Exhibit 1.1
INFOCURE CORPORATION
COMMON STOCK
_________________
UNDERWRITING AGREEMENT
----------------------
____________, 1999
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
XX XXXXX SECURITIES CORPORATION
XXXXXXX XXXXXX XXXXX, INC.
As Representatives of the Several
Underwriters named in Schedule I hereto,
c/o The Xxxxxxxx-Xxxxxxxx Company, LLC
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Dear Sirs:
InfoCure Corporation, a Delaware corporation (the "Company"), and the
selling stockholders named in Schedule II hereto (each a "Selling Stockholder"
and together the "Selling Stockholders"), hereby confirm their agreement with
the several underwriters named in Schedule I hereto (the "Underwriters"), for
whom you have been duly authorized to act as representatives (in such
capacities, the "Representatives"), as set forth below. If you are the only
Underwriters, all references herein to the Representatives shall be deemed to be
to the Underwriters.
Subject to the terms and conditions herein contained, the Company and the
Selling Stockholders propose to sell to the several Underwriters an aggregate of
________ shares (the "Firm Shares") of the Company's Common Stock, par value
$0.001 per share ("Common Stock") of which 3,000,000 shares will be issued and
sold by the Company (the "Company's Firm Shares") and _________ shares will be
sold by the Selling Stockholders (the "Selling Stockholders' Firm Shares"). Of
the Selling Stockholders' Firm Shares, each Selling Stockholder will sell the
number of shares listed opposite its name on Schedule II hereto. The Company
also proposes to issue and sell to the several Underwriters not more than
_________ additional shares of Common Stock if requested by the Underwriters as
provided in Section 2 of this Agreement. Any and all shares of Common Stock to
be purchased by the Underwriters pursuant to such option are referred to herein
as the "Option Shares," and the Firm Shares and any Option Shares are
collectively referred to herein as the "Shares."
1. Representations and Warranties of the Company and the Selling
Stockholders.
(a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-3 (File No. 333-71109)
with respect to the Shares, including a prospectus subject to
completion, has been filed by the Company with the Securities and
Exchange Commission (the "Commission") under the Securities Act of
1933, as amended (the "Act"), and one or more amendments to such
registration statement may have been so filed. The Company meets the
requirements for use of Form S-3 under the Act. After the execution
of this Agreement, the Company will file with the Commission either
(i) if such registration statement, as it may have been amended, has
become effective under the Act and information has been omitted
therefrom in accordance with Rule 430A under the Act, either (A) if
the Company relies on Rule 434 under the Act, a term sheet relating to
the shares that shall identify the preliminary prospectus that it
supplements containing such information as is required or permitted by
Rules 434, 430A and 424(b) under the Act or (B) if the Company does
not rely on Rule 434 under the Act, a prospectus in the form most
recently included in an amendment to such registration statement (or,
if no such amendment shall have been filed, in such registration
statement) with such changes or insertions as are required by Rule
430A or permitted by Rule 424(b) under the Act and as have been
provided to and approved by the Representatives, or (ii) if such
registration statement, as it may have been amended, has not become
effective under the Act, an amendment to such registration statement,
including a form of prospectus, a copy of which amendment has been
provided to and approved by the Representatives prior to the execution
of this Agreement. The Company may also file a related registration
statement with the Commission pursuant to Rule 462(b) under the Act
for the purpose of registering certain additional shares of Common
Stock, which registration statement will be effective upon filing with
the Commission. As used in this Agreement, the term "Original
Registration Statement" means the registration statement initially
filed relating to the Shares, as amended at the time when it was or is
declared effective, including all financial statement schedules and
exhibits thereto, all documents incorporated by reference therein
filed under the Securities Exchange Act of 1934 (the "Exchange Act")
and any information omitted therefrom pursuant to Rule 430A under the
Act and included in the Prospectus (as hereinafter defined); the term
"Rule 462(b) Registration Statement" means any registration statement
filed with the Commission pursuant to Rule 462(b) under the Act
(including the Original Registration Statement and any Preliminary
Prospectus (as hereinafter defined) or Prospectus incorporated therein
at the time such Original Registration Statement becomes effective);
the term "Registration Statement" includes both the Original
Registration Statement and any Rule 462(b) Registration Statement;
the term "Preliminary Prospectus" means each prospectus subject to
completion included in such registration statement or any
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amendment or post-effective amendment thereto (including the
prospectus subject to completion, if any, included in the Registration
Statement at the time it was or is declared effective and including
all documents incorporated therein by reference filed under the
Exchange Act); the term "Prospectus" means (A) if the Company relies
on Rule 434 of the Act, the Term Sheet (as hereinafter defined)
relating to the Shares that is first filed pursuant to Rule 424(b)(7)
of the Act, together with the Preliminary Prospectus identified
therein that such Term Sheet supplements; (B) if the Company does not
rely on Rule 434 of the Act, the prospectus first filed with the
Commission pursuant to Rule 424(b) under the Act or (C) if no
prospectus is required to be so filed, such term means the prospectus
included in the Registration Statement at the effective time of such
Registration Statement, including in the case of Classes (A), (B) and
(C) of this sentence all documents incorporated therein by reference
filed under the Exchange Act; and the term "Term Sheet" means any term
sheet that satisfies the requirements of Rule 434 of the Act. Any
reference to the "date" of a Prospectus that includes a Term Sheet
shall mean the date of such Term Sheet. For purposes of the following
representations and warranties, to the extent reference is made to the
Prospectus and at the relevant time the Prospectus is not yet in
existence, such reference shall be deemed to be to the most recent
Preliminary Prospectus.
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued and no proceeding for that purpose has been
instituted or threatened by the Commission or the securities authority
of any state or other jurisdiction. If the Registration Statement has
become effective under the Act, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has
been issued and no proceeding for that purpose has been instituted or
threatened or, to the best knowledge of the Company, contemplated by
the Commission or the securities authority of any state or other
jurisdiction.
(iii) When any Preliminary Prospectus was filed with the
Commission it (i) contained all statements required to be stated
therein in accordance with, and complied in all material respects with
the requirements of, the Act, the Exchange Act and the respective
rules and regulations of the Commission thereunder and (ii) did not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. When the Registration Statement or any amendment thereto
was or is declared effective, and at each Time of Delivery (as
hereinafter defined), it (i) contained or will contain all statements
required to be stated therein in accordance with, and complied or will
comply in all material respects with the requirements of, the Act, the
Exchange Act and the respective rules and regulations of the
Commission thereunder and (ii) did not or will not include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading. When (A) the
Prospectus or any amendment or supplement thereto is filed with the
Commission pursuant to Rule
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424(b) (or, if the Prospectus or such amendment or supplement is not
required to be so filed, when the Registration Statement or the
amendment thereto containing such amendment or supplement to the
Prospectus was or is declared effective) or (B) any Term Sheet which
is a part of the Prospectus is filed with the Commission pursuant to
Rule 434, and at each Time of Delivery, the Prospectus, as amended or
supplemented at any such time, (i) contained or will contain all
statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements
of, the Act, the Exchange Act and the respective rules and regulations
of the Commission thereunder and (ii) did not or will not include any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
foregoing provisions of this paragraph (iii) do not apply to
statements or omissions made in any Preliminary Prospectus, the
Registration Statement or any amendment thereto, the Prospectus or any
amendment or supplement thereto, or any Term Sheet in reliance upon
and in conformity with written information furnished to the Company by
any Underwriter through you specifically for use therein.
(iv) Since January 1, 1998, the Company has timely filed all
documents required to be filed by it under the Act and the Exchange
Act.
(v) If the Company has elected to rely on Rule 462(b) and the
Rule 462(b) Registration Statement has not been declared effective (i)
the Company has filed a Rule 462(b) Registration Statement in
compliance with and that is effective upon filing pursuant to Rule
462(b) and has received confirmation of its receipt; and (ii) the
Company has given irrevocable instructions for transmission of the
applicable filing fee in connection with the filing of the Rule 462(b)
Registration Statement, in compliance with Rule 111 promulgated under
the Act, or the Commission has received payment of such filing fee.
(vi) The descriptions in the Registration Statement and the
Prospectus of statutes, legal and governmental proceedings or
contracts and other documents are accurate and fairly present the
information required to be shown; and there are no statutes or legal
or governmental proceedings required to be described in the
Registration Statement or the Prospectus that are not described as
required and no contracts or documents of a character that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described and filed as required.
(vii) The Company and each of its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has full power
and authority (corporate and other) to own or lease its properties and
conduct its business as described in the Prospectus. The
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Company has full power and authority (corporate and other) to enter
into this Agreement and to perform its obligations hereunder. The
Company and each of its subsidiaries is duly qualified to transact
business as a foreign corporation and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, except
where the failure to so qualify would not have a material adverse
effect on the financial position, results of operations or business of
the Company and its subsidiaries, taken as a whole.
(viii) The Company's authorized, issued and outstanding
capitalization is as disclosed in the Prospectus. All of the issued
shares of capital stock of the Company (including the Selling
Stockholders' Firm Shares) have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the
description of the capital stock contained in the Prospectus. Other
than with respect to InfoCure Systems, Inc. and Thoroughbred
Acquisition, Inc., the Company does not own, directly or indirectly,
any capital stock or other equity securities of any other corporation
or any ownership interest in any partnership, joint venture or other
association. None of the issued shares of capital stock of the Company
or its predecessors or any of its subsidiaries has been issued or is
owned or held in violation of any preemptive rights of shareholders,
and no person or entity (including any holder of outstanding shares of
capital stock of the Company or its subsidiaries) has any preemptive
or other rights to subscribe for any of the Shares.
(ix) The issued shares of capital stock of each of the Company's
subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable and except as set forth in the Prospectus, or
if the Prospectus is not in existence the most recent Preliminary
Prospectus, are owned beneficially by the Company free and clear of
any security interests, liens, encumbrances, equities or claims other
than the security interests under the Line of Credit (as defined in
the Prospectus).
(x) The Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly authorized and, when issued and
delivered against payment therefore as provided herein, will be
validly issued and fully paid and nonassessable and will conform to
the description of the Common Stock contained in the Prospectus; the
certificates evidencing the Shares will comply with all applicable
requirements of Delaware law; and none of the Shares will be issued or
sold in violation of any preemptive rights of shareholders.
(xi) Except with respect to the Company's initial public offering
in July 1997, all offers and sales of Company's capital stock prior to
the date hereof were exempt from the registration requirements of the
Act by reason of Sections 3(b), 4(2)
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or 4(6) thereof and were or will have been the subject of an available
exemption from the registration requirements of the applicable state
securities or blue sky laws.
(xii) Except as disclosed in the Prospectus, there are no
outstanding (i) securities or obligations of the Company, its
predecessors or any of its subsidiaries convertible into or
exchangeable for any capital stock of the Company, its predecessors or
its subsidiaries, (ii) warrants, rights or options to subscribe for or
purchase from the Company, its predecessors or any of its subsidiaries
any such capital stock or any such convertible or exchangeable
securities or obligations, or (iii) obligations of the Company, its
predecessors or any of its successors to issue any shares of capital
stock, any such convertible or exchangeable securities or obligations,
or any such warrants, rights or options.
(xiii) Since the date of the most recent audited financial
statements included in the Prospectus, none of the Company or any of
its subsidiaries has sustained any material loss or interference with
its business 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
or contemplated by the Prospectus; and since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, (i) none of the Company or any of its subsidiaries has
incurred any liabilities or obligations, direct or contingent, or
entered into any transactions, not in the ordinary course of business,
that are material to the Company and its subsidiaries, (ii) the
Company has not purchased any of its outstanding capital stock or
declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock, (iii) there has not been any material
change in the capital stock, long-term debt or short-term debt of the
Company or any of its subsidiaries, and (iv) there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the financial position,
results of operations or business of the Company and its subsidiaries,
in each case other than as disclosed in or contemplated by the
Prospectus.
(xiv) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to the Registration Statement (or any such right has been
effectively waived) or any securities being registered pursuant to any
other registration statement filed by the Company under the Act.
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(xv) Neither the Company nor any of its subsidiaries is, or with
the giving of notice or passage of time or both would be, in violation
of its Articles of Incorporation or Bylaws or in default under any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or to which any of their respective properties
or assets are subject.
(xvi) The issue and sale of the Shares, the performance of this
Agreement and the consummation of the transactions herein contemplated
will not conflict with, or (with or without the giving of notice or
the passage of time or both) result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or to which any of their respective properties
or assets is subject, nor will such action conflict with or violate
any provision of the Articles of Incorporation or Bylaws of the
Company or any of its subsidiaries or any statute, rule or regulation
or any order, judgment or decree of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets. No
consent, approval, authorization, order or declaration of or from, or
registration, qualification or filing with, any court or governmental
agency or body is required for the issue and sale of the Shares, the
consummation of the transactions contemplated by this Agreement,
except the registration of the Shares under the Act (which, if the
Registration Statement is not effective as of the time of execution
hereof, shall be obtained as provided in this Agreement) and such as
may be required under state securities or blue sky laws in connection
with the offer, sale and distribution of the Shares by the
Underwriters.
(xvii) Each of the Company and its subsidiaries has good and
marketable title in fee simple to all real property, if any, and good
title to all personal property owned by it, in each case free and
clear of all liens, security interests, pledges, charges,
encumbrances, mortgages and defects, except such as are disclosed in
the Prospectus or such as do not materially and adversely affect the
value of such property and do not interfere with the use made or
proposed to be made of such property by the Company or such
subsidiary; and any real property and buildings held under lease by
the Company or any of its subsidiaries are held under valid,
subsisting and enforceable leases, with such exceptions as are
disclosed in the Prospectus or are not material and do not interfere
with the use made or proposed to be made of such property and
buildings by the Company or such subsidiary.
(xviii) Other than as disclosed in the Prospectus, there is no
litigation, arbitration, claim, proceeding (formal or informal) or
investigation pending or, to the knowledge of the Company, threatened
(or any basis therefor) in which the Company or any of its
subsidiaries is a party or of which any of their respective properties
or
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assets are the subject which, if determined adversely to the Company
or any such Subsidiary, would individually or in the aggregate have a
material adverse effect on the financial position, results of
operations or business of the Company and its subsidiaries. Neither
the Company nor any of its subsidiaries is in violation of, or in
default with respect to, any statute, rule, regulation, order,
judgment or decree, except as described in the Prospectus or such as
do not and will not individually or in the aggregate have a material
adverse effect on the financial position, results of operations or
business of the Company and its subsidiaries, and neither the Company
nor any of its subsidiaries is required to take any action in order to
avoid any such violation or default.
(xix) BDO Xxxxxxx, LLP, who has certified certain financial
statements of the Company and its subsidiaries, and Deloitte & Touche,
LLP, who has certified certain financial statements of The Healthcare
Systems Division of the Xxxxxxxx and Xxxxxxx Company, respectively,
are each, and were each during the periods covered by their reports
included in the Registration Statement and the Prospectus, independent
public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
(xx) The consolidated financial statements and schedules
(including the related notes) of the Company and its subsidiaries
included in the Registration Statement, the Prospectus or any
Preliminary Prospectus were prepared in accordance with generally
accepted accounting principles consistently applied throughout the
periods involved and fairly present the financial position and results
of operations of the Company and its subsidiaries, on a consolidated
basis, at the dates and for the periods presented. The selected
financial data set forth under the caption "Selected Historical
Consolidated Financial Data" in the Prospectus fairly present, on the
basis stated in the Prospectus, the information included therein. The
unaudited pro forma combined financial statements included in the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and the rules and
regulations of the Commission thereunder and management of the Company
believes (A) the assumptions underlying the pro forma adjustments are
reasonable, (B) that such adjustments have been properly applied to
the historical amounts in the compilation of such statements and (C)
that such statements fairly present, with respect to the Company and
its consolidated subsidiaries, the unaudited pro forma combined
financial position and results of operations and the other information
purported to be shown therein at the respective dates or for the
respective periods therein specified. The financial statements and
schedules (including the related notes) of the Company and each of the
Company's subsidiaries and predecessors incorporated by reference into
the Registration Statement, were prepared in accordance with generally
accepted accounting principles consistently applied throughout the
periods involved and fairly present the financial position and results
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of operations of such subsidiaries and predecessors at the dates and
for the periods presented.
(xxi) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company enforceable against the Company in accordance
with its terms, subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws relating
to or affecting the enforcement of creditors' rights generally and to
general equitable principles.
(xxii) Neither the Company nor any of its officers, directors or
affiliates has (i) taken, directly or indirectly, any action designed
to cause or result in, or that has constituted or might reasonably be
expected to constitute, the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Shares or (ii) since the filing of the Registration Statement (A)
sold, bid for, purchased or paid anyone any compensation for
soliciting purchases of, the Shares or (B) paid or agreed to pay to
any person any compensation for soliciting another to purchase any
other securities of the Company.
(xxiii) The Company has not distributed and prior to the later
of (A) the Time of Delivery and (B) the completion of the distribution
of the Shares, will not distribute any offering material in connection
with the offering and sale of Shares other than the Registration
Statement or any amendment thereto, any Preliminary Prospectus or any
amendment or supplement thereto, or other materials, if any, permitted
by the Act.
(xxiv) No labor dispute with employees of the Company or any
of its subsidiaries exists or is threatened or imminent that could
result in an adverse change in the condition (financial or otherwise),
business prospectus, net worth or respects of operations of the
Company and its subsidiaries, taken as a whole.
(xxv) The Company has obtained for the benefit of the Company
and the Underwriters from each of its directors and officers and from
the stockholders of the Company listed on Schedule II hereto a written
agreement that, for a period of 90 days from the date of the
Prospectus (except with respect to certain Selling Stockholders who
own 124,342 shares in the aggregate for which the period is 30 days
from the date of the Prospectus), such director, officer or
stockholder will not, without your prior written consent, offer,
pledge, sell, contract to sell, grant any option for the sale of, or
otherwise dispose of (or announce any offer, pledge, sale, grant of an
option to purchase or other disposition), directly or indirectly, any
shares of Common Stock or securities convertible into, or exercisable
or exchangeable for, shares of Common Stock.
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(xxvi) Neither the Company, any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any such subsidiary has, directly
or indirectly: used any corporate funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to political
activity; made any unlawful payment to foreign or domestic government
officials or employees or to foreign or domestic political parties or
campaigns from corporate funds; violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended; or made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
(xxvii) The operations of the Company and its subsidiaries with
respect to any real property currently leased or owned or by any means
controlled by the Company or any of its subsidiaries (the "Real
Property") are in compliance with all federal, state, and local laws,
ordinances, rules, and regulations relating to occupational health and
safety and the environment (collectively, "Laws"); the Company and its
subsidiaries have all licenses, permits and authorizations necessary
to operate under all Laws and are in compliance with all terms and
conditions of such licenses, permits and authorizations; none of the
Company or any of its subsidiaries has authorized, conducted or has
knowledge of the generation, transportation, storage, use, treatment,
disposal or release of any hazardous substance, hazardous waste,
hazardous material, hazardous constituent, toxic substance, pollutant,
contaminant, petroleum product, natural gas, liquefied gas or
synthetic gas defined or regulated under any environmental law on, in
or under any Real Property; and there is no pending or threatened
claim, litigation or any administrative agency proceeding, nor has the
Company or any of its subsidiaries received any written or oral notice
from any governmental entity or third party, that: (i) alleges a
violation of any Laws by the Company or any of its subsidiaries; (ii)
alleges the Company or any of its subsidiaries is a liable party under
the Comprehensive Environmental Response, Compensation, and Liability
Act, 42 U.S.C. (S) 9601 et seq. or any state superfund law; (iii)
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alleges possible contamination of the environment by the Company or
any of its subsidiaries; or (iv) alleges possible contamination of the
Real Property.
(xxviii) The Company and its subsidiaries own or have the
right to use all patents, patent applications, trademarks, trademark
applications, tradenames, service marks, copyrights, franchises, trade
secrets, proprietary or other confidential information and intangible
properties and assets (collectively, "Intangibles") necessary to their
respective businesses as presently conducted or as the Prospectus
indicates the Company or such subsidiary proposes to conduct; none of
the Company or any of its subsidiaries has infringed or is infringing,
and none of the Company or any of its subsidiaries has received notice
of infringement with respect to, asserted Intangibles of others; and,
there is no infringement by others of Intangibles of the Company or
any of its subsidiaries. There is no right under any Intangible
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necessary to the business of the Company or any of its subsidiaries as
presently convicted that the Company or any such subsidiary does not
have.
(xxix) Each of the Company and its subsidiaries has taken all
reasonable and prudent security measures to protect the ownership,
secrecy, confidentiality and value of all of its Intangibles.
(xxx) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; and none of the Company or any
such subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a comparable cost, except as
disclosed in the Prospectus.
(xxxi) Each of the Company and its subsidiaries makes and keeps
accurate books and records reflecting its assets and maintains
internal accounting controls which provide reasonable assurance that
(i) transactions are executed in accordance with management's
authorization, (ii) transactions are recorded as necessary to permit
preparation of the Company's and each of its subsidiaries'
consolidated financial statements in accordance with generally
accepted accounting principles and to maintain accountability for the
assets of the Company and each of its subsidiaries, (iii) access to
the assets of the Company and each of its subsidiaries is permitted
only in accordance with management's authorization, and (iv) the
recorded accountability for assets of the Company and each of its
subsidiaries is compared with existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(xxxii) Each of the Company and its subsidiaries has filed all
foreign, federal, state and local tax returns that are required to be
filed by it and have paid all taxes shown as due on such returns as
well as all other taxes, assessments and governmental charges that are
due and payable; and no deficiency with respect to any such return has
been assessed or proposed.
(xxxiii) The Company is not, will not become as a result of the
transactions contemplated hereby, and does not intend to conduct its
business in a manner that would cause it to become, an "investment
company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940.
(xxxiv) The Line of Credit has been duly authorized, executed
and delivered by the Company and each of its subsidiaries which is a
party thereto, and constitutes the valid and binding agreement of the
Company and each such
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subsidiary enforceable against the Company and each such subsidiary in
accordance with its terms, subject, as to enforcement, to applicable
bankruptcy, insolvency, reorganization and moratorium laws and other
laws relating to or affecting the enforcement of creditors' rights
generally and to general equitable principles.
(b) Each Selling Stockholder severally represents and warrants to, and
agrees with, each of the several Underwriters that:
(i) Such Selling Stockholder has full power (partnership, trust
and other) to enter into this Agreement and to sell, assign, transfer
and deliver to the Underwriters the Shares to be sold by such Selling
Stockholder hereunder in accordance with the terms of this Agreement;
the execution and delivery of this Agreement have been duly authorized
by all necessary actions of such Selling Stockholder (partnership,
trust or other, as applicable); and this Agreement has been duly
executed and delivered by such Selling Stockholder.
(ii) Such Selling Stockholder has duly executed and delivered
a power of attorney and custody agreement (with respect to such
Selling Stockholder, the "Power of Attorney" and the "Custody
Agreement," respectively), each in the form heretofore delivered to
the Representatives, appointing _______________ as such Selling
Stockholder's attorney-in-fact (the "Attorney-in-Fact") with authority
to execute, deliver and perform this Agreement on behalf of such
Selling Stockholder and appointing ____________________________, as
custodian thereunder (the "Custodian"). Certificates in negotiable
form, endorsed in blank or accompanied by blank stock powers duly
executed, with signatures appropriately guaranteed, representing the
Shares to be sold by such Selling Stockholder hereunder have been
deposited with the Custodian pursuant to the Custody Agreement for the
purpose of delivery pursuant to this Agreement. Such Selling
Stockholder has full power (partnership, trust or other, as
applicable) to enter into the Custody Agreement and the Power of
Attorney and to perform his obligations under the Custody Agreement.
The Custody Agreement and the Power of Attorney have been duly
executed and delivered by such Selling Stockholder and, assuming due
authorization, execution and delivery by the Custodian, are the legal,
valid, binding and enforceable instruments of such Selling
Stockholder. Such Selling Stockholder agrees that each of the Shares
represented by the certificates, on deposit with the Custodian is
subject to the interests of the Underwriters hereunder, that the
arrangements made for such custody, the appointment of the
Attorney-in-Fact and the right, power and authority of the
Attorney-in-Fact to execute and deliver this Agreement, to agree on
the price at which the Shares (including such Selling Stockholder's
Shares) are to be sold to the Underwriters, and to carry out the terms
of this Agreement, are to that extent irrevocable and that the
obligations of such Selling Stockholder hereunder shall not be
terminated, except as provided in this Agreement or the Custody
Agreement, by any act of such Selling Stockholder, by operation of law
or otherwise, whether in the
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case of any individual Selling Stockholder by the death or incapacity
of such Selling Stockholder, in the case of a trust or estate by the
death of the trustee or trustees or the executor or executors or the
termination of such trust or estate, or in the case of a partnership
Selling Stockholder by its liquidation or dissolution or by the
occurrence of any other event. If any individual Selling Stockholder,
trustee or executor should die or become incapacitated or any such
trust should be terminated, or if any corporate or partnership Selling
Stockholder shall liquidate or dissolve, or if any other event should
occur, before the delivery of such Shares hereunder, the certificates
for such Shares deposited with the Custodian shall be delivered by the
Custodian in accordance with the respective terms and conditions of
this Agreement as if such death, incapacity, termination, liquidation
or dissolution or other event had not occurred, regardless of whether
or not the Custodian or the Attorney-in-Fact shall have received
notice thereof.
(iii) Such Selling Stockholder is the lawful owner of the
Shares to be sold by such Selling Stockholder hereunder and upon sale
and delivery of, and payment for, such Shares, as provided herein,
such Selling Stockholder will convey good and valid title to such
Shares, free and clear of any security interests, liens, encumbrances,
equities, claims or other defects.
(iv) Such Selling Stockholder has not, directly or indirectly,
(A) taken any action designed to cause or result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares or (B) since
the filing of the Registration Statement (I) sold, bid for, purchased,
or paid anyone any compensation for soliciting purchases of, the
Shares or (II) paid or agreed to pay to any person any compensation
for soliciting another to purchase any other securities of the Company
(except for the sale of Shares by the Selling Stockholders under this
Agreement).
(v) Such Selling Stockholder has reviewed the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus) and the Registration Statement, and the information
regarding such Selling Stockholder set forth under the caption
"Principal and Selling Stockholders" is complete and accurate.
(vi) The Selling Stockholders have not distributed and, prior
to the later of (A) the Time of Delivery and (B) the completion of the
distribution of the Shares, will not distribute any offering material
in connection with the offering and sale of the Shares other than the
Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any supplement or amendment thereto, or
any materials, if any, permitted by the Act.
-13-
(vii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Internal Revenue Code of
1986, as amended, with respect to the transactions herein
contemplated, such Selling Stockholder agrees to deliver to the
Representatives prior to or on the Time of Delivery a properly
completed and executed United States Treasury Department Form W-8 or
W-9 (or other applicable form or statement specified by the Treasury
Department regulations in lieu thereof).
(viii) The sale by such Selling Stockholder of Shares pursuant
hereto is not prompted by any adverse information concerning the
Company that is not set forth in the Registration Statement or the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(ix) The sale of the Shares to the Underwriters by such Selling
Stockholder pursuant to this Agreement, the compliance by such Selling
Stockholder with the other provisions of this Agreement and the
Custody Agreement and the consummation of the other transactions
herein contemplated do not (A) require the consent, approval,
authorization, registration or qualification of or with any
governmental authority, except such as has been obtained, such as the
registration under state securities or blue sky laws and, if the
registration statement filed with respect to the Shares (as amended)
is not effective under the Act as of the time of execution hereof,
such as may be required (and shall be obtained as provided in this
Agreement) under the Act and the Exchange Act, or (B) conflict with or
result in a breach or violation of any of the terms and provisions of,
or constitute a default under any indenture, mortgage, deed of trust,
lease or other material agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder or any of
such Selling Stockholder's properties are bound, or any statute or any
judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator applicable to such Selling
Stockholder.
2. Purchase and Sale of Shares.
(a) Subject to the terms and conditions herein set forth, (a) the
Company agrees to issue and sell and each of the Selling Stockholders,
severally and not jointly, agrees to sell to each of the Underwriters,
and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company and the Selling Stockholders, at a purchase
price of $_________ per share, the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto, and (b) in
the event and to the extent that the Underwriters shall exercise the
election to purchase Optional Shares as provided below, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the
Company, at the purchase price per share set forth in clause (a) of
this Section 2, that portion of the number of Optional Shares as to
which such election shall have been exercised (to be adjusted by you
so as to eliminate fractional
-14-
shares) determined by multiplying such number of Optional Shares by a
fraction, the numerator of which is the maximum number of Optional
Shares that such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of the Optional Shares that
all of the Underwriters are entitled to purchase hereunder.
(b) The Company hereby grants to the Underwriters the right to
purchase at their election in whole or in part from time to time up to
_______ Optional Shares, at the purchase price per share set forth in
clause (a) in the paragraph above plus, if the purchase and sale of
any Optional Shares takes place after the First Time of Delivery (as
hereinafter defined) and after the Firm Shares are traded "ex-
dividend," an amount equal to the dividends payable on such Optional
Shares, for the sole purpose of covering over-allotments in the sale
of Firm Shares. Any such election to purchase Optional Shares may be
exercised by written notice from you to the Company, given from time
to time within a period of 30 calendar days after the date of this
Agreement (or, if such 30th day shall be a Saturday or Sunday or a
holiday, on the next business day thereafter when the New York Stock
Exchange is open for trading) and setting forth the aggregate number
of Optional Shares to be purchased and the date on which such Optional
Shares are to be delivered, as determined by you but in no event
earlier than the First Time of Delivery or, unless you and the Company
otherwise agree in writing, earlier than two or later than ten
business days after the date of such notice. In the event you elect to
purchase all or a portion of the Optional Shares, the Company agrees
to furnish or cause to be furnished to you the certificates, letters
and opinions, and to satisfy all conditions, set forth in Section 7
hereof at each Subsequent Time of Delivery (as hereinafter defined).
(c) The Company and the Selling Stockholders hereby acknowledge
that the wire transfer by or on behalf of the Underwriters of the
purchase price for any Shares does not constitute closing of a
purchase and sale of the Shares. Only execution and delivery of a
receipt for Shares by the Underwriters indicates completion of the
closing of a purchase of the Shares from the Company and the Selling
Stockholders. Furthermore, in the event that the Underwriters wire
funds to the Company and the Selling Stockholders prior to the
completion of the closing of a purchase of Shares, the Company and the
Selling Stockholders hereby acknowledge that until the Underwriters
execute and deliver a receipt for the Shares, by facsimile or
otherwise, the Company and the Selling Stockholders will not be
entitled to the wired funds and shall return the wired funds to the
Underwriters as soon as practicable (by wire transfer of same-day
funds) upon demand. In the event that the closing of a purchase of
Shares is not completed and the wire funds are not returned by the
Company and the Selling Stockholders to the Underwriters on the same
day the wired funds were received by the Company and the Selling
Stockholders, the Company and the Selling Stockholders, as the case
may be, agree to pay to the Underwriters in respect of each day the
wire funds are not returned by it, in same-day funds, interest on the
amount of such wire funds in an amount representing the Underwriters'
cost of financing as reasonably determined by The Xxxxxxxx-Xxxxxxxx
Company, LLC .
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3. Offering by the Underwriters. Upon the authorization by you of the
release of the Shares, the several Underwriters propose to offer the Shares for
sale upon the terms and conditions disclosed in the Prospectus.
4. Delivery of Shares; Closing. Certificates in definitive form for the
Shares to be purchased by each Underwriter hereunder, and in such denominations
and registered in such names as The Xxxxxxxx-Xxxxxxxx Company, LLC may request
upon at least 48 hours prior notice to the Company shall be delivered by or on
behalf of the Company to you for the account of such Underwriter, against
payment by such Underwriter on its behalf of the purchase price therefor by wire
transfer of immediately available funds to an account designated by the Company.
The closing of the sale and purchase of the Shares shall be held at the offices
of King & Spalding, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, except that
physical delivery of such certificates shall be made at the office of The
Depository Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The time
and date of such delivery and payment shall be, with respect to the Firm Shares,
at 10:00 a.m., Atlanta time, on the third full business day after the execution
of this Agreement or at such other time and date as you and the Company may
agree upon in writing, and, with respect to the Optional Shares, at 10:00 a.m.,
Atlanta time, on the date specified by you in the written notice given by you of
the Underwriters' election to purchase all or part of such Optional Shares, or
at such other time and date as you and the Company may agree upon in writing.
Such time and date for delivery of the Firm Shares is herein called the "First
Time of Delivery," such time and date for delivery of the Optional Shares, if
not the First Time of Delivery, is herein called a "Subsequent Time of
Delivery," and each such time and date for delivery is herein called a "Time of
Delivery." The Company will make such certificates available for checking and
packaging at least 24 hours prior to each Time of Delivery at the office of The
Depository Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such
other location in New York, New York specified by you in writing at least 48
hours prior to such Time of Delivery.
5. Covenants of the Company and the Selling Stockholders.
(a) The Company covenants and agrees with each of the Underwriters:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of
this Agreement, and any amendments thereto, to become effective as
promptly as possible. If the Registration Statement has been declared
effective prior to the execution and delivery of this Agreement, the
Company will file either (A) the Prospectus with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable
and if consented to by you, subparagraph (4)) of Rule 424(b) or (B) a
Term Sheet with the Commission pursuant to and in accordance with Rule
434 not later than the earlier of (i) the second business day
following the execution and delivery of this Agreement or (ii) the
fifth business day after the date on which the Registration Statement
is declared effective. The Company will advise you promptly of any
such filing pursuant to Rule 424(b) or Rule 434.
-16-
(ii) The Company will not file with the Commission the Prospectus
or the amendment referred to in the second sentence of Section 1(a)(i)
hereof, any amendment or supplement to the Prospectus, any Term Sheet,
any amendment to the Registration Statement or any Rule 462(b)
Registration Statement unless you have received a reasonable period of
time to review any such proposed amendment or supplement and consented
to the filing thereof and will use its best efforts to cause any such
amendment to the Registration Statement to be declared effective as
promptly as possible. Upon the request of the Representatives or
counsel for the Underwriters, the Company will promptly prepare and
file with the Commission, in accordance with the rules and regulations
of the Commission, any amendments to the Registration Statement or any
amendments or supplements to the Prospectus or any Term Sheet that
may be necessary or advisable in connection with the distribution of
the Shares by the several Underwriters and will use its best efforts
to cause any such amendment to the Registration Statement to be
declared effective as promptly as possible. If required, the Company
will file any amendment or supplement to the Prospectus or any Term
Sheet with the Commission in the manner and within the time period
required by Rule 424(b) and Rule 434, as applicable, under the Act.
The Company will advise the Representatives, promptly after receiving
notice thereof, of the time when the Original Registration Statement
or any amendment thereto or any Rule 462(b) Registration Statement has
been filed or declared effective or the Prospectus or any amendment or
supplement thereto has been filed and will provide evidence to the
Representatives of each such filing or effectiveness.
(iii)The Company will advise you promptly after receiving notice
or obtaining knowledge of (i) the issuance by the Commission of any
stop order suspending the effectiveness of the Original Registration
Statement or any Rule 462(b) Registration Statement or any part
thereof or any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, (ii) the suspension of the qualification of the
Shares for offer or sale in any jurisdiction or of the initiation or
threatening of any proceeding for any such purpose, or (iii) any
request made by the Commission or any securities authority of any
other jurisdiction for amending the Original Registration Statement or
any Rule 462(b) Registration Statement, for amending or supplementing
the Prospectus or for additional information. The Company will use
its best efforts to prevent the issuance of any such stop order and,
if any such stop order is issued, to obtain the withdrawal thereof as
promptly as possible.
(iv) If the delivery of a prospectus relating to the Shares is
required under the Act at any time prior to the expiration of nine
months after the date of the Prospectus and if at such time any events
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not
-17-
misleading, or if for any reason it is necessary during such same
period to amend or supplement the Prospectus to comply with the Act or
the rules and regulations thereunder, the Company will promptly notify
you and upon your request (but at the Company's expense) prepare and
file with the Commission an amendment or supplement to the Prospectus
that corrects such statement or omission or effects such compliance
and will furnish without charge to each Underwriter and to any dealer
in securities as many copies of such amended or supplemented
Prospectus as you may from time to time reasonably request. If the
delivery of a prospectus relating to the Shares is required under the
Act at any time nine months or more after the date of the Prospectus,
upon your request but at the expense of such Underwriter, the Company
will prepare and deliver to such Underwriter as many copies as you may
request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act. Neither your consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 7.
(v) The Company promptly from time to time will take such action
as you may reasonably request to qualify the Shares for offering and
sale under the securities or blue sky laws of such jurisdictions as
you may request and will continue such qualifications in effect for as
long as may be necessary to complete the distribution of the Shares,
provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction.
(vi) The Company will promptly provide you, without charge, (i)
four manually executed copies of the Original Registration Statement
and any Rule 462(b) Registration Statement as originally filed with
the Commission and of each amendment thereto, (ii) for each other
Underwriter a conformed copy of the Original Registration Statement
and any Rule 462(b) Registration Statement as originally filed and of
each amendment thereto, without exhibits, and (iii) so long as a
prospectus relating to the Shares is required to be delivered under
the Act, as many copies of each Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto as you may
reasonably request.
(vii) As soon as practicable, but in any event not later than
the last day of the thirteenth month after the later of the effective
date of the Original Registration Statement and any Rule 462(b)
Registration Statement, the Company will make generally available to
its security holders an earnings statement of the Company and its
subsidiaries, if any, covering a period of at least 12 months
beginning after the later of the effective date of the Original
Registration Statement and any Rule 462(b) Registration Statement
(which need not be audited) complying with Section 11(a) of the Act
and the rules and regulations thereunder.
-18-
(viii) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, the Company will not, without your prior written consent,
offer, pledge, issue, sell, contract to sell, grant any option for the
sale of, or otherwise dispose of (or announce any offer, pledge, sale,
grant of an option to purchase or other disposition), directly or
indirectly, any shares of Common Stock or securities convertible into,
exercisable or exchangeable for, shares of Common Stock, except as
provided in Section 2 and except for (i) the issuance of Common Stock
to the stockholders of a company in connection with the acquisition of
such company by the Company, provided that each such stockholder
agrees not to offer, sell, contract to sell, grant any option for the
sale of, or otherwise dispose of, directly or indirectly, such shares
of Common Stock for a period continuing to and including the date 90
days after the date of the Prospectus, without the prior written
consent of the Underwriters, (ii) the grant and exercise of options
pursuant to the Company's directors' option plan, American Medcare
1996 Stock Option Plan, InfoCure Corporation 1996 Stock Option Plan,
InfoCure Corporation Employee Stock Purchase Plan and InfoCure Length-
of-Service Nonqualified Stock Option Plan (each as described in the
Prospectus) in effect at the First Time of Delivery, provided that
such options are not exercisable prior to the date 90 days after the
date of the Prospectus and (iii) the issuance of Common Stock pursuant
to (x) the exercise of currently outstanding options and warrants
described in the Prospectus, (y) the conversion of the Company's
currently outstanding Series A Preferred Stock and (z) the terms of
the notes outstanding in favor Finova Corporation issued in connection
with the Company's credit facility and Commercial Computers, Inc.,
each as described in the Prospectus.
(ix) During a period of five years from the later of the
effective date of the Original Registration Statement or any Rule
462(b) Registration Statement, the Company will furnish to you and,
upon request, to each of the other Underwriters, without charge, (i)
copies of all reports or other communications (financial or other)
furnished to shareholders, (ii) as soon as they are available, copies
of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange, and (iii) such
additional information concerning the business and financial condition
of the Company and its subsidiaries, if any, as you may reasonably
request.
(x) Neither the Company nor any of its officers, directors or
affiliates will (i) take, directly or indirectly, prior to the
termination of the underwriting syndicate contemplated by this
Agreement, any action designed to cause or to result in, or that might
reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Shares, (ii) sell, bid for, purchase
or pay anyone any compensation for soliciting purchases of, the Shares
or (iii) pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
-19-
(xi) The Company will apply the net proceeds from the offering in
the manner set forth under "Use of Proceeds" in the Prospectus.
(xii)The Company will cause the Shares to be listed on the
National Association of Securities Dealers Automated Quotation
National Market System ("The Nasdaq Stock Market"), subject to notice
of issuance, at each Time of Delivery and for at least one year from
the date hereof.
(xiii) If at any time during the period beginning on the later of
the effective date of the Original Registration Statement or any Rule
462(b) Registration Statement and ending on the later of (i) the date
30 days after such effective date and (ii) the date that is the
earlier of (A) the date on which the Company first files with the
Commission a Quarterly Report on Form 10-Q after such effective date
and (B) the date on which the Company first issues a quarterly
financial report to stockholders after such effective date, any rumor,
publication or event relating to or affecting the Company shall occur
as a result of which in your reasonable opinion the market price of
the Common Stock has been or is likely to be materially affected
(regardless of whether such rumor, publication or event necessitates
an amendment of or supplement to the Prospectus), the Company will,
after written notice from you advising the Company to the effect set
forth above, forthwith prepare, consult with you concerning the
substance of, and disseminate a press release or other public
statement, reasonably satisfactory to you, responding to or commenting
on such rumor, publication or event.
(xiv) If the Company elects to rely upon Rule 462(b), the
Company shall both file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) and pay the applicable fees
in accordance with Rule 111 promulgated under the Act by the earlier
of (i) 10:00 p.m., Washington, D.C. time, on the date of this
Agreement and (ii) the time confirmations are sent or given, as
specified by Rule 462(b)(2).
(xv) All offers and sales of the Company's capital stock prior
the date hereof were at all relevant times duly registered under the
Act or exempt from the registration requirements of the Act by reason
of Sections 3(b), 4(2) or 4(6) thereof and were duly registered or the
subject of an available exemption from the registration requirements
of the applicable state securities or blue sky laws.
(b) Each Selling Stockholder covenants and agrees with each of the
Underwriters that:
(i) Such Selling Stockholder will not, directly or indirectly,
(A) take any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of
-20-
any security of the Company to facilitate the sale or resale of the
Shares or (B) (I) sell, bid for, purchase, or pay anyone any
compensation for soliciting purchases of, the Shares or (II) prior to
the termination of the underwriting syndicate contemplated by this
Agreement, pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the Company
(except for the sale of Shares by the Selling Stockholder under this
Agreement).
(ii) Such Selling Stockholders will not, directly or indirectly,
without the prior written consent of The Xxxxxxxx-Xxxxxxxx Company,
LLC, on behalf of the Underwriters, offer, sell, offer to sell,
contract to sell, pledge, grant any option to purchase or otherwise
sell or dispose (or announce any offer, sale, offer of sale, contract
of sale, pledge, grant of any option to purchase or other sale or
disposition) of any shares of Common Stock or any securities
convertible into, or exchangeable or exercisable for, Common Stock or
other stock of the Company, or any right to purchase or acquire Common
Stock or other capital stock of the Company for a period of 90 days
after the date hereof, except pursuant to this Agreement.
6. Expenses. The Company covenants and agrees with the several
Underwriters that they will pay or cause to be paid all costs and expenses
incident to the performance of its obligations under this Agreement, whether or
not the transactions contemplated hereby are consummated or this Agreement is
terminated pursuant to Section 10 hereof, including without limitation all costs
and expenses incident to (i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation,
printing and, if applicable, filing of the Original Registration Statement
(including all amendments thereto), any Rule 462(b) Registration Statement, any
Preliminary Prospectus, the Prospectus and any amendments and supplements
thereto, this Agreement; (ii) the delivery of copies of the foregoing documents
to the Underwriters; (iii) the filing fees of the Commission and the National
Association of Securities Dealers, Inc. relating to the Shares; (iv) the
preparation, issuance and delivery to the Underwriters of any certificates
evidencing the Shares, including transfer agent's and registrar's fees; (v) any
listing of the securities on the Nasdaq Stock Market and (vi) any expenses for
travel, lodging and meals incurred by the Company and any of its officers,
directors and employees in connection with any meetings with prospective
investors in the Shares. It is understood, however, that, except as provided in
this Section, Section 8 and Section 10 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, stock
transfer taxes on resale of any of the Shares by them, and any advertising
expenses relating to the offer and sale of the Shares.
7. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters hereunder to purchase and pay for the Shares to be delivered at
each Time of Delivery shall be subject, in their discretion, to the accuracy of
the representations and warranties of the Company contained herein as of the
date hereof and as of such Time of Delivery, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the
-21-
Company of its respective covenants and agreements hereunder, and to the
following additional conditions precedent:
(a) If the Original Registration Statement as amended to date has not
become effective prior to the execution of this Agreement, such Original
Registration Statement and, if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have been declared
effective not later than the earlier of (i) 11:00 a.m., Atlanta time, on
the date of this Agreement, and (ii) the time confirmations are sent or
given as specified by Rule 462(b)(2), or, with respect to the Original
Registration Statement such later date and/or time as shall have been
consented to by you in writing. The Prospectus and any amendment or
supplement thereto or a Term Sheet shall have been filed with the
Commission pursuant to Rule 424(b) or Rule 434, as applicable, within the
applicable time period prescribed for such filing and in accordance with
Section 5(a) of this Agreement; no stop order suspending the effectiveness
of the Registration Statement or any Rule 462(b) Registration Statement,
respectively, or any part thereof shall have been issued and no proceedings
for that purpose shall have been instituted, threatened or, to the
knowledge of the Company and the Representatives, contemplated by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated such Time of Delivery,
with respect to the incorporation of the Company, the validity of the
Shares being delivered at such Time of Delivery, the Registration
Statement, the Prospectus, and other related matters as you may reasonably
request, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(c) You shall have received an opinion, dated such Time of Delivery,
of Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P., counsel for the Company in form and
substance satisfactory to you and your counsel, to the effect that:
(i) The Company and each of its subsidiaries have been duly
incorporated, and are, based solely on a review of good standing
certificates with respect to the Company and each of its subsidiaries
dated within five business days of the Time of Delivery, validly
existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation and have the corporate power
and authority to own or lease their properties and conduct their
business as described in the Registration Statement and the
Prospectus. The Company has the corporate power and authority to
enter into this Agreement and perform its obligations hereunder. The
Company and each of its subsidiaries are duly qualified to transact
business as a foreign corporation and are in good standing under the
laws of each other jurisdiction in which they own or lease property,
or conduct any business, so as to require such qualification, except
where the failure to so qualify would not have
-22-
a material adverse effect on the financial position, results of
operations or business of the Company and its subsidiaries.
(ii) The Company's authorized, issued and outstanding capital
stock is as disclosed in the Prospectus. All of the issued shares of
capital stock of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the
description of the Common Stock contained in the Prospectus. None of
the issued shares of capital stock of the Company or its predecessors
or any of its subsidiaries has been issued or is owned or held in
violation of any preemptive rights of shareholders, and no person or
entity (including any holder of outstanding shares of capital stock of
the Company or its subsidiaries) has any preemptive or other rights to
subscribe for any of the Shares.
(iii) The issued shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued,
and are fully paid and nonassessable and, except as otherwise set
forth in the Prospectus, are owned beneficially by the Company free
and clear of any perfected security interests, liens, encumbrances,
equities or claims, except for the security interests under the Line
of Credit.
(iv) The Company's Firm Shares have been duly authorized and,
when issued and delivered against payment therefor as provided herein,
will be validly issued and fully paid and nonassessable and will
conform to the description of the Common Stock contained in the
Prospectus; the Selling Stockholders' Firm Shares have been duly
authorized and are validly issued, fully paid and nonassessable and
conform to the description of Common Stock contained in the
Prospectus; the certificates evidencing the Shares comply with all
applicable requirements of Delaware law; the Shares have been listed,
subject to notice of issuance, on the Nasdaq Stock Market.
(v) All offers and sales of the Company's capital stock prior to
the date hereof were at all relevant times duly registered under the
Act or exempt from the registration requirements of the Act by reason
of Sections 3(b), 4(2) or 4(6) thereof and were duly registered or the
subject of an available exemption from the registration requirements
of the applicable state securities or blue sky laws.
(vi) Except as disclosed in the Prospectus, to such counsel's
knowledge, there are no outstanding (A) securities or obligations of
the Company or any of its predecessor or subsidiaries convertible into
or exchangeable for any capital stock of the Company or any such
predecessor or subsidiary, (B) warrants, rights or options to
subscribe for or purchase from the Company or such predecessor or
subsidiary any such capital stock or any such convertible or
exchangeable securities or obligations, or (C) obligations of the
Company or any such predecessor subsidiary to issue any
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shares of capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or options.
(vii) Except as disclosed in the Prospectus, to such counsel's
knowledge, there are no contracts, agreements or understandings
between the Company or any of its subsidiaries and any person granting
such person the right to require the Company or any of its
subsidiaries to file a registration statement under the Act with
respect to any securities of the Company or any of its subsidiaries
owned or to be owned by such person or to require the Company or any
of its subsidiaries to include such securities in the securities
registered pursuant to the Registration Statement (or any such right
has been effectively waived) or in any securities being registered
pursuant to any other registration statement filed by the Company or
any of its subsidiaries under the Act.
(viii) To such counsel's knowledge, neither the Company nor
any of its subsidiaries is, or with the giving of notice or passage of
time or both, would be, in violation of its Articles of Incorporation
or Bylaws or in default under any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which the
Company or any such subsidiary is a party or to which any of their
respective properties or assets is subject.
(ix) The issue and sale of the Shares being issued at such Time
of Delivery, the performance of this Agreement and the consummation of
the transactions herein contemplated, will not conflict with, or (with
or without the giving of notice or the passage of time or both) result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or to which any of their
respective properties or assets is subject, nor will such action
conflict with or violate any provision of the Articles of
Incorporation or Bylaws of the Company or any of its subsidiaries or
any statute, rule or regulation or, to such counsel's knowledge, any
order, judgment or decree of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any
of their respective properties or assets. No consent, approval,
authorization, order or declaration of or from, or registration,
qualification or filing with, any court or governmental agency or body
is required for the issue and sale of the Shares, the consummation of
the transactions contemplated by this Agreement, except the
registration of the Shares under the Act and such as may be required
under state securities or blue sky laws in connection with the offer,
sale and distribution of the Shares by the Underwriters.
(x) Any real property and buildings which to the knowledge of
such counsel are held under lease by the Company or any of its
subsidiaries are held by the Company or such subsidiary under valid,
subsisting and enforceable leases with
-24-
such exceptions as are disclosed in the Prospectus or are not material
and do not interfere with the use made and proposed to be made of such
property and buildings by the Company or such subsidiary.
(xi) To such counsel's knowledge and other than as disclosed in
or contemplated by the Prospectus, there is no litigation,
arbitration, claim, proceeding (formal or informal) or investigation
pending or threatened (or any basis therefor) in which the Company or
any of its subsidiaries is a party or of which any of their respective
properties or assets is the subject which, if determined adversely to
the Company or any such subsidiary, would individually or in the
aggregate have a material adverse effect on the financial position,
results of operations or business of the Company and its subsidiaries;
and, to such counsel's knowledge, neither the Company nor any of its
subsidiaries is in violation of, or in default with respect to, any
statute, rule, regulation, order, judgment or decree, except as
described in the Prospectus, nor is the Company or any subsidiary
required to take any action in order to avoid any such violation or
default.
(xii) This Agreement has been duly authorized, executed and
delivered by the Company.
(xv) Each acquisition agreement relating to the acquisitions
described in the Prospectus under the caption "The Company" has been
duly authorized, executed and delivered by the Company and each of its
subsidiaries or predecessors, as applicable, and each other party
thereto and constitutes the valid and binding agreement of the Company
and such predecessor or subsidiary enforceable against the Company and
such predecessor or subsidiary in accordance with its terms, subject,
as to enforcement, to applicable bankruptcy, insolvency,
reorganization and moratorium laws and other laws relating to or
affecting the enforcement of creditors' rights generally and to
general equitable principles.
(xvi) The Line of Credit has been duly authorized, executed and
delivered by the Company and each of its subsidiaries which is a party
thereto and constitutes the valid and binding agreement of the Company
and each subsidiary enforceable against the Company and each such
subsidiary in accordance with its terms, subject, as to enforcement,
to applicable bankruptcy, insolvency, reorganization and moratorium
laws and other laws relating to or affecting the enforcement of
creditors' rights generally and to general equitable principles.
(xvii) The Registration Statement, any Rule 462(b) Registration
Statement and the Prospectus and each amendment or supplement thereto
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion), as of their respective
effective or issue dates, complied as to form in all material respects
with the requirements of the Act and the rules and
-25-
regulations thereunder. The descriptions in the Registration Statement
and the Prospectus of statutes, legal and governmental proceedings or
contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel do not know of any
statutes or legal or governmental proceedings required to be described
in the Registration Statement, any Rule 462(b) Registration Statement
or Prospectus that are not described as required or of any contracts
or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required.
(xviii) Each of the Registration Statement and any Rule 462(b)
Registration Statement is effective under the Act; any required filing
of the Prospectus or any Term Sheet pursuant to Rule 424(b) or Rule
434, as applicable, has been made in the manner and within the time
period required by Rule 424(b) or Rule 434, as applicable; and no stop
order suspending the effectiveness of the Registration Statement or
any Rule 462(b) Registration Statement, respectively, or any part
thereof has been issued and, to such counsel's knowledge, no
proceedings for that purpose have been instituted or threatened or are
contemplated by the Commission.
(xix) The Company is not, and will not be as a result of the
consummation of the transactions contemplated by this Agreement, an
"investment company," or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940.
(xx) If the Company elects to rely upon Rule 434, the Prospectus
is not "materially different", as such term is used in Rule 434, from
the prospectus included in the Registration Statement at the time of
its effectiveness or an effective post-effective amendment thereto
(including such information that is permitted to be omitted pursuant
to Rule 430A).
Such counsel shall also state that, although such counsel has not
independently verified the accuracy or completeness of the information in
the Registration Statement and the Prospectus, they have participated in
conferences with representatives of the Company and independent
accountants, at which the contents of the Registration Statement and
Prospectus were discussed at length, and although there is no assurance
that all possible material information concerning the Company was disclosed
at such conferences, they have no reason to believe that the Registration
Statement, or any further amendment thereto made prior to such Time of
Delivery, on its effective date and as of such Time of Delivery, contained
or contains any untrue statement of a material fact or omitted or omits to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus, or any
amendment or supplement thereto made prior to such Time of Delivery, as of
its issue date and as of such Time of Delivery, contained or contains any
untrue statement of a material fact or omitted or omits to state a material
fact
-26-
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (provided that
such counsel need express no belief regarding the financial statements and
related schedules and other financial data contained in the Registration
Statement, any amendment thereto, or the Prospectus, or any amendment or
supplement thereto).
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deem proper, on certificates of
responsible officers of the Company and its subsidiaries and public
officials and, as to matters involving the application of laws of any
jurisdiction other than the State of Georgia, the business corporation law
of the State of Delaware or the United States, to the extent satisfactory
in form and scope to counsel for the Underwriters, upon the opinion of
local counsel satisfactory to the Underwriters, provided that such counsel
states such counsel believes that the Underwriters are justified in relying
upon such opinion and copies of such opinion are delivered to the
Representatives and counsel for the Underwriters.
References to the Registration Statement and the Prospectus in this
paragraph (c) shall include any amendment or supplement thereto at the date
of such opinion.
(d) The Representatives shall have received an opinion, dated such
Time of Delivery of Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P., counsel for the
Selling Stockholders to the effect that:
(i) To the knowledge of such counsel, each Selling Stockholder
has full power (partnership, trust or other) to enter into this
Agreement, the Custody Agreement and the Power of Attorney and to
sell, assign, transfer and deliver to the Underwriters the Shares to
be sold by such Selling Stockholder hereunder in accordance with the
terms of this Agreement, and to perform his or its obligations under
the Custody Agreement; to the knowledge of such counsel, the execution
and delivery of this Agreement, the Custody Agreement and the Power
of Attorney have been duly authorized by all necessary action
(partnership, trust or other) of each Selling Stockholder; this
Agreement, the Custody Agreement and the Power of Attorney have been
executed and delivered by such Selling Stockholder; this Agreement
and, assuming due authorization, execution and delivery by the
Custodian, the Custody Agreement and the Power of Attorney, are the
legal, valid, binding and enforceable instruments of such Selling
Stockholder, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(ii) Assuming the due authorization, execution and delivery of
each of the Power of Attorney and Custody Agreement by each Selling
Stockholder and that such agreements have not been revoked, the
delivery by such Selling Stockholder to
-27-
the Underwriters of duly endorsed certificates for the Shares being
sold hereunder by such Selling Stockholder against payment therefor as
provided herein, will convey good and marketable title to such Shares
to the several Underwriters, free and clear of any security interests,
liens, encumbrances, equities, claims or other defects, provided that
the Underwriters purchase such Shares in good faith and without any
notice of any adverse claim within the meaning of the Uniform
Commercial Code as in effect in the State of Georgia; and
(iii) To the knowledge of such counsel, the sale of the Shares
to the Underwriters by such Selling Stockholder pursuant to this
Agreement, the compliance by such Selling Stockholder with the other
provisions of this Agreement and the Custody Agreement and the
consummation of the other transactions herein contemplated do not (A)
require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as
has been obtained, and except such as may be required for registration
under state securities or blue sky laws (as to which such counsel
expresses no opinion) or (B) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a
default under any indenture, mortgage, deed of trust, lease or other
agreement or instrument to which such Selling Stockholder is a party
or by which such Selling Stockholder or any of such Selling
Stockholder's properties are bound and which is known to such counsel,
or any statute or any judgment, decree, order, rule or regulation
known to such counsel of any court or other governmental authority or
any arbitrator applicable to such Selling Stockholder.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of the
Selling Stockholders, responsible officers of the Company and public
officials and, as to matters involving the application of laws of any
jurisdiction other than the State of Georgia, the business corporation law
of the State of Delaware or the United States, to the extent satisfactory
in form and scope to counsel for the Underwriters, upon the opinion of
local counsel satisfactory to the Underwriters, provided that such counsel
states such counsel believes that the Underwriters are justified in relying
upon such opinion and copies of such opinion are delivered to the
Representatives and counsel for the Underwriters.
References to the Registration Statement and the Prospectus in this
paragraph (d) shall include any amendment or supplement thereto at the date
of such opinion.
(e) You shall have received from BDO Xxxxxxx, LLP and Deloitte &
Touche LLP, as appropriate, letters dated, respectively, the date hereof
(or, if the Registration Statement has been declared effective prior to the
execution and delivery of this Agreement, dated such effective date and the
date of this Agreement) and each Time of Delivery, in form and substance
satisfactory to you, to the effect set forth in Annex I hereto. In the
event that the letters referred to in the immediately preceding sentence
set forth any changes, decreases
-28-
or increases in the items specified in paragraph (iii) of Annex I, it shall
be a further condition to the obligations of the Underwriters that (i) such
letters shall be accompanied by a written explanation by the Company as to
the significance thereof, unless the Representatives deem such explanation
unnecessary, and (ii) such changes, decreases or increases do not, in your
sole judgment, make it impracticable or inadvisable to proceed with the
purchase, sale and delivery of the Shares being delivered at such Time of
Delivery as contemplated by the Registration Statement, as amended as of
the date of such letter. You shall have received from BDO Xxxxxxx, LLP and
letters dated, respectively, the date hereof (or, if the Registration
Statement has been declared effective prior to the execution and delivery
of this Agreement, dated such effective date and the date of this
Agreement) and each Time of Delivery, in form and substance satisfactory to
you, to the effect set forth in Annex I hereto.
(f) Since the date of the latest audited financial statements included
in the Prospectus, none of the Company or any of the its subsidiaries shall
have sustained (i) any loss or interference with their respective
businesses from fire, explosion, flood, hurricane 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 or
contemplated by the Prospectus, or (ii) any change, or any development
involving a prospective change (including without limitation a change in
management or control of the Company), in or affecting the position
(financial or otherwise), results of operations, net worth or business
prospects of the Company and its subsidiaries, otherwise than as disclosed
in or contemplated by the Prospectus, the effect of which, in either such
case, is in your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the purchase, sale and
delivery of the Shares being delivered at such Time of Delivery as
contemplated by the Registration Statement, as amended as of the date
hereof.
(g) Subsequent to the date hereof there shall not have occurred any of
the following: (i) any suspension or limitation in trading in securities
generally on the Nasdaq Stock Market, or any setting of minimum prices for
trading on such exchange, or in the Common Stock by the Commission or the
Nasdaq Stock Market; (ii) a moratorium on commercial banking activities in
New York declared by either federal or state authorities; or (iii) any
outbreak or escalation of hostilities involving the United States,
declaration by the United States of a national emergency or war or any
other national or international calamity or emergency if the effect of any
such event specified in this clause (iii) in your judgment makes it
impracticable or inadvisable to proceed with the purchase, sale and
delivery of the Shares being delivered at such Time of Delivery as
contemplated by the Registration Statement, as amended as of the date
hereof.
(h) The Representatives shall have received a certificate, dated the
Time of Delivery, of the principal executive officer and the principal
financial or accounting officer of the Company to the effect that:
-29-
(i) the representations and warranties of the Company in this Agreement are
true and correct as if made on and as of the Time of Delivery; such officer has
examined the Registration Statement and the Registration Statement, as amended
as of the Time of Delivery, does not include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
not misleading, and the Prospectus, as amended or supplemented as of the Time of
Delivery, does not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; and
the Company has performed all covenants and agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Time of
Delivery;
(ii) no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto and no order directed at any
document incorporated by reference in the Registration Statement or the
Prospectus or any amendment or supplement thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or, to the best
of the Company's knowledge, are contemplated by the Commission; and
(iii) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, neither the Company nor
any of its subsidiaries has sustained any material loss or interference with
their respective businesses or properties from fire, flood, hurricane, accident
or other calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding, and there has not been any
material adverse change, or any development involving a prospective material
adverse change, in the condition (financial or otherwise), management, business
prospects, net worth or results of operations of the Company or any of its
subsidiaries, except in each case as described in or contemplated by the
Prospectus.
(i) The Representatives shall have received a certificate from the
Attorney-in-Fact on behalf of each Selling Stockholder, dated the Time of
Delivery, to the effect that:
(i) the representations and warranties of such Selling
Stockholder in this Agreement are true and correct as if made on and as of
the Time of Delivery; and
(ii) such Selling Stockholder has performed all covenants and
agreements on its part to be performed or satisfied at or prior to the
Time of Delivery;
(j) The Representatives shall have received from each person who is a
director or executive officer of the Company, or a Selling Stockholder, an
agreement to the effect that such person will not, directly or indirectly,
without the prior written consent of The Xxxxxxxx-Xxxxxxxx Company, LLC, on
behalf of the Underwriters, offer, sell, offer to sell,
-30-
contract to sell, pledge, grant any option to purchase or otherwise sell or
dispose (or announce any offer, sale, offer of sale, contract of sale, pledge,
grant of an option to purchase or other sale or disposition) of any shares of
Common Stock or any securities convertible into, or exchangeable or exercisable
for, shares of Common Stock for a period of 90 days after the date of this
Agreement (except with respect to certain Selling Stockholders who own 124,342
shares in the aggregate for which the period is 30 days from the date of the
Prospectus);
(k) On or before the Firm Closing Date, the Representatives and counsel for
the Underwriters shall have received such further certificates, documents or
other information as they may have reasonably requested from the Company; and
(l) The Shares shall be listed on the Nasdaq Stock Market, subject to
notice of issuance.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and pay
for any Option Shares shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Shares, except that all references to
the Firm Shares and the First Time of Delivery shall be deemed to refer to such
Option Shares and the related Subsequent Time of Delivery, respectively.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon: (i) any untrue statement or alleged untrue statement made
by the Company in Section 1 of this Agreement; (ii) any untrue statement or
alleged untrue statement of any material fact contained in (A) the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, or (B) any application or other
document, or any amendment or supplement thereto, executed by the Company or
based upon written information furnished by or on behalf of the Company filed in
any jurisdiction in order to qualify the Shares under the securities or blue sky
laws thereof or filed with the Commission or any securities association or
securities exchange (each an "Application"); or (iii) the omission or alleged
omission to state in the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or any Application a material fact required to be stated
-31-
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating, defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action;
provided, however, that the Company shall not be liable in any such case to the
-------- -------
extent that any such loss, claim, damage, liability or action arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement or any amendment thereto,
any Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto or any Application in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through you expressly
for use therein; provided, further, however, that the Company shall not be
--------
liable to any Underwriter in respect of any Prospectus (which for the purposes
of this Section 8(a), shall include any amendment or supplement thereto filed
with the Commission pursuant to Rule 424(b)) to the extent that the Prospectus
was not sent or given to the purchaser of the Shares in question at or prior to
the time at which the written confirmation of the sale of such Shares was sent
or given to such person, and the failure to deliver the Prospectus was not the
result of the Company's non-compliance with its obligations under Sections
5(a)(ii) or 5(a)(vi) hereof. The Company will not, without the prior written
consent of each Underwriter, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding (or
related cause of action or portion thereof) in respect of which indemnification
may be sought hereunder (whether or not such Underwriter is a party to such
claim, action, suit or proceeding), unless such settlement, compromise or
consent includes an unconditional release of such Underwriter from all liability
arising out of such claim, action, suit or proceeding (or related cause of
action or portion thereof).
(b) Subject to subsection (g) of this Section, each Selling Stockholder
agrees to indemnify and hold harmless each Underwriter and each person who
controls any Underwriter within the meaning of Section 15 of the Act against
any such losses, claims, damages or liabilities to which such Underwriter or any
such controlling person may become subject under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the such
Selling Stockholder in Section 1 of this Agreement;
(ii) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment
thereto, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto; or
(iii) the omission or the alleged omission to state therein a
material fact required to be stated in the Registration Statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or any Application or necessary to make the
statements therein not misleading;
-32-
provided, however, that the Selling Stockholders will not be liable to any
-------- -------
Underwriter or any person controlling such Underwriter with respect to any
such untrue statement or omission made in any Preliminary Prospectus that is
corrected in the Prospectus (or any amendment or supplement thereto) if the
person asserting any such loss, claim, damage or liability purchased Shares
from such Underwriter but was not sent or given a copy of the Prospectus (as
amended or supplemented) at or prior to the written confirmation of the sale
of such Shares to such person in any case where such delivery of the
Prospectus (as amended or supplemented) is required by the Act, unless such
failure to deliver the Prospectus (as amended or supplemented) was a result
of noncompliance by the Company with Section 5(a)(iv) or 5 (a)(vi) of this
Agreement; and subject to the limitation set forth immediately preceding
this clause, will reimburse, on a monthly basis, any legal or other expenses
reasonably incurred by the Company, any such director, officer, such
Underwriter or any such controlling person in connection with investigating
or defending any such loss, claim, damage, liability or any action in
respect thereof; provided, further, however, that the Selling Stockholders
--------------------------
will not be liable in any such case to the extent that any such loss, claim,
damage, or liability arises out of or is based upon any untrue statement or
alleged untrue or omission or alleged omission made in such Registration
Statement or any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or any application in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use
therein; provided, further, however, that in the case of (i), (ii) and
-------- ------- -------
(iii) above for the Selling Stockholders, to the extent and only to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Selling Stockholder. This
indemnity agreement will be in addition to any liability which the Selling
Stockholders may otherwise have. The Selling Stockholders will not, without
the prior written consent of the Underwriters purchasing greater than fifty
percent of the Shares, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not
such Underwriter or any person who controls such Underwriter within the
meaning of Section 15 of the Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of the Underwriters and each such controlling person
from all liability arising out of such claim, action, suit or proceeding.
(c) Each Underwriter, severally and not jointly, will indemnity and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, each Selling Stockholder and each person,
it any, who controls the Company and each Selling Stockholder within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act against
any losses, claims, damages or liabilities to which the Company, any such
director, officer or controlling person or any such Selling Stockholder may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon (i) any
-33-
untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or any
application or (ii) the omission or the alleged omission to state therein a
material fact required to be stated in the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, or any application or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein; and, subject to
the limitation set forth immediately preceding this clause, will reimburse,
on a monthly basis, any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person or such Selling
Stockholder in connection with investigating or defending any such loss,
claim, damage, liability or any action in respect thereof. This indemnity
agreement will be in addition to any liability which such Underwriter may
otherwise have.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) and (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party); provided, however, that if the
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defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it or other
indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such action on behalf of such indemnified
party and such indemnified party shall have the right to select separate
counsel to defend such action on behalf of such indemnified party. After
such notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the
defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that in connection with such action
the indemnifying party shall not be liable for
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the expenses of more than one separate counsel (in addition to local
counsel) in any one action or separate but substantially similar actions in
the same jurisdiction arising out of the same general allegations or
circumstances, which separate counsel shall be designated by the
Representatives in the case of indemnity arising under paragraph (a) of this
Section 8) or (ii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party.
Nothing in this Section 8(d) shall preclude an indemnified party from
participating at its own expense in the defense of any such action so
assumed by the indemnifying party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other from
the offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (d)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and the Selling Stockholders on the one hand and the Underwriters on
the other in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Stockholders on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Stockholders bear to the
total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Selling Stockholders on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Company, the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contributions pursuant to
this subsection (e) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in this
subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this
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subsection (e), 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 it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section 8 shall be in addition to any liability which the Company and
the Selling Stockholders may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company, the Selling
Stockholders and to each person, if any, who controls the Company, and the
Selling Stockholders within the meaning of the Act.
(g) The liability of each Selling Stockholder under the
representations and warranties contained in Section 1 hereof and under the
indemnity and contribution agreements contained in the provisions of this
Section 8 shall be limited to an amount equal to the public offering price
of the Securities sold by such Selling Stockholder to the Underwriters minus
the amount of the underwriting discount paid thereon to the Underwriters by
such Selling Stockholder. The Company and such Selling Stockholder may
agree, as among themselves and without limiting the rights of the
Underwriters under this Agreement, as to the respective amounts of such
liability for which they each shall be responsible.
9. Default of Underwriters.
(a) If any Underwriter defaults in its obligation to purchase Shares
at a Time of Delivery, you may in your discretion arrange for you or another
party or other parties to purchase such Shares on the terms contained
herein. If within thirty-six (36) hours after such default by any
Underwriter you do not arrange for the purchase of such Shares, the Company
shall be entitled to a further period of thirty-six (36) hours within which
to procure another party or other parties reasonably satisfactory to you to
purchase such Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Shares, or the Company notifies you that it has so arranged
for the purchase of such Shares, you or the Company shall have the right to
postpone a Time of Delivery for a period of not more than seven days in
order to effect whatever changes may thereby be made necessary in the
Registration
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Statement or the Prospectus, or in any other documents or arrangements, and
the Company agrees to file promptly any amendments to the Registration
Statement or the Prospectus that in your opinion may thereby be made
necessary. The cost of preparing, printing and filing any such amendments
shall be paid for by the Underwriters. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to this Agreement
with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the
aggregate number of Shares to be purchased at such Time of Delivery, then
the Company shall have the right to require each non-defaulting Underwriter
to purchase the number of Shares which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares
of such defaulting Underwriter or Underwriters for which such arrangements
have not been made, but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. Termination.
(a) This Agreement may be terminated with respect to the Firm Shares
or any Optional Shares in the sole discretion of the Representatives by
notice to the Company given prior to the First Time of Delivery or any
Subsequent Time of Delivery, respectively, in the event that (i) any
condition to the obligations of the Underwriters set forth in Section 7
hereof has not been satisfied, or (ii) the Company shall have failed,
refused or been unable to deliver the Shares or to perform all obligations
and satisfy all conditions on its part to be performed or satisfied
hereunder at or prior to such Time of Delivery, in either case other than by
reason of a default by any of the Underwriters. If this Agreement is
terminated pursuant to this Section 10(a), the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
counsel fees and disbursements) that shall have been incurred by them in
connection with the proposed purchase and sale of the Shares. Neither the
Company nor the Selling Stockholders shall in any event be liable to any of
the Underwriters for the loss of anticipated profits from the transactions
covered by this Agreement.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the
Company as provided in Section 9(a), the aggregate number of such Shares
which remains unpurchased exceeds one-eleventh of the aggregate number of
Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in Section 9(b) to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
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then this Agreement (or, with respect to a Subsequent Time of Delivery, the
obligations of the Underwriters to purchase and of the Company and the
Selling Stockholders to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter, the Company
or the Selling Stockholders, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
11. Survival. The respective indemnities, agreements, representations,
warranties and other statements of the Company, its respective officers and the
several Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person
referred to in Section 8(f) or the Company, or any officer or director or
controlling person of the Company referred to in Section 8(f), and shall survive
delivery of and payment for the Shares. The respective agreements, covenants,
indemnities and other statements set forth in Sections 6 and 8 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
12. Notices. All communications hereunder shall be in writing and, if
sent to any of the Underwriters, shall be mailed, delivered or telegraphed and
confirmed in writing to you in care of The Xxxxxxxx-Xxxxxxxx Company, LLC, 0000
Xxxxxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000, Attention: Corporate Finance
Department (with a copy to King & Spalding, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000, Attention: Xxxx X. Xxxxxx, III, and if sent to the Company or
the Selling Stockholders, shall be mailed, delivered or telegraphed and
confirmed in writing to the Company at 0000 Xxx Xxxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000, Attention: Xxxxx Xxxxxxx (with a copy to Xxxxxx, Xxxxxxx &
Xxxxxx, LLP, 1600 Atlanta Financial Center, 0000 Xxxxxxxxx Xxxx, Xxxxxxx,
Xxxxxxx 00000, Attention: Xxx X. Xxxxxx III).
13. Representatives. You will act for the several Underwriters in
connection with the transactions contemplated by this Agreement, and any action
under this Agreement taken by you jointly or by The Xxxxxxxx-Xxxxxxxx Company,
LLC will be binding upon all the Underwriters.
14. Binding Effect. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters and the Company and to the extent
provided in Sections 8 and 10 hereof, the officers and directors and controlling
persons referred to therein and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia without giving effect to any
provisions regarding conflicts of laws.
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16. Counterparts. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us one of the counterparts hereof, and upon the
acceptance hereof by The Xxxxxxxx-Xxxxxxxx Company, LLC, on behalf of each of
the Underwriters, this letter will constitute a binding agreement among the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in the Master Agreement among Underwriters, a copy of which shall be
submitted to the Company for examination, upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
INFOCURE CORPORATION
By:_________________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date
first written above at Atlanta, Georgia.
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
XX XXXXX SECURITIES CORPORATION
XXXXXXX XXXXXX XXXXX, INC.
By: The Xxxxxxxx-Xxxxxxxx Company, LLC
By:_____________________________________________________________________
(Authorized Representative)
On behalf of each of the Underwriters
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