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EXHIBIT 1
AmSurg Corp.
3,600,000 Shares
Class A Common Stock
(No Par Value)
UNDERWRITING AGREEMENT
, 2001
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UNDERWRITING AGREEMENT
, 2001
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UBS Warburg LLC
CIBC World Markets Corp.
Xxxxxxxxx & Company, Inc.
SunTrust Equitable Securities Corporation,
as Managing Underwriters
c/o UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
AmSurg Corp., a Tennessee corporation (the "Company"), proposes to
issue and sell and the persons named in Schedule B annexed hereto (the "Selling
Shareholders") propose to sell to the underwriters named in Schedule A annexed
hereto (the "Underwriters") an aggregate of 3,600,000 shares (the "Firm Shares")
of Class A Common Stock, no par value (the "Class A Common Stock"), of the
Company, of which 3,526,000 shares are to be issued and sold by the Company and
an aggregate of 74,000 shares are to be sold by the Selling Shareholders in the
respective amounts set forth next to their respective names under the caption
"Firm Shares" in Schedule B annexed hereto. In addition, solely for the purpose
of covering over-allotments, the Company proposes to grant to the Underwriters
the option to purchase from the Company up to an additional 540,000 shares of
Class A Common Stock (the "Additional Shares"). The Firm Shares and the
Additional Shares are hereinafter collectively sometimes referred to as the
"Shares." The Shares are described in the Prospectus which is referred to below.
In addition to the Class A Common Stock, the Company currently has issued and
outstanding shares of its Class B Common Stock, no par value per share (the
"Class B Common Stock"). The Class A Common Stock and the Class B Common Stock
are hereinafter sometimes collectively referred to as the "Common Stock."
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively called the "Act"), with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3, (File No. _______)
including a prospectus, relating to the Shares, which incorporates by reference
documents which the Company has filed in accordance with the provisions of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
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thereunder (collectively called the "Exchange Act"). The Company has furnished
to you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses and the documents incorporated by reference therein
(each thereof, including the documents incorporated therein by reference, being
herein called a "Preliminary Prospectus") relating to the Shares. Except where
the context otherwise requires, the registration statement, as amended when it
becomes effective, including all documents filed as a part thereof or
incorporated by reference therein, and including any information contained in a
prospectus subsequently filed with the Commission pursuant to Rule 424(b) under
the Act and deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430(A) under the Act and also including any
registration statement filed pursuant to Rule 462(b) under the Act, is herein
called the "Registration Statement", and the prospectus, including all documents
incorporated therein by reference, in the form filed by the Company with the
Commission pursuant to Rule 424(b) under the Act on or before the second
business day after the date hereof (or such earlier time as may be required
under the Act) or, if no such filing is required, the form of final prospectus
included in the registration statement at the time it became effective, is
herein called the Prospectus.
The Company, the Selling Shareholders and the Underwriters agree as
follows:
1. Sale and Purchase. Subject to such adjustments as you may
determine to avoid fractional shares, the Company hereby agrees, subject to all
the terms and conditions set forth herein, to issue and sell to each Underwriter
and, upon the basis of the representations, warranties and agreements of the
Company and the Selling Shareholders herein contained and subject to all the
terms and conditions set forth herein, each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price of $_____ per
Share (the "purchase price per share"), that number of Firm Shares which bears
the same proportion to the aggregate number of Firm Shares to be issued and sold
by the Company as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule A annexed hereto (or such number of Firm Shares
increased as set forth in Section 10 hereof) bears to the aggregate number of
Firm Shares.
Subject to such adjustments as you may determine to avoid fractional
shares, the Selling Shareholders hereby agree, subject to all the terms and
conditions set forth herein, to sell to each Underwriter and, upon the basis of
the representations, warranties and agreements of the Company and the Selling
Shareholders herein contained and subject to all the terms and conditions set
forth herein, each Underwriter agrees, severally and not jointly, to purchase
from each Selling Shareholder, at the purchase price per share, that number of
Firm Shares which bears the same proportion to the aggregate number of Firm
Shares to be sold by such Selling Shareholder as the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule A annexed hereto (or
such number of Firm Shares increased as set forth in Section 10 hereof) bears to
the aggregate number of Firm Shares.
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The Company and the Selling Shareholders are advised by you that the
Underwriters intend (i) to make a public offering of their respective portions
of the Firm Shares as soon after the effective date of the Registration
Statement as in your judgment is advisable and (ii) initially to offer the Firm
Shares upon the terms set forth in the Prospectus. You may from time to time
increase or decrease the public offering price after the initial public offering
to such extent as you may determine.
In addition, the Company hereby grants to the several Underwriters the
option to purchase, and upon the basis of the representations, warrants and
agreement of the Company and the Selling Shareholders and subject to all the
terms and conditions herein set forth, the Underwriters shall have the right to
purchase, severally and not jointly, from the Company, ratably in accordance
with the number of Firm Shares to be purchased by each of them (subject to such
adjustment as you shall determine to avoid fractional shares), all or a portion
of the Additional Shares as may be necessary to cover over-allotments made in
connection with the offering of the Firm Shares, at the same purchase price per
share to be paid by the Underwriters to the Company and the Selling Shareholders
for the Firm Shares. This option may be exercised by you on behalf of the
several Underwriters at any time (but not more than once) on or before the
thirtieth day following the date hereof, by written notice to the Company. Such
notice shall set forth the aggregate number of Additional Shares as to which the
option is being exercised, and the date and time when the Additional Shares are
to be delivered (such date and time being herein referred to as the "additional
time of purchase"); provided, however, that the additional time of purchase
shall not be earlier than the time of purchase (as defined below) nor earlier
than the second business day(1) after the date on which the option shall have
been exercised nor later than the tenth business day after the date on which the
option shall have been exercised. The number of Additional Shares to be sold to
each Underwriter shall be the number which bears the same proportion to the
aggregate number of Additional Shares being purchased as the number of Firm
Shares set forth opposite the name of such Underwriter on Schedule A hereto
bears to the total number of Firm Shares (subject, in each case, to such
adjustment as you may determine to eliminate fractional shares).
Pursuant to powers of attorney, which shall be satisfactory to counsel
for the Underwriters, granted by each Selling Shareholder, _________ and
__________ will act as representatives of the Selling Shareholders. Each Selling
Shareholder hereby represents that the foregoing representatives (the
"Representatives of the Selling Shareholders") are authorized, on behalf of such
Selling Shareholder, to execute any documents necessary or desirable in
connection with the sale of the Shares to be sold hereunder by each Selling
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1 As used herein "business day" shall mean a day on which the New York
Stock Exchange is open for trading.
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Shareholder, to make delivery of the certificates of such Shares, to receive the
proceeds of the sale of such Shares, to give receipts for such proceeds, to pay
therefrom the expenses to be borne by such Selling Shareholder in connection
with the sale and public offering of the Shares, to distribute the balance of
such proceeds to such Selling Shareholder, to receive notices on behalf of each
Selling Shareholder and to take such other action as may be necessary or
desirable in connection with the transactions contemplated by this Agreement.
2. Payment and Delivery. Payment of the purchase price for the
Firm Shares shall be made to the Company and each of the Selling Shareholders by
Federal Funds wire transfer, against delivery of the certificates for the Firm
Shares to you through the facilities of the Depository Trust Company ("DTC") for
the respective accounts of the Underwriters. Such payment and delivery shall be
made at 10:00 A.M., New York City time, on ____________, 2001 (unless another
time shall be agreed to by you, the Company and the Representatives of the
Selling Shareholders or unless postponed in accordance with the provisions of
Section 10 hereof). The time at which such payment and delivery are actually
made is hereinafter sometimes called the "time of purchase." Certificates for
the Firm Shares shall be delivered to you in definitive form in such names and
in such denominations as you shall specify no later than the second business day
preceding the time of purchase. For the purpose of expediting the checking of
the certificates for the Firm Shares by you, the Company and the Selling
Shareholders agree to make such certificates available to you for such purpose
at least one full business day preceding the time of purchase.
Payment of the purchase price for the Additional Shares shall be made
at the additional time of purchase in the same manner and at the same office as
the payment for the Firm Shares. Certificates for the Additional Shares shall be
delivered to you in definitive form in such names and in such denominations as
you shall specify no later than the second business day preceding the additional
time of purchase. For the purpose of expediting the checking of the certificates
for the Additional Shares by you, the Company and the hereto agrees to make such
certificates available to you for such purpose at least one full business day
preceding the additional time of purchase.
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) the Company meets the requirements for use of Form
S-3 under the Act and has not received, and has no notice of, any order
of the Commission preventing or suspending the use of any Preliminary
Prospectus, or instituting proceedings for that purpose, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act. When the Registration
Statement becomes effective, the Registration Statement and the
Prospectus will fully comply in all material respects with the
provisions of the Act, and the Registration Statement 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
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misleading, and the Prospectus 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, in light of the
circumstances under which they were made, not misleading; any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement have been so described
or filed; provided, however, that the Company makes no warranty or
representation with respect to any statement contained in the
Registration Statement or the Prospectus in reliance upon and in
conformity with information concerning the Underwriters and furnished
in writing by or on behalf of any Underwriter through you to the
Company expressly for use in the Registration Statement or the
Prospectus; the documents incorporated by reference in the Prospectus,
at the time they were filed with the Commission, complied in all
material respects with the requirements of the Exchange Act, and did
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, in light of the circumstances under which they were
made, not misleading; and the Company has not distributed any offering
material in connection with the offering or sale of the Shares other
than the Registration Statement, the Preliminary Prospectus, the
Prospectus or any other materials, if any, permitted by the Act;
(b) as of the date of this Agreement, the Company has and
will have an authorized capitalization as set forth under the heading
entitled "Actual" in the section of the Registration Statement and the
Prospectus entitled "Capitalization"; all of the issued and outstanding
shares of capital stock, including the Class A Common Stock and the
Class B Common Stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable, have been
issued in compliance with all federal and state securities laws and
were not issued in violation of any preemptive right, resale right,
right of first refusal or similar right;
(c) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Tennessee, with full power and authority to own, lease and operate
its properties and conduct its business as described in the
Registration Statement;
(d) the Company is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction in
which the ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to so
qualify in any such jurisdiction would not individually or in the
aggregate have a material adverse effect on the business, prospects,
properties, condition (financial or otherwise) or results of operation
of the Company and the Subsidiaries (as defined herein), taken as a
whole (a "Material Adverse Effect").
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(e) all of the consolidated corporations, partnerships
(including, without limitation, general and limited partnerships) and
limited liability companies in which the Company has a direct or
indirect ownership interest (collectively, the "Subsidiaries") are
listed in Exhibit 21 to the Company's Report on Form 10-K filed with
the Commission on March __, 2001;
(f) each Subsidiary that is a corporation (a "Corporate
Subsidiary") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and corporate authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus. Each
Corporate Subsidiary is duly qualified and in good standing as a
foreign corporation authorized to do business in each other
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the
failure to be so qualified would not, individually or in the aggregate,
have a Material Adverse Effect. All of the outstanding shares of
capital stock of each Corporate Subsidiary have been duly authorized
and validly issued, are fully paid and non-assessable, were not issued
in violation of or subject to any preemptive or similar rights, and,
except as set forth in the Registration Statement, are owned by the
Company directly, or indirectly through one of the other Subsidiaries,
free and clear of all security interests, liens, encumbrances and
equities and claims; and no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights to
convert any obligations into shares of capital stock or ownership
interests in any Corporate Subsidiary are outstanding;
(g) each Subsidiary that is a partnership (a
"Partnership") has been duly organized, is validly existing as a
partnership under the laws of its jurisdiction of organization and has
the partnership power and partnership authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement. Each Partnership is duly qualified as a foreign
partnership authorized to do business in each other jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect. The initial capital
contributions with respect to the outstanding units of each Partnership
have been made to the Partnership. Except as set forth in the
Registration Statement and the Prospectus, the general and limited
partnership interests therein held directly or indirectly by the
Company are owned free and clear of all security interests, liens,
encumbrances and equities and claims; and no options, warrants or other
rights to purchase, agreements or other obligations to issue or other
rights to convert any obligations into ownership interests in any
Partnership are outstanding. Each partnership agreement pursuant to
which the Company or a Subsidiary holds an interest in a Partnership is
in full force and effect and constitutes the legal, valid and binding
agreement of the parties thereto,
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enforceable against such parties in accordance with the terms thereof,
except as enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance or other similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles.
There has been no material breach of or default under, and no event
which with notice or lapse of time would constitute a material breach
of or default under, such partnership agreements by the Company or any
Subsidiary or, to the Company's knowledge, any other party to such
agreements;
(h) each Subsidiary that is a limited liability company
(an "LLC") has been duly organized, is validly existing as a limited
liability company under the laws of its jurisdiction of organization
and has the limited liability company power and limited liability
company authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement. Each
LLC is duly qualified as a foreign limited liability company authorized
to do business in each other jurisdiction in which the nature of its
business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not,
individually or in the aggregate, have a Material Adverse Effect. The
initial capital contributions with respect to the outstanding
membership interests of each LLC have been made to the LLC. All
outstanding membership interests in the LLCs were issued and sold in
compliance with the applicable operating agreements of such LLCs and
all applicable federal and state securities laws, and, except as set
forth in the Registration Statement and the Prospectus, the membership
interests therein held directly or indirectly by the Company are owned
free and clear of all security interests, liens, encumbrances and
equities and claims; and no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights to
convert any obligations into ownership interests in any LLC are
outstanding. Each operating agreement pursuant to which the Company or
a Subsidiary holds a membership interest in an LLC is in full force and
effect and constitutes the legal, valid and binding agreement of the
parties thereto, enforceable against such parties in accordance with
the terms thereof, except as enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles. There has been no material breach of or default
under, and no event which with notice or lapse of time would constitute
a material breach of or default under, such operating agreements by the
Company or any Subsidiary or, to the Company's knowledge, any other
party to such agreements;
(i) except to the extent disclosed in the Registration
Statement and the Prospectus, each of the centers described in the
Prospectus as owned by the Company is owned and operated by a
Subsidiary in which the Company directly or indirectly owns at least
51% of the outstanding ownership interests. Except as disclosed in the
Registration Statement and the Prospectus, there are no consensual
encumbrances or restrictions on the ability of any Subsidiary (i) to
pay any dividends or make any
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distributions on such Corporate Subsidiary's capital stock, such
Partnership's partnership interests or such LLC's membership interests
or to pay any indebtedness owed to the Company or any other Subsidiary,
(ii) to make any loans or advances to, or investments in, the Company
or any other Subsidiary, or (iii) to transfer any of its property or
assets to the Company or any other Subsidiary;
(j) neither the Company nor any of the Subsidiaries nor,
to the knowledge of the Company, any of the physicians, medical
institutions or other health care providers or any of the health care
payors with whom the Company or any of the Subsidiaries directly or
indirectly contract, is in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the
Company or the Subsidiaries or related to the conduct of their
respective businesses or of any decree of any court or governmental
agency or body applicable to the Company or the Subsidiaries or related
to the conduct of their respective businesses, except for such
violations that could not, individually or in the aggregate, have a
Material Adverse Effect. Without limiting the foregoing, the Company
and the Subsidiaries do not violate any applicable provisions of
federal or state laws governing Medicare or any state Medicaid
programs, including, without limitation, Sections 1320a-7a and 1320a-7b
of Title 42 of the United States Code; no individual with an ownership
or control interest, as defined in 42 U.S.C. ss.1320a-3(a)(3), in the
Company or any of the Subsidiaries, or who is an officer, director or
managing employee as defined in 42 U.S.C. ss. 1320a-5(b), of the
Company or any of the Subsidiaries is a person described in 42 U.S.C.
ss. 1320a-7(b)(8)(B); and the Company's and each of the Subsidiaries'
business practices do not violate any federal or state laws regarding
physician ownership of (or financial relationship with) and referral to
entities providing healthcare related goods or services, or laws
requiring disclosure of financial interests held by physicians in
entities to which they may refer patients for the provisions of health
care related goods or services;
(k) neither the Company nor any of the Subsidiaries is in
breach or violation of, or in default under (and no event has occurred
which with notice, lapse of time, or both would result in any breach or
violation of, or constitute a default under), its charter or by-laws or
other organizational documents or in the performance or observance of
any obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any lease, contract or other
agreement or instrument to which the Company or any of the Subsidiaries
is a party or by which any of them or any of their properties is bound
or affected, the effect of which would, individually or in the
aggregate, have a Material Adverse Effect. The execution, delivery and
performance of this Agreement and the issuance and sale of the Shares
contemplated hereby and by the Registration Statement will not conflict
with, or result in any breach or violation of or constitute a default
under (nor constitute any event which with notice, lapse of time,
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or both would result in any breach or violation of, or constitute a
default under), any provisions of the charter or by-laws or other
organizational documents of the Company or any of the Subsidiaries or
under any provision of any license, permit, franchise, indenture,
mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is a party
or by which any of them or their properties may be bound or affected,
or under any federal, state, local or foreign law, regulation or rule
or any decree, judgment or order applicable to the Company any of the
Subsidiaries, the result of which would, individually or in the
aggregate, have a Material Adverse Effect; the execution, delivery and
performance of this Agreement and the issuance and sale of the Shares
contemplated hereby and by the Registration Statement will not result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of the Subsidiaries
pursuant to any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any lease, contract or
other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of their properties is bound or
affected, the result of which could, individually or in the aggregate,
have a Material Adverse Effect;
(l) this Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement of
the Company enforceable in accordance with its terms;
(m) The capital stock of the Company, including the
Shares, conforms in all material respects to the description thereof
included or incorporated by reference in the Registration Statement and
the Prospectus. The certificates for the Shares are in due and proper
form and conform in all material respects to the requirements of the
Tennessee Business Corporation Act. The holders of the Shares will not
be subject to personal liability by reason of being such holders.
(n) the Shares have been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein,
will be duly and validly issued, fully paid and non-assessable and free
of any preemptive or similar rights;
(o) no approval, authorization, consent or order of or
filing with any federal, state or local or foreign governmental or
regulatory commission, board, body, authority or agency is required in
connection with the issuance and sale of the Shares or the consummation
by the Company of the transaction as contemplated hereby other than
registration of the Shares under the Act and any necessary
qualification under the securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the Underwriters
or under the rules and regulations of NASD Regulation, Inc. ("NASDR");
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(p) Except as set forth in the Registration Statement and
the Prospectus: (i) no person has the right, contractual or otherwise,
to cause the Company to issue to it, or register pursuant to the Act,
any shares of capital stock or other equity interests; and (ii) no
person has preemptive rights, co-sale rights, rights of first refusal
or other rights to purchase any shares of Common Stock. No person has
the right, contractual or otherwise, to cause the Company to register
under the Act any shares of capital stock or other equity interests as
a result of the filing or effectiveness of the Registration Statement
or the sale of Shares contemplated thereby, except for such rights as
have been complied with or waived;
(q) Deloitte & Touche LLP, whose report on the
consolidated financial statements of the Company and its Subsidiaries
are filed with the Commission as part of the Registration Statement and
Prospectus, are independent public accountants as required by the Act;
(r) each of the Company and its Subsidiaries has all
necessary licenses, authorizations, consents and approvals and has made
all necessary filings required under any federal, state, local or
foreign law, regulation or rule, and has obtained all necessary
authorizations, consents and approvals from other persons, in order to
conduct its respective business; neither the Company nor any of its
Subsidiaries is in violation of, or in default under, any such license,
authorization, consent or approval or any federal, state, local or
foreign law, regulation or rule or any decree, order or judgment
applicable to the Company or any of its Subsidiaries the effect of
which, individually or in the aggregate, could have a Material Adverse
Effect;
(s) all legal or governmental proceedings, contracts,
leases or documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit
to the Registration Statement have been so described or filed as
required;
(t) there are no private or governmental actions, suits,
claims, investigations or proceedings pending or threatened to which
the Company or any of its Subsidiaries or any of their respective
officers is a party or of which any of their respective properties is
subject at law or in equity, or before or by any federal, state, local
or foreign governmental or regulatory commission, board, body,
authority or agency which could result in a judgment, decree or order
having a Material Adverse Effect;
(u) the audited financial statements included in the
Registration Statement and the Prospectus present fairly the
consolidated financial position of the Company and its Subsidiaries as
of the dates indicated and the consolidated results of operations and
cash flows of the Company and its Subsidiaries for the periods
specified; such financial statements have been prepared in conformity
with generally accepted
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accounting principles applied on a consistent basis during the periods
involved; the pro forma financial data included in the Registration
Statement and the Prospectus comply as to form in all material respects
with the applicable accounting requirements of Regulation S-X of the
Securities Act, and the pro forma adjustments have been properly
applied to the historical amounts in the compilation of those
statements; the other financial and statistical data set forth in the
Registration Statement and the Prospectus are accurately presented and
prepared on a basis consistent with such financial statements and books
and records of the Company; and there are no financial statements
(historical or pro forma) that are required to be included in the
Registration Statement and the Prospectus that are not included as
required;
(v) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been (i) any material adverse change, or any prospective
material adverse change, in the business, properties, condition
(financial or otherwise), or results of operations of the Company and
its Subsidiaries taken as a whole, (ii) any transaction which is
material to the Company or its Subsidiaries, (iii) any obligation,
direct or contingent, which is material to the Company and its
Subsidiaries taken as a whole, incurred by the Company or its
Subsidiaries, (iv) any change in the capital stock or outstanding
indebtedness of the Company or its Subsidiaries or (v) any dividend or
distribution of any kind declared, paid or made on the capital stock of
the Company. Neither the Company nor its Subsidiaries has any material
contingent obligation which is not disclosed in the Registration
Statement.
(w) the Company has obtained for the benefit of the
Underwriters the agreement (a "Lock-Up Agreement") of each of the
Selling Shareholders and of each of its directors and executive
officers not to sell, offer to sell, contract to sell, hypothecate
grant any option to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into
or exchangeable for Common Stock or warrants or other rights to
purchase Common Stock for a period of 90 days after the date of the
Prospectus without the prior written consent of UBS Warburg LLC;
(x) the Company and the Subsidiaries have good and
marketable title to all property (real and personal) described in the
Prospectus as being owned by them, free and clear of all liens, claims,
security interests or other encumbrances except such as are described
in the Registration Statement and the Prospectus and except as would
not individually or in the aggregate have a Material Adverse Effect.
All the property being held under lease by the Company and the
Subsidiaries are held under valid, subsisting and enforceable leases;
(y) the Company and the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amount as are
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customary in the business in which it is engaged. All policies of
insurance insuring the Company and the Subsidiaries or any of their
businesses, assets, employees, officers and directors are in full force
and effect, and the Company and the Subsidiaries are in compliance with
the terms of such policies in all material respects. There are no
claims by the Company or any of the Subsidiaries under any such policy
or instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause;
(z) neither the Company nor any of the Subsidiaries has
either sent or received any notice of termination of any of the
contracts or agreements referred to or described in, or filed as an
exhibit to, the Registration Statement, and no such termination has
been threatened by the Company or any of the Subsidiaries or any other
party to any such contract or agreement;
(aa) all statistical and market-related data included in
the Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate, and the Company has obtained the
written consent to the use of such data from such sources to the extent
required;
(bb) neither the Company nor any of the Subsidiaries or
any of their respective affiliates has taken, directly or indirectly,
any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares;
(cc) the Company and the Subsidiaries own or have obtained
licenses (which such licenses are enforceable against the Company
and/or the Subsidiaries, as applicable, and, to the Company's best
knowledge, the other parties thereto) for the patents, patent
applications, inventions, technology, trademarks, trademark
registrations, service marks, service xxxx registrations, trade names,
copyrights, trade secrets and rights described in the Prospectus as
being owned or used by or licensed to the Company and the Subsidiaries
or necessary for the conduct of their business as currently conducted
(collectively, the "Intellectual Property"), and the Company is not
aware of any claim to the contrary or any challenge by any other person
to the rights of the Company and the Subsidiaries with respect to the
Intellectual Property;
(dd) the Company and the Subsidiaries have not sustained
since the date of the latest audited financial statements included in
the Prospectus any loss or interference with their businesses from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as disclosed in the Prospectus or other
than any loss or interference, which could individually or in the
aggregate have a Material Adverse Effect;
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(ee) the Company and the Subsidiaries have not violated
any federal, state, local or foreign law or regulation relating to
discrimination in the hiring, promotion or pay of employees or any
applicable wages and hours laws, nor any provisions of the Employee
Retirement Income Security Act of 1976, as amended, or the rules and
regulations promulgated thereunder or any similar act or law, which
could individually or in the aggregate result in a Material Adverse
Effect;
(ff) the Company and the Subsidiaries have not violated
any foreign, federal, state, local or foreign law or regulation
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants,
which could individually or in the aggregate result in a Material
Adverse Effect;
(gg) the Company and the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences;
(hh) the Company and the Subsidiaries have filed all
federal, state, local and foreign tax returns and tax forms required to
be filed. Such returns and forms are complete and correct in all
material respects, and all taxes shown by such returns or otherwise
assessed that are due or payable have been paid, except such taxes as
are being contested in good faith and as to which adequate reserves
have been provided. All payroll withholdings required to be made by the
Company and the Subsidiaries with respect to employees have been made.
The charges, accruals and reserves on the books of the Company and the
Subsidiaries in respect of any tax liability for any year not finally
determined are adequate to meet any assessments or reassessments for
additional taxes. There have been no tax deficiencies asserted and, to
the Company's knowledge, no tax deficiency might be reasonably asserted
or threatened against the Company and/or the Subsidiaries that could
individually or in the aggregate have a Material Adverse Effect;
(ii) neither the Company nor any of the Subsidiaries
exercises any influence or control over the practice of medicine by the
physicians, medical institutions and other health care providers with
which it directly or indirectly contracts or represents to the public
that it offers medical services; and each of the Company and each of
the Subsidiaries contracts with these health care providers as
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independent contractors to provide medical services and is not engaged
in the practice of medicine;
(jj) except as disclosed in the Registration Statement and
the Prospectus, there are no Medicare, Medicaid, or any other
recoupment or recoupments of any governmental or private health care
payor being sought, threatened, requested or claimed against the
Company, any of the Subsidiaries or to the Company's knowledge, any
physician, medical institution or health care provider with which the
Company or any of the Subsidiaries directly or indirectly contracts,
which individually or in the aggregate could result in a Material
Adverse Effect;
(kk) The outstanding Common Stock is, and the Shares as of
the date the Registration Statement becomes effective will be,
authorized for quotation on the Nasdaq National Market ("Nasdaq"); and
(ll) the Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" or
an entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
4. Representations and Warranties of the Selling Shareholders.
Each Selling Shareholder, severally and not jointly, represents and warrants to
each Underwriter that:
(a) such Selling Shareholder now is and at the time of
delivery of such Shares will be, the lawful owner of the number of
Shares to be sold by such Selling Shareholder pursuant to this
Agreement and has and, at the time of delivery thereof, will have good
and marketable title to such Shares, and upon delivery of and payment
for such Shares, the Underwriters will acquire good and marketable
title to such Shares free and clear of any claim, lien, encumbrance,
security interest, community property right, restriction on transfer or
other defect in title;
(b) such Selling Shareholder has and at the time of
delivery of such Shares will have, full legal right, power and
capacity, and any approval required by law or otherwise, to sell,
assign, transfer and deliver such Shares in the manner provided in this
Agreement;
(c) this Agreement and the Custody Agreement of such
Selling Shareholder (the "Custody Agreement") have been duly executed
and delivered by such Selling Shareholder and each is a legal, valid
and binding agreement of such Selling Shareholder enforceable in
accordance with its terms;
(d) such Selling Shareholder has reviewed the
Registration Statement and the Prospectus. To the knowledge of such
Selling Shareholder, the Registration
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Statement does not contain an untrue statement of material fact or omit
to state a material fact necessary to make the statements therein, not
misleading;
(e) such Selling Shareholder has duly and irrevocably
authorized the Representatives of the Selling Shareholders, on behalf
of such Selling Shareholder, to execute and deliver this Agreement and
any other document necessary or desirable in connection with the
transactions contemplated thereby and to deliver the Shares to be sold
by such Selling Shareholder and receive payment therefor pursuant
hereto;
(f) the sale of such Selling Shareholder's Shares
pursuant to this Agreement is not prompted by any information
concerning the Company which is not set forth in the Registration
Statement and the Prospectus; and
(g) such Selling Shareholder has not taken, directly or
indirectly, any action designed to or that might reasonably be expected
to cause or result in stabilization or manipulation of the price of the
Common Stock to facilitate the sale or resale of the Shares.
5. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale
under the securities or blue sky laws of such states as you may
designate and to maintain such qualifications in effect so long as
required for the distribution of the Shares; provided that the Company
shall not be required to qualify as a foreign corporation or to consent
to the service of process under the laws of any such state (except
service of process with respect to the offering and sale of the
Shares); and to promptly advise you of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York
City, as soon as practicable after the Registration Statement becomes
effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendments
or supplements thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes
contemplated by the Act; in case any Underwriter is required to deliver
a prospectus beyond the nine-month period referred to in Section
10(a)(3) of the Act in connection with the sale of the Shares, the
Company will prepare promptly upon request, but at its request, such
amendment or amendments to the Registration Statement and such
prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
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(c) to advise you promptly and (if requested by you) to
confirm such advice in writing, (i) when the Registration Statement has
become effective and when any post-effective amendment thereto becomes
effective and (ii) if Rule 430A under the Act is used, when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under
the Act (which the Company agrees to file in a timely manner under such
Rules);
(d) to advise you promptly, confirming such advice in
writing, of any request by the Commission for amendments or supplements
to the Registration Statement or Prospectus or for additional
information with respect thereto, or of notice of institution of
proceedings for, or the entry of a stop order suspending the
effectiveness of the Registration Statement and, if the Commission
should enter a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the
lifting or removal of such order as soon as possible; to advise you
promptly of any proposal to amend or supplement the Registration
Statement or Prospectus including by filing any documents that would be
incorporated therein by reference and to file no such amendment or
supplement to which you shall object in writing;
(e) to file promptly all reports and any definitive proxy
or information statement required to be filed by the Company with the
Commission in order to comply with the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus
is required in connection with the offering or sale of the shares, and
to promptly notify you of such filing;
(f) if necessary or appropriate, to file a registration
statement pursuant to Rule 462(b) under the Act;
(g) to furnish to you and, upon request, to each of the
other Underwriters for a period of five years from the date of this
Agreement (i) copies of any reports or other communications which the
Company shall send to its stockholders or shall from time to time
publish or publicly disseminate, (ii) copies of all annual, quarterly
and current reports filed with the Commission on Forms 10-K, 10-Q and
8-K, or such other similar form as may be designated by the Commission,
(iii) copies of documents or reports filed with any national securities
exchange on which any class of securities of the Company is listed, and
(iv) such other information as you may reasonably request regarding the
Company or its Subsidiaries, in each case as soon as such
communications, documents or information becomes available;
(h) to advise the Underwriters promptly of the happening
of any event known to the Company within the time during which a
Prospectus relating to the Shares is required to be delivered under the
Act which, in the judgment of the Company, would require the making of
any change in the Prospectus then being used,
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or in the information incorporated therein by reference, so that the
Prospectus would not include an untrue statement of material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they are made, not
misleading, and, during such time, to prepare and furnish, at the
Company's expense, to the Underwriters promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any such
change and to furnish you a copy of such proposed amendment or
supplement before filing any such amendment or supplement with the
Commission;
(i) to make generally available to its security holders,
and to deliver to you, an earnings statement of the Company (which will
satisfy the provisions of Section 11(a) of the Act) covering a period
of twelve months beginning after the effective date of the Registration
Statement (as defined in Rule 158(c) of the Act) as soon as is
reasonably practicable after the termination of such twelve-month
period;
(j) to furnish to its shareholders as soon as practicable
after the end of each fiscal year an annual report (including a balance
sheet and statements of income, shareholders' equity and of cash flow
of the Company for such fiscal year, accompanied by a copy of the
certificate or report thereon of nationally recognized independent
certified public accountants;
(k) to furnish to you five signed copies of the
Registration Statement, as initially filed with the Commission, and of
all amendments thereto (including all exhibits thereto and documents
incorporated by reference therein) and sufficient conformed copies of
the foregoing (other than exhibits) for distribution of a copy to each
of the other Underwriters;
(l) to furnish to you as early as practicable prior to
the time of purchase and the additional time of purchase, as the case
may be, but not later than two business days prior thereto, a copy of
the latest available unaudited interim consolidated financial
statements, if any, of the Company and its Subsidiaries which have been
read by the Company's independent certified public accountants, as
stated in their letter to be furnished pursuant to Section 8(c) hereof;
(m) to apply the net proceeds from the sale of the Shares
in the manner set forth under the caption "Use of Proceeds" in the
Prospectus;
(n) to pay all expenses, fees and taxes (other than any
transfer taxes except as set forth under Section 7 hereof and (iv) and
(vi) or (iii) or (iv) below, fees and disbursements of counsel for the
Underwriters) in connection with (i) the preparation and filing of the
Registration Statement, each Preliminary Prospectus, the Prospectus,
and any amendments or supplements thereto, and the printing and
furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and
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shipment), (ii) the issuance, sale and delivery of the Shares by the
Company and the Selling Shareholders, (iii) the word processing and/or
printing of this Agreement, any Agreement Among Underwriters, any
dealer agreements, any Statements of Information, the Custody Agreement
and the Powers of Attorney and the reproduction and/or printing and
furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (iv) the qualification of
the Shares for offering and sale under state laws and the determination
of their eligibility for investment under state law as aforesaid
(including the legal fees and filing fees and other disbursements of
counsel to the Underwriters) and the printing and furnishing of copies
of any blue sky surveys or legal investment surveys to the Underwriters
and to dealers, (v) any listing of the Shares on any securities
exchange or qualification of the Shares for quotation on the Nasdaq and
any registration thereof under the Exchange Act, (vi) the filing for
review of the public offering of the Shares by the NASDR (including the
legal fees and filing fees and other disbursements of counsel to the
Underwriters), and (vii) the performance of the Company's and the
Selling Shareholders' other obligations hereunder (except that the
Selling Shareholders will be responsible for underwriting discounts and
commissions applicable to the Shares sold by them).
(o) to furnish to you, before filing with the Commission
subsequent to the effective date of the Registration Statement and
during the period referred to in paragraph (f) above, a copy of any
document proposed to be filed pursuant to Section 13, 14 or 15(d) of
the Exchange Act;
(p) not to sell, offer to sell, contract to sell,
hypothecate, pledge, grant any option to sell or otherwise dispose of,
directly or indirectly, any shares of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock or
options, warrants or other rights to purchase Common Stock or any other
shares of the Company that are substantially similar to Common Stock or
file a registration statement under the Act relating to the offer and
sale of any shares of Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock or options, warrants or
other rights to purchase Common Stock or any other shares of the
Company that are substantially similar to Common Stock for a period of
ninety (90) days after the date hereof (the "Lock-up Period"), without
the prior written consent of UBS Warburg LLC, except for (i) the
registration of the Shares and the sales to the Underwriters pursuant
to this Agreement, (ii) issuances of Common Stock upon the exercise of
outstanding options or warrants as disclosed in the Registration
Statement and the Prospectus to persons who have entered into Lock-Up
Agreements with the Underwriters and (iii) the issuance of employee
stock options not exercisable during the Lock-up Period pursuant to
stock option plans described in the Registration Statement and the
Prospectus; and
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(q) to use its best efforts to cause the Shares to be
listed for quotation on the Nasdaq.
6. Certain Covenants of the Company and the Selling Shareholders.
Each Selling Shareholder hereby agrees to advise the Underwriters promptly of
the happening of any event known to the Selling Shareholder within the time
during which a Prospectus relating to the Shares is required to be delivered
under the Act which, in the judgment of such Selling Shareholder, would require
the making of any change in the Prospectus then being used so that the
Prospectus would not include an untrue statement of material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading.
7. Reimbursement of Underwriters' Expenses. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to the last paragraph of Section 10 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder, the Company
shall, in addition to paying the amounts described in Section 6 hereof,
reimburse the Underwriters for all of their out-of-pocket expenses, including
the fees and disbursements of their counsel.
8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Shareholders on the date hereof and at the time of purchase (and the several
obligations of the Underwriters at the additional time of purchase are subject
to the accuracy of the representations and warranties on the part of the Company
and the Selling Shareholders on the date hereof and at the time of purchase
(unless previously waived) and at the additional time of purchase, as the case
may be), the performance by the Company and the Selling Shareholders of their
obligations hereunder and to the following additional conditions precedent:
(a) The Company shall furnish to you at the time of
purchase and at the additional time of purchase, as the case may be, an
opinion of Bass, Xxxxx & Xxxx PLC, counsel for the Company, addressed
to the Underwriters, and dated the time of purchase or the additional
time of purchase, as the case may be, with reproduced copies for each
of the other Underwriters and in form satisfactory to Xxxxx Xxxxxxxxxx
LLP, counsel for the Underwriters, stating that:
(i) the Company has been duly incorporated and
is validly existing as a corporation and is in good standing
under the laws of the State of Tennessee, with full power and
authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement and
the Prospectus, to execute and deliver this Agreement and to
issue, sell and deliver the Shares as herein contemplated;
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(ii) the Subsidiaries have been duly incorporated
and are validly existing as corporations in good standing
under the laws of their respective jurisdiction of
incorporation with the requisite corporate power and authority
to own, lease and operate their respective properties and to
conduct their respective business;
(iii) the Company and each of the Subsidiaries are
duly qualified to do business as foreign corporations and are
in good standing in each jurisdiction in which the ownership
or leasing of their properties or the conduct of their
business requires such qualification, except where the failure
to so qualify would not individually or in the aggregate have
a Material Adverse Effect;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company;
(v) the Shares to be sold by the Company have
been duly authorized and, when issued and delivered to and
paid for by the Underwriters, will be validly issued, fully
paid and non-assessable;
(vi) the Company has authorized and outstanding
shares of capital stock as set forth in the Registration
Statement and the Prospectus; the outstanding shares of
capital stock of the Company have been duly and validly
authorized and issued and are fully paid, nonassessable and
free of any preemptive rights, resale rights, rights of first
refusal and similar rights under the Tennessee Business
Corporation Act or under any contract, agreement or instrument
described in or filed as an exhibit to the Registration
Statement or otherwise known to such counsel; the Shares being
sold by the Company, when issued, will be free of any
preemptive rights, resale rights, rights of first refusal and
similar rights under the Tennessee Business Corporation Act;
and the certificates for the Shares are in due and proper form
and conform in all material respects to the requirements of
the Tennessee Business Corporation Act, and the holders of the
Shares will not be subject to personal liability by reason of
being such holders;
(vii) except as described in the Registration
Statement and the Prospectus, all of the outstanding shares of
capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and
non-assessable, are owned by the Company and are not subject
to any perfected security interest or, to such counsel's
knowledge, any other encumbrance or adverse claim; to such
counsel's knowledge, no options, warrants or other rights to
purchase, agreements or other obligations to
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issue or other rights to convert any obligation into shares
of capital stock or ownership interests in the Subsidiaries
are outstanding;
(viii) the capital stock of the Company, including
the Shares, conforms to the description thereof included or
incorporated by reference in the Registration Statement and
Prospectus;
(ix) the Registration Statement and the
Prospectus (except as to the financial statements and
schedules and other financial and statistical data contained
therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Act;
(x) the Registration Statement has become
effective under the Act and, to such counsel's knowledge, no
stop order proceedings with respect thereto are pending or
threatened under the Act and any required filing of the
Prospectus, and any supplement thereto pursuant to Rule 424
under the Act has been made in the manner and within the time
period required by such Rule 424;
(xi) no approval, authorization, consent or order
of or filing with any federal, state or local governmental or
regulatory commission, board, body, authority or agency is
required in connection with the execution, delivery and
performance of this Agreement, the issuance and sale of the
Shares and the consummation of the transactions contemplated
hereby and by the Registration Statement, other than those
that have been obtained under the Act and other than any
necessary qualification under the state securities or blue sky
laws of the various jurisdictions in which the Shares are
being offered by the Underwriters, as to which such
qualification such counsel need express no opinion;
(xii) the execution, delivery and performance of
this agreement by the Company and the transactions
contemplated hereby and by the Registration Statement do not
and will not conflict with, or result in any breach of, or
constitute a default under (nor constitute any event which
with notice, lapse of time, or both, would result in any
breach of, or constitute a default under) (A) any provisions
of the charter or by-laws or other organizational documents of
the Company or any of the Subsidiaries, (B) any provision of
any license, permit, franchise, indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of
indebtedness, or any lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is
a party or by which their respective properties may be bound
or affected that is
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described in or filed as an exhibit to the Registration
Statement or is otherwise known by such counsel or (C) any
federal, state, local or foreign law, regulation or rule, or
any decree, judgment or order applicable to the Company or the
Subsidiaries;
(xiii) to such counsel's knowledge, neither the
Company nor any of the Subsidiaries is in violation of its
charter or by-laws, nor is any of them in breach or violation
of or in default under (nor has any event occurred which with
notice, lapse of time, or both would result in any breach or
violation of, or constitute a default under), any license,
permit, franchise, indenture, mortgage, deed of trust, bank
loan or credit agreement or other evidence of indebtedness, or
any lease, contract or other agreement or instrument to which
the Company or any of the Subsidiaries is or was a party or by
which any of them or their respective properties may be bound
or affected and which is known to such counsel or in violation
of any federal, state, local or foreign law, regulation or
rule or any decree, judgment or order applicable to the
Company or any of the Subsidiaries, the effect of which would
individually or in the aggregate have a Material Adverse
Effect;
(xiv) to such counsel's knowledge, there are no
contracts, licenses, agreements, leases or documents of a
character which are required to be filed as exhibits to the
Registration Statement or to be described in the Prospectus
which have not been so filed or described;
(xv) to such counsel's knowledge, except as
described in the Prospectus or as would not, individually or
in the aggregate, have a Material Adverse Effect, there are no
private or governmental actions, suits, claims, investigations
or proceedings pending, threatened or contemplated to which
the Company or any of the Subsidiaries or any of their
officers is subject or of which any of their properties is
subject, whether at law, in equity or before or by any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency;
(xvi) the Company is not, and after the offering
and sale of the Shares, will not be, an "investment company,"
for or an entity controlled by an "investment company," as
such terms are defined in the Investment Company Act;
(xvii) to such counsel's knowledge the statements
in (i) the Registration Statement and the Prospectus under the
captions "Risk factors--We depend on payments from third-party
payers, including government healthcare programs, and these
payments may be reduced,
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even though our costs may increase", "Risk factors--Our
revenues may be adversely affected by pending changes in the
system of paying for outpatient surgical procedures under the
Medicare program", "Risk factors--If we fail to comply with
applicable laws and regulations, we could suffer penalties or
be required to make significant changes to our operations",
"Risk factors--If a federal or state agency asserts a
different position or enacts new laws or regulations regarding
illegal remuneration or other forms of fraud and abuse, we
could suffer penalties or be required to make significant
changes to our operations", "Risk factors--If regulations or
regulatory interpretations change, we may be obligated to buy
out interest of physicians who are minority owners of the
surgery centers", "Risk factors--New federal and state
legislative and regulatory initiatives relating to patient
privacy could require us to expend substantial sums acquiring
and implementing new information systems, which could
negatively impact our financial results", "Risk
factors--Providers in the healthcare industry have been the
subject of federal and state investigations, and we may become
subject to investigations in the future", "Risk factors--The
IRS may challenge tax deductions for certain acquired
goodwill", "Risk factors--Our charter, bylaws Tennessee law
and our Shareholder rights plan could discourage a takeover
you may consider favorable", "Management's discussion and
analysis of financial condition and results of
operations--Liquidity and Capital Resources", and
"Business--Government Regulation", and (ii) the Company's
Annual Report on Form 10-K for fiscal year ended December 31,
2000 (the "10-K") under the captions "Business--Government
Regulation", "Business--Liquidity and Capital Resources",
"Director and Executive Compensation", insofar as such
statements constitute summaries of regulatory matters,
contracts, agreements or other legal documents, or refer to
statements of law or legal conclusions, are accurate in all
material respects and present fairly the information required
to be shown with respect to the Company and the Subsidiaries,
as of the date of the Prospectus, the date of the 10-K and as
of the date of such opinion; and nothing has come to such
counsel's attention that causes such counsel to believe that
the above-described portions of the Prospectus and 10-K, at
the date of the Prospectus, the date of the 10-K or at the
date of such opinion, contained or contains an untrue
statement of material fact or omitted or omits to state a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading;
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(xviii) to such counsel's knowledge, no person has
the right, pursuant to the terms of any contract, agreement or
other instrument described in or filed as an exhibit to the
Registrations Statement, to cause the Company to register
under the Act any shares of capital stock or other equity
interests as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as
contemplated hereby, except for such rights as have been
complied with or waived; and to the knowledge of such counsel,
except as described in the Registration Statement and
Prospectus, no person is entitled to registration rights with
respect to shares of capital stock or other securities of the
Company;
(xix) to such counsel's knowledge, except as
disclosed in the Prospectus, there are no Medicare, Medicaid,
or any other recoupment or recoupments of any governmental or
private health care payor being sought, threatened, requested
or claimed against the Company, any of the Subsidiaries or to
such counsel's knowledge, any physician, medical institution
or health care provider with whom the Company or any of the
Subsidiaries directly or indirectly contracts, which
individually or in the aggregate could result in a Material
Adverse Effect.
(xx) to such counsel's knowledge, the Company and
the Subsidiaries do not violate any applicable provisions of
federal or state laws governing Medicare or any state Medicaid
programs, including, without limitation, Sections 1320a-7a and
1320a-7b of Title 42 of the United States Code; no individual
with an ownership or control interest, as defined in 42 U.S.C.
ss.1320a-3(a)(3), in the Company or any of the Subsidiaries,
or who is an officer, director or managing employee as defined
in 42 U.S.C. ss.1320a-5(b), of the Company or any of the
Subsidiaries is a person described in 42 U.S.C.
ss.1320a-7(b)(8)(B); and the Company's and each of the
Subsidiaries' business practices do not violate any federal or
state laws regarding physician ownership of (or financial
relationship with) and referral to entities providing
healthcare related goods or services, or laws requiring
disclosure of financial interests held by physicians in
entities to which they may refer patients for the provisions
of health care related goods or services;
In addition, such counsel shall state that
it has participated in conferences with officers and other
representatives of the Company, representatives of the
independent public accountants of the Company and
representatives of the Underwriters at which the contents of
the Registration Statement and Prospectus were discussed and,
although such counsel is not passing upon and does not assume
responsibility for the accuracy,
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completeness or fairness of the statements contained in the
Registration Statement or Prospectus (except as and to the
extent stated in subparagraphs (viii), (ix) and (xvii) above),
on the basis of the foregoing nothing has come to the
attention of such counsel that causes them to believe that the
Registration Statement or any amendment thereto at the time
such Registration Statement or amendment 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 supplement thereto at the date of
such Prospectus or such supplement, and at all times up to and
including the time of purchase or additional time of purchase,
as the case may be, 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,
in light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express
no opinion with respect to the financial statements and
schedules and other financial and statistical data included in
the Registration Statement or Prospectus).
(b) The Company shall furnish to you at the time of
purchase and at the additional time of purchase, as the case may be, an
opinion of Bass, Xxxxx & Xxxx, counsel for the Selling Shareholders,
addressed to the Underwriters, and dated the time of purchase or the
additional time of purchase, as the case may be, with reproduced copies
for each of the other Underwriters and in form satisfactory to Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters, stating that:
(i) this Agreement and the Custody Agreement
have been duly executed and delivered by or on behalf of each
of the Selling Shareholders;
(ii) each Selling Shareholder has full legal
right and power, and has obtained any authorization or
approval required by law or, to such counsel's knowledge,
otherwise to sell, assign, transfer and deliver the Shares to
be sold by such Selling Shareholder in the manner provided in
this Agreement;
(iii) delivery of certificates for the Shares by
each Selling Shareholder pursuant hereto will pass good and
marketable title thereto to the Underwriters, free and clear
of any claim, lien, encumbrance, security interest, community
property right, restriction on transfer or other defect in
title;
(iv) each of the Representatives of the Selling
Shareholders has been duly authorized by each Selling
Shareholder to execute and deliver
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on behalf of such Selling Shareholder this Agreement and any
other document necessary or desirable in connection with the
transactions contemplated hereby and to deliver the Shares to
be sold by such Selling Shareholder; and
(v) to the best of such counsel's knowledge, the
statements in the Prospectus relating to the Selling
Shareholders under the caption "Principal and Selling
Shareholders" insofar as such statements constitute a summary
of the matters referred to therein present fairly the
information called for with respect to such matters.
(c) You shall have received at the time of purchase and
at the additional time of purchase, as the case may be, an opinion of
Xxxxx Xxxxxxxxxx, counsel for the Underwriters, dated the time of
purchase or the additional time of purchase, as the case may be, with
respect to the issuance and sale of the Shares by the Company, the
Registration Statement, the Prospectus (together with any supplement
thereto) and such other related matters as the Underwriters may
require.
(d) You shall have received from Deloitte & Touche LLP,
letters dated, respectively, the date of this Agreement and the time of
purchase and additional time of purchase, as the case may be, and
addressed to the Underwriters (with reproduced copies for each of the
Underwriters) in the forms heretofore approved by Xxxxx Xxxxxxxxxx,
counsel for the Underwriters.
(e) No amendment or supplement to the Registration
Statement or Prospectus, including documents deemed to be incorporated
by reference therein, shall be filed prior to the time the Registration
Statement becomes effective to which you object in writing.
(f) The Registration Statement shall become effective, or
if Rule 430A under the Act is used, the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) under the Act, at or
before 5:00 P.M., New York City time, on the second full business day
after the date of this Agreement; provided, however, that the Company,
the Representatives of the Selling Shareholders and you and any group
of Underwriters, including you, who have agreed hereunder to purchase
in the aggregate at least 50% of the Firm Shares may from time to time
agree on a later date.
(g) Prior to the time of purchase or the additional time
of purchase, as the case may be, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall 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
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statements therein not misleading; and (iii) the Prospectus and all
amendments or supplements thereto, or modifications thereof, if any,
shall 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, in the light of the circumstances under
which they are made, not misleading.
(h) Between the time of execution of this Agreement and
the time of purchase or the additional time of purchase, as the case
may be, (i) no material and unfavorable change, financial or otherwise
(other than as referred to in the Registration Statement and
Prospectus), in the business, prospects, properties, condition of the
Company and its Subsidiaries taken as a whole shall occur or become
known and (ii) no transaction which is material and unfavorable to the
Company shall have been entered into by the Company or any of its
Subsidiaries.
(i) The Company will, at the time of purchase or
additional time of purchase, as the case may be, deliver to you a
certificate of two of its executive officers to the effect that the
representations and warranties of the Company as set forth in this
Agreement are true and correct as of such date, that the Company shall
perform such of its obligations under this Agreement as are to be
performed at or before the time of purchase and at or before the
additional time of purchase, as the case may be and the conditions set
forth in paragraphs (g) and (h) of this Section 8 have been met.
(j) You shall have received signed letters, dated the
date of this Agreement, from each of the Selling Shareholders and each
of the directors and officers of the Company and certain of its other
stockholders to the effect that such persons shall not sell, offer or
agree to sell, contract to sell, grant any option to sell or otherwise
dispose of, directly or indirectly, any shares of Common Stock of the
Company or securities convertible into or exchangeable or exercisable
for Common Stock or warrants or other rights to purchase Common Stock
or any other securities of the Company that are substantially similar
to the Common Stock for a period of 90 days after the date of the
Prospectus without UBS Warburg LLC's prior written consent.
(k) The Shares shall have been approved for listing for
quotation on the Nasdaq, subject only to notice of issuance at or prior
to the time of purchase. or the additional time of purchase, as the
case may be.
(l) The Selling Shareholders will at the time of purchase
and the additional time of purchase, as the case may be, deliver to you
a certificate of the Representatives of the Selling Shareholders to the
effect that the representations and the warranties of the Selling
Shareholders as set forth in this Agreement are true and correct as of
each such date.
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(m) Between the time of execution of this Agreement and
the time of purchase or additional time of purchase, as the case may
be, there shall not have occurred any downgrading, nor shall any notice
or announcement have been given or made of (i) any intended or
potential downgrading or (ii) any review or possible change that does
not indicate an improvement, in the rating accorded any securities of
or guaranteed by the Company or any Subsidiary by any "nationally
recognized statistical rating organization", as that term is defined in
Rule 436(g)(2) under the Act.
The Company and the Selling Shareholders shall have furnished
to you such other documents and certificates as to the accuracy and completeness
of any statement in the Registration Statement and the Prospectus as of the time
of purchase and the additional time of purchase, as the case may be, as you may
reasonably request.
9. Effective Date of Agreement; Termination. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of you or any group of
Underwriters (which may include you) which has agreed to purchase in the
aggregate at least 50% of the Firm Shares (i) if, since the time of execution of
this Agreement or the respective dates as of which information is given in the
Registration Statement and Prospectus, (y) there has been any material adverse
and unfavorable change, financial or otherwise (other than as referred to in the
Registration Statement and Prospectus), in the business, prospects, properties,
condition (financial or otherwise) or results of operations of the Company and
its Subsidiaries taken as a whole, which would, in your judgment or in the
judgment of such group of Underwriters, make it impracticable to market the
Shares, or (z) there shall have occurred any downgrading, or any notice shall
have been given of (a) any intended or potential downgrading or (b) any review
or possible change that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Company or any Subsidiary by any
"nationally recognized statistical rating organization", as that term is defined
in Rule 436(g)(2) under the Act or (ii) if, at any time prior to the time of
purchase or, with respect to the purchase of any Additional Shares, the
additional time of purchase, as the case may be, trading in securities on the
New York Stock Exchange, the American Stock Exchange or the Nasdaq shall have
been suspended or limitations or minimum prices shall have been established on
the New York Stock Exchange, the American Stock Exchange or the Nasdaq or (iii)
if a banking moratorium shall have been declared either by the United States or
New York State authorities, or (iv) if the United States shall have declared war
in accordance with its constitutional processes or there shall have occurred any
material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the
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United States as, in your judgment or in the judgment of such group of
Underwriters, to make it impracticable to market the Shares.
If you or any group of Underwriters elects to terminate this
Agreement as provided in this Section 9, the Company, the Representatives of the
Selling Shareholders and each other Underwriter shall be notified promptly by
letter or telegram.
If the sale to the Underwriters of the Shares, as contemplated
by this Agreement, is not carried out by the Underwriters for any reason
permitted under this Agreement or if such sale is not carried out because the
Company or the Selling Shareholders, as the case may be, shall be unable to
comply with any of the terms of this Agreement, the Company or the Selling
Shareholders, as the case may be, shall not be under any obligation or liability
under this Agreement (except to the extent provided in Sections 6, 7 and 11
hereof), and the Underwriters shall be under no obligation or liability to the
Company and the Selling Shareholders under this Agreement (except to the extent
provided in Section 11 hereof) or to one another hereunder.
10. Increase in Underwriters' Commitments. Subject to Sections 8
and 9, if any Underwriter shall default in its obligation to take up and pay for
the Firm Shares to be purchased by it hereunder (otherwise than for reasons
sufficient to justify the termination of this Agreement under the provisions of
Section 9 hereof) and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total number of Firm Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the number of Firm Shares they are obligated
to purchase pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such
Shares shall be taken up and paid for by such non-defaulting Underwriter or
Underwriters in such amount or amounts as you may designate with the consent of
each Underwriter so designated or, in the event no such designation is made,
such Shares shall be taken up and paid for by all non-defaulting Underwriters
pro rata in proportion to the aggregate number of Firm Shares set opposite the
names of such non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Company and the Selling Shareholders agree with the
non-defaulting Underwriters that they will not sell any Firm Shares hereunder
unless ail of the Firm Shares are purchased by the Underwriters (or by
substituted Underwriters selected by you with the approval of the Company or
selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
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The term Underwriter as used in this agreement shall refer to
and include any Underwriter substituted under this Section 10 with like effect
as if such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total number
of Shares which all Underwriters agreed to purchase hereunder, and if neither
the non-defaulting Underwriters nor the Company shall make arrangements within
the five business day period stated above for the purchase of all the Shares
which the defaulting Underwriter or Underwriters agreed to purchase hereunder,
this Agreement shall be terminated without further act or deed and without any
liability on the part of the Company to any non-defaulting Underwriter and
without any liability on the part of any non-defaulting Underwriter to the
Company. Nothing in this paragraph, and no action taken hereunder, shall relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
11. Indemnity and Contribution.
(a) The Company and the Selling Shareholders jointly and severally
agree to partners, indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the foregoing persons from and against
any loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or any such
person may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of or is
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or in the Registration Statement
as amended by any post-effective amendment thereof by the Company) or in a
Prospectus (the term Prospectus for the purpose of this Section 11 being deemed
to include any Preliminary Prospectus, the Prospectus and the Prospectus as
amended or supplemented by the Company), or arises out of or is based upon any
omission or alleged omission to state a material fact required to be stated in
either such Registration Statement or Prospectus or necessary to make the
statements made therein not misleading, except insofar as any such loss, damage,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in and in conformity
with information furnished in writing by or on behalf of any Underwriter through
you to the Company expressly for use with reference to such Underwriter in such
Registration Statement or such Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with such
information required to be stated in such Registration Statement or Prospectus
or necessary to make such information not misleading or (ii) any untrue
statement or alleged untrue statement made by the Company in Section 3 of this
Agreement or any Selling Shareholder in Section 4 of this Agreement or the
failure by the Company or any Selling Shareholder to perform when and as
required any
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agreement or covenant contained herein or (iii) any untrue statement or alleged
untrue statement of any material fact contained in any audio or visual materials
provided by the Company or any Selling Shareholder or based upon written
information furnished by or on behalf of the Company or any Selling Shareholder
including, without limitation, slides, videos, films, tape recordings, used in
connection with the marketing of the Shares; provided, further, that no Selling
Shareholder that is not an affiliate of the Company within the meaning of Rule
405 of the Act shall be responsible, either pursuant to this indemnity or as a
result of any breach of this Agreement, for losses, expenses, liability or
claims arising out of or based upon information furnished by any party other
than such Selling Shareholder and, in any event, no Selling Shareholder shall be
responsible, either pursuant to this indemnity or as a result of any breach of
this Agreement, for losses, expenses, liability or claims for an amount in
excess of the proceeds to be received by such Selling Shareholder (before
deducting expenses) from the sale of Shares hereunder.
If any action, suit or proceeding (together, a "Proceeding")
is brought against an Underwriter or any such person in respect of which
indemnity may be sought against the Company or any Selling Shareholder pursuant
to the foregoing paragraph, such Underwriter or such person shall promptly
notify the Company and the Representatives of the Selling Shareholders in
writing of the institution of such Proceeding and the Company or such Selling
Shareholder, as the case may be, shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses; provided, however, that the omission
to so notify the Company or the Representative of the Selling Shareholders shall
not relieve the Company or any Selling Shareholder from any liability which the
Company may have to any Underwriter or any such person or otherwise. Such
Underwriter or such controlling person shall have the right to employ its or
their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or of such person unless the
employment of such counsel shall have been authorized in writing by the Company
or such Selling Shareholder in connection with the defense of such Proceeding or
the Company or such Selling Shareholder shall not have, within a reasonable
period of time in light of the circumstances employed counsel to have charge of
the defense of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from, additional to or in conflict with those available to the
Company or such Selling Shareholder (in which case the Company or such Selling
Shareholder shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties), in any of which events such fees
and expenses shall be borne by the Company or such Selling Shareholder, as the
case may be, and paid as incurred (it being understood, however, that the
Company or such Selling Shareholder shall not be liable for the expenses of more
than one separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). The
Company or such Selling Shareholder shall not be liable for any settlement of
any such Proceeding effected without its written consent but if settled with the
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written consent of the Company or such Selling Shareholder, the Company or such
Selling Shareholder agrees to indemnify and hold harmless any Underwriter and
any such person from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 30 days' prior notice of its
intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
(b) Each Underwriter severally agrees to indemnify,
defend and hold harmless the Company, its directors and officers, each Selling
Shareholder and any person who controls the Company or any Selling Shareholder
within the meaning of Section 15 of the Act, or Section 20 of the Exchange Act
from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, the Company, any
Selling Shareholder or any such person may incur under the Act, the Exchange
Act, or common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity with
information furnished in writing by or on behalf of such Underwriter through you
to the Company expressly for use with reference to such Underwriter in the
Registration Statement (or in the Registration Statement as amended by or on
behalf of any post-effective amendment thereof by the Company) or in a
Prospectus, or arises out of or is based upon any omission or alleged omission
to state a material fact in connection with such information required to be
stated in such Registration Statement or Prospectus or necessary to make such
information not misleading.
If any Proceeding is brought against the Company, any Selling
Shareholder or any such person in respect of which indemnity may be sought
against any Underwriter pursuant to the foregoing paragraph, the Company, such
Selling Shareholder or such person shall promptly notify such Underwriter in
writing of the institution of such Proceeding and such Underwriter shall assume
the defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses,
provided, however, that the omission to so notify such Underwriter shall not
relieve
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such Underwriter, from any liability which such Underwriter may have to the
Company, any Selling Shareholder or any such person or otherwise. The Company,
such Selling Stockholder or such person shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of the Company, such Selling Shareholder or such person unless the
employment of such counsel shall have been authorized in writing by such
Underwriter in connection with the defense of such Proceeding or such
Underwriter shall not have employed counsel to have charge of the defense of
such Proceeding or such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from or additional to or in conflict with those available to such Underwriter
(in which case such Underwriter shall not have the right to direct the defense
of such Proceeding on behalf of the indemnified party or parties, but such
Underwriter may employ counsel and participate in the defense thereof but the
fees and expenses of such counsel shall be at the expense of such Underwriter),
in any of which events such fees and expenses shall be borne by such Underwriter
and paid as incurred (it being understood, however, that such Underwriter shall
not be liable for the expenses of more than one separate counsel (in addition to
any local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). No Underwriter shall be liable for any settlement of any such
Proceeding effected without the written consent of such Underwriter but if
settled with the written consent of such Underwriter, such Underwriter agrees to
indemnify and hold harmless the Company, any Selling Shareholder and any such
person from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall have given
the indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened Proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section
11 is unavailable to an indemnified party under subsections (a) and (b) of this
Section 11 in respect of any losses, damage, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the
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Company and the Selling Shareholders on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Shareholders on
the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, damages, expenses,
liabilities or claims, 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 shall be deemed to be in the same
respective proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and the Selling Shareholders and the total underwriting discounts
and commissions received by the Underwriters, bear to the aggregate public
offering price is the shares. The relative fault of the Company and the Selling
Shareholders on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
relates to information supplied by the Company, by the Selling Shareholders or
by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, damages,
expenses, liabilities and claims referred to in this subsection shall be deemed
to include any legal or other fees or expenses reasonably incurred by such party
in connection with investigating, preparing to defend or defending any claim or
Proceeding.
(d) The Company, the Selling Shareholders and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 11 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 that does not take account of the equitable considerations
referred to in subsection (c) above. Notwithstanding the provisions of this
Section 11, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by such
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damage which such Underwriter has otherwise been required to pay
by reason of such untrue statement or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 11 are several
in proportion to their respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained
in this Section 11 and the covenants, warranties and representations of the
Company and the Selling Shareholders contained in this Agreement shall remain in
full force and effect regardless of any partners, investigation made by or on
behalf of any Underwriter, its directors and officers
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or any person (including each partner, officer or director of such person) who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, or by or on behalf of the Company, its directors or
officers, any Selling Shareholder or any person who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and
shall survive any termination of this Agreement or the issuance and delivery of
the Shares. The Company, each Selling Shareholder and each Underwriter agree
promptly to notify each other commencement of any Proceeding against it and, in
the case of the Company, against any of the Company's officers or directors in
connection with the issuance and sale of the Shares, or in connection with the
Registration Statement or Prospectus.
12. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Warburg LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Department, with a copy to Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxx X. Xxxxxx, if to the Company,
shall be sufficient in all respects if delivered or sent to the Company at the
offices of the Company at 00 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxxx 00000, Attention: _________, with a copy to Bass, Xxxxx & Xxxx PLC,
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxxx
X. Xxxxx and, if to any of the Selling Shareholders, shall be sufficient in all
respects if delivered or sent to the Representatives of the Selling Shareholders
at __________, Attention: __________, with a copy to Bass, Xxxxx & Xxxx PLC, 000
Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxx.
13. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement (a "Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
14. Submission to Jurisdiction. Except as set forth below, no
Claim may be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and the
Company consents to the jurisdiction of such courts and personal service with
respect thereto. The Company hereby consents to personal jurisdiction, service
and venue in any court in which any Claim arising out of or in any way relating
to this Agreement is brought by any third party against UBS Warburg LLC or any
indemnified party. Each of UBS Warburg LLC and the Company (on its behalf and,
to the extent permitted by applicable law, on behalf of its stockholders and
affiliates) waives all right to trial by jury in
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any action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this Agreement. The Company
agrees that a final judgment in any such action, proceeding or counterclaim
brought in any such court shall be conclusive and binding upon the Company and
may be enforced in any other courts in the jurisdiction of which the Company is
or may be subject, by suit upon such judgment.
15. Parties at Interest. The Agreement herein set forth has been
and is made solely for the benefit of the Underwriters, the Company, the Selling
Shareholders and to the extent provided in Section 11 hereof the controlling
persons, directors and officers referred to in such Section, and their
respective successors, assigns, heirs, pursuant representatives and executors
and administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
16. Counterparts. This Agreement may be signed by the parties in
one or more counterparts which together shall constitute one and the same
agreement among the parties.
17. Successors and Assigns. This Agreement shall be binding upon
the Underwriters, the Company and the Selling Shareholders and their respective
successors and assigns and any successor or assign of any substantial portion of
the Company's, any Selling Shareholder's and any of the Underwriters' respective
businesses and/or assets.
18. Miscellaneous. UBS Warburg LLC, an indirect, wholly-owned
subsidiary of UBS AG, is not a bank and is separate from any affiliated bank,
including any U.S. branch or agency of UBS Warburg LLC. Because UBS Warburg LLC
is a separately incorporated entity, it is solely responsible for its own
contractual obligations and commitments, including obligations with respect to
sales and purchases of securities. Securities sold, offered or recommended by
UBS Warburg LLC are not deposits, are not insured by the Federal Deposit
Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
A lending affiliate of UBS Warburg LLC may have lending
relationships with issuers of securities underwritten or privately placed by UBS
Warburg LLC. To the extent required under the securities laws, prospectuses and
other disclosure documents for securities underwritten or privately placed by
UBS Warburg LLC will disclose the existence of any such lending relationships
and whether the proceeds of the issue will be used to repay debts owed to
affiliates of UBS Warburg LLC.
If the foregoing correctly sets forth the understanding among
the Company, the Selling Shareholders and the Underwriters, please so indicate
in the space provided below for the purpose, whereupon this letter and your
acceptance shall constitute a binding agreement among the Company, the Selling
Shareholders and the Underwriters, severally.
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Very truly yours,
AMSURG CORP.
By:
-----------------------------------------
Name:
Title:
THE SELLING SHAREHOLDERS NAMED IN
SCHEDULE B ATTACHED HERETO
By:
-----------------------------------------
Name:
Attorney-in-Fact
Accepted and agreed to as of the date
first above written, on behalf of
themselves and the other several
Underwriters named in Schedule A
UBS WARBURG LLC
CIBC WORLD MARKETS CORP.
XXXXXXXXX & COMPANY, INC.
SUNTRUST EQUITABLE SECURITIES CORPORATION
By: UBS WARBURG LLC
By:
-------------------------
Name:
Title:
By:
-------------------------
Name:
Title:
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SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
UBS Warburg LLC.................................................................
CIBC World Markets Corp.........................................................
Xxxxxxxxx & Company, Inc. ......................................................
SunTrust Equitable Securities Corporation ......................................
---------
Total............................... 3,526,000
=========
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SCHEDULE B
Number of
Selling Shareholders Firm Shares
-------------------- -----------
Xxxxxx X. Xxxxxxxx 40,000
Xxxxx X. Xxxx 34,000
------
Total......................................... 74,000
======
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