3,000,000 SHARES
VCA ANTECH, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
May 12, 0000
XXXX XX XXXXXXX SECURITIES LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. INTRODUCTORY. VCA Antech, Inc., a Delaware corporation (the "COMPANY"),
and Green Equity Investors III, L.P., a Delaware limited partnership (the
"SELLING STOCKHOLDER"), confirm their respective agreements with Banc of America
Securities LLC (the "UNDERWRITER"), with respect to the sale by the Selling
Stockholder and the purchase by the Underwriter of 3,000,000 shares (the "FIRM
SECURITIES") of the Company's Common Stock, par value $0.001 per share
("SECURITIES"). The Selling Stockholder also proposes to sell to the
Underwriter, at the option of the Underwriter, an aggregate of not more than
450,000 additional outstanding shares of the Company's Securities (such 450,000
additional shares being hereinafter referred to as the "OPTIONAL SECURITIES").
The Firm Securities and the Optional Securities are herein collectively called
the "OFFERED SECURITIES". The Company and the Selling Stockholder hereby agree
with the Underwriter as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDER.
(a) The Company represents and warrants to, and agrees with, the
Underwriter that:
(i) A registration statement on Form S-3 (No. 333-114471), including
a prospectus, relating to the Offered Securities has been filed
with the Securities and Exchange Commission ("COMMISSION") and
become effective under the Securities Act of 1933, as amended
("ACT"). Such registration statement, as amended up until the
date hereof, is hereinafter referred to as the "REGISTRATION
STATEMENT", and the prospectus included in such Registration
Statement, as supplemented to reflect the terms of the offering
of the Offered Securities as contemplated by Section 5(a) hereof,
as filed with the Commission pursuant to and in accordance with
Rule 424(b) ("RULE 424(B)") under the Act, including all material
incorporated by reference therein, 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.
(ii) On the effective date of the Registration Statement, the
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder ("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, and on the date of
this Agreement, the Registration Statement conforms in all
material respects to the requirements of the Act and the Rules
and Regulations, and does 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, and the
Prospectus conforms in all material respects to the requirements
of the Act and the Rules and Regulations, and does 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, in light of the circumstances under which
they were made, not misleading, except that the foregoing does
not apply to statements in or omissions from any of such
documents based upon written information furnished to the Company
by the Underwriter, it being understood and agreed that the only
such information is that described as such in Section 7(c)
hereof.
(iii) 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.
(iv) Each subsidiary of the Company has been duly incorporated or
organized and is an existing corporation or other business
organization, as the case may be, in good standing under the laws
of the jurisdiction of its incorporation or organization, with
power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; and each
subsidiary of the Company is duly qualified to do business as a
foreign corporation or other business organization, as the case
may be, in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business
requires such qualification; all of the issued and outstanding
capital stock or other ownership interests of each subsidiary of
the Company has been duly authorized and, in the case of each
subsidiary that is a corporation, validly issued and is fully
paid and nonassessable; and the capital stock or other ownership
interest of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and
defects, other than the pledge of such capital stock and other
ownership interests pursuant to the Credit and Guaranty
Agreement, dated as of September 20, 2000 and as amended as of
August 19, 2003, by and among the Company, Vicar Operating, Inc.
(the "OPERATING COMPANY"), Xxxxxxx Xxxxx Credit Partners, L.P.,
as sole lead arranger and sole syndication agent, Xxxxx Fargo
Bank, N.A., as administrative agent, and the guarantors and
lenders named therein.
(v) All outstanding shares of capital stock of the Company have been
duly authorized and are validly issued, fully paid and
nonassessable and conform to the description thereof contained in
the Prospectus. Except as disclosed in the Prospectus, there are
no outstanding options, warrants or other rights to subscribe for
or to purchase, any securities or obligations convertible into,
or any contracts or commitments to issue or sell, shares of the
Company's capital stock or any such options, warrants, rights,
convertible securities or obligations.
(vi) Except as 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 the
Underwriter for a brokerage commission, finder's fee or other
like payment in connection with this offering, or, to the
Company's knowledge, any other arrangements, agreements,
understandings, payments or issuances with respect to the Company
that may affect the Underwriter's compensation as determined by
the National Association of Securities Dealers, Inc. (the
"NASD").
(vii) 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, other than the Stockholders Agreement, dated as of
September 20, 2000 and as amended on November 27, 2001 and
January 9, 2003 (the "STOCKHOLDERS AGREEMENT"), by and among the
Company and the stockholders listed therein, or to require the
Company to include such securities in the securities registered
pursuant to a
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Registration Statement or, other than the Stockholders Agreement,
in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(viii) In connection with the filing of the Registration Statement,
the Company has complied in all material respects with the terms
of the registration rights set forth in the Stockholders
Agreement.
(ix) The Offered Securities have been approved for listing on The
Nasdaq Stock Market's National Market.
(x) The execution, delivery and performance of this Agreement by the
Company will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any
statute, any 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, or 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 the charter or
by-laws of the Company or the charter or by-laws or other
organizational documents of any such subsidiary.
(xi) This Agreement has been duly authorized, executed and delivered
by the Company.
(xii) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real
properties and all other material 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.
(xiii) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated
by them and have not received any notice of proceedings relating
to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company
or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the condition
(financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole
("MATERIAL ADVERSE EFFECT").
(xiv) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is
imminent that might have a Material Adverse Effect.
(xv) 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.
(xvi) Except as disclosed in the Prospectus, neither the Company nor
any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency
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or body or any court, domestic or foreign, relating to the use,
disposal or release of hazardous or toxic substances or 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.
(xvii) Except as disclosed in the Prospectus, neither the Company nor
any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the provision of
veterinary medical care by business corporations (collectively,
"VETERINARY MEDICINE LAWS"), or is subject to any claim relating
to any veterinary medicine laws, which violation 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.
(xviii) 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; and no such actions, suits or
proceedings are threatened or, to the Company's knowledge,
contemplated.
(xix) The financial statements included in the Registration Statement
and the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown
and their results of operations and cash flows for the periods
shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in
the United States ("GAAP") applied on a consistent basis and the
schedules included in the Registration Statement present fairly
the information required to be stated therein; and the
assumptions used in preparing the pro forma financial data
included in the 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 data reflect the
proper application of those adjustments to the corresponding
historical financial statement amounts.
(xx) 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, except as disclosed in or contemplated by the
Prospectus, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its
capital stock.
(xxi) The Company is subject to the reporting requirements of either
Section 13 or Section 15(d) of the Exchange Act and files reports
with the Commission on the Electronic Data Gathering, Analysis,
and Retrieval (XXXXX) System.
(xxii) The Company is not an "investment company" as defined in the
Investment Company Act of 1940.
(xxiii) All material Tax returns required to be filed by the Company
and each of its subsidiaries have been filed and all such returns
are true, complete, and correct in all material respects. All
material Taxes that are due or claimed to be due from the Company
and each of its subsidiaries have been
4
paid other than those (i) currently payable without penalty or
interest or (ii) being contested in good faith and by appropriate
proceedings and for which, in the case of both clauses (i) and
(ii), adequate reserves have been established on the books and
records of the Company and its subsidiaries in accordance with
GAAP. There are no material Tax assessments proposed in writing
against the Company or any of its subsidiaries. To the Company's
knowledge, the accruals and reserves on the books and records of
the Company and its subsidiaries in respect of any material Tax
liability for any taxable period not finally determined are
adequate to meet any assessments of Tax for any such period. For
purposes of this Agreement, the term "TAX" and "TAXES" shall mean
all federal, state, local and foreign taxes, and other
assessments of a similar nature (whether imposed directly or
through withholding), including any interest, additions to tax,
or penalties applicable thereto.
(xxiv) Neither the Company nor any of its affiliates (other than the
Underwriter, as to which the Company makes no representation),
has taken, directly or indirectly, any action designed to cause
or result in, or which has constituted or which might reasonably
be expected to constitute, the stabilization or manipulation of
the price of the shares of the Securities in violation of
Regulation M under the Exchange Act.
(xxv) KPMG LLP, who have certified the financial statements included
in the Registration Statement and the Prospectus, are independent
public auditors as required by the Act and the Rules and
Regulations. The Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with GAAP and to maintain
accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for inventory
assets is compared with the existing inventory assets at
reasonable intervals and appropriate action is taken with respect
to any differences.
(xxvi) 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; none of the Company
or any of its subsidiaries (i) has received notice from any
insurer or agent of such insurer that substantial capital
improvements or other material expenditures will have to be made
in order to continue such insurance or (ii) has any reason to
believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers at a cost that would not have a
Material Adverse Effect.
(xxvii) Since March 31, 2004, the Company has not issued any
securities other than (i) Securities issued pursuant to the
exercise of previously outstanding options granted pursuant to
its Amended and Restated 1996 Stock Incentive Plan and its 2001
Stock Incentive Plan (collectively, the "PLANS") and (ii) options
granted pursuant to the Plans.
(xxviii) The industry, statistical and market-related data included in
the Registration Statement and the Prospectus are derived from
sources that the Company reasonably and in good faith believes to
be accurate, reasonable and reliable, and such data agrees with
the sources from which they were derived.
(xxix) The Company is in compliance with all presently applicable
provisions of the Employee Retirement Income Security Act of
1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"), except where the failure to
be in such compliance would not, individually or in the
aggregate, have a Material Adverse Effect; no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension
plan" (as defined in ERISA) for which the Company
5
would have any liability; except for matters that would not,
individually or in the aggregate, have a Material Adverse Effect,
the Company has not incurred and does not expect to incur
liability under (i) Title IV of ERISA with respect to termination
of, or withdrawal from, any "pension plan" or (ii) Section 412 or
4971 of the Internal Revenue Code of 1986, as amended, including
the regulations and published interpretations thereunder
("CODE"); and each "pension plan" for which the Company and each
of its subsidiaries would have any liability that is intended to
be qualified under Section 401(a) of the Code is so qualified in
all material respects and nothing has occurred, whether by action
or by failure to act, which would cause the loss of such
qualification.
(xxx) The laboratory internal revenue growth percentage figures
included in the Prospectus are computed by the Company in the
manner set forth in the Company's Form 10-K, for the fiscal year
ended December 31, 2003, under the caption "Item 7. Management's
Discussion and Analysis of Financial Condition and Results of
Operations - Basis of Reporting - Laboratory Revenue," and are
based upon estimates and assumptions all of which, taken as a
whole, management of the Company believes to be reasonable. In
addition, management of the Company has no reason to believe that
the sources from which the pre-acquisition historical laboratory
revenue information provided to the Company by the sellers of the
applicable laboratories and used by the Company in determining
laboratory revenue of acquired laboratories are not reliable,
reasonable and accurate.
(b) The Selling Stockholder represents and warrants to, and agrees with,
the Underwriter and the Company that:
(i) All consents, approvals, authorizations and orders necessary for
the execution and delivery by the Selling Stockholder of this
Agreement, and for the sale and delivery of the Offered
Securities to be sold by the Selling Stockholder hereunder, have
been obtained; and the Selling Stockholder has full partnership
power and authority to enter into this Agreement and to sell,
assign, transfer and deliver the Offered Securities to be sold by
the Selling Stockholder hereunder.
(ii) The sale of the Offered Securities to be sold by the Selling
Stockholder hereunder and the compliance by the Selling
Stockholder with all of the provisions of this Agreement and the
consummation of the transactions contemplated herein will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
statute, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Selling Stockholder is
a party or by which the Selling Stockholder is bound or to which
any of the property or assets of the Selling Stockholder is
subject, nor will such action result in any violation of the
provisions of the partnership agreement of the Selling
Stockholder or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over
the Selling Stockholder or the property of the Selling
Stockholder.
(iii) The Selling Stockholder has, and immediately prior to each
Closing Date (as defined below) the Selling Stockholder will
have, good and valid title to the Offered Securities to be sold
by the Selling Stockholder hereunder, free and clear of all
liens, encumbrances, equities or claims; and, upon delivery of
such Offered Securities and payment therefor pursuant hereto,
good and valid title to such Offered Securities, free and clear
of all liens, encumbrances, equities or claims, will pass to the
Underwriter.
(iv) During the period beginning from the date hereof and continuing
to and including the date 75 days after the date of the
Prospectus, not to offer, sell contract to sell or otherwise
dispose of, except as provided hereunder, any securities of the
Company that are substantially similar to the Offered Securities,
including but not limited to any securities that are convertible
into or exchangeable for, or that represent the right to receive,
Securities or any such substantially similar securities,
6
without the prior written consent of the Underwriter.
Notwithstanding anything herein to the contrary, the Underwriter
and its affiliates may engage in brokerage, investment advisory,
investment company, financial advisory, anti-raid advisory,
merger advisory, financing, asset management, trading, market
making, arbitrage and other similar activities conducted in the
ordinary course of its and its affiliates' business.
(v) The Selling Stockholder has not taken and will not take, directly
or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Offered Securities.
(vi) All information provided by the Selling Stockholder for inclusion
in any Registration Statement, the Prospectus or any amendment or
supplement thereto expressly for use therein is, and on the
effective date of the Registration Statement and each Closing
Date will be, true, correct and complete in all material
respects, and does not, and on such effective date and each
Closing Date will not, contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make such information not misleading.
(vii) In order to document the Underwriter's compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions
herein contemplated, the Selling Stockholder will deliver to the
Underwriter a properly completed and executed United States
Treasury Department Form W-9 (or other applicable form or
statement specified by Treasury Department regulations in lieu
thereof).
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 Selling
Stockholder agrees to sell to the Underwriter, and the Underwriter
agrees to purchase from the Selling Stockholder, at a purchase price
of $37.92 per share, the Firm Securities.
The Selling Stockholder will deliver or cause to be delivered the Firm
Securities to the Underwriter 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 the Underwriter drawn to the order of the Selling
Stockholder, at the office of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., 0000
Xxxxxxx Xxxx Xxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, at 10:00 A.M., New York time,
on May 18, 2004, or at such other time not later than six full business days
thereafter as the Underwriter and the Selling Stockholder determine, such time
being herein referred to as the "FIRST CLOSING DATE". For purposes of Rule
15c6-1 under the Exchange Act, 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 to be delivered will
be in definitive form, in such denominations and registered in such names as the
Underwriter requests and will be made available for checking and packaging at
the above office of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P. at least 24 hours
prior to the First Closing Date.
In addition, upon written notice from the Underwriter given to the Selling
Stockholder from time to time not more than 30 days subsequent to the date of
the Prospectus, the Underwriter 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 Selling Stockholder agrees to sell to the Underwriter the number
of shares of Optional Securities specified in such notice. Such Optional
Securities shall be purchased from the Selling Stockholder by the Underwriter
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
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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 the Underwriter to the
Selling Stockholder.
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 the
Underwriter but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. The Selling
Stockholder will deliver the Optional Securities being purchased on each
Optional Closing Date to the Underwriter 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 the Underwriter drawn to the
order of the Selling Stockholder, 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 the Underwriter requests upon
reasonable notice prior to such Optional Closing Date and will be made available
for checking and packaging at the above office of Akin, Gump, Strauss, Xxxxx &
Xxxx, L.L.P. at a reasonable time in advance of such Optional Closing Date.
4. OFFERING BY THE UNDERWRITER. It is understood that the Underwriter
proposes to offer the Offered Securities for sale to the public as set forth in
the Prospectus.
5. CERTAIN AGREEMENTS OF THE COMPANY AND THE SELLING STOCKHOLDER. The
Company agrees with the Underwriter and the Selling Stockholder that:
(a) The Company will file the Prospectus with the Commission pursuant to
and in accordance with subparagraph (3) (or, if applicable and if
consented to by the Underwriter, an alternative subparagraph of Rule
424(b)) not later than the second business day following the execution
and delivery of this Agreement.
(b) The Company will advise the Underwriter promptly of any such filing
pursuant to Rule 424(b).
(c) The Company will advise the Underwriter promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus and
will not effect such amendment or supplementation without the consent
of the Underwriter; and the Company will also advise the Underwriter
promptly of the effectiveness of any post-effective amendment to the
Registration Statement (if its effective time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of the 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.
(d) 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
the Underwriter or any 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
8
Act, the Company will promptly notify the Underwriter 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
the Underwriter's consent to, nor the Underwriter's delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(e) The Company will furnish to the Underwriter a copy of the Registration
Statement (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 the Underwriter or any dealer, the Prospectus
and all amendments and supplements to such documents, in each case in
such quantities as the Underwriter requests. The Prospectus shall be
so furnished on or prior to 3:00 P.M., New York time, on the business
day following the execution and delivery of this Agreement. All other
documents shall be so furnished as soon as available. The Company will
pay the expenses of printing and distributing to the Underwriter all
such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as the
Underwriter designates and will continue such qualifications in effect
so long as required for the distribution.
(g) 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 the Underwriter designates and the
printing of memoranda relating thereto, for the filing fee incident
to, the review by the NASD of the Offered Securities, and for expenses
incurred in distributing the Prospectus (including any amendments and
supplements thereto) to the Underwriter. The Selling Stockholder
agrees to pay any transfer taxes on the sale by the Selling
Stockholder of the Offered Securities to the Underwriter.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITER. The obligations of the
Underwriter 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 and the Selling Stockholder herein, to the accuracy of the
statements of Company officers made pursuant to the provisions hereof, to the
performance by the Company and the Selling Stockholder of their obligations
hereunder and to the following additional conditions precedent:
(a) The Underwriter shall have received a letter, dated the Closing Date,
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 financial statements and schedules examined
by them and included in the Prospectus comply as to form in all
material respects with the applicable accounting requirements of
the Act and the related published Rules and Regulations;
(ii) 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
9
Auditing Standards No. 100, Interim Financial Information, on the
unaudited financial statements included in the Prospectus;
(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
Prospectus 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 GAAP;
(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 revenue or net operating income, or in the total or per
share amounts of consolidated income before extraordinary
items or 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; and
(iv) they have compared specified dollar amounts (or percentages derived
from such dollar amounts) and other financial information contained in
the Prospectus (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 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.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
10
(b) 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 the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Selling Stockholder, the Company or the Underwriter,
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 the
Underwriter, 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 change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of the
Underwriter, be likely to prejudice materially the success of the
proposed issue, sale or distribution of the Offered Securities,
whether in the primary market or in respect of dealings in the
secondary market; (iv) any material suspension or material limitation
of trading in securities generally on the New York Stock Exchange, 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; (v) any banking moratorium declared
by U.S. Federal or New York authorities; (vi) any major disruption of
settlements of securities; or (vii) any attack on, outbreak or
escalation of hostilities or acts of terrorism involving the United
States, any declaration of war by Congress or any other national or
international calamity or emergency if, in the judgment of the
Underwriter, the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and
payment for the Offered Securities.
(d) The Underwriter shall have received an opinion, dated such Closing
Date, of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., counsel for the
Company, to the effect that:
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of
Delaware, with 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 the jurisdictions
identified on a schedule attached to such counsel's opinion.
(ii) The Operating Company is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Delaware, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; and the Operating Company is duly qualified to do
business as a foreign corporation in good standing in the
jurisdictions identified on a schedule attached to such counsel's
opinion.
11
(iii) The Company has authorized capital stock as set forth in the
Prospectus. Except as set forth in the Prospectus, to such
counsel's knowledge, there are no outstanding options, warrants
or other rights to subscribe for or to purchase, any securities
or obligations convertible into, or any contracts or commitments
to issue or sell, shares of the Company's capital stock or any
such options, warrants, rights, convertible securities or
obligations.
(iv) All outstanding shares of Securities have been duly authorized
and validly issued, are fully paid and nonassessable, and conform
to the description thereof in the Prospectus.
(v) There are no contracts, agreements or understandings known to
such counsel between the Company and any person granting such
person the right to: (i) 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,
other than the Stockholders Agreement or (ii) other than pursuant
to the rights granted in the Stockholders Agreement, require the
Company to include such securities in (a) the securities
registered pursuant to the Registration Statement or (b) any
securities being registered pursuant to any other registration
statement filed by the Company under the Act.
(vi) The Company is not an "investment company" as defined in the
Investment Company Act of 1940.
(vii) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required under
any of the Included Laws (as defined in such counsel's opinion)
to be obtained or made by the Company for the due execution and
delivery of the Underwriting Agreement by the Company and the
performance of its obligations thereunder, 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 and in connection
with the listing of the Offered Securities on the Nasdaq National
Market.
(viii) The execution, delivery and performance of the Underwriting
Agreement by the Company does not, and the consummation by the
Company of its obligations thereunder will not, (a) result in a
violation of any law, rule or regulation of any Included Law, (b)
result in a violation of any order, writ, judgment or decree
known to such counsel and applicable to the Company or any of its
subsidiaries or any of their properties, (c) result in a
violation of the certificate of incorporation or bylaws or
similar charter documents of the Company or any of its
subsidiaries, (d) breach, result in the acceleration of, or
entitle any party to accelerate under any agreement or instrument
filed as an exhibit to the Registration Statement or (e) to such
counsel's knowledge, breach or result in the acceleration of, or
entitle any party to accelerate, any other agreement by which any
of the properties of the Company or any of its subsidiaries is
bound, except for such breaches as would not have a Material
Adverse Effect.
(ix) The Registration Statement was declared effective under the Act
as of the date and time specified in such opinion, the additional
Registration Statement (if any) was filed and became effective
under the Act as of the date and time (if determinable) specified
in such opinion, the Prospectus was filed with the Commission
pursuant to Rule 424(b) as of the date and time (if determinable)
specified in such opinion, and, to such counsel's knowledge, no
stop order suspending the effectiveness of the 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 the 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.
(x) Such counsel has no reason to believe that any part of the
Registration Statement or any amendment thereto, as of its
effective date or as of such Closing Date, contained any untrue
statement
12
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 its issue date 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 descriptions in the
Registration Statements and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate 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 the Registration Statement
or the Prospectus which are not described as required or of any
contracts or documents of a character required to be described in
the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement which are not described
and filed as required; it being understood that such counsel need
express no opinion as to the financial statements or other
financial data contained in the Registration Statements or the
Prospectus.
(xi) The descriptions in the Prospectus under the captions
"Description of Capital Stock," "Description of Indebtedness",
"Directors and Executive Officers of the Registrant", "Management
Services Agreement", "Transactions with Zoasis Corporation",
"Related Party Vendors" and "Related Party Director" 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
does not know of any legal or governmental proceedings required
to be described in a Registration Statement or the Prospectus
which are not described as required or of any contracts or
documents of a character required to be described in the
Prospectus or to be filed as exhibits to a Registration Statement
which are not described and filed as required; it being
understood that such counsel need express no opinion as to the
financial statements or other financial data contained in the
Registration Statements or the Prospectus.
(xii) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(e) The Underwriter shall have received from Xxxxxx, Xxxx & Xxxxxxxx LLP,
counsel for the Selling Stockholder, its written opinion, dated such
Closing Date, in form and substance satisfactory to the Underwriter,
to the effect that:
(i) The Selling Stockholder has all requisite limited partnership
power and authority to sell, assign, transfer and deliver the
Offered Securities delivered by the Selling Stockholder on the
date hereof;
(ii) Upon payment of the purchase price therefor in accordance with
the Agreement and assuming that the Underwriter has no notice of
any adverse claims (within the meaning of Section 8105 of the
Uniform Commercial Code as enacted and in effect on the date
hereof in the State of California (the "UCC")) with respect to
the stock certificates delivered on the date hereof (certificate
Nos. WOOF-1254 and WOOF-1343) or the Offered Securities
represented thereby, upon delivery (within the meaning of Section
8301(a)(1) of the UCC) to the Underwriter of such stock
certificates endorsed in blank by an effective endorsement
(within the meaning of Section 8106(b)(1) of the UCC), the
Underwriter will acquire its interest in such stock certificates
(and the Offered Securities represented thereby) free of any
adverse claims (as defined in Section 8102(a)(1) of the UCC)
under Section 8303(b) of the UCC;
(iii) The execution, delivery and performance of the Agreement and the
consummation of the transactions therein contemplated will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, the Amended and
Restated Agreement of Limited Partnership of the Selling
Stockholder dated as of September 25, 1998;
13
(iv) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required to be
obtained or made by the Selling Stockholder under any law which,
in our experience, is generally applicable to transactions of the
type contemplated by the Agreement for the consummation of the
transactions contemplated by the Agreement in connection with the
sale of the Offered Securities sold by the Selling Stockholder,
except such as have been obtained and made under the Act and such
as may be required under the Exchange Act and state securities
laws;
(v) The execution, delivery and performance of the Agreement and the
consummation of the transactions therein contemplated will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (a) any statute,
any rule or regulation which in our experience is generally
applicable to transactions of the type contemplated by the
Agreement or (b) any order of any governmental agency or any
court having jurisdiction over the Selling Stockholder identified
to us by the Selling Stockholder; and
(vi) The Agreement has been duly authorized, executed and delivered by
the Selling Stockholder.
(f) The Underwriter shall have received from Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriter, such
opinion or opinions, dated such Closing Date, with respect
to the incorporation of the Company, the validity of the
Offered Securities delivered by the Company on such Closing
Date, the Registration Statement, the Prospectus and other
related matters as the Underwriter 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.
(g) The Underwriter 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 the best of 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
pending or 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 the 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 Company
and its subsidiaries taken as a whole except as set forth in
or contemplated by the Prospectus or as described in such
certificate.
(h) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, on behalf of the
Underwriter, shall have submitted information regarding this
transaction to the NASD for review under NASD Rule 2710 and
the NASD has confirmed that it has "no objections" to the
proposed underwriting terms and arrangements among the
Company, the Selling Stockholder and the Underwriter set
forth in this Agreement.
The Selling Stockholder and the Company will furnish the Underwriter with
such conformed copies of such opinions, certificates, letters and documents as
the Underwriter reasonably requests. The Underwriter may in its sole discretion
waive compliance with any conditions to its obligations hereunder, whether in
respect of an Optional Closing Date or otherwise.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company will indemnify and hold harmless the Underwriter, its
partners, directors and officers and each person, if any, who
controls the Underwriter within the
14
meaning of Section 15 of the Act, against any losses, claims,
damages or liabilities, joint or several, to which the
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 the Registration Statement, or 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 therein not
misleading, and will reimburse the Underwriter for any legal or
other expenses reasonably incurred by the 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 the Underwriter
specifically for use therein, it being understood and agreed that
the only such information furnished by the Underwriter consists
of the information described as such in subsection (c) below.
(b) The Selling Stockholder will indemnify and hold harmless the
Underwriter against any losses, claims, damages or liabilities,
joint or several, to which the 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 an untrue statement or alleged untrue
statement of a material fact contained in any preliminary
prospectus, the Registration Statement or the Prospectus, or any
amendment 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, 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 any
preliminary prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the
Company by the Selling Stockholder expressly for use therein; and
will reimburse the Underwriter for any legal or other expenses
reasonably incurred by the Underwriter in connection with
investigating or defending any such action or claim as such
expenses are incurred; provided, however, that such Selling
Stockholder shall 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 or
omission or alleged omission made in any preliminary prospectus,
the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by the Underwriter
specifically for use therein, it being understood and agreed that
the only such information furnished by the Underwriter consists
of the information described as such in subsection (c) below;
provided, further that the Selling Stockholder shall not be
responsible, pursuant to the indemnity or contribution of this
Section 7, or any breach of this Agreement, for losses,
liabilities, claims, damages or expenses for an amount in excess
of the gross proceeds (after deducting underwriting discounts and
commissions, but before offering expenses) to the Selling
Stockholder from the sale of Offered Securities by it.
(c) The Underwriter will 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 and the
Selling Stockholder, against any losses, claims, damages or
liabilities to which the Company or the Selling Stockholder may
become subject, under the
15
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 the Registration Statement or 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 therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information
furnished to the Company by the Underwriter specifically for use
therein, and will reimburse any legal or other expenses
reasonably incurred by the Company and the Selling Stockholder in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under this Section
7 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), (b) or (c) 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), (b) or (c) 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. 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.
(e) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a), (b) or (c) 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), (b) or (c) above (i)
in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholder on
the one hand and the Underwriter 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 and the Selling Stockholder on the one hand and the
Underwriter 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 and
the Selling Stockholder on the one hand and the Underwriter on
the other shall be deemed to be in the same proportion as the
total net proceeds from the
16
offering (before deducting expenses) received by the Selling
Stockholder bear to the total underwriting discounts and
commissions received by the Underwriter. 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, the Selling Stockholder or
the Underwriter 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 (e) 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 (e). Notwithstanding the provisions of this subsection
(e), the Underwriter shall not 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 the 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.
(f) The obligations of the Company and the Selling Stockholder under
this Section 7 shall be in addition to any liability which the
Company and the Selling Stockholder may otherwise have and shall
extend, upon the same terms and conditions, to each person, if
any, who controls the Underwriter within the meaning of the Act;
and the obligations of the Underwriter under this Section shall
be in addition to any liability which the Underwriter 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. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other
statements of the Company or its officers, the Selling Stockholder and
of the Underwriter 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 the
Underwriter, the Selling Stockholder, 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 for any reason the purchase of the Offered Securities
by the Underwriter is not consummated, the Company and the Selling
Stockholder shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations
of the Company, the Selling Stockholder and the Underwriter 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 Underwriter
is not consummated for any reason other than solely because of the
occurrence of any event specified in clause (iii), (iv), (v), (vi) or
(vii) of Section 6(c), the Company and the Selling Stockholder will,
jointly and severally, reimburse the Underwriter 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.
9. NOTICES. All communications hereunder will be in writing and, if sent
to the Underwriter, will be mailed, delivered or telegraphed and
confirmed to it at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Registration Department, or, if sent to the Company, will
be mailed, delivered or telegraphed and confirmed to it at 00000
Xxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx X.
Xxxxx, or,
17
if sent to the Selling Stockholder, will be mailed, delivered or
telegraphed and confirmed to it at c/o Xxxxxxx Xxxxx & Partners, L.P.,
00000 Xxxxx Xxxxxx Xxxx., Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx, 00000,
Attention: Xxxx Xxxxxx.
10. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective personal representatives
and 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.
11. 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.
12. APPLICABLE LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, including, without
limitation, Sections 5-1401 and 5-1402 of the New York General
Obligations Law and New York Civil Practice Laws and Rules 327(b).
The Company and the Selling Stockholder hereby submit 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.
If the foregoing is in accordance with the Underwriter's understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement among the Company, the Selling
Stockholder and the Underwriter in accordance with its terms.
Very truly yours,
VCA ANTECH, INC.
By /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
GREEN EQUITY INVESTORS III, L.P.
By: GEI Capital III, LLC
Its general partner
By /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: Partner
Accepted as of the date hereof:
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
