EXHIBIT 1.1
EMAGEON INC.
5,000,000 Shares of Common Stock
UNDERWRITING AGREEMENT
______________________, 2005
Wachovia Capital Markets, LLC
Xxxxx Xxxxxxx & Co.
Xxxxxxx Xxxxx & Associates, Inc.
Friedman, Billings, Xxxxxx & Co., Inc.
As Representatives of the several Underwriters
c/o Wachovia Capital Markets, LLC
0 Xx. Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Emageon Inc., a Delaware corporation (the "Company"), confirms its
agreement with Wachovia Capital Markets, LLC ("Wachovia") and each of the other
Underwriters named in Exhibit A hereto (collectively, the "Underwriters," which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom Wachovia, Xxxxx Xxxxxxx & Co., Xxxxxxx Xxxxx &
Associates, Inc. and Friedman, Billings, Xxxxxx & Co., Inc. are acting as
representatives (in such capacity, the "Representatives"), with respect to the
issue and sale by the Company of a total of 5,000,000 shares (the "Initial
Securities") of the Company's common stock, par value $0.001 per share (the
"Common Stock"), and the purchase by the Underwriters, acting severally and not
jointly, of the respective numbers of Initial Securities set forth in said
Exhibit A hereto, and with respect to the grant by the Company to the
Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of 750,000 additional shares of
Common Stock to cover over-allotments, if any. The Initial Securities to be
purchased by the Underwriters and all or any part of the 750,000 shares of
Common Stock subject to the option described in Section 2(b) hereof (the "Option
Securities") are hereinafter called, collectively, the "Securities." Certain
terms used in this Agreement are defined in Section 15 hereof.
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
Promptly after the execution of this Agreement, the Company will
prepare and file with the Commission a prospectus in accordance with the
provisions of the Securities Act, including but not limited to Rule 430A and
Rule 424(b), and the Company has previously advised you of all information
(financial and other) that will be set forth therein. Such prospectus in the
form first furnished to the Underwriters for use in connection with the offering
of the Securities is herein called the "Prospectus."
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Prior to or contemporaneously with the purchase of the Initial
Securities by the Underwriters on the Closing Date referred to in Section 2(c):
(a) all of the outstanding shares of the Company's Preferred Stock
will be automatically converted into shares of Common Stock
(the "Preferred Stock Conversion"),
(b) the Company's charter and by-laws will be amended and restated
and such amended and restated charter will be filed with the
Secretary of State of the State of Delaware (collectively, the
"Amendment and Restatement"),
(c) the Company will effect a 8.25-for-one reverse stock split
(the "Stock Split"),
and
(d) all of the outstanding WARRANTS will be automatically
exercised, according to their terms, to purchase shares of our
Common Stock (the "Warrant Exercise"),
all on the terms contemplated by the Prospectus. The Preferred Stock Conversion,
the Amendment and Restatement, the Stock Split and the Warrant Exercise are
hereinafter called, collectively, the "Pre-Closing Transactions").
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Date, and as of each Option Closing Date (if any) referred to in Section
2(b) hereof, and agrees with each Underwriter, ,as follows:
(1) Compliance with Registration Requirements. The
Securities have been duly registered under the 1933 Act pursuant to the
Registration Statement. Each of the Registration Statement and any Rule
462(b) Registration Statement has become effective under the 1933 Act,
and no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued
under the 1933 Act, and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became or become effective and at the Closing Date (and, if any Option
Securities are purchased, at the applicable Option Closing Date), the
Registration Statement, any Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, when filed with the Commission, will not contain and, as
amended or supplemented, if applicable, on the date any such amendment
or supplement is filed with the Commission and at the Closing Date
(and, if any Option Securities are purchased, at the applicable Option
Closing Date), will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in
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the light of the circumstances under which they were made, not
misleading. The representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement
or Prospectus or any amendment or supplement thereto that shall be made
in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through any of the
Representatives or their counsel expressly for use in the Registration
Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed, in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations, and each preliminary
prospectus and the Prospectus and any amendments or supplements thereto
delivered to the Underwriters for use in connection with the offering
of the Securities was identical to the electronically transmitted copy
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(2) Pre-Closing Transactions. The Pre-Closing
Transactions will be consummated on or prior to the Closing Date (or
such earlier date as may be contemplated by the Prospectus) on the
terms contemplated by this Agreement and the Prospectus.
(3) Independent Accountants. Ernst & Young, LLP, the
accountants who certified the financial statements and supporting
schedules included in the Registration Statement and the Prospectus,
are independent public accountants with respect to the Company and its
subsidiary as required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the
Company included in the Registration Statement and the Prospectus,
together with the related schedules (if any) and notes, present fairly
the financial position of the Company and its consolidated subsidiary
at the dates indicated and the results of operations, changes in
stockholders' equity and cash flows of the Company and its consolidated
subsidiary for the periods specified; and all such financial statements
have been prepared in conformity with GAAP applied on a consistent
basis throughout the periods involved and comply with all applicable
accounting requirements under the 1933 Act and the 1933 Act
Regulations. The supporting schedules, if any, included in the
Registration Statement present fairly, in accordance with GAAP, the
information required to be stated therein. The information in the
Prospectus under the captions "Summary Consolidated Financial and Other
Data" and "Selected Consolidated Financial and Other Data" presents
fairly the information shown therein and, with the exception of the
contracted backlog data set forth therein, has been compiled on a basis
consistent with that of the audited financial statements of the Company
included in the Registration Statement and the Prospectus, subject to
such adjustments as shall be described in the footnotes to such
financial and other data in the Prospectus.
(5) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus (in each case exclusive of any amendments
or supplements thereto subsequent to the date of this Agreement),
except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiary considered as one enterprise,
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whether or not arising in the ordinary course of business (a "Material
Adverse Effect"), (B) there have been no transactions entered into by
the Company or its subsidiary which are material with respect to the
Company and its subsidiary considered as one enterprise, and (C) there
has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(6) Good Standing of the Company. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in the State of Alabama and in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except (solely in the
case of jurisdictions other than the State of Alabama) where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(7) Good Standing of Subsidiary. The subsidiary of the
Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
has power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement and the Prospectus,
all of the issued and outstanding capital stock of such subsidiary has
been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company directly, free and clear of
any Lien; and none of the outstanding shares of capital stock of such
subsidiary was issued in violation of any preemptive rights, rights of
first refusal or other similar rights of any securityholder of such
subsidiary or any other person. The only subsidiary of the Company is
the subsidiary listed on Exhibit B hereto, and Exhibit B accurately
sets forth that such subsidiary is a corporation and the jurisdiction
of organization of such subsidiary. The subsidiary of the Company is
not a "significant subsidiary" as defined by Rule 1-02 of Regulation
S-X.
(8) Capitalization. The authorized, issued and
outstanding capital stock of the Company as of the date of this
Agreement is as set forth in the column entitled "Actual" and in the
corresponding line items under the caption "Capitalization" in the
Prospectus, except for issuances subsequent to the date as of which
such information is provided in the Prospectus pursuant to the exercise
of stock options and warrants and the conversion of shares of preferred
stock referred to in the Prospectus. The shares of issued and
outstanding capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; and none of the
outstanding shares of capital stock of the Company was issued in
violation of any preemptive rights, rights of first refusal or other
similar rights of any securityholder of the Company or any other
person.
(9) Authorization of Agreement. This Agreement has been
duly authorized, executed and delivered by the Company.
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(10) Authorization of Securities. The Securities have been
duly authorized for issuance and sale to the Underwriters pursuant to
this Agreement and, when issued and delivered by the Company pursuant
to this Agreement against payment of the consideration set forth
herein, will be validly issued, fully paid and non-assessable; no
holder of the Securities is or will be subject to personal liability by
reason of being such a holder; and the issuance of the Securities is
not subject to any preemptive rights, rights of first refusal or other
similar rights of any securityholder of the Company or any other
person.
(11) Description of Securities. The Common Stock, the
authorized but unissued Preferred Stock, and the Company's charter and
bylaws (in each case after giving effect to the Pre-Closing
Transactions) conform in all material respects to all of the respective
statements relating thereto contained in the Prospectus and such
statements conform to the rights set forth in the respective
instruments and agreements defining the same.
(12) Absence of Defaults and Conflicts. Neither the
Company nor its subsidiary is in violation of its Organizational
Documents or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any Company
Document, except for such defaults as would not result in a Material
Adverse Effect. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein
and in the Registration Statement and the Prospectus (including the
issuance and sale of the Securities and the use of the proceeds from
the sale of the Securities as described in the Prospectus under the
caption "Use of Proceeds") and compliance by the Company with its
obligations under this Agreement do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event under, or
result in the creation or imposition of any Lien upon any property or
assets of the Company or its subsidiary pursuant to any Company
Documents, except for such conflicts, breaches, defaults or Liens that
would not result in a Material Adverse Effect, nor will such action
result in any violation of the provisions of the Organizational
Documents of the Company or its subsidiary or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or its subsidiary or any of their
respective assets, properties or operations.
(13) Absence of Labor Dispute. No labor dispute with the
employees of the Company or the subsidiary of the Company exists or, to
the knowledge of the Company, is threatened which, in any such case,
may reasonably be expected to result in a Material Adverse Effect.
(14) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or its subsidiary which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or the performance by the
Company of its obligations under this Agreement; the aggregate of all
pending legal or governmental proceedings to which the Company or its
subsidiary is a party or of which any of their
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respective property or assets is the subject which are not described in
the Registration Statement, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result
in a Material Adverse Effect.
(15) Accuracy of Descriptions and Exhibits. The
information in the Prospectus under the captions "Risk Factors,"
"Management's Discussion and Analysis of Financial Condition and
Results of Operations - Liquidity and Capital Resources," "Business -
Intellectual Property," "Business - Legal Proceedings," "Business -
Government Regulation," "Management - Employment Agreements and Change
in Control Arrangements," "Management - 2004 Equity Incentive Plan,"
Management - 2004 Non-Employee Director Stock Incentive Plan,"
"Management - Other Equity Compensation Plans," "Management - 401(k)
Savings Plan," "Management - Indemnification of Directors and Executive
Officers and Limitation of Liability," "Certain Relationships and
Related Party Transactions," "Description of Capital Stock," "Material
U.S. Federal Income Tax Consequences to Non-U.S. Holders," "Shares
Eligible for Future Sale," in each case to the extent that it
constitutes matters of law, summaries of legal matters, summaries of
provisions of the Company's charter or bylaws or any other instruments
or agreements, summaries of legal proceedings, or legal conclusions,
fairly present in all material respects, the matters referred to
therein; all descriptions in the Registration Statement and the
Prospectus of any Company Documents are accurate in all material
respects; and there are no franchises, contracts, indentures,
mortgages, deeds of trust, loan or credit agreements, bonds, notes,
debentures, evidences of indebtedness, leases or other instruments or
agreements required to be described or referred to in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement which have not been so described and filed as
required.
(16) Possession of Intellectual Property. The Company and
its subsidiary own or possess, and have the right to use all material
software, hardware, systems, processes, procedures and other technology
and all material patents, patent rights, patent applications, licenses,
inventions (patentable and/or unpatentable), copyrights, works of
authorship, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, software,
hardware, systems, processes or procedures or other technology),
trademarks, service marks, trade names, service names, domain names and
all other material intellectual property (collectively, "Intellectual
Property") necessary to carry on their respective businesses as
described in the Prospectus and as proposed to be conducted; and
neither the Company nor its subsidiary has received any notice or has
any knowledge of any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or its subsidiary
therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy,
individually or in the aggregate, would result in a Material Adverse
Effect.
(17) Absence of Further Requirements. (A) No filing with,
or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency, domestic or foreign, (B) no authorization, approval, vote or
other consent of any stockholder or creditor of the Company, and (C) no
authorization, approval, vote or other consent of any other person or
entity, is necessary or required for the performance by the Company of
its obligations under this Agreement, for the offering, issuance, sale
or delivery of the Securities hereunder, or for the
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consummation of any of the other transactions contemplated by this
Agreement, in each case on the terms contemplated by the Prospectus,
except such as have been already obtained under the 1933 Act or the
1933 Act Regulations or such as may be required under state securities
laws or the NASD.
(18) Possession of Licenses and Permits. The Company and
its subsidiary possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them, except
where the failure to have any such Governmental License would not have
a Material Adverse Effect; the Company and its subsidiary are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, individually
or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect would not
have a Material Adverse Effect; and neither the Company nor its
subsidiary has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect.
(19) Title to Property. The Company and its subsidiary has
good title to all properties owned by any of them which is material to
the business of the Company, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the
Prospectus or (b) do not, individually or in the aggregate, materially
affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company or its
subsidiary; all real property, buildings and other improvements held
under lease or sublease by the Company or its subsidiary is held by
them under valid, subsisting and enforceable leases or subleases, as
the case may be, with such exceptions as are not material and do not
interfere with the use made or proposed to be made of such property and
buildings or other improvements by the Company and its subsidiary, and
all such leases and subleases are in full force and effect; and neither
the Company nor its subsidiary has any notice of any claim of any sort
that has been asserted by anyone adverse to the rights of the Company
or its subsidiary under any of the leases or subleases mentioned above
or affecting or questioning the rights of the Company or its subsidiary
to the continued possession of the leased or subleased premises under
any such lease or sublease, in each case except for such claims which,
if successfully asserted against the Company or its subsidiary, would
not, individually or in the aggregate, have a Material Adverse Effect.
(20) Investment Company Act. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus, will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the 1940 Act.
(21) Environmental Laws. Except as otherwise disclosed in
the Prospectus: (i) all real property and improvements owned or leased
by the Company or any of its subsidiaries, including, without
limitation, the Environment (as defined
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below) associated with such real property and improvements, is free of
any Contaminant (as defined below), except such Contaminants which,
individually or in the aggregate, would not have a Material Adverse
Effect; (ii) neither the Company nor any of its subsidiaries has caused
or suffered to exist or occur any Release (as defined below) of any
Contaminant into the Environment or any other condition that,
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect or could result in any violation of any
Environmental Laws (as defined below) or constitute a health, safety or
environmental hazard to any person or property except for such
violations or hazards that could not reasonably be expected to have a
Material Adverse Effect; (iii) neither the Company nor any of its
subsidiaries is aware of any notice from any governmental body claiming
any violation of any Environmental Laws or requiring or calling
attention to the need for any work, repairs, construction, alterations,
removal or remedial action or installation on or in connection with
such real property or improvements, whether in connection with the
presence of asbestos-containing materials in such properties or
otherwise, except for such violations, work, repairs, construction,
alterations, removal or remedial actions or installations as would not,
individually or in the aggregate, have a Material Adverse Effect; (iv)
any such work, repairs, construction, alterations, removal or remedial
action or installation, if required, would not result in the incurrence
of liabilities, which, individually or in the aggregate, would have a
Material Adverse Effect; (v) neither the Company nor any of its
subsidiaries has caused or suffered to exist or occur any condition on
any of the properties or improvements of the Company or any of its
subsidiaries that could give rise to the imposition of any Lien under
any Environmental Laws, except such Liens which, individually or in the
aggregate, would not have a Material Adverse Effect; and (vi) to the
Company's knowledge, no real property or improvements owned or leased
by the Company or any of its subsidiaries is being used or has been
used for manufacturing or for any other operations that involve or
involved the use, handling, transportation, storage, treatment or
disposal of any Contaminant, where such operations require or required
permits or are or were otherwise regulated pursuant to the
Environmental Laws and where such permits have not been or were not
obtained or such regulations are not being or were not complied with,
except in all instances where any failure to obtain a permit or comply
with any regulation could not reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect. "Contaminant"
means any pollutant, hazardous substance, toxic substance, hazardous
waste, special waste, petroleum or petroleum-derived substance or
waste, asbestos or asbestos-containing materials, PCBs, lead,
pesticides or radioactive materials or any constituent of any such
substance or waste, including any such substance identified or
regulated under any Environmental Law. "Environmental Laws" means the
Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. 9601 et seq., the Resource Conservation and Recovery Act, 42
U.S.C. 6901, et seq., the Clean Air Act, 42 U.S.C. 7401, et seq., the
Clean Water Act, 33 U.S.C. 1251, et seq., the Toxic Substances Control
Act, 15 U.S.C. 2601, et seq., the Occupational Safety and Health Act,
29 U.S.C. 651, et seq., and all other federal, state and local laws,
ordinances, regulations, rules, orders, decisions, permits, and the
like, which are directed at the protection of human health or the
Environment. "Environment" means any surface water, drinking water,
ground water, land surface, subsurface strata, river sediment,
buildings, structures, and ambient, workplace and indoor air. "Release"
means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, emanating or
disposing of any Contaminant into the Environment, including, without
limitation, the abandonment or discard of barrels, containers, tanks or
other receptacles containing or previously containing any Contaminant
or any release, emission or discharge as those terms are defined or
used in any Environmental Law.
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(22) Absence of Registration Rights. Except as described
in the Registration Statement, there are no persons with registration
rights or other similar rights to have any securities (debt or equity)
(A) registered pursuant to the Registration Statement or included in
the offering contemplated by this Agreement or (B) otherwise registered
by the Company under the 1933 Act. There are no persons with tag-along
rights or other similar rights to have any securities (debt or equity)
included in the offering contemplated by this Agreement or sold in
connection with the sale of Securities by the Company pursuant to this
Agreement.
(23) Parties to Lock-Up Agreements. Each of the persons or
entities listed in Exhibit C has executed and delivered to the
Representatives a lock-up agreement in the form of Exhibit D hereto.
Assuming all Preferred Stock has been converted and all Warrants have
been exercised, all persons and entities that hold more than 100,000
shares of Common Stock or Warrants exercisable for more than 100,000
shares of Common Stock, or any combination thereof, and all employees
are listed on Exhibit C. Exhibit E hereto contains a true, complete and
correct list of all directors and officers of the Company.
(24) Nasdaq National Market. The outstanding shares of
Common Stock and the Securities being sold hereunder by the Company
have been approved for listing, subject only to official notice of
issuance, on the Nasdaq National Market.
(25) NASD Matters. All of the information provided to the
Underwriters or to counsel for the Underwriters by the Company, its
officers and directors and, to the Company's knowledge, the holders of
any securities (debt or equity) or options to acquire any securities of
the Company in connection with letters, filings or other supplemental
information provided to the NASD pursuant to NASD Conduct Rule 2710 or
2720 is true, complete and correct.
(26) Tax Returns. The Company has filed all foreign,
federal, state and local tax returns that are required to be filed or
has requested extensions thereof, except where the failure so to file
would not, individually or in the aggregate, have a Material Adverse
Effect, and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any
of the foregoing is due and payable, except for any such tax,
assessment, fine or penalty that is currently being contested in good
faith by appropriate actions and except for such taxes, assessments,
fines or penalties the nonpayment of which would not, individually or
in the aggregate, have a Material Adverse Effect.
(27) Insurance. The Company and its subsidiary are insured
against such losses and risks and in such amounts as are prudent and
customary in the businesses in which they are engaged; all policies of
insurance and any fidelity or surety bonds insuring the Company or its
subsidiary or their respective businesses, assets, employees, officers
and directors are in full force and effect; the Company and its
subsidiary are in compliance with the terms of such policies and
instruments in all material respects; there are no claims by the
Company or its subsidiary under any such policy or instrument as to
which any insurance company is denying liability or defending under a
reservation of rights clause; neither the Company nor such subsidiary
has been refused any insurance coverage sought or applied for; and
neither the Company nor such subsidiary has any reason to believe that
it will not be able to renew its existing insurance coverage as and
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when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that
would not have a Material Adverse Effect.
(28) Accounting Controls. The Company and its subsidiary
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance
with management's general or specific authorizations; (B) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with GAAP and to maintain asset accountability; (C)
access to assets is permitted only in accordance with management's
general or specific authorization; and (D) the recorded accountability
for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(29) Absence of Manipulation. The Company has not taken
and 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 the stabilization or manipulation of the price of any
security to facilitate the sale or resale of the Securities.
(b) Certificates. Any certificate signed by any officer of the Company
or its subsidiary and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price of $______ per share (the "Purchase Price"), that
proportion of the number of Initial Securities, which the number of Initial
Securities set forth in Exhibit A opposite the name of such Underwriter, plus
any additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof, bears to
the total number of Initial Securities, subject in each case to such adjustments
among the Underwriters as the Representatives in their sole discretion shall
make to eliminate any sales or purchases of fractional Securities. The price at
which the Securities shall initially be offered to the public is $______ per
share.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase up to the respective numbers of Option Securities
at a price per share equal to the Purchase Price referred to in Section 2(a)
above; provided that the price per share for any Option Securities shall be
reduced by an amount per share equal to any dividends or distributions declared
by the Company and payable on the Initial Securities but not payable on such
Option Securities. The option hereby granted will expire at the close of
business on the 30th day after the date hereof and may be exercised in whole or
in part from time to time only for the purpose of covering over-allotments which
may be made in connection with the offering and distribution of the Initial
Securities upon notice by the Representatives to the Company setting forth the
number of Option Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such
Option Securities. Any such time and date of delivery (an "Option Closing Date")
shall be determined by the Representatives, but shall not be earlier than two
full business days after the
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exercise of said option or later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Date, as
hereinafter defined. If the option is exercised as to all or any portion of the
Option Securities, the Company will sell to the Underwriters that proportion of
the total number of Option Securities then being purchased which the number of
Option Securities bears to the total number of Option Securities, and each of
the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Securities then being purchased which
the number of Initial Securities set forth in Exhibit A opposite the name of
such Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, bears to the total number of Initial Securities, subject in
each case to such adjustments as the Representatives in their discretion shall
make to eliminate any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Xxxxxx
& Bird LLP, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, or at such other
place as shall be agreed upon by the Representatives and the Company, at 9:00
A.M. (Eastern time) on ___________, 2005 (unless postponed in accordance with
the provisions of Section 10), or such other time not later than ten business
days after such date as shall be agreed upon by the Representatives and the
Company (such time and date of payment and delivery being herein called the
"Closing Date").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Company, on each Option Closing Date as specified in the notice from the
Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a single bank account designated by the Company upon delivery
to the Representatives through the facilities of The Depository Trust Company
for the respective accounts of the Underwriters of certificates for the
Securities to be purchased by them. It is understood that each Underwriter has
authorized the Representatives, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Initial Securities and the
Option Securities, if any, which it has agreed to purchase. Any of the
Representatives, individually and not as representative of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price for the
Initial Securities or the Option Securities, if any, to be purchased by any
Underwriter whose funds have not been received by the Closing Date or the
relevant Option Closing Date, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least
two full business days before the Closing Date or the relevant Option Closing
Date, as the case may be. The certificates for the Initial Securities and the
Option Securities, if any, will be made available for examination and packaging
by the Representatives in The City of Baltimore not later than noon (Eastern
time) on the business day prior to the Closing Date or the relevant Option
Closing Date, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
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(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A and will notify the Representatives
immediately, and confirm the notice in writing, (i) when the
Registration Statement, any Rule 462(b) Registration Statement or any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect
the filings necessary pursuant to Rule 424(b) and will take such steps
as it deems necessary to ascertain promptly whether the document
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file
such document. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the
Representatives notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing under
Rule 462(b)) or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act or
otherwise, will furnish the Representatives with copies of any such
documents within a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such
document to which the Representatives or counsel for the Underwriters
shall reasonably object in writing, prior to such filing or use.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith) and signed copies of all consents of experts.
The copies of the Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered
to each Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies by the Underwriters in
connection with the offering of the Securities under and in accordance
with the requirements of the 1933 Act. The Company will furnish to each
Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments
or supplements thereto furnished to the Underwriters will be identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
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(e) Continued Compliance with Securities Laws. The
Company will comply with the 1933 Act and the 1933 Act Regulations so
as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time
when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the
judgment of the Company or in the opinion of counsel for the
Underwriters, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus 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 not misleading
in the light of the circumstances existing at the time it is delivered
to a purchaser, or if it shall be necessary, in the judgment of the
Company or in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(b) hereof, such amendment or
supplement as may be necessary to correct such statement or omission or
to make the Registration Statement or the Prospectus comply with such
requirements, and the Company will furnish to the Underwriters such
number of copies of such amendment or supplement as the Underwriters
may reasonably request.
(f) Blue Sky Qualifications. The Company will use its
best efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions (domestic or foreign) as the
Representatives may designate and to maintain such qualifications in
effect for a period of not less than one year from the date of this
Agreement; provided, however, that the Company shall not be obligated
to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Securities have
been so qualified, the Company will file such statements and reports as
may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
date of this Agreement.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11 (a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net
proceeds received by it from the sale of the Securities in the manner
specified in the Prospectus under "Use of Proceeds."
(i) Listing. The Company will use its best efforts to
effect the listing of the Securities on the Nasdaq National Market.
(j) Restriction on Sale of Securities. The Company will
not, without the prior written consent of Wachovia, 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 of (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by
the Company or any affiliate of the Company), directly or indirectly,
including the filing (or participation in
13
the filing) of a registration statement with the 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 1934 Act with respect to, any shares of the Company's Common Stock,
Preferred Stock or other capital stock or any securities convertible
into, or exercisable or exchangeable for, shares of the Company's
Common Stock, Preferred Stock or other capital stock, or (subject to
the applicable law) publicly announce an intention to effect any such
transaction, for a period beginning on and including the date of this
Agreement through and including the date which is 180 days after the
date of this Agreement; provided, however, that (A) the Company may
issue and sell Securities pursuant to this Agreement, (B) the Company
may issue and sell Common Stock and options to purchase Common Stock
pursuant to the Emageon Inc. 2004 Equity Incentive Plan, the Emageon
Inc. 2004 Non-Employee Director Incentive Plan, the Emageon Inc. 2000
Equity Compensation Plan, the Emageon Inc. 2000 Equity Incentive Plan
and the UltraVisual Medical Systems Corporation 2000 Stock Option Plan,
(C) the Company may issue Common Stock upon the exercise of stock
options and warrants and the conversion of shares of preferred stock
outstanding on the date of this Agreement and referred to in the
Prospectus or stock options issued after the date of this Agreement
pursuant to any such plan referred to in clause (B) of this sentence,
and (D) the Company may issue or agree to issue shares of its capital
stock as consideration in acquisitions during the 180-day period set
forth above, provided, however, that the acquiror of any such shares
agrees to be bound by the restrictions of this Section 3(j) for an
additional 180-day period beginning upon the date of such issuance as
and to the extent the Company would be so bound.
(k) Reporting Requirements. The Company, during the
period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, will file all documents required to be filed with
the Commission pursuant to the 1934 Act within the time periods
required by the 1934 Act and the 1934 Act Regulations.
(1) Preparation of Prospectus. Immediately following the
execution of this Agreement, the Company will, subject to Section 3(b)
hereof, prepare the Prospectus containing the Rule 430A Information and
other selling terms of the Securities, the plan of distribution thereof
and such other information as may be required by the 1933 Act or the
1933 Act Regulations or as the Representatives and the Company may deem
appropriate, and will file or transmit for filing with the Commission,
in accordance with Rule 424(b), copies of the Prospectus.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses of the Company and, to
the extent expressly set forth herein, the Underwriters incident to the
performance by the Company of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the word processing, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees
and disbursements of the counsel, accountants and other advisors to the Company,
(v) the qualification of the Securities under securities laws in accordance with
the provisions of Section
14
3(f) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of the survey conducted with respect to the applicable securities
laws of such states and other jurisdictions (domestic or foreign) as the
Representatives may designate (the "Blue Sky Survey") and any supplements
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus and of the Prospectus and any amendments or supplements
thereto, (vii) the preparation, printing and delivery to the Underwriters of
copies of the Blue Sky Survey and any supplements thereto, (viii) the fees and
expenses of the Custodian and the transfer agent and registrar for the
Securities, (ix) the filing fees incident to the review by the NASD of the terms
of the sale of the Securities, and (x) the fees and expenses of the Company and
its counsel incurred in connection with the listing of the Securities on the
Nasdaq National Market.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives at any time on or prior to the Closing Date in accordance with
the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the fees and disbursements of counsel for the Underwriters reasonably incurred
in connection with the offering of the Securities.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in this Agreement or in
certificates of any officer of the Company or the subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The
Registration Statement, including any Rule 462(b) Registration
Statement, has become effective and at the Closing Date (or the
applicable Option Closing Date, as the case may be) no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or, to
the knowledge of the Company, threatened by the Commission, and any
request on the part of the Commission for additional information shall
have been complied with to the reasonable satisfaction of counsel to
the Underwriters. The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the time period prescribed by
such Rule, and prior to the Closing Date, the Company shall have
provided evidence satisfactory to the Representatives of such timely
filing.
(b) Opinion of Counsel for Company. At the Closing Date,
the Representatives shall have received the opinion, dated as of the
Closing Date, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for the Company
("Company Counsel"), in form and substance satisfactory to counsel for
the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, to the effect set forth in
Exhibit F hereto.
(c) Opinion of Counsel for Underwriters. At the Closing
Date, the Representatives shall have received the favorable opinion,
dated as of the Closing Date, of Xxxxxx & Bird LLP, counsel for the
Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters, with respect to the matters set
forth in clauses (1), (6), (7)(A), (8) (solely as to preemptive rights
arising by operation of law or under the charter or by-laws of the
Company or the Delaware General Corporation Law), (9), (10) and (13)
(solely as to the information in the Prospectus under
15
"Description of Capital Stock - Common Stock") and the antepenultimate
paragraph of Exhibit F hereto. In giving such opinion such counsel may
rely without investigation, as to all matters governed by the laws of
any jurisdictions other than the law of the State of New York, the
federal law of the United States and the Delaware General Corporation
Law, upon the opinions of counsel satisfactory to the Representatives.
Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiary and of
public officials.
(d) Officers' Certificate. At the Closing Date or the
applicable Option Closing Date, as the case may be, there shall not
have been, since the date hereof or since the respective dates as of
which information is given in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiary considered as one enterprise, whether
or not arising in the ordinary course of business, and, at the Closing
Date, the Representatives shall have received a certificate of the
Chairman, the President, the Chief Executive Officer or an Executive
Vice President or Senior Vice President of the Company and of the Chief
Financial Officer or Chief Accounting Officer of the Company, dated as
of the Closing Date, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties of the
Company in this Agreement are true and correct with the same force and
effect as though expressly made at and as of the Closing Date, (iii)
the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing Date under or pursuant to this Agreement, and (iv) no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or
are pending or, to their knowledge, are contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the
execution of this Agreement, the Representatives shall have received
from Ernst & Young LLP a letter, dated the date of this Agreement and
in form and substance satisfactory to the Representatives, together
with signed or reproduced copies of such letter for each of the other
Underwriters, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information of the Company contained in the Registration Statement or
the Prospectus.
(f) Bring-down Comfort Letter. At the Closing Date, the
Representatives shall have received from Ernst & Young LLP a letter,
dated as of the Closing Date and in form and substance satisfactory to
the Representatives, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (e) of this
Section, except that the specified date referred to shall be a date not
more than three business days prior to the Closing Date.
(g) Approval of Listing. At the Closing Date and each
Option Closing Date, if any, the Securities to be purchased by the
Underwriters at such time shall have been approved for listing on the
Nasdaq National Market, subject only to official notice of issuance.
16
(h) Lock-up Agreements. Prior to the date of this
Agreement, the Representatives shall have received an agreement
substantially in the form of Exhibit D hereto signed by each of the
persons or entities listed in Exhibit C hereto.
(i) Pre-Closing Transactions. Prior to the purchase of
the Initial Securities on the Closing Date, the Pre-Closing
Transactions shall have been duly consummated on the terms contemplated
by this Agreement and the Prospectus, and the Representatives shall
have received a copy of the amended and restated charter of the Company
certified by the Secretary of State of the State of Delaware and such
other evidence that the Pre-Closing Transactions have been consummated
as the Representatives may reasonably request.
(j) Conditions to Purchase of Option Securities. In the
event that the Underwriters exercise their option provided in Section
2(b) hereof to purchase all or any portion of the Option Securities on
any Option Closing Date that is after the Closing Date, the obligations
of the several Underwriters to purchase the applicable Option
Securities shall be subject to the conditions specified in the
introductory paragraph of this Section 5 and to the further condition
that, at the applicable Option Closing Date, the Representatives shall
have received:
(1) Officers' Certificate. A certificate, dated such
Option Closing Date, to the effect set forth in, and signed by
two of the officers specified in, Section 5(d) hereof, except
that the references in such certificate to the Closing Date
shall be changed to refer to such Option Closing Date.
(2) Opinion of Counsel for Company. The favorable opinion
of Company Counsel in form and substance satisfactory to
counsel for the Underwriters, dated such Option Closing Date,
relating to the Option Securities to be purchased on such
Option Closing Date and otherwise to the same effect as the
opinion required by Section 5(b) hereof.
(3) Opinion of Counsel for Underwriters. The favorable
opinion of Xxxxxx & Bird LLP, counsel for the Underwriters,
dated such Option Closing Date, relating to the Option
Securities to be purchased on such Option Closing Date and
otherwise to the same effect as the opinion required by
Section 5(c) hereof.
(4) Bring-down Comfort Letter. A letter from Ernst &
Young LLP, in form and substance satisfactory to the
Representatives and dated such Option Closing Date,
substantially in the same form and substance as the letter
furnished to the Representatives pursuant to Section 5(f)
hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more
than five days prior to such Option Closing Date.
(k) Additional Documents. At the Closing Date and at each
Option Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any
of the conditions, contained in this Agreement; and all proceedings
taken by the Company in connection with the issuance and sale of the
Securities as herein contemplated and in connection with
17
the other transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Representatives and counsel
for the Underwriters.
(l) Termination of Agreement. If any condition specified
in this Section 5 shall not have been fulfilled when and as required to
be fulfilled, this Agreement, or, in the case of any condition to the
purchase of Option Securities on an Option Closing Date which is after
the Closing Date, the obligations of the several Underwriters to
purchase the relevant Option Securities, may be terminated by the
Representatives by notice to the Company at any time on or prior to the
Closing Date or such Option Closing Date, as the case may be, and such
termination shall be without liability of any party to any other party
except as provided in Section 4 hereof and except that Sections 1, 6, 7
and 8 hereof shall survive any such termination and remain in full
force and effect.
SECTION 6. Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, claim, damage, expense and
liability, as incurred, to which such Underwriter or any such
controlling person may become subject under the 1933 Act or otherwise
insofar as such losses, claims, damages, expenses and liabilities arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, claim, damage, expense and
liability, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to
Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Wachovia),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above,
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through any of the Representatives or their counsel
18
expressly for use in the Registration Statement (or any amendment thereto), or
in any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), and provided further that the foregoing indemnity, with respect to any
preliminary prospectus, shall not inure to the benefit of any Underwriter from
whom the person asserting any such loss, claim, damage, expense or liability
purchased Securities, or any person controlling any such Underwriter, if (A) a
copy of the Prospectus (as then amended or supplemented) was not sent or given
by or on behalf of such Underwriter to such person at or prior to the written
confirmation of the sale of such Securities to such person, (B) the Prospectus
(as so amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage, expense or liability and (C) the Company delivered, or
caused to be delivered, on a timely basis, the Prospectus to the Underwriters in
requisite quantity on a timely basis to permit such delivery or sending.
(b) Indemnification by Underwriters. Each Underwriter severally agrees
to indemnify and hold harmless the Company, its directors, each of its officers
who signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section 6, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through any of the
Representatives or their counsel expressly for use in the Registration Statement
(or any amendment thereto) or such preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. Counsel to the indemnified parties shall be selected as follows:
counsel to the Underwriters and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall be selected by Wachovia; and, counsel to the Company, its
directors, each of its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action, and, to the extent that it shall elect, jointly with all other
indemnifying parties similarly notified, by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that a conflict may
arise between the positions of the indemnifying party and the indemnified party
in conducting the defense of any such action or 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, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of such indemnifying party's election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
19
under this Section 6 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof except as provided
below and except for the reasonable costs of investigation subsequently incurred
by such indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its counsel in any such action,
but the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel by such indemnified party
has been authorized in writing by the indemnifying parties, (ii) the indemnified
party shall have employed separate counsel in accordance with the proviso to the
third sentence of this Section 6(c) (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with local counsel), approved by the indemnifying
party (Wachovia in the case of Section 6(b) and Section 7), representing the
indemnified parties who are parties to such action) or (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
commencement of the action, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying party. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
the Underwriters and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and the
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for the Company, its directors, each of its
officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, in each case in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim 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 any
indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is
20
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth on the cover of the Prospectus, bear to
the aggregate initial public offering price of the Securities as set forth on
such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any 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 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their
respective names in Exhibit A hereto and not joint.
21
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or its subsidiary
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company and shall survive delivery
of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time on or prior to the Closing Date
(and, if any Option Securities are to be purchased on an Option Closing Date
which occurs after the Closing Date, the Representatives may terminate the
obligations of the several Underwriters to purchase such Option Securities, by
notice to the Company, at any time on or prior to such Option Closing Date) (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
Material Adverse Effect, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political financial or economic conditions, in each
case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the Nasdaq National Market, or if trading generally on the
American Stock Exchange or the NYSE or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States or
(iv) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section 9, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 hereof shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Date or an Option Closing Date to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representatives shall use their
reasonable efforts to make arrangements, within 24 hours thereafter, for one or
more of the non-defaulting Underwriters, or any other underwriters satisfactory
to the Company, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representatives shall not have completed such
arrangements within such 24-hour period, then the Company shall have an
additional 24-hour period within which to seek to make similar arrangements with
one or more underwriters satisfactory to the non-defaulting Underwriters, and,
if the Company shall not have completed such arrangements within such additional
24-hour period, then:
(a) if the number of Defaulted Securities does not exceed
10% of the number of Securities to be purchased on such date, each of
the non-defaulting Underwriters shall be
22
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters; or
(b) if the number of Defaulted Securities exceeds 10% of
the number of Securities to be purchased on such date, this Agreement
or, with respect to any Option Closing Date which occurs after the
Closing Date, the obligation of the Underwriters to purchase and of the
Company to sell the Option Securities that were to have been purchased
and sold on such Option Closing Date, shall terminate without liability
on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of an Option Closing Date which is after the
Closing Date, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, the Company or the Representatives shall have the right to
postpone the Closing Date or the relevant Option Closing Date, as the case may
be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Wachovia Capital
Markets, LLC, 0 Xx. Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention of Xxxx
Xxxxxx, Director; notices to the Company shall be directed to it at Emageon
Inc., 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, Attention:
General Counsel.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters, the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters, the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Section and Exhibit headings herein
are for convenience only and shall not affect the construction hereof.
23
SECTION 15. Definitions. As used in this Agreement, the following terms
have the respective meanings set forth below:
"Agreement" means this Underwriting Agreement, dated _______, 2005, by
and among the Company, the shareholders named in Schedule G thereto and the
several underwriters named in Exhibit A thereto.
"Commission" means the Securities and Exchange Commission.
"Company Documents" means any contracts, indentures, mortgages, deeds
of trust, loan or credit agreements, bonds, notes, debentures, evidences of
indebtedness, leases or other instruments or agreements to which the Company or
its subsidiary is a party or by which the Company or its subsidiary is bound or
to which any of the property or assets of the Company or its subsidiary is
subject.
"XXXXX" means the Commission's Electronic Data Gathering, Analysis and
Retrieval System.
"GAAP" means generally accepted accounting principles.
"Lien" means any security interest, mortgage, pledge, lien, encumbrance
or claim.
"NASD" means the National Association of Securities Dealers, Inc.
"NYSE" means the New York Stock Exchange.
"Organizational Documents" means the charter and by-laws.
"Preferred Stock" means the Company's preferred stock, par value $0.001
per share.
"preliminary prospectus" means any prospectus used in connection with
the offering of the Securities that was used before the Registration Statement
became effective, or that was used after such effectiveness and prior to the
execution and delivery of this Agreement, or that omitted the Rule 430A
Information or that was captioned "Subject to Completion".
"Registration Statement" means the registration statement on Form S-1
(File No. 333-120621), as amended by any pre and post-effective amendments, at
the time it became effective including the Rule 430A Information; provided that,
if a Rule 462(b) Registration Statement is filed with the Commission, then the
term "Registration Statement" shall also include such Rule 462(b) Registration
Statement.
"Repayment Event" means any event or condition which gives the holder
of any bond, note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company or the
subsidiary of the Company.
"Rule 424(b)", "Rule 430A" and "Rule 462(b)" refer to such rules under
the 1933 Act.
"Rule 430A Information" means the information included in the
Prospectus that was omitted from the Registration Statement at the time it
became effective but that is deemed to be a part of the Registration Statement
at the time it became effective pursuant to Rule 430A.
24
"Rule 462(b) Registration Statement" means a registration statement
filed by the Company pursuant to Rule 462(b) for the purpose of registering any
of the Securities under the 1933 Act, including the Rule 430A Information.
"Warrants" means, collectively, that certain: (1) GE Medical Systems, a
division of General Electric Company, a New York corporation, a Warrant to
Purchase Shares of Common Stock of Emageon, dated June 26, 2000; (2) T.I. EMA,
Inc., a Nevada corporation, a Warrant to purchase Shares of Common Stock of
Emageon, dated October 24, 2000; (3) The Permanente Federation LLC, a Delaware
limited liability company, a Warrant to purchase Shares of Common Stock of
Emageon, dated October 30, 2000; and (4) Xxxxxx Foundation Hospitals, a
California not-for-profit corporation, a Warrant to purchase Shares of Common
Stock of Emageon, dated October 30, 2000.
"1933 Act" means the Securities Act of 1933, as amended.
"1933 Act Regulations" means the rules and regulations of the
Commission under the 1933 Act.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"1934 Act Regulations" means the rules and regulations of the
Commission under the 1934 Act.
"1940 Act" means the Investment Company Act of 1940, as amended.
All references to the Registration Statement, any Rule 462(b)
Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to XXXXX.
[SIGNATURE PAGE FOLLOWS]
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
EMAGEON INC.
By:
----------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
CONFIRMED AND ACCEPTED, as of the
date first above written:
WACHOVIA CAPITAL MARKETS, LLC
XXXXX XXXXXXX & CO.
XXXXXXX XXXXX & ASSOCIATES, INC.
FRIEDMAN, BILLINGS, RAMSAY & CO., INC.
By: WACHOVIA CAPITAL MARKETS, LLC
By:
--------------------------------
Name: Xxxx Xxxxxx
Title: Director
For themselves and as Representative of the Underwriters named in Exhibit A
hereto.
26
EXHIBIT A
Number of
Initial
Name of Underwriter Securities
------------------- ----------
Wachovia Capital Markets, LLC.....................................................
Xxxxx Xxxxxxx & Co................................................................
Xxxxxxx Xxxxx & Associates, Inc...................................................
Friedman, Billings, Xxxxxx & Co., Inc.............................................
----------
Total.......................................................
==========
A-1
EXHIBIT B
SOLE SUBSIDIARY OF THE COMPANY
JURISDICTION OF
NAME ORGANIZATION TYPE OF ENTITY
------------ --------------- --------------
Ultra Visual Medical Systems Corporation Delaware Corporation
B-1
EXHIBIT C
PARTIES TO LOCKUP AGREEMENT
C-1
EXHIBIT D
FORM OF LOCK-UP AGREEMENT
EMAGEON INC.
Public Offering of Common Stock
__________, 200__
Wachovia Capital Markets, LLC
and Xxxxx Xxxxxxx & Co.
As Representatives of the several
Underwriters
0 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
This agreement is being delivered to you in connection with the proposed
Underwriting Agreement (the "
Underwriting Agreement") between
Emageon Inc., a
Delaware corporation (the "Company"), you, as representative or one of the
representatives of a group of underwriters (the "Underwriters"), and the other
parties thereto (if any), to be named therein, relating to an underwritten
public offering (the "Public Offering") of common stock, par value $0.001 per
share (the "Common Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting
Agreement, and in light of the benefit that the offering of the Common Stock
will confer upon the undersigned in its capacity as a stockholder of the
Company, the undersigned agrees that the undersigned will not, without the prior
written consent of Wachovia Capital Markets, LLC and Xxxxx Xxxxxxx & Co. (the
"Managing Underwriters"), offer, sell, contract to sell, pledge or otherwise
dispose of (or enter into any transaction that is designed to, or might
reasonably be expected to, result in the disposition of (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned), directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the Securities and
Exchange Commission (the "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 (the "Exchange Act"), and the rules and regulations of the Commission
promulgated thereunder with respect to, any shares of Common Stock, preferred
stock, par value $0.001 per share ("Preferred Stock"), or other capital stock of
the Company or any securities convertible into or exercisable or exchangeable
for any such Common Stock, Preferred Stock or other capital stock (whether owned
by the undersigned at the date of this agreement or subsequently acquired by the
undersigned), or publicly announce an intention to effect any such transaction,
for a period beginning on and including the date of the
Underwriting Agreement
through and including the date which is 180 days after the date of the
Underwriting Agreement; provided, however, that the undersigned may transfer any
Common Stock, Preferred
D-1
Stock or other capital stock of the Company or any securities convertible into
or exercisable or exchangeable for such Common Stock, Preferred Stock or other
capital stock (i) either during his or her lifetime or on death, by gift, will
or intestate succession, to any member of the undersigned's immediate family, to
a trust the beneficiaries of which are exclusively the undersigned or members of
the undersigned's immediate family, or to charitable or educational
organizations or (ii) to any partner, shareholder or member of the undersigned,
in each such case without the prior written consent of the Managing Underwriters
if (a) the undersigned provides written notice of such transfer to the Managing
Underwriters no later than three business days prior to such transfer, (b) the
transferee executes and delivers to the Managing Underwriters, not later than
one business day prior to such transfer, an agreement, in form and substance
reasonably satisfactory to the Managing Underwriters, in substantially the form
of this agreement (it being understood that any references to "immediate family"
in the agreement executed by such transferee shall expressly refer only to the
immediate family of the undersigned), and (c) neither the undersigned nor the
transferee shall publicly disclose the transfer, except to the extent required
by law. For purposes of this paragraph, the "immediate family" of the
undersigned shall include any person who has any relationship to the undersigned
by blood, marriage or adoption, not more remote than first cousin. The
undersigned consents to the entry of stop-transfer instructions with the
Company's transfer agent against the transfer of, and authorizes the Company to
cause the transfer agent to decline to transfer, any of the above-described
securities owned beneficially or of record by the undersigned, except in
compliance with the restrictions set forth herein. Notwithstanding the
foregoing, if (x) during the last 17 days of the 180-day restricted period the
Company issues an earnings release or material news or a material event relating
to the Company occurs; or (y) prior to the expiration of the 180-day restricted
period, the Company announces that it will release earnings results during the
15-day period beginning on the first day following the end of the 180-day
period; the restrictions imposed in this paragraph shall continue to apply until
the expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event; provided,
however, that this sentence shall not apply if the research published or
distributed on the Company is compliant under Rule 139 of the Securities Act of
1933, as amended (the "Securities Act"), and the Company's securities are
actively traded as defined in Rule 101(c)(1) of Regulation M of the Exchange
Act.
In addition, the undersigned hereby waives any and all notice requirements and
rights with respect to the registration of any securities pursuant to any
agreement, instrument, understanding or otherwise, including any registration
rights agreement or similar agreement, to which the undersigned is a party or
under which the undersigned is entitled to any right or benefit, provided that
such waiver shall apply only to the public offering of Common Stock pursuant to
the
Underwriting Agreement and the registration statement filed under the
Securities Act in connection therewith.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to enter into the agreements set forth herein and that, upon
reasonable request, the undersigned will execute any additional documents
necessary or desirable in connection with the enforcement hereof. All authority
herein conferred or agreed to be conferred shall survive the death or incapacity
of the undersigned, and any obligations of the undersigned shall be binding upon
the heirs, personal representatives, successors, and assigns of the undersigned.
D-2
If (i) the Company notifies you in writing that it does not intend to proceed
with the Public Offering, (ii) the registration statement filed with the
Commission with respect to the Public Offering is withdrawn, or (iii) the
Underwriting Agreement shall be terminated prior to the Closing Date (as defined
in the
Underwriting Agreement), this agreement shall likewise be terminated, and
the undersigned shall be released from its obligations hereunder.
In witness whereof, the undersigned has executed and delivered this agreement as
of the date first set forth above.
Very truly yours,
------------------------------
Print Name:
D-3
EXHIBIT E
LIST OF DIRECTORS AND OFFICERS
Name Position(s)
---- -----------
Xxxxxxx X. Xxxx, Xx.......................... Chief Executive Officer and Chairman of the Board
Xxxxxx X. Xxxxx-Xxxxx........................ President and Chief Operating Officer
W. Xxxxxxx Xxxxxxx........................... Chief Financial Officer and Treasurer
Xxxx X. Xxxxxxx.............................. Senior Vice President
Xxxx X. Xxxxxxx.............................. Chief Technology Officer
Xxxxx X. Xxxxxx.............................. General Counsel and Secretary
Xxxxxx X. Xxxxxxx............................ Director
Xxxxx X.X. Xxxxx............................. Director
Xxxx X. Xxxx, Xx............................. Director
Xxxxx X. Xxxxxx.............................. Director
Mylle X. Xxxxxx.............................. Director
Xxxx X. Xxxxxxxx............................. Director
Xxxx X. Xxxxxxxxxx, III...................... Director
E-1
EXHIBIT F
FORM OF OPINION OF COMPANY COUNSEL
F-1
