RADIATION THERAPY SERVICES, INC.
5,500,000 Shares of Common Stock
UNDERWRITING AGREEMENT
June __, 2004
Wachovia Capital Markets, LLC
Banc of America Securities LLC
XX Xxxxx & Co., LLC
SunTrust Capital Markets, Inc.
As Representatives of the several Underwriters
c/o Wachovia Capital Markets, LLC
0 Xx. Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Radiation Therapy Services, Inc., a Florida corporation (the "Company"),
and each of the shareholders of the Company named on Schedule G hereto
(collectively, the "Selling Shareholders" and each, a "Selling Shareholder")
confirm their respective agreements 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,
Banc of America Securities LLC, XX Xxxxx & Co., LLC and SunTrust Capital
Markets, Inc. are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Company and the
sale by the Selling Shareholders of a total of 5,500,000 shares (the "Initial
Securities") of the Company's common stock, par value $.0001 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 Selling Shareholders to
the Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of 825,000 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 825,000 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.
As part of the offering contemplated by this Agreement, the Company, the
Selling Shareholders and the Underwriters agree that up to 5% of the Securities
to be purchased by the Underwriters (the "Directed Shares") shall be reserved by
the Underwriters for sale to employees, friends and family of the Company as
part of the distribution of the Securities by the Underwriters, under the terms
of the directed shares program (the "Program"). The Securities to be sold
pursuant to the Program shall be sold pursuant to this Agreement at the public
offering price. Any Directed Shares not subscribed for by the end of the
business day on which this Agreement is executed will be offered to the public
by the Underwriters.
The Company and the Selling Shareholders understand 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
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."
Prior to the purchase of the Initial Securities by the Underwriters on the
Closing Date referred to in Section 2(c) the Company will effect a 1.83-for-one
stock split (the "Stock Split").
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. Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued, at the Closing Date (and, if any
Option Securities are purchased, at the applicable Option Closing Date),
and at any time when a prospectus is required by applicable law to be
delivered in connection with sales of Securities, included or will include
an untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in
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conformity with information furnished to the Company in writing by any
Underwriter through Wachovia 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) Stock Split. The Stock Split will be consummated 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 subsidiaries 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 subsidiaries at the dates
indicated and the results of operations, changes in stockholders' equity
and cash flows of the Company and its consolidated subsidiaries for the
periods specified; the financial statements of any other entities or
businesses included in the Registration Statement or the Prospectus,
together with the related schedules (if any) and notes, present fairly the
financial position of each such entity or business, as the case may be,
and its consolidated subsidiaries (if any) at the dates indicated and the
results of operations, changes in stockholders' (or other owners') equity
and cash flows of such entity or business, as the case may be, and its
consolidated subsidiaries, if any, 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 Financial Data" and "Selected
Financial Data" presents fairly the information shown therein and 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. The information appearing in the Prospectus under the caption
"Summary Pro Forma Financial Data" presents fairly the information shown
therein and has been compiled on a basis consistent with that of the pro
forma financial statements included in the Registration Statement and the
Prospectus.
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(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 subsidiaries considered as one
enterprise, 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 any of its subsidiaries which are material with
respect to the Company and its subsidiaries 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 Florida 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 Florida 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 Florida) where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect.
(7) Good Standing of Subsidiaries. Each subsidiary of the Company
has been duly organized and is validly existing as a corporation, limited
or general partnership or limited liability company, as the case may be,
in good standing under the laws of the jurisdiction of its organization,
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, limited or general partnership or limited
liability company, as the case may be, 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 each such subsidiary that
is a corporation, all of the issued and outstanding partnership interests
of each such subsidiary that is a limited or general partnership and all
of the issued and outstanding limited liability company interests,
membership interests or other similar interests of each such subsidiary
that is a limited liability company have been duly authorized and validly
issued, are fully paid and (except in the case of general partnership
interests) non-assessable and are owned by the Company, directly or
through subsidiaries, free and clear of any Lien; and none of the
outstanding shares of capital stock, partnership interests or limited
liability company interests, membership interests or other similar
interests of any 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
subsidiaries of the Company are the subsidiaries listed on Exhibit B
hereto and Exhibit B accurately sets forth whether each such subsidiary is
a corporation, limited or general partnership or limited liability
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company and the jurisdiction of organization of each such subsidiary and,
in the case of any subsidiary which is a partnership or limited liability
company, its general partners and managing members, respectively. Any
subsidiaries of the Company which are "significant subsidiaries" as
defined by Rule 1-02 of Regulation S-X are listed on Exhibit B hereto.
(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 and, immediately prior to the
purchase of the Initial Securities by the Underwriters at the Closing Date
and as of each Option Closing Date (if any), the authorized, issued and
capital stock of the Company will be as set forth in the column entitled
"Pro Forma" and in the corresponding line items under such caption (in
each case except for subsequent issuances, if any, pursuant to this
Agreement, pursuant to employee or director stock option or stock purchase
plans referred to in the Prospectus or pursuant to the exercise of options
or convertible securities referred to in the Prospectus). The shares of
issued and outstanding capital stock of the Company (including the
Securities to be sold by the Selling Shareholders to the Underwriters
under this Agreement) 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.
(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 Amended and Restated Articles
of Incorporation and Bylaws 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 any
of its subsidiaries 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 (solely in
the case of Company Documents other than Subject Instruments) for such
defaults that would not result in a Material Adverse Effect. The
execution, delivery and performance of this Agreement and the consummation
of the
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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 any of its subsidiaries pursuant to
any Company Documents, except (solely in the case of Company Documents
other than Subject Instruments) 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 any of its subsidiaries 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 any of its subsidiaries or any of
their respective assets, properties or operations.
(13) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any subsidiary of the Company exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of the
principal suppliers, manufacturers, customers or contractors of the
Company or any of its subsidiaries 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 any of its
subsidiaries 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 any of its subsidiaries is a party or of which any
of their 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 "Business - Treatment Centers," "Business -
Government Regulations," "Business - Federal Law," "Business - State Law,"
"Business - Reimbursement and Cost Containment," "Description of Capital
Stock," "Certain Federal Income Tax Considerations" and "Risk Factors," 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
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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
subsidiaries own or possess or have the right to use on reasonable terms
all patents, patent rights, patent applications, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names, service names and
other 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
any of its subsidiaries has received any notice or is otherwise aware 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 any of its subsidiaries 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, (C) no waiver or consent
under any Subject Instrument, and (D) 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 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
subsidiaries 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 so to comply would not, individually or in the aggregate, have a
Material Adverse Effect;the Company and its subsidiaries 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 any of its
subsidiaries 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.
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(19) Title to Property. The Company and its subsidiaries have good
and marketable title in fee simple to all real property owned by any of
them and good title to all other properties owned by any of them, 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 any of its subsidiaries; all real property, buildings and
other improvements, and equipment and other property held under lease or
sublease by the Company or any of its subsidiaries is held by them under
valid, subsisting and enforceable leases or subleases, as the case may be,
with, solely in the case of leases or subleases relating to real property
and buildings or other improvements, 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
subsidiaries, and all such leases and subleases are in full force and
effect; and neither the Company nor any of its subsidiaries has any notice
of any claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any of its subsidiaries under any of the leases
or subleases mentioned above or affecting or questioning the rights of the
Company or any of its subsidiaries to the continued possession of the
leased or subleased premises under any such lease or sublease except for
such claims which, if successfully asserted against the Company or any of
its subsidiaries, 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 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
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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.
(22) Absence of Registration Rights. 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.
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(23) Parties to Lock-Up Agreements. Each of the Company's directors
and officers, each holder of any shares of outstanding Common Stock (other
than holders of Securities sold to the public through the Underwriters)
and each holder of any outstanding convertible securities, warrants or
options issued by the Company has executed and delivered to the
Representatives a lock-up agreement in the form of Exhibit D hereto.
Exhibit C hereto contains a true, complete and correct list of all
directors and officers of the Company. All outstanding stock options
issued by the Company provide, and all stock options that may be issued by
the Company at any time during the period commencing on the date of this
Agreement through and including the date which is 180 days after the date
of this Agreement will provide, in each case pursuant to written stock
option agreements or similar agreements executed or delivered by the
holders of such stock options, that the holders of such stock options will
not effect any public sale or distribution (including sales pursuant to
Rule 144 under the 0000 Xxx) of any equity securities of the Company, or
any securities convertible into or exchangeable or exercisable for such
securities, during such 180 day period; and, during such 180 day period,
the Company will not cause or permit any waiver, release, modification or
amendment of any such restriction on transfer without the prior written
consent of Wachovia.
(24) Nasdaq National Market. The outstanding shares of Common Stock
(including the Securities to be sold by the Selling Shareholders to the
Underwriters under this Agreement) 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 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 each of its subsidiaries 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 any of
its subsidiaries or their respective businesses, assets, employees,
officers and directors are in full force and effect; the Company and its
subsidiaries are in compliance with the terms of such policies and
instruments in all
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material respects; there are no claims by the Company or any of its
subsidiaries 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 any such subsidiary has been refused any
insurance coverage sought or applied for; and neither the Company nor any
such subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse
Effect.
(28) Accounting Controls. The Company and each of its subsidiaries
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.
(30) No Right of First Refusal. Neither the Company nor any of its
subsidiaries has any preemptive right, right of first refusal or other
similar right to purchase or otherwise acquire any of the Securities to be
sold by the Selling Shareholders to the Underwriters pursuant to this
Agreement.
(b) Representations and Warranties by the Selling Shareholders. Each
Selling Shareholder, severally and not jointly, 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), and agrees with each Underwriter, as follows:
(1) Accurate Disclosure. Such Selling Shareholder has reviewed and
will review, and is and will be familiar with, the Registration Statement
as originally filed with the Commission and all amendments thereto, with
any Rule 462(b) Registration Statement and all amendments thereto, if any,
and with each preliminary prospectus and the Prospectus and any amendments
or supplements thereto, if any; and, at the respective times the
Registration Statement, any Rule 462(b) Registration Statement or any
post-effective amendment thereto became or becomes effective, at the
Closing Date (and, if any Option Securities are purchased, at the
applicable Option Closing Date), and at any time when a prospectus is
required by applicable law to be delivered in connection with sales of
Securities, the information relating to such Selling Shareholder
(including the information with respect to such Selling Shareholder's
Securities and any other shares of Common Stock or other securities of the
Company which are owned or held by such Selling Shareholder) that is set
forth in the Registration Statement or any Rule 462(b)
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Registration Statement (or in any amendments thereto) or in any
preliminary prospectus or the Prospectus (or in any amendments or
supplements thereto) did not and will not contain an untrue statement of a
material fact and did not and will not omit to state a material fact
necessary in order to make such information not misleading; all
information furnished or confirmed (orally or in writing) by or on behalf
of such Selling Shareholder for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) is and will be true, complete and
correct; and such Selling Shareholder is not prompted to sell the
Securities to be sold by such Selling Shareholder under this Agreement by
any information concerning the Company or any subsidiary of the Company
which is not set forth in the Prospectus.
(2) Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by such Selling Shareholder.
(3) Power of Attorney; Custody Agreement. Such Selling Shareholder
has duly authorized (if applicable), executed and delivered a Power of
Attorney (a "Power of Attorney" and, with respect to such Selling
Shareholder, "its Power of Attorney") appointing each of Xxxxxx X.
Xxxxxxxx, M.D. and Xxxxx Xxxxxxxxx as such Selling Shareholder's
attorney-in-fact (with respect to such Selling Shareholder, collectively,
the "Attorneys-in-Fact" and, individually, an "Attorney-in-Fact"), and a
Letter of Transmittal and Custody Agreement (a "Custody Agreement" and,
with respect to such Selling Shareholder, "its Custody Agreement") with
the Company, as custodian (the "Custodian"); each of its Power of Attorney
and its Custody Agreement constitutes a valid and binding obligation of
such Selling Shareholder, enforceable in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws relating to creditors' rights generally or by general
equitable principles; each of such Selling Shareholder's
Attorneys-in-Fact, acting alone, is authorized to execute and deliver this
Agreement and the certificates referred to in Sections 5(k) and 5(n)
hereof on behalf of such Selling Shareholder, to determine the purchase
price to be paid by the Underwriters to such Selling Shareholder for the
Securities to be sold by such Selling Shareholder under this Agreement, to
authorize the delivery to the Underwriters of the Securities to be sold by
such Selling Shareholder under this Agreement and to accept payment
therefor, to duly endorse (in blank or otherwise) the certificate or
certificates representing such Securities or a stock power or powers with
respect thereto and otherwise to act on behalf of such Selling Shareholder
in connection with this Agreement and the transactions contemplated
hereby.
(4) [Reserved].
(5) Power and Authority. Such Selling Shareholder has full right,
power and authority to execute, deliver and perform its obligations under
this Agreement, its Power of Attorney and its Custody Agreement and to
sell, transfer and deliver the Securities to be sold by such Selling
Shareholder under this Agreement.
(6) Non-Contravention. The execution, delivery and performance of
this Agreement, its Power of Attorney and its Custody Agreement by such
Selling
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Shareholder and the consummation of the transactions contemplated by this
Agreement, its Power of Attorney and its Custody Agreement (including the
sale and delivery of the Securities to be sold by such Selling Shareholder
pursuant to this Agreement), and compliance by such Selling Shareholder
with its obligations under this Agreement, its Power of Attorney and its
Custody 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 of the Securities to be sold by such
Selling Shareholder under this Agreement or any other property or assets
of such Selling Shareholder or any of its subsidiaries (if any) pursuant
to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, bond, note, debenture, evidence of indebtedness, lease or other
agreement or instrument to which such Selling Shareholder or any of its
subsidiaries (if any) is a party or by which such Selling Shareholder or
any of its subsidiaries (if any) is bound or to which any of the property
or assets of such Selling Shareholder or any of its subsidiaries (if any)
is subject, nor will such action result in any violation of the provisions
of the Organizational Documents of such Selling Shareholder or any of its
subsidiaries (if any) 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
such Selling Shareholder or any of its subsidiaries (if any) or any of
their respective assets, properties or operations.
(7) Good and Marketable Title. Such Selling Shareholder is the sole
legal, record and beneficial owner of the Securities to be sold by such
Selling Shareholder under this Agreement and will remain the sole legal,
record and beneficial owner of such Securities until the delivery of such
Securities to the Underwriters on the Closing Date or the applicable
Option Closing Date, as the case may be, and such Securities are and,
until delivery thereof to the Underwriters on the Closing Date or the
applicable Option Closing Date, as the case may be, will be, free and
clear of all Liens other than pursuant to this Agreement; upon payment of
the consideration for the Securities to be sold by such Selling
Shareholder as provided in this Agreement and the crediting of such
Securities to the security account or accounts of the Underwriters
maintained with The Depository Trust Company, each of the Underwriters
will become the legal owner of the Securities purchased by it from such
Selling Shareholder, free and clear of all Liens, and, assuming that none
of the Underwriters has "notice of an adverse claim" (within the meaning
of Section 8-105 of the Uniform Commercial Code of the State of New York
(the "UCC")) with respect to such Securities, each of the Underwriters
will acquire a "security entitlement" (within the meaning of UCC Section
8-102(a)(17)) to the Securities purchased by such Underwriter from such
Selling Shareholder, and no action based on any "adverse claim" (within
the meaning of UCC Section 8-102(a)(1)) may be asserted against such
Underwriter with respect to such Securities.
(8) Absence of Rights of First Refusal. The Securities to be sold by
such Selling Shareholder under this Agreement are not subject to any
option, warrant, put, call, right of first refusal or other right to
purchase or otherwise acquire any such Securities other than pursuant to
this Agreement.
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(9) Absence of Manipulation. Such Selling Shareholder 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 of the
Company to facilitate the sale or resale of the Securities.
(10) 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 other equity owner), if any, or creditor of such
Selling Shareholder, and (C) no authorization, approval, vote or other
consent of any other person or entity, is necessary or required for the
execution or delivery by such Selling Shareholder of, or the performance
by such Selling Shareholder of its obligations under, this Agreement, its
Custody Agreement or its Power of Attorney, for the sale and delivery by
such Selling Shareholder of the Securities to be sold by it under this
Agreement, or for the consummation by such Selling Shareholder of the
other transactions contemplated by this Agreement, its Custody Agreement
or its Power of Attorney, except such as may be required under the 1933
Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations or
state securities sky laws or the NASD.
(11) Restriction on Sale of Securities. Such Selling Shareholder
will not, without the prior written consent of Wachovia, 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 such
Selling Shareholder), directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the 1934 Act and the 1934 Act Regulations with
respect to, any shares of Common Stock, Preferred 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
(whether owned by such Selling Shareholder at the date of this Agreement
or subsequently acquired by such Selling Shareholder), or 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 such Selling Shareholder may transfer any Common
Stock, Preferred 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 to any member of such
Selling Shareholder's immediate family, to a trust the beneficiaries of
which are exclusively such Selling Shareholder or members of such Selling
Shareholder's immediate family, or to charitable or educational
organizations without the prior written consent of Wachovia if (i) such
transfer is a bona fide gift, (ii) such Selling Shareholder provides
written notice of such transfer to Wachovia no later than three business
days prior to such transfer, (iii) the transferee executes and delivers to
Wachovia, not later than one business day prior to such transfer, an
agreement, in form and substance reasonably satisfactory to Wachovia,
substantially to the effect set forth in this paragraph (it being
understood that any references to "immediate family" in the agreement
executed by such transferee shall expressly refer
14
only to the immediate family of such Selling Shareholder), and (iv)
neither such Selling Shareholder nor the transferee shall publicly
disclose the transfer, except to the extent required by law. For purposes
of this paragraph, "immediate family" shall mean a spouse, lineal
descendent, father, mother, brother or sister of such Selling Shareholder.
(12) Certificates Suitable for Transfer. Certificates for all of the
Securities to be sold by such Selling Shareholder pursuant to this
Agreement, in form suitable for transfer by delivery and accompanied by
duly executed stock powers endorsed in blank by such Selling Shareholder
with signatures guaranteed, have been placed in custody with the Custodian
for the purpose of effecting delivery hereunder and thereunder.
(13) Absence of Preemptive Rights. Such Selling Shareholder does not
have any preemptive rights, rights of first refusal or other similar
rights to purchase or otherwise acquire any of the Securities that are to
be sold by the Company or any of the other Selling Shareholders pursuant
to this Agreement.
(14) Accuracy of Other Representations. Such Selling Shareholder has
no reason to believe that the representations and warranties of the
Company set forth in Section 1(a) of this Agreement are not true and
correct and has no knowledge of any fact, condition or information not
disclosed in the Prospectus which has had or may have a Material Adverse
Effect.
(c) Certificates. Any certificate signed by any officer of the Company or
any of its subsidiaries 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; and any certificate signed
by or on behalf of any Selling Shareholder and delivered to the Representatives
or counsel for the Underwriters shall be deemed a representation and warranty by
such Selling Shareholder 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 and each of the Selling Shareholders, severally and not jointly, agree
to sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Company and each Selling
Shareholder, at the price of $______ per share (the "Purchase Price"), that
proportion of the number of Initial Securities set forth in Schedule G opposite
the name of the Company or such Selling Shareholder, as the case may be, 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, each of the Selling
15
Shareholders, severally and not jointly, hereby grants an option to the
Underwriters, severally and not jointly, to purchase up to the respective
numbers of Option Securities set forth in Schedule H opposite the names of the
Selling Shareholders 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 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, each of the Selling
Shareholders, severally and not jointly, will sell to the Underwriters that
proportion of the total number of Option Securities then being purchased which
the number of Option Securities set forth in Schedule H opposite the name of
such Selling Shareholder, as the case may be, bears to the total number of
Option Securities set forth in Schedule H, 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
Xxxxxxxx, Loop & Xxxxxxxx, LLP, 2800 Bank of America Plaza, 000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxx, 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 June __,
2004 (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 "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 Selling Shareholders by wire transfer of
immediately available funds to a single bank account at the Custodian, which
account shall be designated by the Custodian, and payment shall be made to the
Company by wire transfer of immediately available funds to a single bank account
designated by the Company, in each case against delivery to the Representatives
for the respective accounts of the Underwriters of certificates for
16
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. Wachovia,
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 one full
business day 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.
(e) Appointment of QIU. The Company hereby confirms its engagement of XX
Xxxxx & Co., LLC as, and XX Xxxxx & Co., LLC hereby confirms its agreement with
the Company to render services as, a "qualified independent underwriter" within
the meaning of Rule 2720 of the Conduct Rules of the NASD with respect to the
offering and sale of the Securities. XX Xxxxx & Co., LLC, solely in its capacity
as qualified independent underwriter and not otherwise, is referred to herein as
the "QIU."
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(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.
17
(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 object.
(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 and certificates 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 for purposes permitted by 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.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act, 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 opinion of counsel for the Underwriters or
for the Company, 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 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.
18
(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 (or Prospectus Supplement, if any) 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 or any person in privity with the Company or any affiliate of the
Company), directly or indirectly, including the filing (or participation
in the filing) of a registration statement with the Commission in respect
of, or establish or increase a put equivalent position or liquidate or
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 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 Company's 1997 stock option plan and 2004 stock
incentive plan, (C) the Company may issue Common Stock upon the exercise
of stock options 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, (D)
19
the Company may file registration statements on Form S-8, and (E) the
Company may issue (but not register for resale) up to 150,000 shares of
common stock in acquisitions.
(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.
(l) 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 incident to the
performance of its obligations and the obligations of the Selling Shareholders
under this Agreement (except for expenses payable by the Selling Shareholders
pursuant to Section 4(b) hereof), 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
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, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review by
the NASD of the terms of the sale of the Securities, (x) the fees and expenses
incurred in connection with the listing of the Securities on the Nasdaq National
Market, (xi) the disbursements of counsel for the Underwriters in connection
with the copying and delivery of closing documents delivered by the Company or
the Company's accountants or counsel (including any local counsel), and (xii)
the fees and disbursements of counsel to the Underwriters in connection with
matters relating to the QIU and its activities contemplated by this Agreement.
20
(b) Expenses of the Selling Shareholders. Each Selling Shareholder,
severally, will pay the following expenses incident to the performance of its
obligations under this Agreement: (i) any stock transfer taxes, stamp duties,
capital duties or other similar duties, taxes or charges, if any, payable in
connection with the sale or delivery of its Securities to the Underwriters (and
such Selling Shareholder hereby authorizes the payment of any such amounts by
deduction from either the proceeds of the Securities to be sold by such Selling
Shareholder under this Agreement or from any funds from time to time held for
the account of such Selling Shareholder by the Custodian), (ii) the fees and
disbursements of its counsel and accountants, and (iii) underwriting discounts
and commissions with respect to the Securities sold by it to the Underwriters.
(c) Allocation of Expenses. Anything herein to the contrary
notwithstanding, the provisions of this Section 4 shall not affect any agreement
that the Company and the Selling Shareholders have made or may make for the
allocation or sharing of such expenses and costs.
(d) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) or (v) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
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 and the Selling Shareholders
contained in this Agreement or in certificates of any officer of the Company or
any subsidiary of the Company or signed by or on behalf of any Selling
Shareholder delivered pursuant to the provisions hereof, to the performance by
the Company and the Selling Shareholders of their respective 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 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 Closing Date, the
Company shall have provided evidence satisfactory to the Representatives
of such timely filing.
(b) Opinion of Counsel for Company. At Closing Date, the
Representatives shall have received the favorable opinions, dated as of
Closing Date, of Xxxxxxxx, Loop & 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 E
hereto and to such further effect as counsel to the Underwriters may
reasonably request, and of Garfunkel, Wild & Xxxxxx, P.C., special New
York and federal health care counsel to the Company ("New York/Federal
Counsel") and Xxxxx Xxxxxx & Xxxxxx, LLP as
21
special Nevada health care counsel to the Company ("Nevada Counsel")(New
York/Federal Counsel and Nevada Counsel, collectively referred to
hereinafter as "Local 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, substantially to the
effect set forth in Exhibits F-1 and F-2, respectively, hereto and to such
further effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Date, the
Representatives shall have received the favorable opinion, dated as of
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) and (8)(solely as to preemptive rights arising by operation of law
or under the charter or by-laws of the Company or the laws of the State of
Florida), (9), (10), (13)(solely as to the information in the Prospectus
under "Description of Capital Stock -- Common Stock") and the
antepenultimate paragraph of Exhibit E hereto. In giving such opinion such
counsel may rely without investigation, as to all matters arising under or
governed by the laws of the State of Florida or North Carolina, on the
opinion of Company Counsel referred to in Section 5(b) above, and as to
all matters relating to the federal regulation of the health care industry
and the state regulation of the health care industry in the States New
York and Nevada, on the opinion of Local Counsel referred to in Section
5(b) above. As to those matters governed by the laws of any jurisdictions
other than 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 subsidiaries
and of public officials.
(d) Officers' Certificate. At 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 subsidiaries
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 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 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 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.
22
(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 Closing Date, the Representatives
shall have received from Ernst & Young LLP a letter, dated as of 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
Closing Date.
(g) Approval of Listing. At 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.
(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 director and officer of the Company, by
each holder of any Common Stock or Preferred Stock of the Company and by
each holder of any outstanding convertible securities, warrants or options
issued by the Company.
(i) No Objection. Prior to the date of this Agreement, the NASD
shall have confirmed in writing that it has no objection with respect to
the fairness and reasonableness of the underwriting terms and
arrangements.
(j) Opinion of Counsel for the Selling Shareholders. At the Closing
Date, the Representatives shall have received the favorable opinion, dated
as of the Closing Date, of Xxxxxxxx, Loop & Xxxxxxxx, LLP, counsel for the
Selling Shareholders, 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 I
hereto and to such further effect as counsel to the Underwriters may
reasonably request.
(k) Certificate of Selling Shareholders. At the Closing Date, the
Representatives shall have received a certificate signed by an
Attorney-in-Fact on behalf of the Selling Shareholders, dated as of the
Closing Date, to the effect that (i) the representations and warranties of
each Selling Shareholder in this Agreement are true and correct with the
same force and effect as though expressly made at and as of the Closing
Date, (ii) each such Selling Shareholder 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
(iii) each Selling Shareholder has reviewed and is familiar with the
Prospectus and any amendments or supplements thereto and the
23
information relating to such Selling Shareholder (including the
information with respect to such Selling Shareholder's Securities and any
other shares of Common Stock or other securities of the Company which are
owned or held by such Selling Shareholder) that is set forth in the
Prospectus (or any amendment or supplement thereto) does not contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make such information not misleading.
(l) Tax Forms. Prior to the Closing Date, the Representatives shall
have received a properly completed and executed United States Treasury
Department Form W-9 or W-8 (or other applicable form) from each of the
Selling Shareholders.
(m) 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 Articles of Incorporation of the Company certified by
the Secretary of State of the State of Florida and such other evidence
that the Pre-Closing Transactions have been consummated as the
Representatives may reasonably request.
(n) 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 and of Local Counsel named in Section 5(b), each 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 respective opinions 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
24
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.
(5) Opinion of Counsel for Selling Shareholders. The favorable
opinion of Xxxxxxxx, Loop & Xxxxxxxx, LLP, counsel for the Selling
Shareholders, 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(j) hereof.
(6) Certificate of Selling Shareholders. A certificate, dated such
Option Closing Date, signed by an Attorney-in-Fact on behalf of the
Selling Shareholders, to the effect set forth in Section 5(k)
hereof, except that the references in such certificate to the
Closing Date shall be changed to refer to such Option Closing Date.
(o) Additional Documents. At 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 and the Selling Shareholders in connection with the issuance and
sale of the Securities as herein contemplated and in connection with the
other transactions contemplated by this Agreement shall be satisfactory in
form and substance to the Representatives and counsel for the
Underwriters.
(p) 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 and the Selling Shareholders at any time on or prior
to 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. (1) The Company and each of the Selling Shareholders,
severally and not jointly, agree 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, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material
25
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 not
misleading, or arising out of 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, liability, claim, damage and expense
whatsoever, 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(e) 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 Wachovia 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) provided, further, that the aggregate
liability of each Selling Shareholder pursuant to this Section 6(a) will be
limited to an amount equal to the aggregate proceeds, net underwriting
commissions and discounts, to such Selling Shareholder from the sale of the
Securities sold by such Selling Shareholder to the Underwriters; and provided,
further, that Selling Shareholder's Xxxxxx Xxxxxxxxx, Xxxxxxxx X. Xxxxxx and
Xxxxx Xxxxxxx shall only have liability under this Section 6(a) to the extent
that any untrue statement or alleged untrue statement of a material fact, or
omission or alleged omission therefrom of a material fact, was made in reliance
upon and in conformity with information furnished or confirmed (in each case
orally or in writing) by or on behalf of such Selling Shareholder.
(2) In addition to and without limitation of the Company's and the Selling
Shareholder's obligation to indemnify XX Xxxxx & Co., LLC as an Underwriter, the
Company also agrees to indemnify and hold harmless the QIU and each person, if
any, who controls the QIU within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) any and all loss, liability, claim, damage and expense
whatsoever, as incurred, incurred as a result of the QIU's participation
as a "qualified independent underwriter" within the meaning of Rule 2720
("Rule 2720") of the Conduct Rules of the NASD in connection with the
offering of the Securities;
26
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, 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 the QIU's participation as a "qualified independent
underwriter" within the meaning of Rule 2720 in connection with the
offering of the Securities; 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 the QIU), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental body or agency,
commenced or threatened, or any claim whatsoever based upon the QIU's
participation as "qualified independent underwriter" within the meaning of
Rule 2720 in connection with the offering of the Securities, to the extent
any such expense is not paid under (i) or (ii) above.
(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)(1) 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 Wachovia
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; counsel to the QIU and each person,
if any, who controls the QIU within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall be selected by the QIU; counsel to the Selling
Shareholders shall be selected by the Selling Shareholders; 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; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified 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
27
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, the fees and expenses
of more than one counsel (in addition to any local counsel) separate from their
own counsel for the QIU and each person, if any, who controls the QIU within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, the fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for the Selling Shareholders, 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)(1)(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.
(e) Other Agreements with Respect to Indemnification and Contribution. The
provisions of this Section 6 and in Section 7 hereof shall not affect any
agreements among the Company and the Selling Shareholders with respect to
indemnification of each other or contribution between themselves.
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 and the
Selling Shareholders 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 appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Shareholders on the one hand and of the Underwriters on the other hand
in connection with the statements or omissions which
28
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
The relative benefits received by the Company and the Selling Shareholders
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 Selling Shareholders 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 and the Selling Shareholders 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, the Selling Shareholders and the Underwriters agree that the
QIU will not receive any additional benefits hereunder for serving as the QIU in
connection with the offering and sale of the Securities.
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, (i) 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; (ii) no Selling
Shareholder shall be required to contribute any amount in excess of the
aggregate net proceeds received by such Selling Shareholder from the sale of the
Securities sold by such Selling Shareholder to the Underwriters; and (iii)
Selling Shareholder's Xxxxxx Xxxxxxxxx, Xxxxxxxx X. Xxxxxx and Xxxxx Xxxxxxx
shall only be required to contribute if the statement or omission resulting in
liability was made in reliance upon and in conformity with information furnished
or confirmed (in each case orally or in writing) by or on behalf of such Selling
Shareholder.
29
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.
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 any of its subsidiaries or signed by
or on behalf of any Selling Shareholder 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, or by or on behalf of any Selling Shareholder, 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 and the Selling Shareholders, at any time on
or prior to 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 change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, 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.
30
(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 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 have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, 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:
(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 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 and the
Selling Shareholders 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 and the Selling Shareholders to sell
the relevant Option Securities, as the case may be, the Representatives shall
have the right to postpone 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 Xxxxx
Xxxx, Director; notices to the Company shall be directed to it at 0000 Xxxxxxxx
Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000, Attention of Xxxxx Xxxxxxxxx, Executive
Vice President and Chief Financial Officer; and notices to the Selling
Shareholders shall be directed to them in care of
31
Xxxxx Xxxxxxxxx, Attorney-in-Fact at c/o Radiation Therapy Services, Inc., 0000
Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000.
SECTION 12. Parties. This Agreement shall each inure to the benefit of and
be binding upon the Underwriters, the Company and the Selling Shareholders and
their respective successors and shall also inure to the benefit of the QIU and
its 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 the Selling Shareholders and the QIU 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 the Selling Shareholders and the QIU 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. EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH HEREIN, 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.
SECTION 15. Definitions. As used in this Agreement, the following terms
have the respective meanings set forth below:
"Agreement" means this Underwriting Agreement, dated June __, 2004, 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
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject.
"XXXXX" means the Commission's Electronic Data Gathering, Analysis and
Retrieval System.
"Existing Credit Agreements" means the Third Amended and Restated Credit
Agreement dated as of March 2004 among the Company, the financial institutions
parties thereto, Bank of America, N.A., as Administrative Agent, and Wachovia
Bank, National Association, as Documentation Agent, as amended or supplemented,
if applicable, including any promissory
32
notes, pledge agreements, security agreements, mortgages, guarantees and other
instruments or agreements entered into by the Company or any of its subsidiaries
in connection therewith or pursuant thereto, in each case as amended or
supplemented if applicable.
"GAAP" means generally accepted accounting principles.
"Lien" means any security interest, mortgage, pledge, lien, encumbrance,
claim or equity.
"NASD" means the National Association of Securities Dealers, Inc.
"NYSE" means the New York Stock Exchange.
"Organizational Documents" means (a) in the case of a corporation, its
charter and by-laws; (b) in the case of a limited or general partnership, its
partnership certificate, certificate of formation or similar organizational
document and its partnership agreement; (c) in the case of a limited liability
company, its articles of organization, certificate of formation or similar
organizational documents and its operating agreement, limited liability company
agreement, membership agreement or other similar agreement; (d) in the case of a
trust, its certificate of trust, certificate of formation or similar
organizational document and its trust agreement or other similar agreement; and
(e) in the case of any other entity, the organizational and governing documents
of such entity.
"Preferred Stock" means the Company's preferred stock, par value $.0001
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. 333-114603), as amended, 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 any
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.
"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.
33
"Subject Instruments" means the Existing Credit Agreement.
"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, 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]
34
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,
RADIATION THERAPY SERVICES, INC.
By:____________________________________
Xxxxx Xxxxxxxxx
Executive Vice President and Chief
Financial Officer
By:____________________________________
Xxxxx Xxxxxxxxx
Attorney-in-Fact, on behalf of each
of the Selling Shareholders listed
on Schedule G
CONFIRMED AND ACCEPTED, as of the
date first above written:
WACHOVIA CAPITAL MARKETS, LLC
BANC OF AMERICA SECURITIES LLC
XX XXXXX & CO., LLC
SUNTRUST CAPITAL MARKETS, INC.
By: WACHOVIA CAPITAL MARKETS, LLC
By:______________________________
Authorized Signatory
For themselves and as Representative of the Underwriters named in Exhibit A
hereto.
35
EXHIBIT A
Number of
Initial
Name of Underwriter Securities
------------------- ----------
Wachovia Capital Markets, LLC..........................................
Banc of America Securities LLC.........................................
---------
XX Xxxxx & Co., LLC....................................................
---------
SunTrust Capital Markets, Inc..........................................
---------
Total...................................... 5,500,000
=========
A-1
EXHIBIT B
SUBSIDIARIES OF THE COMPANY
JURISDICTION OF
OWNER NAME OF SUBSIDIARY ORGANIZATION TYPE OF ENTITY % OWNERSHIP
----- ------------------ ------------ -------------- -----------
Radiation Therapy California Radiation California Corporation 100%
Services, Inc. Therapy Management
Services, Inc.
Radiation Therapy North Carolina Radiation North Carolina Corporation 100%
Services, Inc. Therapy Management
Services, Inc.
Radiation Therapy Maryland Radiation Maryland Corporation 100%
Services, Inc. Therapy Management
Services, Inc.
Radiation Therapy Nevada Radiation Nevada Corporation 100%
Services, Inc. Therapy Management
Services, Incorporated
Radiation Therapy New York Radiation New York Corporation 100%
Services, Inc. Therapy Management
Services, Incorporated
Radiation Therapy 21st Century Oncology, Florida Corporation 100%
Services, Inc. Inc.
Radiation Therapy Financial Services of Florida Corporation 100%
Services, Inc. Southwest Florida, Inc.
Radiation Therapy Radiation Therapy School Florida Corporation 100%
Services, Inc. For Radiation Therapy
Technology, Inc.
Radiation Therapy 21st Century Oncology Kentucky limited liability 100%
Services, Inc. of Kentucky, LLC company
Radiation Therapy 21st Century Oncology of Alabama corporation 100%
Services, Inc. Alabama, Inc.
Radiation Therapy South County Radiation Rhode Island limited liability 75%
Services, Inc. Therapy, LLC company
Radiation Therapy Southern New England Rhode Island limited liability 62%
Services, Inc. Regional Cancer Center, company
LLC
X-0
Xxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxx limited liability 90%
Therapy Radiation Therapy company
Management Regional Center, LLC
Services, Inc.
00xx Xxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxxx limited liability 90%
Oncology of Cancer Center, LLP partnership
Kentucky, LLC
00xx Xxxxxxx Xxxxx Xxxx Xxxxxxxxx Xxxxxxx limited liability 50%
Oncology, Inc. Radiation Therapy, LLC corporation
21st Century Palmetto Radiation Florida limited liability 50%
Oncology, Inc. Associates, LLC corporation
New York Radiation Faxton Leasing, LLC New York limited liability 37.5%
Therapy corporation
Management
Services, Inc.
B-2
EXHIBIT C
LIST OF DIRECTORS AND OFFICERS
NAME POSITION
Xxxxxx X. Xxxxxxxx, M.D. Chairman
Xxxxxx X. Xxxxxxxx, M.D. President, Chief Executive Officer and Director
Xxxxx X. Xxxxxxxxxx, M.D. Medical Director, Secretary and Director
Xxxxxxx X. Xxxxx, M.D. Director
Xxxxx X. Xxxxxxxxx Executive Vice President and Chief Financial Officer
Xxxxxx Xxxxxxxx Corporate Controller and Chief Accounting Officer
C-1
EXHIBIT D
FORM OF LOCK-UP AGREEMENT
RADIATION THERAPY SERVICES, INC.
Public Offering of Common Stock
__________, 2004
Wachovia Capital Markets, LLC
As Representative 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 Radiation Therapy
Services, Inc., a Florida 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 of common stock, par value $.0001 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, 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 in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of Common Stock, or other capital stock of the Company or any securities
convertible into or exercisable or exchangeable for any such Common 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
D-1
transfer any Common Stock, or other capital stock of the Company or any
securities convertible into or exercisable or exchangeable for such Common
Stock, or other capital stock 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 without the prior written consent of Wachovia Capital Markets, LLC
if (i) such transfer is a bona fide gift, (ii) the undersigned provides written
notice of such transfer to Wachovia Capital Markets, LLC no later than three
business days prior to such transfer, (iii) the transferee executes and delivers
to Wachovia Capital Markets, LLC, not later than one business day prior to such
transfer, an agreement, in form and substance reasonably satisfactory to
Wachovia Capital Markets, LLC, 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 (iv) neither the undersigned nor the transferee shall
publicly disclose the transfer, except to the extent required by law. For
purposes of this paragraph, "immediate family" shall mean a spouse, lineal
descendent, father, mother, brother or sister of the undersigned.
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 of 1933 in connection therewith.
If the Underwriting Agreement shall be terminated prior to the Closing
Date (as defined in the Underwriting Agreement), this agreement shall likewise
be terminated.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
D-2
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
FORM OF OPINION OF COMPANY COUNSEL
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Florida.
(2) The Company has corporate 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 the Underwriting
Agreement.
(3) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in the State of Florida and each 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 Florida) where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect.
(4) Each Subsidiary (as defined below) has been duly organized and is
validly existing as a corporation, limited or general partnership or limited
liability company, as the case may be, in good standing under the laws of the
jurisdiction of its organization, has power and authority as a corporation,
limited or general partnership or limited liability company, as the case may be,
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,
limited or general partnership or limited liability company, as the case may be,
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 shares of capital stock of each Subsidiary that is a
corporation, all of the issued and outstanding partnership interests of each
Subsidiary that is a limited partnership, and all of the issued and outstanding
limited liability company interests, membership interests or other similar
interests of each Subsidiary that is a limited liability company have been duly
authorized and validly issued and are fully paid and (except in the case of
general partnership interests) non-assessable and, to our knowledge, are owned
by the Company, directly or through subsidiaries, free and clear of any Lien;
and none of the outstanding shares of capital stock of any Subsidiary that is a
corporation, none of the issued and outstanding partnership interests of any
Subsidiary that is a limited or general partnership, and none of the issued and
outstanding limited liability company interests, membership interests or other
similar interests of any Subsidiary that is a limited liability company 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
arising under the Organizational Documents of such Subsidiary, the laws of the
State of Florida, or, to our knowledge, otherwise. As used in this opinion, the
term "Subsidiaries" means the subsidiaries identified on Exhibit B to the
Underwriting Agreement.
(5) The authorized, issued and outstanding capital stock of the Company is
as set forth in the column entitled "Actual" and in the corresponding line items
under the caption
E-1
"Capitalization" in the Prospectus (except for subsequent issuances, if any,
pursuant to this Agreement, pursuant to employee or director stock option or
stock purchase plans referred to in the Prospectus or pursuant to the exercise
of options referred to in the Prospectus). The shares of issued and outstanding
capital stock of the Company (including the Securities to be sold by the Selling
Shareholders to the Underwriters under the Underwriting Agreement) 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 arising under
the Amended and Restated Articles of Incorporation and Bylaws of the Company,
the laws of the State of Florida or, to our knowledge, otherwise.
(6) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(7) (A) The Securities have been duly authorized for issuance and sale to
the Underwriters pursuant to the Underwriting Agreement and, when issued and
delivered by the Company pursuant to the Underwriting Agreement against payment
of the consideration set forth in the Underwriting Agreement, will be validly
issued, fully paid and non-assessable; and (B) no holder of the Securities is or
will be subject to personal liability by reason of being such a holder under the
Amended and Restated Articles of Incorporation and Bylaws of the Company, the
laws of the State of Florida or, to our knowledge, otherwise.
(8) 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 arising under the Amended and Restated Articles
of Incorporation and Bylaws of the Company, the laws of the State of Florida or,
to our knowledge, otherwise.
(9) The Registration Statement and any Rule 462(b) Registration Statement
have been declared effective under the 1933 Act; the Prospectus has been filed
pursuant to Rule 424(b) in the manner and within the time period required by
Rule 424(b); and, to our knowledge, 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 threatened by the Commission.
(10) The Registration Statement and any amendments thereto and any Rule
462(b) Registration Statement, as of their respective effective dates, and the
Prospectus and any amendments or supplements thereto, as of their respective
issue dates (in each case other than the financial statements and schedules and
other financial data included therein or omitted therefrom, as to which we have
not been called upon to express an opinion), complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(11) The form of certificate used to evidence the Common Stock complies in
all material respects with all applicable requirements of the laws of the State
of Florida, with any applicable requirements of the charter and by-laws of the
Company and with any applicable requirements of the Nasdaq National Market.
E-2
(12) To our knowledge, except as otherwise disclosed in the Registration
Statement and the Prospectus, there is not pending or threatened any action,
suit, proceeding, inquiry or investigation to which the Company or any
subsidiary is a party, or to which the property of the Company or any subsidiary
is subject, before or brought by any court or governmental agency or body which
(i) is required to be disclosed in the Registration Statement and the Prospectus
pursuant to Item 103 of Regulation S-K or (ii) will arise as a result of the
consummation of the transactions contemplated in the Underwriting Agreement or
the performance by the Company of its obligations thereunder.
(13) 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 - Government
Regulations," "Business - Federal Law," "Business - State Law,"
"Business-Reimbursement and Cost Containment," "Description of Capital Stock,"
"Certain Federal Income Tax Considerations," "Business - Litigation,"
"Management - Employment Agreements, Amended and Restated 1997 Stock Option
Plan, 401(k) Savings, 2004 Stock Incentive Plan, Indemnification of Directors
and Executive Officers and Limitation of Liability," "Related Party
Transactions," "Shares Eligible for Future Sale," and "Description of Capital
Stock," and the information in the Registration Statement under Item 15, in each
case to the extent that it constitutes matters of law, summaries of legal
matters, summaries of provisions of the Company's Amended and Restated Articles
of Incorporation or Bylaws, any Subject Instrument or any other instruments or
agreements, summaries of legal proceedings, or legal conclusions, has been
reviewed by us and fairly present and summarize, in all material respects, the
matters referred to therein.
(14) (A) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency (other than under the 1933 Act, the 1933 Act Regulations,
the 1934 Act and the 1934 Act Regulations, which have been obtained, or as may
be required under the securities or blue sky laws of the various states or the
NASD, as to which we have not been called upon to express an opinion), (B) no
authorization, approval, vote or other consent of any shareholder or creditor of
the Company, (C) no waiver or consent under any Subject Instrument and (D) to
our knowledge, no authorization, approval, vote or other consent of any other
person or entity, is necessary or required in connection with the due
authorization, execution and delivery of the Underwriting Agreement or for the
offering, issuance, sale or delivery of the Securities.
(15) The execution, delivery and performance of the Underwriting Agreement
and the consummation of the transactions contemplated in the Underwriting
Agreement, 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 the Underwriting
Agreement do not and will not, whether with or without the giving of notice or
lapse 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 any subsidiary pursuant to, (x) any
Subject Instrument or (y) any other material Company Document, except (solely in
the case of Company Documents other than Subject Instruments) for such
conflicts, breaches, or defaults or Liens that would not have a Material Adverse
Effect, nor will such action result in any violation of the provisions of the
Organizational Documents of the Company or any
E-3
Subsidiary or any applicable law, statute, rule, regulation, judgment, order,
writ or decree, known to us, of any government, government instrumentality or
court having jurisdiction over the Company or any subsidiary or any of their
respective properties, assets or operations.
(16) The Company is not and, immediately after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company", as such
term is defined in the 1940 Act.
(17) Although we are not passing upon and do not assume any responsibility
for the accuracy, completeness or fairness of the statements (except as set
forth above), nothing has come to our attention that would lead us to believe
that the Registration Statement or any amendment thereto, at the time the
Registration Statement or any such amendment became effective, or that any Rule
462(b) Registration Statement, at the time such Rule 462(b) Registration
Statements became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto, at the time the Prospectus was issued, at the
time any such amendment or supplement was issued or on the date of this letter,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading
(except in each case that we make no statement and express no belief with
respect to financial statements and schedules and other financial or statistical
date included in or omitted from the Registration Statement, any Rule 462(b)
Registration Statement or the Prospectus or any amendment or supplement
thereto).
In the event that such opinion shall define the term "Registration
Statement," "Rule 462(b) Registration Statement" or "Prospectus" (rather than
indicating that such terms, as used in such opinion, have the respective
meanings given thereto in the Underwriting Agreement), such opinion shall define
the terms "Registration Statement", and "Rule 462(b) Registration Statement" to
include the Rule 430A Information and shall define the term "Prospectus" as the
Prospectus in the form furnished to the Underwriters for use in connection with
the offering of the Securities (and not as the Prospectus filed with the
Commission pursuant to Rule 424(b).
In rendering such opinion, Company Counsel shall state that such
opinion covers matters arising under the laws of the State of Florida and North
Carolina and the federal laws of the United States of America (except with
respect to federal health care laws) and shall further state that they have
relied, as to matters relating to, arising under or governed by federal or New
York health care laws, upon the opinion of New York/Federal Counsel delivered
pursuant to Section 5(b) of the Underwriting Agreement. Company counsel shall
further state that they have relied, as to matters relating to, arising under or
governed by Nevada health care law, upon the opinion of Nevada Counsel delivered
pursuant to Section 5(b) of the Underwriting Agreement. In rendering such
opinion, Company Counsel may rely as to matters involving the laws of any other
state upon the opinion of local counsel satisfactory to the Representatives;
provided that such opinion shall be addressed to the Representatives, shall
state that Company Counsel may rely on such opinion as if it were addressed to
them in rendering their opinion pursuant to the Underwriting Agreement, shall be
dated the same date as the opinion of Company Counsel, shall be delivered to the
Representatives at the same time that the opinion of Company Counsel is
E-4
delivered, and shall be satisfactory in form and substance to counsel for the
Underwriters. In rendering such opinion, Company Counsel may rely, as to matters
of fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
E-5
EXHIBIT F-1
FORM OF NEW YORK/FEDERAL COUNSEL OPINION
New York Radiation Therapy Management Services, Incorporated, a New York
corporation, and Faxton Leasing, LLC, a New York limited liability company (the
"Subsidiaries"), have been duly organized and are validly existing as a
corporation or limited liability company (as the case may be) in good standing
under the laws of the State of New York (the "Applicable State") and have the
power and authority as a corporation or limited liability company (as the case
may be) to own, lease and operate their properties and to conduct their
businesses as described in the Prospectus; all of the issued and outstanding
shares of capital stock of the Subsidiaries 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 Subsidiaries were issued in violation
of any preemptive rights, rights of first refusal or other similar rights of any
securityholder of the Subsidiaries or any other person arising under the
Organizational Documents of the Subsidiaries or the laws of the Applicable
State.
The information in the Prospectus under the captions "Risk Factors,"
"Business - Government Regulations," "Business - Federal Law," "Business - State
Law," "Business-Reimbursement and Cost Containment," "Business - Litigation,"
"Related Party Transactions," and the information in the Registration Statement
under Item 15, in each case only to the extent that it constitutes matters or
summaries of New York or federal health care law, summaries of the legal
proceedings, if any, of the Subsidiaries, or legal conclusions, have been
reviewed by us and fairly present and summarize, in all material respects, the
matters referred to therein.
Although we are not passing upon and do not assume any responsibility for
the accuracy, completeness or fairness of the statements (except as set forth
above), nothing has come to our attention that would lead us to believe that the
Registration Statement or any amendment thereto, at the time the Registration
Statement or any such amendment became effective, or that any Rule 462(b)
Registration Statement, at the time such Rule 462(b) Registration Statements
became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any amendment or
supplement thereto, at the time the Prospectus was issued, at the time any such
amendment or supplement was issued or on the date of this letter, included or
includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (except in each
case that we make no statement and express no belief with respect to financial
statements and schedules and other financial or statistical date included in or
omitted from the Registration Statement, any Rule 462(b) Registration Statement
or the Prospectus or any amendment or supplement thereto).
In rendering such opinion, such counsel shall state that such opinion is
limited to matters arising under the federal health care laws or the laws of the
Applicable State and that, in rendering their opinion pursuant to the
Underwriting Agreement, both Underwriters' Counsel and Company Counsel may rely
upon such opinion of local counsel. In rendering such opinion, such local
counsel may rely as to matters of fact (but not as to legal conclusions), to the
extent they deem proper, on certificates of responsible officers of the
Subsidiaries and the Company.
F-1
Such opinion shall not state that it is to be governed or qualified by, or that
it is otherwise subject to, any treatise, written policy or other document
relating to legal opinions, including, without limitation, the Legal Opinion
Accord of the ABA Section of Business Law (1991).
F-2
EXHIBIT F-2
FORM OF NEVADA COUNSEL OPINION
Nevada Radiation Therapy Management Services, Incorporated, a Nevada
corporation (the "Subsidiary"), has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Nevada (the
"Applicable State") and has the power and authority as a corporation to own,
lease and operate its properties and to conduct its business as described in the
Prospectus; all of the issued and outstanding shares of capital stock of the
Subsidiary 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
Subsidiary were issued in violation of any preemptive rights, rights of first
refusal or other similar rights of any securityholder of the Subsidiary or any
other person arising under the Organizational Documents of the Subsidiary or the
laws of the Applicable State.
The information in the Prospectus under the captions "Risk Factors,"
"Business - Government Regulations," "Business - Federal Law," "Business - State
Law," "Business-Reimbursement and Cost Containment," "Business - Litigation,"
"Related Party Transactions," and the information in the Registration Statement
under Item 15, in each case only to the extent that it constitutes matters or
summaries of Nevada health care law, summaries of the legal proceedings, if any,
of the Subsidiary, or legal conclusions, have been reviewed by us and fairly
present and summarize, in all material respects, the matters referred to
therein.
Although we are not passing upon and do not assume any responsibility for
the accuracy, completeness or fairness of the statements (except as set forth
above), nothing has come to our attention that would lead us to believe that the
Registration Statement or any amendment thereto, at the time the Registration
Statement or any such amendment became effective, or that any Rule 462(b)
Registration Statement, at the time such Rule 462(b) Registration Statements
became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any amendment or
supplement thereto, at the time the Prospectus was issued, at the time any such
amendment or supplement was issued or on the date of this letter, included or
includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (except in each
case that we make no statement and express no belief with respect to financial
statements and schedules and other financial or statistical date included in or
omitted from the Registration Statement, any Rule 462(b) Registration Statement
or the Prospectus or any amendment or supplement thereto).
In rendering such opinion, such counsel shall state that such opinion is
limited to matters arising under the laws of the Applicable State and that, in
rendering their opinion pursuant to the Underwriting Agreement, both
Underwriters' Counsel and Company Counsel may rely upon such opinion of local
counsel. In rendering such opinion, such local counsel may rely as to matters of
fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Subsidiaries and the Company. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or
F-3
other document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991).
F-4
EXHIBIT G
Number of Initial
Securities to be Sold
---------------------
Company...................................................... 4,000,000
Selling Shareholders:
Xxxxxx X. Xxxxxxxx.................................... 165,723
Xxxxxx X. Xxxxxxxx.................................... 421,387
Xxxxx X. Xxxxxxxxxx................................... 317,657
Xxxxxxx X. Xxxxx...................................... 290,118
Xxxxxx Xxxxxxxxx...................................... 113,715
Xxxxxxxx X. Xxxxxx.................................... 106,659
Xxxxx Xxxxxxx......................................... 84,741
Total........................................................ 5,500,000
=========
G-1
EXHIBIT H
Number of Option
Securities Which May
Be Sold
--------------------
Company...................................................... 0
Selling Shareholders:
Xxxxxx X. Xxxxxxxx..................................... 91,148
Xxxxxx X. Xxxxxxxx..................................... 231,762
Xxxxx X. Xxxxxxxxxx.................................... 174,711
Xxxxxxx X. Xxxxx....................................... 159,565
Xxxxxx Xxxxxxxxx....................................... 62,543
Xxxxxxxx X. Xxxxxx..................................... 58,663
Xxxxx Xxxxxxx.......................................... 46,608
-------
Total........................................................ 825,000
=======
H
EXHIBIT I
FORM OF OPINION OF SELLING SHAREHOLDERS' COUNSEL
(1) The Underwriting Agreement has been duly authorized, executed and
delivered by each Selling Shareholder.
(2) Each Selling Shareholder has duly authorized (if applicable), executed
and delivered its Power of Attorney and its Custody Agreement and such Power of
Attorney and Custody Agreement constitutes a valid and binding obligation of
such Selling Shareholder, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other similar
laws relating to creditors' rights generally or by general equitable principles.
(3) In the case of any Selling Shareholders which are not natural persons,
each such Selling Shareholder has been duly organized and is validly existing
and in good standing under the laws of the jurisdiction of its organization and
such Selling Shareholder is duly qualified to transact business and is in good
standing in the State of Florida.
(4) Each Selling Shareholder has full right, power and authority to
execute, deliver and perform its obligations under the Underwriting Agreement,
its Power of Attorney and its Custody Agreement and to sell, transfer and
deliver the Securities to be sold by such Selling Shareholder under the
Underwriting Agreement.
(5) The execution, delivery and performance of the Underwriting Agreement,
its Power of Attorney and its Custody Agreement by each Selling Shareholder and
the consummation of the transactions contemplated by the Underwriting Agreement,
its Power of Attorney and its Custody Agreement (including the sale and delivery
of the Securities to be sold by such Selling Shareholder pursuant to the
Underwriting Agreement), and compliance by such Selling Shareholder with its
obligations under the Underwriting Agreement, its Power of Attorney and its
Custody 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 of the Securities to be sold by such Selling Shareholder under the
Underwriting Agreement or any other property or assets of such Selling
Shareholder or any of its subsidiaries (if any) pursuant to, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, bond, note,
debenture, evidence of indebtedness, lease or other agreement or instrument to
which such Selling Shareholder or any of its subsidiaries (if any) is a party or
by which such Selling Shareholder or any of its subsidiaries (if any) is bound
or to which any of the property or assets of such Selling Shareholder or any of
its subsidiaries (if any) is subject, nor will such action result in any
violation of the provisions of the Organizational Documents of such Selling
Shareholder or any of its subsidiaries (if any) 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 such
Selling Shareholder or any of its subsidiaries (if any) or any of their
respective assets, properties or operations.
F-1
(6) Each Selling Shareholder is the sole registered owner of the
Securities to be sold by such Selling Shareholder under the Underwriting
Agreement, free and clear, to our knowledge, of any Liens other than pursuant to
the Underwriting Agreement; and, upon payment of the consideration for the
Securities to be sold by the Selling Shareholders as provided in the
Underwriting Agreement and the crediting of such Securities to security account
or accounts of the Underwriters maintained with The Depository Trust Company
then, assuming that none of the Underwriters has "notice of an adverse claim"
(within the meaning of Section 8-105 of the Uniform Commercial Code of the State
of New York (the "UCC")) with respect to such Securities, each of the
Underwriters will acquire a "security entitlement" (within the meaning of UCC
Section 8-102(a)(17)) with respect to the Securities purchased by such
Underwriter from the Selling Shareholders and no action based on any "adverse
claim" (within the meaning of UCC Section 8-102(a)(1)) may be asserted against
such Underwriter with respect to such Securities.
(7) To our knowledge, the Securities to be sold by the Selling
Shareholders are not subject to any option, warrant, put, call, right of first
refusal or other right to purchase or otherwise acquire any such Securities
other than pursuant to the Underwriting Agreement.
(8) (A) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, (B) no authorization, approval, vote or other consent of
any stockholder (or other equity owner), if applicable, or creditor of such
Selling Shareholder, and (C) to our knowledge, no authorization, approval, vote
or other consent of any other person or entity, is necessary or required for the
execution or delivery by any Selling Shareholder of, or the performance by any
Selling Shareholder of its obligations under, the Underwriting Agreement, its
Custody Agreement or its Power of Attorney, for the sale and delivery by any
Selling Shareholder of the Securities to be sold by it under the Underwriting
Agreement or for the consummation by any Selling Shareholder of the other
transactions contemplated by the Underwriting Agreement, its Custody Agreement
or its Power of Attorney, except such as may be required under the 1933 Act or
the 1933 Act Regulations or state securities laws.
(9) To our knowledge, none of the Selling Shareholders has any preemptive
right, right of first refusal or other similar right to purchase or otherwise
acquire any of the Securities that are to be sold by the Company or any of the
other Selling Shareholders pursuant to the Underwriting Agreement.
In rendering such opinion, such counsel shall state that such opinion
covers matters arising under the laws of the States of Florida and New York and
the federal laws of the United States of America. In rendering such opinion,
such counsel may rely as to matters involving the application of the laws of any
other jurisdiction upon the opinion of local counsel satisfactory to the
Representatives; provided that such opinion shall be addressed to the
Representatives, shall state that counsel to the Selling Shareholders may rely
on such opinion as if it were addressed to them in rendering their opinion
pursuant to the Underwriting Agreement, shall be dated the same date as the
opinion of counsel to the Selling Shareholders, shall be delivered to the
Representatives at the same time that the opinion of counsel to the Selling
Shareholders is delivered, and shall be satisfactory in form and substance to
counsel for the Underwriters. In rendering such opinion, counsel to the Selling
Shareholders may rely, as to matters of fact but
R-2
not as to legal conclusions, to the extent they deem proper, on certificates of
the Selling Shareholders and public officials. Such opinion shall not state that
it is to be governed or qualified by or that it is otherwise subject to any
treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
R-3
