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EXHIBIT 1.1
2,000,000 SHARES
INFOCURE CORPORATION
COMMON STOCK
UNDERWRITING AGREEMENT
_____________, 1997
Xxxxxx & Xxxxxxx, Inc.
Xxxxxxxxxx Xxxx Incorporated
c/o Rodman & Xxxxxxx, Inc.
000 Xxxxxxx Xxxxxx
2 World Financial Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
On behalf of the Several
Underwriters named in
Schedule I attached hereto.
Ladies and Gentlemen:
InfoCure Corporation, a Delaware corporation (the "Company"), proposes
to sell to you and the other underwriters named in Schedule I attached hereto
(the "Underwriters"), for whom you are acting as the representatives (the
"Representatives"), an aggregate of 2,000,000 shares (the "Firm Shares") of the
Company's Common Stock, par value $.001 per share (the "Common Stock"), all of
which are to be issued and sold by the Company. In addition, those certain
stockholders of the Company set forth on Schedule II attached hereto (the
"Selling Stockholders"), propose to grant to the Underwriters an option to
purchase up to an additional 300,000 shares of Common Stock (the "Option
Shares") solely for the purpose of covering over-allotments in connection with
the sale of the Firm Shares. The obligation of each Selling Stockholder to
sell Option Shares to the Underwriters under this Agreement shall be as set
forth opposite his name
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on Schedule II attached hereto. The Firm Shares and the Option Shares are
together called the "Shares."
1. Sale and Purchase of the Shares. On the basis of the
representations, warranties and agreements contained in, and subject to the
terms and conditions of, this Agreement:
(a) The Company agrees to issue and sell the Firm Shares
to the several Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase at the purchase price per share
of Common Stock of $_____ (the "Initial Price"), the aggregate number
of Firm Shares set forth opposite such Underwriter's name on Schedule
I attached hereto. The Underwriters agree to offer the Firm Shares to
the public as set forth in the Prospectus (as hereinafter defined).
(b) The Selling Stockholders grant to the several
Underwriters an option to purchase, severally and not jointly, all or
any part of the number of the Option Shares at the Initial Price. The
number of Option Shares to be purchased by each Underwriter shall be
the same percentage (adjusted by the Representatives to eliminate
fractions) of the total number of Option Shares to be purchased by the
Underwriters as such Underwriter is purchasing of the Firm Shares.
Such option may be exercised only to cover over-allotments in the
sales of the Firm Shares by the Underwriters and may be exercised in
whole or in part at any time on or before 12:00 noon, New York City
time, on the business day before the Firm Shares Closing Date (as
defined below), and from time to time thereafter within 30 days after
the date of this Agreement, upon written, telecopy or telegraphic
notice, or verbal or telephonic notice confirmed by written, telecopy
or telegraphic notice, by the Representatives to the Company no later
than 12:00 noon, New York City time, on the business day before the
Firm Shares Closing Date or at least two business days before any
Option Shares Closing Date (as defined below), as the case may be,
setting forth the number of Option Shares to be purchased and the time
and date (if other than the Firm Shares Closing Date) of such
purchase.
(c) On the Firm Shares Closing Date (as defined below),
the Company shall issue and sell to Xxxxxx & Xxxxxxx, Inc. ("Xxxxxx")
and Cruttenden Xxxx Incorporated ("Cruttenden"), individually and not
as Representatives of the Underwriters, for an aggregate purchase
price of $.001 per warrant, warrants representing the right of the
Representatives to purchase an aggregate number of Shares of Common
Stock (the "Warrant Shares") equal to 10% of the Firm Shares (which
warrants shall be evidenced in the form set forth as an exhibit to the
Registration Statement) (the "Representatives' Warrants"). The
Representatives' Warrants shall be allocated among each of the
Representatives as the Company shall be advised in writing by Xxxxxx.
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2. Delivery and Payment. Delivery by the Company of the Firm
Shares to the Representatives for the respective accounts of the Underwriters,
and payment of the purchase price by certified or official bank check or checks
payable in New York Clearing House (next day) funds or same-day wire transfer
to the Company, shall take place at the offices of Squadron, Ellenoff, Plesent
& Xxxxxxxxx, LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m.,
New York City time, on the third business day following the date on which the
public offering of the Shares commences (unless such date is postponed in
accordance with the provisions of Section 10(b) hereof), or at such time and
place on such other date, not later than ten business days after the date of
this Agreement, as shall be agreed upon by the Company and the Representatives
(such time and date of delivery and payment are called the "Firm Shares Closing
Date"). The public offering of the Shares shall be deemed to have commenced at
the time, which is the earlier of (a) the time, after the Registration
Statement (as defined in Section 4 below) becomes effective, of the release by
you for publication of the first newspaper advertisement which is subsequently
published relating to the Shares or (b) the time, after the Registration
Statement becomes effective, when the Shares are first released by you for
offering by the Underwriters or dealers by letter, telecopy or telegram.
In the event the option with respect to the Option Shares is
exercised, delivery by the Selling Stockholders of the Option Shares to the
Representatives for the respective accounts of the Underwriters and payment of
the purchase price by certified or official bank check or checks payable in New
York Clearing House (next day) funds or same-day wire transfer to the Selling
Stockholders shall take place at the offices of Xxxxxx, at the address
specified above, or such other place as the parties may mutually agree upon,
at the time and on the date (which may be the same date as, but in no event
shall be earlier than, the Firm Shares Closing Date) specified in the notice
referred to in Section 1(b) (such time and date of delivery and payment is
called the "Option Shares Closing Date(s)"). The Firm Shares Closing Date and
the Option Shares Closing Date(s) are called, individually, a "Closing Date"
and, together, the "Closing Dates."
Certificates evidencing the Shares shall be registered in such names
and shall be in such denominations as the Representatives shall request at
least two full business days before the Firm Shares Closing Date or the Option
Shares Closing Date(s), as the case may be, and shall be made available to the
Representatives for checking and packaging, at such place as is designated by
the Representatives, on the full business day before the Firm Shares Closing
Date or the Option Shares Closing Date(s), as the case may be.
3. Public Offering. The Company and the Selling Stockholders
understand that the Underwriters propose to make a public offering of the
Shares, as set forth in and pursuant to the Prospectus (as defined in Section 4
below), as soon after the effective date of the Registration Statement and the
date of this Agreement as the Representatives deem advisable. The Company and
the Selling Stockholders hereby confirm that the Underwriters and dealers have
been authorized
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to distribute or cause to be distributed each preliminary prospectus and are
authorized to distribute the Prospectus (as from time to time amended or
supplemented if the Company furnishes amendments or supplements thereto to the
Underwriters).
4. Representations and Warranties of the Company and the Selling
Stockholders.
(a) The Company represents and warrants to, and agrees
with, the several Underwriters that:
(i) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement, and may have filed one or more amendments thereto,
on Form SB-2 (Registration No. 333-_____), including in such
registration statement, and each such amendment, a related
preliminary prospectus (a "Preliminary Prospectus"), for the
registration of the Firm Shares and the Option Shares, in
conformity with the requirements of the Securities Act of
1933, as amended (the "Act"). 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, which registration shall be
effective upon filing with the Commission. As used in this
Agreement, the term "Original Registration Statement" means
such registration statement, as amended, on file with the
Commission at the time such registration statement becomes
effective (including the prospectus, financial statements,
exhibits, and all other documents filed as a part thereof or
incorporated by reference directly or indirectly therein),
provided that such registration statement, at the time it
becomes effective, may omit such information as is permitted
to be omitted from a registration statement when it becomes
effective pursuant to Rule 430A of the General Rules and
Regulations promulgated under the Act (the "Regulations"),
which information ("Rule 430 Information") shall be deemed to
be included in such registration statement when a final
prospectus is filed with the Commission in accordance with
Rules 430A and 424(b)(1) or (4) of the Regulations; 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 or Prospectus incorporated
therein at the time the 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 included in the Registration Statement,
or any amendments thereto, before it becomes effective under
the Act, the form of prospectus omitting Rule 430A Information
included in the Registration Statement when it becomes
effective, if applicable (the "Rule 430A Prospectus"), and any
prospectus filed by the Company with your consent pursuant to
Rule 424(a) of the Regulations; and the term "Prospectus"
means the final prospectus included as part of the
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Registration Statement, except that if the prospectus relating
to the securities covered by the Registration Statement in the
form first filed on behalf of the Company with the Commission
pursuant to Rule 424(b) of the Regulations shall differ from
such final prospectus, the term "Prospectus" shall mean the
prospectus as filed pursuant to Rule 424(b) from and after the
date on which it shall have first been used.
(ii) When the Registration Statement becomes
effective, and at all times subsequent thereto to and
including the Closing Dates, and during such longer period as
the Prospectus may be required to be delivered in connection
with sales by the Underwriters or a dealer, and during such
longer period until any post-effective amendment thereto shall
become effective, the Registration Statement (and any post-
effective amendment thereto) and the Prospectus (as amended or
as supplemented if the Company shall have filed with the
Commission any amendment or supplement to the Registration
Statement or the Prospectus) will contain all statements which
are required to be stated therein in accordance with the Act
and the Regulations, will comply with the Act and the
Regulations, and will not contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading, and no event will have occurred which should
have been set forth in an amendment or supplement to the
Registration Statement or the Prospectus which has not then
been set forth in such an amendment or supplement; if a Rule
430A Prospectus is included in the Registration Statement at
the time it becomes effective, the Prospectus filed pursuant
to Rules 430A and 424(b)(1) or (4) will contain all Rule 430A
Information; and each Preliminary Prospectus, as of the date
filed with the Commission, did not include any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading; except that no
representation or warranty is made in this Section 4(a)(ii)
with respect to statement or omissions made in reliance upon
and in conformity with written information furnished to the
Company as stated in Section 7(c) with respect to any
Underwriter by or on behalf of such Underwriter through the
Representatives expressly for inclusion in any Preliminary
Prospectus, the Registration Statement, or the Prospectus, or
any amendment or supplement thereto.
(iii) If the Company has elected to rely on Rule
462(b) and the Rule 462(b) Registration Statement has not been
declared effective, then (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
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Statement, in compliance with Rule 111 promulgated under the
Act or the Commission has received payment of such filing fee.
(iv) Neither the Commission nor the "blue sky" or
securities authority of any jurisdiction have issued an order
(a "Stop Order") suspending the effectiveness of the
Registration Statement, preventing or suspending the use of
any Preliminary Prospectus, the Prospectus, the Registration
Statement, or any amendment or supplement thereto, refusing to
permit the effectiveness of the Registration Statement, or
suspending the registration or qualification of the Firm
Shares or the Option Shares nor has any of such authorities
instituted or threatened to institute any proceedings with
respect to a Stop Order.
(v) Any contract, agreement, instrument, lease, or
license required to be described in the Registration Statement
or the Prospectus has been properly described therein. Any
contract agreement, instrument, lease, or license required to
be filed as an exhibit to the Registration Statement has been
filed with the Commission as an exhibit to or has been
incorporated as an exhibit by reference into the Registration
Statement.
(vi) The Company is a corporation duly organized,
validly existing, and in good standing under the laws of the
State of Delaware, with full corporate power and authority,
and all necessary consents, authorizations, approvals, orders,
licenses, certificates, and permits of and from, and
declarations and filings with, all federal, state, local, and
other governmental authorities and all courts and other
tribunals, to own, lease, license, and use its properties and
assets and to carry on its business as now being conducted and
in the manner described in the Prospectus. The Company does
not own, lease or license any property or conduct any business
outside the United States of America. The Company has no
subsidiary or subsidiaries and does not control, directly or
indirectly, any corporation, partnership, joint venture,
association or other business organization, except for those
listed on Schedule III attached hereto, those permitted to be
excluded pursuant to Item 601, Exhibit 21 of Regulation S-B
and, on or after the Firm Shares Closing Date, the Founding
Companies (as hereinafter defined) (each such corporation a
"Subsidiary" and collectively, the "Subsidiaries"). Each of
the Subsidiaries has been duly organized and is validly
existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, as listed on Schedule III
attached hereto or, with respect to the Founding Companies on
or after the Firm Shares Closing Date, as listed on Schedule
IV hereto. Each of the Company and the Subsidiaries is duly
qualified and in good standing as a foreign corporation in
each jurisdiction in which the character or location of its or
any of their properties (owned, leased or licensed) or the
nature of its or any of their
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businesses makes such qualification necessary except for such
jurisdictions where the failure to so qualify would not,
either singly or in the aggregate, have a material adverse
effect on the assets or properties, business, financial
condition or results of operations of the Company or any of
the Subsidiaries.
(vii) The authorized capital stock of the Company
consists of 40,000,000 shares of Common Stock, of which
100 shares are outstanding, and 10,000,000 shares
of preferred stock, par value $.001 per share (the "Preferred
Stock"), none of which shares are outstanding. Each
outstanding share of Common Stock and each outstanding share
of capital stock of each Subsidiary has been duly and validly
authorized and issued, fully paid, and non-assessable, without
any personal liability attaching to the ownership thereof and
has not been issued and is not owned or held in violation of
any preemptive rights of stockholders. There is no
commitment, plan, preemptive right or arrangement to issue,
and no outstanding option, warrant, or other right calling for
the issuance of, shares of capital stock of the Company or of
any Subsidiary or any security or other instrument which by
its terms is convertible into, exercisable for, or
exchangeable for capital stock of the Company or of any
Subsidiary, except as may be properly described in the
Prospectus. There is outstanding no security or other
instrument which by its terms is convertible into or
exchangeable for capital stock of the Company or of any
Subsidiary, except as may be properly described in the
Prospectus.
(viii) The financial statements of the Company and
each of the Founding Companies included in the Registration
Statement and the Prospectus fairly present, with respect to
the Company and each of the Founding Companies, the financial
position, the results of operations, and the other information
purported to be shown therein at the respective dates and for
the respective periods to which they apply. Such financial
statements have been prepared in accordance with generally
accepted accounting principles (except to the extent that
certain footnote disclosures regarding any stub period may
have been omitted in accordance with the applicable rules of
the Commission under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) consistently applied throughout
the periods involved, are correct and complete, and are in
accordance with the books and records of the Company and the
Founding Companies, as applicable. The accountants whose
reports on the audited financial statements of the Company and
the Founding Companies are filed with the Commission as a part
of the Registration Statement are, and during the periods
covered by their report(s) included in the Registration
Statement and the Prospectus were, independent certified
public accountants with respect to the Company and each of the
Founding Companies within the meaning of the Act and the
Regulations. No other financial statements are required by
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Form SB-2 or otherwise to be included in the Registration
Statement or the Prospectus. There has at no time been a
material adverse change in the financial condition, results of
operations, business, properties, assets, liabilities, or
future prospects of the Company or any of the Founding
Companies from the latest information set forth in the
Registration Statement or the Prospectus, except as may be
properly described in the Prospectus.
(ix) There is no litigation, arbitration, claim,
governmental or other proceeding (formal or informal), or
investigation before any court or before any public body or
board pending, threatened, or in prospect (or any basis
therefor) with respect to the Company or any Subsidiary, or
any of its respective operations, business, properties, or
assets, except as may be properly described in the Prospectus
or such as individually or in the aggregate do not now have
and will not in the future have a material adverse effect upon
the operations, business, properties, assets or financial
condition of the Company or any Subsidiary. Neither the
Company nor any Subsidiary is involved in any labor dispute,
nor is such dispute threatened, which dispute would have a
material adverse effect upon the operations, business,
properties, assets or financial condition of the Company or
any of the Subsidiaries. Neither the Company nor any
Subsidiary is in violation of, or in default with respect to,
any law, rule, regulation, order, judgment, or decree; nor is
the Company or any Subsidiary required to take any action in
order to avoid any such violation or default.
(x) Each of the Company and the Subsidiaries has good
and marketable title in fee simple absolute to all real
properties and good title to all other properties and assets
which the Prospectus indicates are owned by it, and has valid
and enforceable leasehold interests in each of such items,
free and clear of all liens, security interests, pledges,
charges, encumbrances, and mortgages (except as may be
properly described in the Prospectus). No real property
owned, leased, licensed or used by the Company or any
Subsidiary lies in an area which is, or to the knowledge of
the Company will be, subject to zoning, use or building code
restrictions which would prohibit, and no state of facts
relating to the actions or inaction of another person or
entity or his or its ownership, leasing, licensing or use of
any real or personal property exists or will exist which would
prevent, the continued effective ownership, leasing, licensing
or use of such real property in the business of the Company
and each Subsidiary as presently conducted or as the
Prospectus indicates it contemplates conducting (except as may
be properly described in the Prospectus).
(xi) Each of the Company and the Subsidiaries, and to
the best knowledge of the Company, any other party, is not now
or reasonably expected by the
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Company to be in violation or breach of, or in default with
respect to, complying with any term, obligation or provision
of any contract, agreement, instrument, lease, license,
indenture, mortgage, deed of trust, note, arrangement or
understanding which is material to the Company or any
Subsidiary or by which any of its respective properties or
business may be bound or affected, and no event has occurred
which with notice or lapse of time or both would constitute
such a default, and each such contract, agreement, instrument,
lease, license, indenture, mortgage, deed of trust, note,
arrangement or understanding is in full force and is the
legal, valid and binding obligation of the parties thereto and
is enforceable as to them in accordance with its terms. Each
of the Company and the Subsidiaries enjoys peaceful and
undisturbed possession under all leases and licenses under
which it is operating. Neither the Company nor any Subsidiary
is a party to or bound by any contract, agreement, instrument,
lease, license, indenture, mortgage, deed of trust, note,
arrangement or understanding, or subject to any charter or
other restriction, which has had or may in the future have a
material adverse effect on the financial condition, results of
operations, business, properties, assets, liabilities or
future prospects of the Company or any Subsidiary. Neither
the Company nor any Subsidiary is in violation or breach of,
or in default with respect to, any term of their respective
certificates of incorporation (or other charter document) or
by-laws or of any franchise, license, permit, judgment,
decree, order, statute, rule or regulation.
(xii)The Company and each of the Subsidiaries have
filed all federal, state, local and foreign tax returns which
are required to be filed through the date hereof, or has
received extensions thereof, and have paid all taxes shown on
such returns and all assessments received by them to the
extent that the same are material and have become due.
(xiii) All patents, patent applications, trademarks,
trademark applications, trade names, service marks,
copyrights, copyright applications, franchises, and other
intangible properties and assets (all of the foregoing being
collectively herein called "Intangibles") that each of the
Company and the Subsidiaries owns, possesses or has pending,
or under which it is licensed, are in good standing and
uncontested. There is no right under any Intangible necessary
to the business of the Company or any Subsidiary as presently
conducted or as the Prospectus indicates the Company and the
Subsidiaries have that the Company and the Subsidiaries do not
have (except as may be so described in the Prospectus).
Neither the Company nor any Subsidiary has infringed, is
infringing, or has received any notice of infringement with
respect to asserted Intangibles of others. To the best
knowledge of the
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Company, there is no infringement by others of Intangibles of
the Company or any Subsidiary. To the best knowledge of the
Company, there is no Intangible of others which is expected to
have a material adverse effect on the financial condition,
results of operations, business, properties, assets,
liabilities or future prospects of the Company or any of the
Subsidiaries.
(xiv) Neither the Company nor any Subsidiary or any
director, officer, agent, employee or other person associated
with or acting on behalf of the Company or any 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. No transaction has occurred between or
among the Company, any Subsidiary, and any of their respective
officers or directors or any affiliates or affiliates of any
such officer or director, except as described in the
Prospectus.
(xv) The Company has all requisite power and
authority to execute, deliver and perform this Agreement and
the Representatives' Warrants (collectively, the "Company
Documents"). All necessary corporate proceedings of the
Company have been duly taken to authorize the execution,
delivery and performance of the Company Documents. This
Agreement has been duly authorized, executed, and delivered by
the Company, is the legal, valid and binding obligation of the
Company, and is enforceable as to the Company in accordance
with its terms. No consent, authorization, approval, order,
license, certificate or permit of or from, or declaration or
filing with, any federal, state, local or other governmental
authority or any court or other tribunal is required by the
Company or any Subsidiary for the execution, delivery or
performance by the Company of this Agreement (except filings
under the Act which have been or will be made before the
applicable Closing Date and such consents consisting only of
consents under "blue sky" or securities laws which have been
obtained at or prior to the date of this Agreement). No
consent of any party to any contract, agreement, instrument,
lease, license, indenture, mortgage, deed of trust, note,
arrangement or understanding to which the Company or any
Subsidiary is a party, or to which any of their respective
properties or assets are subject, is required for the
execution, delivery or performance of this Agreement, and the
execution, delivery and performance of this Agreement, will
not violate, result in a breach of, conflict with, accelerate
the due date of any payments under, or (with or without the
giving of notice or the passage of time or both) entitle any
party to terminate or call a default under any such contract,
agreement, instrument, lease, license, indenture, mortgage,
deed of trust, note, arrangement, or understanding, or violate
or result
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in a breach of any term of the certificate of incorporation
(or other charter document) or by-laws of the Company or any
Subsidiary, or violate, result in a breach of, or conflict
with any law, rule, regulation, order, judgment or decree
binding on the Company or any Subsidiary or to which any of
its respective operations, business, properties or assets are
subject.
(xvi) The Firm Shares and the Option Shares are duly
and validly authorized. The Firm Shares and the Option
Shares, when delivered in accordance with this Agreement, will
be duly and validly issued, fully paid, and non-assessable,
without any personal liability attaching to the ownership
thereof, and will not be issued in violation of any preemptive
rights of stockholders, optionholders, warrantholders and any
other persons, and the Underwriters will receive good title to
the Firm Shares purchased by them, respectively, free and
clear of all liens, security interests, pledges, charges,
encumbrances, stockholders' agreements and voting trusts.
(xvii) The Representatives' Warrants are duly and
validly authorized and when delivered in accordance with this
Agreement, will be duly and validly issued, without any
personal liability attaching to the ownership thereof, and
will not be issued in violation of any preemptive rights of
stockholders, optionholders, warrantholders and any other
persons. The Warrant Shares are validly authorized and
reserved for issuance and, when issued and delivered upon
exercise of the Representatives' Warrants, will be validly
issued, fully paid and non-assessable, without any personal
liability attaching to the ownership thereof, and will not be
issued in violation of any preemptive rights of stockholders,
optionholders, warrantholders and any other persons. The
holders of the Representatives' Warrants will receive good
title to the securities purchased by them, respectively, free
and clear of all liens, security interests, pledges, charges,
encumbrances, stockholders' agreements and voting trusts.
(xviii) The Firm Shares, the Option Shares, the
Representatives Warrants, the Preferred Stock, and the Common
Stock conform to all statements relating thereto contained in
the Registration Statement or the Prospectus.
(xix) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, and except as may otherwise be properly described
therein, there has not been any material adverse change in the
assets or properties, business or results of operations or
financial condition of the Company or any Subsidiary, whether
or not arising from transactions in the ordinary course of
business; neither the Company nor any Subsidiary has sustained
any material loss or interference with its business or
properties from fire,
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explosion, earthquake, flood or other calamity, whether or not
covered by insurance; since the date of the latest balance
sheet included in the Registration Statement and the
Prospectus, except as reflected therein, neither the Company
nor any Subsidiary has undertaken any liability or obligation,
direct or contingent, except for liabilities or obligations
undertaken in the ordinary course of business; and neither the
Company nor any Subsidiary has (A) issued any securities or
incurred any liability or obligation, primary or contingent,
for borrowed money, (B) entered into any transaction not in
the ordinary course of business, or (C) declared or paid any
dividend or made any distribution on any of its capital stock
or redeemed, purchased or otherwise acquired or agreed to
redeem, purchase or otherwise acquire any shares of its
capital stock.
(xx) Neither the Company nor any Subsidiary or any
of their respective officers, directors or affiliates (as
defined in the Regulations) or any of the Selling
Stockholders, has taken or will take, directly or indirectly,
prior to the termination of the underwriting syndicate
contemplated by this Agreement, any action designed to
stabilize or manipulate the price of any security of the
Company, or which has caused or resulted in, or which might in
the future reasonably be expected to cause or result in,
stabilization or manipulation of the price of any security of
the Company, to facilitate the sale or resale of any of the
Firm Shares or the Option Shares.
(xxi) The Company has obtained from its executive
officers, directors and principal stockholders, his
enforceable written agreement, in form and substance
satisfactory to counsel for the Underwriters, that for a
period of 180 days from the date on which the public offering
of the Shares commences he will not, without the prior written
consent of Xxxxxx, on behalf of the Underwriters, offer,
pledge, sell, contract to sell, grant any option for the sale
of, or otherwise dispose of, directly or indirectly, any
shares of Common Stock or other securities of the Company (or
any security or other instrument which by its terms is
convertible into, exercisable for, or exchangeable for shares
of Common Stock or other securities of the Company, including,
without limitation, any shares of Common Stock issuable under
any employee stock options), beneficially owned by him.
(xxii) Neither the Company nor any Subsidiary is, or
intends to conduct its business in a manner in which it would
be, an "investment company" as defined in Section 3(a) of the
Investment Company Act of 1940, as amended (the "Investment
Company Act").
(xxiii) All offers and sales of the Company's
capital stock prior to the date hereof, other than offers and
sales made pursuant to the Acquisitions (as hereinafter
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defined), were at all relevant times exempt from the
registration requirements of the Act and were the subject of
an available exemption from the registration requirements of
all applicable state securities or blue sky laws. The offers
and sales of the Company's capital stock made pursuant to the
Acquisitions were made in compliance with Rule 145(a) under
the Act.
(xxiv) No person or entity has the right to require
registration of shares of Common Stock or other securities of
the Company because of the filing or effectiveness of the
Registration Statement.
(xxv) Except as may be set forth in the Prospectus,
neither the Company nor any Subsidiary has incurred any
liability for a fee, commission or other compensation on
account of the employment of a broker or finder in connection
with the transactions contemplated by this Agreement.
(xxvi) No transaction has occurred between or among
the Company, any Subsidiary, and any of their respective
officers or directors or any affiliates of any such officer or
director, that is required to be described in and is not
described in the Registration Statement and the Prospectus.
(xxvii) The Common Stock, including the Shares, are
authorized for quotation on the NASDAQ National Market upon
official notice of issuance.
(xxviii) The Company has filed with Commission a
registration statement, and may have filed one or more
amendments thereto, on Form S-4 (Registration No. 333-_______)
(the "Merger Registration Statement"), for the registration of
_________ shares of Common Stock, in conformity with the
requirements of the Act. When the Merger Registration
Statement becomes effective, and during such longer period
until any post-effective amendment thereto shall become
effective, the Merger Registration Statement (and any
post-effective amendment thereto) and the prospectus included
as part thereof (the "Merger Prospectus") (as amended or as
supplemented if the Company shall have filed with the
Commission any amendment or supplement to the Merger
Registration Statement or the Merger Prospectus) will contain
all statements which are required to be stated therein in
accordance with the Act and the Regulations, will comply with
the Act and the Regulations, and will not contain any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, and no event will have
occurred which should have been set forth in an amendment or
supplement to the Merger Registration Statement or the Merger
Prospectus which has not then been set forth in such an
amendment or supplement. Neither the Commission nor the "blue
sky" or
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securities authority of any jurisdiction have issued a Stop
Order suspending the use of any preliminary prospectus, the
Merger Prospectus, the Merger Registration Statement, or any
amendment or supplement thereto, refusing to permit the
effectiveness of the Merger Registration Statement, or
suspending the registration or qualification of the shares of
Common Stock registered thereunder nor has any of such
authorities instituted or threatened to institute any
proceedings with respect to a Stop Order.
(xxix) American Medcare Corporation ("AMC") is the
record holder and sole beneficial owner of all of the issued
and outstanding stock of each of International Computer
Solutions, Inc. ("ICS"), Xxxxxxx-Xxxxx, Inc. ("Xxxxxxx-Xxxxx")
and Health Care Division, Inc. ("HCD"), which owns
substantially all of the assets used in connection with the
business of the former Healthcare Division of Info Systems of
North Carolina, Inc. The Company has entered into the
agreements listed on Schedule IV hereto (the "Acquisition
Agreements") with respect to the acquisitions (the
"Acquisitions") of AMC, DR Software, Inc. ("DR Software"),
KComp Management Systems, Inc. ("KComp"), HealthCare
Information Systems, Inc. ("HIS") and Rovak, Inc. ("Rovak")
(AMC, ICS, Xxxxxxx-Xxxxx, HCD, DR Software, KComp, HIS and
Rovak are collectively referred to herein as the "Founding
Companies"). The Company has all requisite power and
authority to execute, deliver and perform each of the
Acquisition Agreements. All necessary corporate proceedings
of the Company have been duly taken to authorize the
execution, delivery and performance of the Acquisition
Agreements. Each of the Acquisition Agreements has been duly
authorized, executed and delivered by the Company, is the
legal valid and binding obligation of the Company, and is
enforceable as to the Company in accordance with its terms.
(xxx) Neither the Company nor any Subsidiary or any
of their respective affiliates is presently doing business
with the government of Cuba or with any person or affiliate
located in Cuba. If, at any time after the date that the
Registration Statement is declared effective with the
Commission or with the Florida Department of Banking and
Finance (the "Florida Department"), whichever date is later,
and prior to the end of the period referred to in the first
clause of Section 4(a)(ii) hereof, the Company commences
engaging in business with the government of Cuba or with any
person or affiliate located in Cuba, the Company will so
inform the Florida Department within ninety days after such
commencement of business in Cuba, and during the period
referred to in Section 4(a)(ii) hereof will inform the Florida
Department within ninety days after any change occurs with
respect to previously reported information.
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(b) Each of the Selling Stockholders severally represents
and warrants to, and agrees with, the several Underwriters that:
(i) There is no litigation, arbitration, claim,
governmental or other proceeding (formal or informal), or
investigation before any court or beneficiary, public body or
board pending, threatened, or in prospect (or any basis
therefor known to such Selling Stockholder) with respect to
such Selling Stockholder or any of such Selling Stockholder's
business, properties or assets. Such Selling Stockholder is
not in violation of, or in default with respect to, any law,
rule, regulation, order, judgment, or decree; nor is such
Selling Stockholder required to take any action in order to
avoid such violation or default.
(ii) Such Selling Stockholder has all requisite
power and authority to execute, deliver, and perform this
Agreement. This Agreement has been duly executed and
delivered by or on behalf of such Selling Stockholder, is the
legal, valid and binding obligation of such Selling
Stockholder, and is enforceable as to such Selling Stockholder
in accordance with its terms. No consent, authorization,
approval, order, license, certificate, or permit of or from,
or declaration or filing with, any federal, state, local or
other governmental authority or any court or other tribunal is
required by such Selling Stockholder for the execution,
delivery or performance of this Agreement (except filings
under the Act which have been made before the applicable
Closing Date and such consents consisting only of consents
under "blue sky" or securities laws which have been obtained
at or prior to the date of this Agreement) by such Selling
Stockholder. No consent of any party to any contract,
agreement, instrument, lease, license, indenture, mortgage,
deed of trust, note, arrangement or understanding to which
such Selling Stockholder is a party, or to which any of such
Selling Stockholder's properties or assets are subject, is
required for the execution, delivery or performance of this
Agreement; and the execution, delivery and performance of this
Agreement will not violate, result in a breach of, conflict
with, or (with or without the giving of notice or the passage
of time or both) entitle any party to terminate or call a
default under any such contract, agreement, instrument, lease,
license, indenture, mortgage, deed of trust, note, arrangement
or understanding, or violate, result in a breach of, or
conflict with, any law, rule, regulation, order, judgment or
decree binding on such Selling Stockholder or to which any of
such Selling Stockholder's operations, business, properties,
or assets are subject.
(iii) Such Selling Stockholder has good title to the
Option Shares to be sold by such Selling Stockholder pursuant
to this Agreement, free and clear of all liens, security
interests, pledges, charges, encumbrances, stockholders'
agreements and voting trusts, and when such Option Shares are
delivered in accordance with this
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Agreement, the Underwriters will receive good title to such
Option Shares from such Selling Stockholder, free and clear of
all liens, security interests, pledges, charges, encumbrances,
stockholders' agreements and voting trusts.
(iv) Neither such Selling Stockholder nor any of
such Selling Stockholder's affiliates (as defined in the
Regulations) has taken or will take, directly or indirectly,
prior to the termination of the underwriting syndicate
contemplated by this Agreement, any action designed to
stabilize or manipulate the price of any security of the
Company, or which has caused or resulted in, or which might in
the future reasonably be expected to cause or result in,
stabilization or manipulation of the price of any security of
the Company, to facilitate the sale or resale of any of the
Option Shares.
(v) All information furnished or to be furnished to
the Company by or on behalf of such Selling Stockholder for
use in connection with the preparation of the Registration
Statement and the Prospectus is true in all respects and does
not and will not include any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading.
(vi) Except as may be set forth in the Prospectus,
such Selling Stockholder has not incurred any liability for a
fee, commission or other compensation on account of the
employment of a broker or finder in connection with the
transactions contemplated by this Agreement.
(vii) Such Selling Stockholder has no knowledge that,
and does not believe that, any representation or warranty of
the Company contained in Section 4(a) of this Agreement is
incorrect.
(viii) Such Selling Stockholder has not, 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.
(ix) No transaction has occurred between or among
such Selling Stockholder and the Company, any Subsidiary or
any other Selling Stockholder that is required to be described
in the Registration Statement or the Prospectus and is not so
properly described.
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5. Conditions of the Underwriters' Obligations. The obligations
of the Underwriters under this Agreement are several and not joint. The
respective obligations of the Underwriters to purchase the Shares are subject,
in the Representatives' sole discretion, to each of the following terms and
conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 6(a)(i) of this Agreement; if
the Original Registration Statement or any amendment thereto filed
prior to the Firm Closing Date has not been declared effective as of
the time of execution hereof, the Original Registration Statement or
such amendment 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. New
York time, on the date on which the amendment to the registration
statement originally filed with respect to the Shares or to the
Registration Statement, as the case may be, containing information
regarding the public offering price of the Shares has been filed with
the Commission, 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 time and date as shall have been
consented to by the Representatives.
(b) No order preventing or suspending the use of any
preliminary prospectus, the Prospectus or the Merger Prospectus shall
have been or shall be in effect and no order suspending the
effectiveness of the Registration Statement or the Merger Registration
Statement shall be in effect and no proceedings for such purpose shall
be pending before or threatened by the Commission, and any requests
for additional information on the part of the Commission (to be
included in the Registration Statement, the Merger Registration
Statement, the Prospectus or the Merger Prospectus or otherwise) shall
have been complied with to the satisfaction of the Representatives.
(c) The representations and warranties of the Company and
the Selling Stockholders contained in this Agreement and in the
certificates delivered pursuant to Section 5(d) shall be true and
correct when made and on and as of each Closing Date as if made on
such date, and the Company and the Selling Stockholders shall have
performed all covenants and agreements and satisfied all the
conditions contained in this Agreement required to be performed or
satisfied by them at or before such Closing Date.
(d) The Representatives shall have received on each
Closing Date (i) a certificate, addressed to the Representatives and
dated such Closing Date, of the chief executive or chief operating
officer and the chief financial officer of the Company to the effect
that the persons executing such certificate have carefully examined
the Registration Statement, the Prospectus and this Agreement and that
the representations and warranties of the Company contained in this
Agreement are true and correct on and as of such Closing Date with the
same effect as if made on such Closing Date and the Company has
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performed all covenants and agreements and satisfied all conditions
contained in this Agreement required to be performed or satisfied by
it at or prior to such Closing Date and (ii) a certificate, addressed
to the Representatives and dated such Closing Date, of each of the
Selling Stockholders to the effect that the representations and
warranties of such Selling Stockholder are true and correct on and as
of such Closing Date and such Selling Stockholder has performed all
covenants and agreements and satisfied all conditions contained in
this Agreement required to be performed or satisfied by such Selling
Stockholder at or prior to such Closing Date.
(e) The Representatives shall have received at the time
this Agreement is executed and on each Closing Date a signed letter
from BDO Xxxxxxx, LLP addressed to the Representatives and dated,
respectively, the date of this Agreement and each such Closing Date,
in form and scope reasonably satisfactory to the Representatives, with
reproduced copies or signed counterparts thereof for each of the
Underwriters confirming that they are independent accountants within
the meaning of the Act and the Regulations, that the response to Item
10 of the Registration Statement is correct in so far as it relates to
them and stating in effect that:
(i) in its opinion the audited financial statements
and financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectus and
reported on by it comply as to form in all material respects
with the applicable accounting requirements of the Act, the
Exchange Act and the related published rules and regulations
thereunder;
(ii) on the basis of a reading of the amounts
included in the Registration Statement and the Prospectus
under the heading "Selected Financial Information" which would
not necessarily reveal matters of significance with respect to
the comments set forth in such letter, a reading of the
minutes of the meetings of the stockholders and directors of
the Company and each Subsidiary, and inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters of the Company and each Subsidiary as
to transactions and events subsequent to the date of the
latest audited financial statements, except as disclosed in
the Registration Statement and the Prospectus, nothing came to
its attention which caused it to believe that:
(A) the amounts in "Selected Financial
Information," and included in the Registration
Statement and the Prospectus do not agree with the
corresponding amounts in the audited financial
statements from which such amounts were derived; or
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(B) with respect to the Company and each
Subsidiary, there were, at a specified date not more
than five business days prior to the date of the
letter, any decreases in net sales, income before
income taxes and net income or any increases in
long-term debt of the Company or any decreases in the
capital stock, working capital or the stockholders'
equity in the Company and each Subsidiary, as
compared with the amounts shown on the Company's
audited Balance Sheet for the fiscal year ended
____________, 19__ included in the Registration
Statement or the audited Statement of Operations, for
such year; and
(iii) it has performed certain other procedures as a
result of which it determined that information of an
accounting, financial or statistical nature (which is limited
to accounting, financial or statistical information derived
from the general accounting records of the Company and each
Subsidiary) set forth in the Registration Statement and the
Prospectus and reasonably specified by the Representatives
agrees with the accounting records of the Company.
References to the Registration Statement and the Prospectus in
this paragraph (e) are to such documents as amended and supplemented
at the date of such letter.
(f) The Representatives shall have received on each
Closing Date from Glass, XxXxxxxxxx, Xxxxxxxx & Xxxxxxx, LLP, counsel
for the Company, an opinion, addressed to the Representatives and
dated such Closing Date, and in form and scope satisfactory to counsel
for the Underwriters, with reproduced copies or signed counterparts
thereof for each of the Underwriters, to the effect that:
(i) The Company is a corporation duly organized,
validly existing, and in good standing under the laws of the
State of Delaware, with full corporate power and authority to
own, lease, license and use its properties and assets and to
conduct its business in the manner described in the
Prospectus. To the knowledge of such counsel, the Company has
all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and declarations and
filings with, all federal, state, local and other governmental
authorities and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its
business in the manner described in the Prospectus. The
Company does not own, lease or license any property or conduct
any business outside the United States of America. The
Company has no subsidiary or subsidiaries and does not
control, directly or indirectly, any corporation, partnership,
joint venture, association or other business organization,
except for those listed on Schedule III attached hereto, those
permitted to be excluded pursuant to Item 601, Exhibit 21 of
Regulation S-B and, on or after the Firm Shares Closing Date,
the Founding Companies. Each of
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the Subsidiaries has been duly organized and is validly
existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, as listed on Schedule III
attached hereto or, with respect to the Founding Companies on
or after the Firm Shares Closing Date, as listed on Schedule
IV hereto. Each of the Company and the Subsidiaries is duly
qualified and in good standing as a foreign corporation in
each jurisdiction in which the character or location of its or
any of their properties (owned, leased or licensed) or the
nature of its or any of their businesses makes such
qualification necessary except for such jurisdictions where
the failure to so qualify would not, either singly or in the
aggregate, have a material adverse effect on the assets or
properties, business, financial condition or results of
operations of the Company or any of the Subsidiaries.
(ii) The Company has authorized, issued and
outstanding capital stock as set forth in the "actual" column
of the capitalization table under the caption "Capitalization"
in the Prospectus. The certificates evidencing the Shares are
in due and proper legal form. Each outstanding share of
Common Stock and each outstanding share of capital stock of
each Subsidiary has been duly and validly authorized and
issued, fully paid, and is non-assessable, without any
personal liability attaching to the ownership thereof, and has
not been issued and is not owned or held in violation of any
preemptive right of stockholders. To the knowledge of such
counsel, there is no commitment, plan, or arrangement to
issue, and no outstanding option, warrant, or other right
calling for the issuance of, any share of apital stock of the
Company or of any Subsidiary or any security or other
instrument which by its terms is convertible into, exercisable
for, or exchangeable for capital stock of the Company or of
any Subsidiary, except as may be properly described in the
Prospectus. To the knowledge of such counsel, there is
outstanding no security or other instrument which by its terms
is convertible into, exercisable for or exchangeable for
capital stock of the Company, except as may be properly
described in the Prospectus.
(iii) To the knowledge of such counsel, there is no
litigation, arbitration, claim, governmental or other
proceeding (formal or informal), or investigation before any
court or before any public body or board pending, threatened,
or in prospect (or any basis therefor) with respect to the
Company, any Subsidiary, or any of their respective
operations, businesses, properties, assets, or financial
condition except as may be properly described in the
Prospectus or such as individually or in the aggregate do not
now have and will not in the future have a material adverse
effect upon the operations, business, properties, assets, or
financial condition of the Company or any of the
Subsidiaries. To the knowledge of such counsel, neither the
Company nor any Subsidiary is involved in any labor dispute,
nor is such dispute threatened, which dispute would have a
material
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adverse effect upon the operations, business, properties,
assets or financial condition of the Company or any
Subsidiary. Neither the Company nor any Subsidiary is in
violation of, or in default with respect to, any law, rule,
regulation, order, judgment, or decree, except as may be
properly described in the Prospectus or such as in the
aggregate do not now have and will not in the future have a
material adverse effect upon the operations, business,
properties, assets, or financial condition of the Company or
any of the Subsidiaries; nor is the Company or any Subsidiary
required to take any action in order to avoid any such
violation or default.
(iv) To the knowledge of such counsel, neither the
Company nor any Subsidiary or any other party is now or is
expected by the Company or any Subsidiary to be in violation
or breach of, or in default with respect to, complying with
any term, obligation or provision of any contract, agreement,
instrument, lease, license, indenture, mortgage, deed of
trust, note, arrangement or understanding which is material to
the Company or any Subsidiary or by which any of their
respective properties or businesses may be bound or affected
and no event has occurred which with notice or lapse of time
or both would constitute such a default.
(v) Neither the Company nor any Subsidiary is in
violation or breach of, or in default with respect to, any
term of their certificates of incorporation (or other charter
documents) or by-laws.
(vi) The Company has all requisite power and
authority to execute, deliver and perform this Agreement and
each of the Acquisition Agreements, to issue and sell the
Shares and to issue and sell the Representatives' Warrants.
All necessary corporate proceedings of the Company have been
taken to authorize the execution, delivery and performance by
the Company of the Company Documents and the Acquisition
Agreements. Each of the Company Documents and each of the
Acquisition Agreements has been duly authorized, executed and
delivered by the Company, and is the legal, valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws now or hereafter in effect relating to
or affecting creditors' rights generally and court decisions
with respect thereto. No consent, authorization, approval,
order, license, certificate or permit of or from, or
declaration or filing with, any federal state, local or other
governmental authority or any court or other tribunal is
required by the Company or any Subsidiary, for the execution,
delivery or performance by the Company of the Company
Documents and the Acquisition Agreements (except filings under
the Act
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which have been made prior to the Closing Date and filings or
consents under "blue sky" or securities laws, as to which such
counsel need express no opinion). To the knowledge of such
counsel, no consent of any party to any contract, agreement,
instrument, lease, license, indenture, mortgage, deed of
trust, note, arrangement or understanding to which the Company
or any Subsidiary is a party, or to which any of their
respective properties or assets are subject, is required for
the execution, delivery or performance of this Agreement; and
the execution, delivery and performance of this Agreement will
not violate, result in a breach of, conflict with, or (with or
without the giving of notice or the passage of time or both)
entitle any party to terminate or call a default under any
such contract, agreement, instrument, lease, license,
indenture, mortgage, deed of trust, note, arrangement or
understanding, in each case known to such counsel, or violate
or result in a breach of any term of the certificate of
incorporation (or other charter document) or bylaws of the
Company or any Subsidiary, or violate, result in a breach of,
or conflict with any law, rule, regulation, order, judgment,
or decree binding on the Company or any Subsidiary or to which
any of their respective operations, businesses, properties or
assets are subject.
(vii) The Representatives' Warrants have been duly
and validly authorized for issuance. Such opinion delivered
at the Firm Shares Closing Date shall state that the
Representatives' Warrants to be delivered on that date have
been duly and validly issued, fully paid, and non-assessable,
with no personal liability attaching to the ownership thereof,
and will not have been issued in violation of any preemptive
rights of stockholders, optionholders, warrantholders and any
other persons. The Warrant Shares are validly authorized and
reserved for issuance and, upon issuance, delivery and payment
therefor, as described in the Representatives' Warrants, will
be validly issued, fully paid and non-assessable, without any
personal liability attaching to the ownership thereof, and
will not be issued in violation of any preemptive rights of
stockholders, optionholders, warrantholders and any other
persons. The holders of the Representatives' Warrants will
receive good title to the securities purchased by them,
respectively, free and clear of all liens, security interests,
pledges, charges, encumbrances, stockholders' agreements and
voting trusts. The Warrant Shares and the Representatives'
Warrants conform substantially and in all material respects to
the description thereof contained in the Registration
Statement or the Prospectus.
(viii) The Firm Shares and the Option Shares are
duly and validly authorized. Such opinion delivered at each
Closing Date shall state that each such Share to be delivered
on that date is duly and validly issued, fully paid, and
non-assessable, with no personal liability attaching to the
ownership thereof, and is not issued in violation of any
preemptive rights of stockholders, optionholders,
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warrantholders and any other persons. Such opinion delivered
at the Firm Shares Closing Date shall state that the
Underwriters have received good title to the Shares purchased
by them from the Company, for the consideration contemplated
herein and in good faith and without notice of any adverse
claim within the meaning of the Uniform Commercial Code, free
and clear of any liens, security interests, pledges, charges,
encumbrances, stockholders' agreements, voting trusts and
other claims. The Common Stock, the Preferred Stock, the Firm
Shares and the Option Shares conform to all statements
relating thereto contained in the Registration Statement or
the Prospectus.
(ix) To the knowledge of such counsel, any contract,
agreement, instrument, lease or license required to be
described in the Registration Statement or the Prospectus has
been properly described therein. To the knowledge of such
counsel, any contract, agreement, instrument, lease or license
required to be filed as an exhibit to the Registration
Statement has been filed with the Commission as an exhibit to
or has been incorporated as an exhibit by reference into the
Registration Statement.
(x) Insofar as statements in the Prospectus purport
to summarize the status of litigation or the provisions of
laws, rules, regulations, orders, judgments, decrees,
contracts, agreements, instruments, leases or licenses, such
statements have been prepared or reviewed by such counsel and
to the knowledge of such counsel, accurately reflect the
status of such litigation and provisions purported to be
summarized and are correct in all material respects.
(xi) Neither the Company nor any Subsidiary is an
"investment company" as defined in Section 3(a) of the
Investment Company Act and, if each of the Company and the
Subsidiaries conducts its business as set forth in the
Prospectus, will not become an "investment company" and will
not be required to be registered under the Investment Company
Act.
(xii) To the knowledge of such counsel, no person or
entity has the right to require registration of shares of
Common Stock or other securities of the Company because of the
filing or effectiveness of the Registration Statement except
such persons or entities from whom written waivers of such
rights have been received prior to the Closing Date.
(xiii) The Registration Statement has become
effective under the Act. No Stop Order has been issued and no
proceedings for that purpose has been instituted or are
threatened, pending, or to such counsel's knowledge,
contemplated.
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(xiv) The Registration Statement, any Rule 430A
Prospectus, and the Prospectus, and any amendment or
supplement thereto (other than financial statements and other
financial data and schedules which are or should be contained
in any thereof, as to which such counsel need express no
opinion), comply as to form in all material respects with the
requirements of the Act and the Regulations. The conditions
for the use of Form SB-2 have been satisfied with respect to
the Registration Statement.
(xv) To the knowledge of such counsel, since the
effective date of the Registration Statement, no event has
occurred which should have been set forth in an amendment or
supplement to the Registration Statement or the Prospectus
which has not been set forth in such an amendment or
supplement.
(xvi) The agreement of each officer, director,
principal stockholder of the Company and each Subsidiary,
stating that for a period of 180 days from the date on which
the public offering of the Shares commences, such officer,
director and principal stockholder will not, without the prior
written consent of Xxxxxx, on behalf of the Underwriters,
offer, pledge, sell, contract to sell, grant any option for
the sale of, or otherwise dispose of, directly or indirectly,
any shares of Common Stock (or any other securities of the
Company or any security or other instrument which by its terms
is convertible into, exercisable for, or exchangeable for
shares of Common Stock or other securities of the Company,
including, without limitation, any shares of Common Stock
issuable under any employee stock options), beneficially owned
by such individual, has been duly and validly authorized,
executed and delivered by such individual and constitutes the
legal, valid and binding obligation of such individual
enforceable against such individual in accordance with its
terms.
In addition, such counsel shall state that such counsel has
participated in the preparation of the Registration Statement, any Rule 430A
Prospectus, or the Prospectus, or any amendment or supplement thereto (other
than financial statements and other financial data and schedules which are or
should be contained in any thereof, as to which such counsel need express no
opinion) and in conferences with officers and other representatives of the
Company, each Subsidiary and each Selling Stockholder, representatives of the
Representatives and representatives of the independent accountants of the
Company, at which conferences the contents of the Registration Statement, any
Rule 430A Prospectus, the Prospectus and related matters were discussed and,
although such counsel has not independently verified and is not passing upon
and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement, the
Prospectus, any Rule 430A Prospectus, or any amendment or supplement thereto
(except as specified in the foregoing opinion), on the basis of the foregoing
and relying as to materiality upon the representations of executive officers of
the
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Company and each Subsidiary and each Selling Stockholder after conferring with
such executive officers and Selling Stockholders, no facts have come to the
attention of such counsel which lead such counsel to believe that the
Registration Statement at the time it became effective contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus, except for the financial statements and other financial
and statistical data included therein as to which counsel need express no
opinion, as amended or supplemented on the date thereof contained any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
In rendering its opinion as aforesaid, counsel may rely upon
an opinion or opinions, each dated the Closing Date, of other counsel retained
by the Company as to laws of any jurisdiction other than the Federal laws of
the United States, the General Corporate Law of the state of Delaware and the
laws of the state of Georgia, provided that (1) each such local counsel is
reasonably acceptable to the Representatives and (2) such reliance is expressly
authorized by each opinion so relied upon and a copy of each such opinion is
addressed to the Representatives and is in form and substance reasonably
satisfactory to them and their counsel. In addition, such counsel may rely, as
to matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and the Subsidiaries, provided that
executed copies of such certificates are provided to the Representatives.
(g) The Representatives shall have received on each
Option Shares Closing Date from the respective counsel for each of the Selling
Stockholders, an opinion, addressed to the Representatives, and dated such
Closing Date, to the effect that:
(i) Such Selling Stockholder has all requisite
power and authority to execute, deliver and perform this
Agreement and to sell his Option Shares. Such Selling
Stockholder has the power and authority to execute, deliver
and perform this Agreement and to sell such Option Shares.
This Agreement has been duly authorized, executed and
delivered by such Selling Stockholder, and is the legal, valid
and binding obligation of such Selling Stockholders
enforceable as to such Selling Stockholder in accordance with
its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other
similar laws now or hereafter in effect relating to or
affecting creditors' rights generally and court decisions with
respect thereto. No consent, authorization, approval, order,
license, certificate or permit of or from, or declaration or
filing with, any federal state, local or other governmental
authority or any court or other tribunal is required by such
Selling Stockholder, for the execution, delivery or
performance by such Selling Stockholder of this Agreement
(except filings under the Act which have been made prior to
the Closing Date and filings or consents under "blue sky"
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or securities laws, as to which such counsel need express no
opinion). To the knowledge of such counsel, no consent of any
party to any contract, agreement, instrument, lease, license,
indenture, mortgage, deed of trust, note, arrangement or
understanding to which such Selling Stockholder is a party, or
to which his property or assets are subject, is required for
the execution, delivery or performance of this Agreement; and
the execution, delivery and performance of this Agreement will
not violate, result in a breach of, conflict with, or (with or
without the giving of notice or the passage of time or both)
entitle any party to terminate or call a default under any
such contract, agreement, instrument, lease, license,
indenture, mortgage, deed of trust, note, arrangement or
understanding, in each case known to such counsel.
(ii) Such opinion delivered at each of the Option
Shares Closing Dates shall state that such Selling Stockholder
has, pursuant to this Agreement, transferred to each of the
several Underwriters who has purchased such Option Shares in
good faith and without actual notice of any lien, encumbrance,
equity or adverse claim within the meaning of the Uniform
Commercial Code, good and valid title to such Selling
Stockholder Shares free and clear of all liens, encumbrances,
equities or claims.
In rendering its opinion as aforesaid, counsel may rely upon
an opinion or opinions, each dated the Closing Date, of local counsel retained
by such Selling Stockholder, provided that (1) each such local counsel is
reasonably acceptable to the Representatives and (2) such reliance is expressly
authorized by each opinion so relied upon and a copy of each such opinion is
addressed to the Representatives and is in form and substance reasonably
satisfactory to them and their counsel. In addition, such counsel may rely, as
to matters of fact, to the extent such counsel deems proper, on a certificates
of such Selling Stockholder, provided that executed copies of such certificates
are provided to the Representatives.
(h) All proceedings taken in connection with the sale of
the Firm Shares and the Option Shares as herein contemplated shall be
satisfactory in form and substance to the Representatives and its counsel, and
the Underwriters shall have received from Squadron, Ellenoff, Plesent &
Xxxxxxxxx, LLP, a favorable opinion, addressed to the Representatives and dated
such Closing Date, with respect to the Shares, the Registration Statement and
the Prospectus, and such other related matters, as the Representatives may
reasonably request, and the Company and the Selling Stockholders shall have
furnished to Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP, such documents as
they may reasonably request for the purpose of enabling them to pass upon such
matters.
(i) On the Firm Shares Closing Date, the Company shall have
issued to the Representatives the Representatives' Warrants equal to 10% of the
Firm Shares.
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(j) On the Firm Shares Closing Date, each of the Acquisitions
shall have been consummated in accordance with the terms and conditions of the
respective Acquisition Agreements.
6. Covenants of the Company and the Selling Stockholders.
(a) The Company covenants and agrees as follows:
(i) The Company shall use its best efforts to cause
the Registration Statement to become effective as promptly as
possible. If the Registration Statement has become or becomes
effective with a form of prospectus omitting Rule 430A
information, or filing of the Prospectus is otherwise required
under Rule 424(b), the Company will file the Prospectus,
properly completed, pursuant to Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to
you of such timely filing. The Company shall notify you
immediately, and confirm such notice in writing, (A) when the
Registration Statement and any post-effective amendment
thereto become effective, (B) of the receipt of any comments
from the Commission or the "blue sky" or securities authority
of any jurisdiction regarding the Registration Statement, any
post-effective amendment thereto, the Prospectus, or any
amendment or supplement thereto, and (C) of the receipt of any
notification with respect to a Stop Order. The Company shall
not file any amendment of the Registration Statement or
supplement to the Prospectus unless the Company has furnished
the Representatives a copy for their review prior to filing
and shall not file any such proposed amendment or supplement
to which the Representatives reasonably object. The Company
shall use its best efforts to prevent the issuance of any Stop
Order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(ii) During the time when a Prospectus relating to
the Shares is required to be delivered hereunder or under the
Act or the Regulations, comply so far as it is able with all
requirements imposed upon it by the Act, as now existing and
as hereafter amended, and by the Regulations, as from time to
time in force, so far as necessary to permit the continuance
of sales of or dealings in the Shares in accordance with the
provisions hereof and the Prospectus. If, at any time when a
prospectus relating to the Shares is required to be delivered
under the Act and the Regulations, any event as a result of
which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein in the light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend
or supplement the Prospectus to comply with the Act or the
Regulations, the Company promptly shall prepare and file with
the Commission,
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subject to the third sentence of paragraph (i) of this Section
6(a), an amendment or supplement which shall correct such
statement or omission or an amendment which shall effect such
compliance.
(iii) The Company shall make generally available to
its security holders and to the Representatives as soon as
practicable, but not later than 45 days after the end of the
12-month period beginning at the end of the fiscal quarter of
the Company during which the Effective Date (or 90 days if
such 12-month period coincides with the Company's fiscal
year), an earnings statement (which need not be audited) of
the Company, covering such 12-month period, which shall
satisfy the provisions of Section 11(a) of the Act or Rule 158
of the Regulations.
(iv) The Company shall furnish to the
Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration Statement (including
all exhibits and amendments thereto) and to each other
Underwriter a copy of the Registration Statement (without
exhibits thereto) and all amendments thereof and, so long as
delivery of a prospectus by an Underwriter or dealer may be
required by the Act or the Regulations, as many copies of any
preliminary prospectus and the Prospectus and any amendments
thereof and supplements thereto as the Representatives may
reasonably request.
(v) The Company shall cooperate with the
Representatives and its counsel in endeavoring to qualify the
Shares for offer and sale under the laws of such jurisdictions
as the Representatives may designate and shall maintain such
qualifications in effect so long as required for the
distribution of the Shares; provided, however, that the
Company shall not be required in connection therewith, as a
condition thereof, to qualify as a foreign corporation or to
execute a general consent to service of process in any
jurisdiction or subject itself to taxation as doing business
in any jurisdiction.
(vi) For a period of five years after the date of
this Agreement, the Company shall supply to the
Representatives, and to each other Underwriter who may so
request in writing, copies of such financial statements and
other periodic and special reports as the Company may from
time to time distribute generally to the holders of any class
of its capital stock and to furnish to the Representatives a
copy of each annual or other report it shall be required to
file with the Commission.
(vii) Without the prior written consent of Xxxxxx,
on behalf of the Underwriters, for a period of 180 days from
the date on which a public offering of the Shares commences,
the Company shall not issue, sell or register with the
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Commission or otherwise dispose of, directly or indirectly,
any securities of the Company (or any securities convertible
into or exercisable or exchangeable for securities of the
Company), except for the issuance of the Shares pursuant to
the Registration Statement and the issuance of shares of
Common Stock pursuant to the Merger Registration Statement.
(viii) If the Company elects to rely on 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.
eastern time on the date of this Agreement and (ii) the time
confirmations are sent or given, as specified by Rule
462(b)(2).
(ix) The Company shall make all filings required to
be made under applicable securities laws and by the NASDAQ
National Market on or before the last Closing Date.
(x) Prior to each Closing Date and for a period of
25 days thereafter, the Representatives shall be given
reasonable written prior notice of any press release or other
direct or indirect communication and of any press conference
with respect to the Company, the financial conditions, results
of operations, business, properties, assets, liabilities of
the Company, or this offering.
(xi) Until expiration of the Representative's
Warrants, the Company shall keep reserved sufficient shares of
Common Stock for issuance upon exercise thereof.
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(xii) The Company shall make all filings required
to be made under the Exchange Act and such filings shall
comply in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder.
(xiii) The Company shall participate in conference
calls designated and arranged by the Representatives on a
quarterly basis in connection with the release of its
quarterly earnings for a period of three years from the Firm
Shares Closing Date.
(b) The Company agrees to pay, or reimburse if paid by
the Representatives, whether or not the transactions contemplated
hereby are consummated or this Agreement is terminated, all
costs and expenses relating to the registration and public
offering of the Shares including those relating to: (i) the
preparation, printing, filing and distribution of the Registration
Statement including all exhibits thereto, each preliminary prospectus,
the Prospectus, all amendments and supplements to the Registration
Statement and the Prospectus, and any documents required to be
delivered with any Preliminary Prospectus or the Prospectus, and the
printing, filing and distribution of the Agreement Among Underwriters,
this Agreement and related documents; (ii) the preparation and
delivery of certificates for the Shares to the Underwriters; (iii) the
registration or qualification of the Shares for offer and sale under
the securities or Blue Sky laws of the various jurisdictions referred
to in Section 6(a)(v), including the fees and disbursements of counsel
for the Underwriters in connection with such registration and
qualification and the preparation, printing, distribution and shipment
of preliminary and supplementary Blue Sky memoranda; (iv) the
furnishing (including costs of shipping and mailing) to the
Representatives and to the Underwriters of copies of each preliminary
prospectus, the Prospectus and all amendments or supplements to the
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Prospectus, and of the several documents required by this Section to
be so furnished, as may be reasonably requested for use in connection
with the offering and sale of the Shares by the Underwriters or by
dealers to whom Shares may be sold; (v) the filing fees of the
National Association of Securities Dealers, Inc. in connection with
its review of the terms of the public offering; (vi) the furnishing
(including costs of shipping and mailing) to the Representatives and
to the Underwriters of copies of all reports and information required
by Section 6(a)(vi); (vii) inclusion of the Shares for quotation on
the NASDAQ National Market System; and (viii) all transfer taxes, if
any, with respect to the sale and delivery of the Shares by the
Company and the Selling Stockholders to the Underwriters. Except as
otherwise contemplated by Section 9 hereof, the Underwriters will pay
their own counsel fees and expenses to the extent not otherwise
covered by clause (iii) above, and their own travel and travel-related
expenses in connection with the distribution of the Shares. Without
limiting the obligations of the Company and the Selling Stockholder
set forth above, the Company and each Selling Stockholder agree to pay
all of their other costs and expenses incident to the performance of
their respective obligations under this Agreement and the sale of the
Shares by them hereunder.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any and all losses, claims, damages and
liabilities, joint or several (including any reasonable investigation,
legal and other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim
asserted), to which they, or any of them, may become subject under the
Act, the Exchange Act or other Federal or state law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any
preliminary prospectus, the Registration Statement or the Prospectus
or any amendment thereof or supplement thereto, or arise out of or are
based upon any omission or alleged omission to state therein such fact
required to be stated therein or necessary to make such statements
therein not misleading. In no event shall the indemnification
agreement contained in this Section 7(a) inure to the benefit of any
Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any losses, claims, damages, liabilities or
actions arising from the sale of the Shares upon the public offering
to any person by such Underwriter if such losses, claims, damages,
liabilities or actions arise out of, or are based upon, a statement or
omission or alleged omission in a preliminary prospectus and if, in
respect to such statement, omission or alleged omission, the
Prospectus differs in a material respect from such preliminary
prospectus such that the Prospectus does not contain such statement or
omission, and a copy of the Prospectus has not been sent or given to
such person at or prior to the confirmation of such sale to such
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person. The indemnity agreement contained in this Section 7(a) will be
in addition to any liability which the Company may otherwise have.
(b) The Selling Stockholders agree, severally and not
jointly, to indemnify each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, against any and all losses, claims,
damages and liabilities, joint or several (including any reasonable
investigation, legal and other expenses incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding
or any claim asserted), to which they, or any of them, may become
subject under the Act, the Exchange Act or other Federal or state law
or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact with
respect to such Selling Stockholders contained in any preliminary
prospectus, the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto (which amendments or
supplements are furnished to such Selling Stockholders), or which
arise out of or are based upon any omission or alleged omission to
state therein such fact required to be stated therein or necessary to
make such statements therein not misleading, but only with reference
to information relating to such Selling Stockholders furnished in
writing to the Company by or on behalf of such Selling Stockholders
expressly for use in connection with the preparation of the
Registration Statement and Prospectus or any amendment thereof or
supplement thereto. In no event shall the indemnification agreement
contained in this Section 7(b) inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter) on
account of any losses, claims, damages, liabilities or actions arising
from the sale of the Shares upon the public offering to any person by
such Underwriter if such losses, claims, damages, liabilities or
actions arise out of, or are based upon, a statement or omission or
alleged omission in a preliminary prospectus and if, in respect to
such statement, omission or alleged omission, the Prospectus differs
in a material respect from such preliminary prospectus such that the
Prospectus does not contain such statement or omission, and a copy of
the Prospectus has not been sent or given to such person at or prior
to the confirmation of such sale to such person. The obligations of
each of the Selling Stockholders, pursuant to this Section 7(b) and
Section 8, shall be limited to an amount not exceeding the product of
the Per Share Price to Public of the Shares as set forth on the cover
page of the Prospectus and the number of Shares being sold by each of
them. The indemnity agreement contained in this Section 7(b) will be
in addition to any liability which the Selling Stockholders may
otherwise have.
(c) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, each person, if any, who
controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, each director of the Company, and each
officer of the Company who signs the Registration Statement and each
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Selling Stockholder, to the same extent as the foregoing indemnity
from the Company and the Selling Stockholders to each Underwriter, but
only insofar as such losses, claims, damages or liabilities arise out
of or are based upon any untrue statement or omission or alleged
untrue statement or omission which was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any
amendment thereof or supplement thereto, which were made in reliance
upon and in conformity with information furnished in writing to the
Company by the Representatives on behalf of any Underwriter for
specific use therein; provided, however, that the obligation of each
Underwriter to indemnify the Company (including any controlling
person, director or officer thereof) and the Selling Stockholders
shall be limited to the underwriting discounts and commissions
applicable to Shares purchased by such Underwriter hereunder. For all
purposes of this Agreement, the amounts of the selling concession and
reallowance set forth in the Prospectus constitute the only
information furnished in writing by or on behalf of any Underwriter
expressly for inclusion in any Preliminary Prospectus, any Rule 430A
Prospectus, the Registration Statement or the Prospectus or any
amendment or supplement thereto.
(d) Any party that proposes to assert the right to be
indemnified under this Section will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such party
in respect of which a claim is to be made against an indemnifying
party or parties under this Section, notify each such indemnifying
party of the commencement of such action, suit or proceeding,
enclosing a copy of all papers served. No indemnification provided
for in Section 7(a), 7(b) or 7(c) shall be available to any party who
shall fail to give notice as provided in this Section 7(d) if the
party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was prejudiced by the failure
to give such notice but the omission so to notify such indemnifying
party of any such action, suit or proceeding shall not relieve it from
any liability that it may have to any indemnified party otherwise than
under this Section. In case any such action, suit or proceeding 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 in, and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof and the approval by the indemnified party of such counsel, the
indemnifying party shall not be liable to such indemnified party for
any legal or other expenses, except as provided below. The
indemnified party shall have the right to employ its counsel in any
such action, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the employment of counsel
by such indemnified party has been authorized in writing by the
indemnifying party, (ii) the indemnified party shall have been advised
by counsel reasonably satisfactory to the indemnified party that there
may be one or more legal defenses available to it which are
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different from or additional to those available to the indemnifying
party (in which case the indemnifying parties shall not have the right
to direct the defense of such action on behalf of the indemnified
party), or (iii) the indemnifying parties shall not have employed
counsel to assume the defense of such action within a reasonable time
after notice of the commencement thereof, in each of which cases the
reasonable fees and expenses of counsel shall be at the expense of the
indemnifying parties. An indemnifying party shall not be liable for
any settlement of any action, suit, proceeding or claim effected
without its written consent.
8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Sections 7(a), (b) and (c) is due in accordance with its terms but for any
reason (other than by reason of the failure of the party asserting the right
to be indemnified to give notice as provided in Section 7(d)) is held to be
unavailable from the Company, the Selling Stockholders or the Underwriters, the
Company, the Selling Stockholders and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities (including any investigation,
legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claims asserted,
but after deducting any contribution received by the Company from persons other
than the Underwriters, such as the Selling Stockholders, persons who control
the Company within the meaning of the Act, officers of the Company who signed
the Registration Statement and directors of the Company, who may also be liable
for contribution) to which the Company and the Selling Stockholders and one or
more of the Underwriters may be subject 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 or, if such allocation is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to above 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 which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company, the
Selling Stockholders and the Underwriters shall be deemed to be in the same
proportion as (x) the total proceeds from the Offering (net of underwriting
discounts but before deducting expenses) received by the Company or the Selling
Stockholders from the sale of the Shares, as set forth in the table on the
cover page of the Prospectus (but not taking into account the use of the
proceeds of such sale of Shares by the Company), bear to (y) the underwriting
discount received by the Underwriters, as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company, the Selling
Stockholders and the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
related to information supplied by the Company, the Selling Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company,
the Selling Stockholders and the Underwriters agree that it would not be just
and equitable if contribution
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pursuant to this Section 8 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. Notwithstanding the provisions of this
Section 8, (i) in no case shall any Underwriter (except as may be provided in
the Agreement Among Underwriters) be liable or responsible for any amount in
excess of the underwriting discounts and commissions applicable to the Shares
purchased by such Underwriter hereunder, (ii) in no case shall any of the
Selling Stockholders be liable or responsible for any amount in excess of the
product of the Per Share Price to Public of the Shares as set forth on the
cover page of the Prospectus and the number of Shares being sold by each of
them subject to the limitation expressed in Section 7(a), and (iii) the Company
shall be liable and responsible for any amount in excess of the underwriting
discounts and commissions and the amount referred to in clause (ii); provided,
however, that 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. For purposes
of this Section 8, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act shall
have the same rights to contribution as such Underwriter, and each person, if
any, who controls the Company within the meaning of the Section 15 of the Act
or Section 20(a) of the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company shall
have the same rights to contribution as the Company, subject in each case to
clauses (i), (ii) and (iii) in the immediately preceding sentence of this
Section 8. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party or
parties under this Section 8, notify such party or parties from whom
contribution may be sought, but the omission so to notify such party or parties
from whom contribution may be sought shall not relieve the party or parties
from whom contribution may be sought from any other obligation it or they may
have hereunder or otherwise than under this Section. No party shall be liable
for contribution with respect to any action, suit, proceeding or claim settled
without its written consent. The Underwriters' obligations to contribute
pursuant to this Section 8 are several in proportion to their respective
underwriting commitments and not joint.
9. Termination. This Agreement may be terminated with respect to
the Shares to be purchased on any Closing Date by the Representatives by
notifying the Company and the Selling Stockholders at any time prior to the
purchase of the Shares:
(a) in the absolute discretion of the Representatives at
or before any Closing Date: (i) if on or prior to such date, any
domestic or international event or act or occurrence has materially
disrupted, or in the opinion of the Representatives will in the future
materially disrupt, the securities markets; (ii) if there has occurred
any new outbreak or material escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the judgment of the
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Representatives, inadvisable to proceed with the Offering; (iii) if
there shall be such a material adverse change in general financial,
political or economic conditions or the effect of international
conditions on the financial markets in the United States such as to
make it, in the judgment of the Representatives, inadvisable or
impracticable to market the Shares; (iv) if trading in the Shares has
been suspended by the Commission or trading generally on the New York
Stock Exchange, Inc., the American Stock Exchange, Inc. or the NASDAQ
National Market System has been suspended or limited, or minimum or
maximum ranges for prices for securities shall have been fixed, or
maximum ranges for prices for securities have been required, by said
exchanges or by order of the Commission, the National Association of
Securities Dealers, Inc., or any other governmental or regulatory
authority; or (v) if a banking moratorium has been declared by any
state or federal authority; or
(b) at or before any Closing Date, if any of the
conditions specified in Section 5 shall not have been fulfilled when
and as required by this Agreement.
If this Agreement is terminated pursuant to any of its provisions,
neither the Company nor the Selling Stockholders shall be under any liability
to any Underwriter, and no Underwriter shall be under any liability to the
Company or the Selling Stockholders, except that (I) if this Agreement is
terminated by the Representatives or the Underwriters because of any failure,
refusal or inability on the part of the Company or the Selling Stockholders to
comply with the terms or to fulfill any of the conditions of this Agreement,
the Company will reimburse the Underwriters for all out-of-pocket expenses
(including the fees and disbursements of their counsel) incurred by them in
connection with the proposed purchase and sale of the Shares or in
contemplation of performing their obligations hereunder; and (ii) no
Underwriter who shall have failed or refused to purchase the Shares agreed to
be purchased by it under this Agreement, without some reason sufficient
hereunder to justify cancellation or termination of its obligations under this
Agreement, shall be relieved of liability to the Company and the Selling
Stockholders or to the other Underwriters for damages occasioned by its failure
or refusal.
10. Substitution of Underwriters. If one or more of the
Underwriters shall fail (other than for a reason sufficient to justify the
cancellation or termination of this Agreement under Section 9) to purchase on
any Closing Date the Shares agreed to be purchased on such Closing Date by such
Underwriter or Underwriters, the Representatives may find one or more
substitute underwriters to purchase such Shares or make such other arrangements
as the Representatives may deem advisable or one or more of the remaining
Underwriters may agree to purchase such Shares in such proportions as may be
approved by the Representatives, in each case upon the terms set forth in this
Agreement. If no such arrangements have been made by the close of business on
the business day following such Closing Date:
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(a) if the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date does not exceed 10% of
the Shares that all the Underwriters are obligated to purchase on such
Closing Date, then each of the nondefaulting Underwriters shall be
obligated to purchase such Shares on the terms herein set forth in
proportion to their respective obligations hereunder; provided, that
in no event shall the maximum number of Shares that any Underwriter
has agreed to purchase pursuant to Section 1 be increased pursuant to
this Section 10 by more than one-ninth of such number of Shares
without the written consent of such Underwriter; or
(b) if the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date shall exceed 10% of the
Shares that all the Underwriters are obligated to purchase on such
Closing Date, then the Company and the Selling Stockholders shall be
entitled to an additional business day within which they may, but are
not obligated to, find one or more substitute underwriters reasonably
satisfactory to the Representatives to purchase such Shares upon the
terms set forth in this Agreement.
In any such case, either the Representatives or the Company and the
Selling Stockholders shall have the right to postpone the applicable Closing
Date for a period of not more than five business days in order that necessary
changes and arrangements (including any necessary amendments or supplements to
the Registration Statement or Prospectus) may be effected by the
Representatives, the Company and the Selling Stockholders. If the number of
Shares to be purchased on such Closing Date by such defaulting Underwriter or
Underwriters shall exceed 10% of the Shares that all the Underwriters are
obligated to purchase on such Closing Date, and none of the nondefaulting
Underwriters or the Company shall make arrangements pursuant to this Section
within the period stated for the purchase of the Shares that the defaulting
Underwriters agreed to purchase, this Agreement shall terminate with respect to
the Shares to be purchased on such Closing Date without liability on the part
of any nondefaulting Underwriter to the Company and the Selling Stockholders
and without liability on the part of the Company and the Selling Stockholders,
except in both cases as provided in Sections 6(b), 7, 8, 9 and 10. The
provisions of this Section shall not in any way affect the liability of any
defaulting Underwriter to the Company or the Selling Stockholders or the
nondefaulting Underwriters arising out of such default. A substitute
underwriter hereunder shall become an Underwriter for all purposes of this
Agreement.
11. Miscellaneous. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers, of
the Selling Stockholders and of the Underwriters set forth in or made pursuant
to this Agreement shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or the
Selling Stockholders or any of the officers, directors or controlling persons
referred to in Sections 7 and 8 hereof, and shall survive delivery of and
payment for the Shares. The provisions of Sections 6(b), 7, 8, 9 and 10 shall
survive the termination or cancellation of this Agreement.
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This Agreement has been and is made for the benefit of the
Underwriters, the Company and the Selling Stockholders and their respective
heirs, executors, administrators, personal representatives, successors and
assigns and, to the extent expressed herein, for the benefit of persons
controlling any of the Underwriters, the Selling Stockholders or the Company,
and directors and officers of the Company, and their respective successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" shall not include any
purchaser of Shares from any Underwriter merely because of such purchase.
All notices and communications hereunder shall be in writing and
mailed or delivered, or by telefax or telegraph if subsequently confirmed by
letter, (a) if to the Representatives, to Xxxxxx & Xxxxxxx, Inc., 000 Xxxxxxx
Xxxxxx, 2 World Financial Center, New York, New York 10281, Attention: Xxxx X.
Xxxxx, III, Managing Director, telecopy: (000) 000-0000, with a copy to
Cruttenden Xxxx Incorporated, 00000 Xxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx
00000, Attention: ____________________, telecopy: (000) 000-0000; (b) if to the
Company, to the Company's agent for service as such agent's address appears on
the cover page of the Registration Statement; and (c) if to any Selling
Stockholder, to such Selling Stockholder's address and telecopy number as set
forth on Schedule II hereto.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflict of
laws.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
All pronouns and any variations thereof shall be deemed to refer to
the masculine, feminine, or neuter, singular or plural, as the identity of the
person or persons or entity or entities require.
All section headings herein are for convenience of reference only and
are not part of this Agreement, and no construction or inference shall be
derived therefrom.
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Please confirm that the foregoing correctly sets forth the agreement
among us.
Very truly yours,
INFOCURE CORPORATION
By: ______________________________
Name:
Title:
[SELLING STOCKHOLDERS]
__________________________________
__________________________________
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Confirmed on behalf of itself
and as the Representatives of the several Underwriters
named in Schedule I annexed hereto:
XXXXXX & XXXXXXX, INC.
By:______________________________
Name: Xxxx X. Xxxxx, III
Title: Managing Director
CRUTTENDEN XXXX INCORPORATED
By:_______________________________
Name:
Title:
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SCHEDULE I
NUMBER OF FIRM
SHARES TO BE
NAME OF UNDERWRITER PURCHASED
------------------- ---------------
Xxxxxx & Xxxxxxx, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Cruttenden Xxxx Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . .
Total 2,000,000
=========
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SCHEDULE II
NAME, ADDRESS AND TELECOPY NUMBER OF NUMBER OF SHARES TO BE SOLD
SELLING STOCKHOLDER
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SCHEDULE III
SUBSIDIARY JURISDICTION OF INCORPORATION
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SCHEDULE IV
ACQUISITION AGREEMENTS
[TO FOLLOW]
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