
17. DEFINITIONS. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in The City of New York.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Investment Company Act" shall mean the Investment Company Act of 1940,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
24
"Material Adverse Effect" shall mean a material adverse effect on the
condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto).
"Preliminary Prospectus" shall mean any preliminary prospectus referred
to in paragraph 1(a) above and any preliminary prospectus included in the
Registration Statement at the Effective Date that omits Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time or, if no filing
pursuant to Rule 424(b) is required, shall mean the form of final prospectus
relating to the Securities included in the Registration Statement at the
Effective Date.
"Registration Statement" shall mean the registration statement referred
to in paragraph 1(a) above, including exhibits and financial statements, as
amended at the Execution Time (or, if not effective at the Execution Time, in
the form in which it shall become effective) and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration Statement
becomes effective prior to the Closing Date, shall also mean such registration
statement as so amended or such Rule 462(b) Registration Statement, as the case
may be. Such term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the registration statement referred to in Section 1(a)
hereof.
"Subsidiary," when referring to subsidiaries of the Company, means any
entity that is majority owned, either directly or indirectly, by the Company or
one or more of the Company's other subsidiaries.
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
Alliance Imaging, Inc.
by
----------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxx Securities Inc.
Deutsche Banc Alex. Xxxxx Inc.
UBS Warburg LLC
Xxxxxxx Xxxxx Barney Inc.
by
--------------------------------
Name:
Title:
For themselves and the other several
Underwriters named in
Schedule I to the foregoing Agreement.
26
SCHEDULE I
Principal
Amount of
Underwriters Securities
------------ to be Purchased
---------------
Xxxxxxx Xxxxx Xxxxxx Inc............................... $
Deutsche Banc Alex. Xxxxx Inc..........................
X.X. Xxxxxx Securities Inc.............................
UBS Warburg LLC........................................
Total......................................... $
27
EXHIBIT A
Alliance Imaging, Inc.
Public Offering of Common Stock
March 13, 2001
Deutsche Banc Alex. Xxxxx Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
X.X. Xxxxxx Xxxxx & Co.
UBS Warburg LLC
As Representatives of the several Underwriters,
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between Alliance Imaging,
Inc., a Delaware corporation (the "Company"), and each of you as representatives
of a group of Underwriters named therein, relating to an underwritten public
offering of Common Stock, $.01 par value (the "Common Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without prior written consent
of both Deutsche Banc Alex. Xxxxx Inc. and Xxxxxxx Xxxxx Barney Inc., offer,
sell, contract to sell, pledge or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to, result in
the disposition (whether by actual disposition or effective economic disposition
due to cash settlement or otherwise) by the Company of any affiliate of the
Company or any person in privity with the Company or any affiliate of the
Company) directly or indirectly, including the filing (or participation in the
filing of) a registration statement with the Securities and Exchange Commission
in respect of, or establish or increase a put equivalent position or liquidate
or decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Securities and Exchange Commission promulgated thereunder with respect to,
any shares of capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of 180 days after the
date of the Underwriting Agreement, other than shares of Common Stock disposed
of as bona fide gifts approved by both Deutsche Banc Alex. Xxxxx Inc. and
Xxxxxxx Xxxxx Barney Inc.
A-1
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
Yours very truly,
--------------------------
Name:
Address:
A-2
