Draft 9/30/97
_______________ Shares
DENTAL CARE ALLIANCE, INC.
Common Stock
______________________
UNDERWRITING AGREEMENT
St. Petersburg, Florida
, 1997
Xxxxxxx Xxxxx & Associates, Inc.
Xxxxxxx Xxxxx & Company, L.L.C.
As Representatives of the Several Underwriters
c/o Raymond Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Ladies & Gentlemen:
Dental Care Alliance, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
an aggregate of ______ shares of common stock, $0.01 par value per share (the
"Common Stock"), of the Company, to the several Underwriters named in Schedule I
hereto (the "Underwriters"). Such _______ shares of Common Stock to be sold by
the Company are hereinafter referred to as the "Firm Shares". In addition, the
Company and certain Stockholders of the Company (the "Selling Stockholders")
have agreed to sell to the Underwriters, upon the terms and conditions set forth
herein, up to an additional _______ shares in the aggregate (the "Additional
Shares") of the Common Stock to cover over-allotments by the Underwriters, if
any. The Firm Shares and the Additional Shares are hereinafter collectively
referred to as the "Shares."
The Company and the Selling Stockholders wish to confirm as follows
their agreement with you and the other several Underwriters, on whose behalf you
are acting, in connection with the several purchases of the Shares from the
Company and the Selling Stockholders.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 (File
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No. 333-_______), including a prospectus subject to completion, relating to the
Shares. Such registration statement, as amended at the time when it becomes
effective and as thereafter amended by post-effective amendment, is referred to
in this Agreement as the "Registration Statement." The prospectus in the form
included in the Registration Statement, or, if the prospectus included in the
Registration Statement omits information in reliance upon Rule 430A under the
Act and such information is included in a prospectus filed with the Commission
pursuant to Rule 424(b) under the Act or as part of a post-effective amendment
to the Registration Statement after the Registration Statement becomes
effective, the prospectus as so filed is referred to in this Agreement as the
"Prospectus." If the Company elects to rely on Rule 434 under the Act, all
references to the Prospectus shall be deemed to include, without limitation, the
form of prospectus and the term sheet contemplated by Rule 434, taken together,
provided to the Underwriters by the Company in reliance on Rule 434 under the
Act (the "Rule 434 Prospectus"). If the Company files another registration
statement with the Commission to register a portion of the Shares pursuant to
Rule 462(b) under the Act (the "Rule 462 Registration Statement"), then any
reference to "Registration Statement" herein shall be deemed to include the
registration statement on Form S-1 (File No. 333-_____) and the Rule 462
Registration Statement, as each such registration statement may be amended
pursuant to the Act. The prospectus subject to completion in the form included
in the Registration Statement at the time of the initial filing of such
Registration Statement with the Commission and as such prospectus is amended
from time to time until the date of the Prospectus, are collectively referred to
in this Agreement as the "Prepricing Prospectus." For purposes of this
Agreement, all references to the Registration Statement, the Prospectus, any
Prepricing Prospectus, any Rule 434 Prospectus, any Rule 462 Registration
Statement or any amendment or supplement to any of the foregoing shall be deemed
to include the respective copies thereof filed with the Commission pursuant to
the Commission's Electronic Data Gathering Analysis and Retrieval System
("Xxxxx").
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees to sell
the Firm Shares to the Underwriters and, upon the basis of the representations,
warranties and agreements of the Company herein contained and subject to all the
terms and conditions set forth herein, each Underwriter agrees, severally and
not jointly, to purchase from the Company at a purchase price of $_____ per
Share (the "purchase price per Share"), the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto (or such number of
Firm Shares as adjusted pursuant to Section 11 hereof).
The Company and the Selling Stockholders hereby also agree, severally
and not jointly, to sell to the Underwriters, and upon the basis of the
representations, warranties and agreements of the Company and the Selling
Stockholders herein contained and subject to all the terms and conditions set
forth herein, the Underwriters shall have the right for 30 days from the date of
the Prospectus to purchase from the Company and the Selling Stockholders up to
___ Additional Shares (in accordance with Schedule II hereof) at the purchase
price per Share for the Firm Shares. The Additional Shares may be purchased
solely for the purpose of covering over-allotments, if any, made in connection
with the offering of the Firm Shares. If any Additional Shares are to be
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purchased, each Underwriter, severally and not jointly, agrees to purchase the
number of Additional Shares (subject to such adjustments as you may determine to
avoid fractional shares) which bears the same proportion to the total number of
Additional Shares to be purchased by the Underwriters as the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto (or
such number of Firm Shares as adjusted pursuant to Section 11 hereof) bears to
the total number of Firm Shares.
3. TERMS OF PUBLIC OFFERING. The Company and the Selling Stockholders
have been advised by you that the Underwriters propose to make a public offering
of their respective portions of the Shares as soon after the Registration
Statement and this Agreement have become effective as in your judgment is
advisable and initially to offer the Shares upon the terms set forth in the
Prospectus.
4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery to the
Underwriters of the Firm Shares and payment therefor shall be made at the
offices of Xxxxxxx Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx, at 10:00 a.m., St. Petersburg, Florida time, on , 1997 (the
"Closing Date"). The place of closing for the Firm Shares and the Closing Date
may be varied by agreement between you and the Company.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at the offices of Xxxxxxx
Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx, at
10:00 a.m., St. Petersburg, Florida time, on such date or dates (the "Additional
Closing Date") (which may be the same as the Closing Date but shall in not event
be earlier than the Closing Date nor earlier than three nor later than ten
business days after the giving of notice hereinafter referred to) as shall be
specified in a written notice from Xxxxxxx Xxxxx & Associates, Inc. on behalf of
the Underwriters to the Company of the Underwriters' determination to purchase a
number, specified in such notice, of Additional Shares. Such notice may be given
to the Company and the Selling Stockholders by Xxxxxxx Xxxxx & Associates, Inc.
at any time within 30 days after the date of the Prospectus. The place of
closing for the Additional Shares and the Additional Closing Date may be varied
by agreement among you, the Company and any of the Attorneys-in-Fact (as such
term is defined herein).
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 1:00 p.m., St. Petersburg, Florida time, not later
than the second full business day preceding the Closing Date or the Additional
Closing Date, as the case may be. Such certificates shall be made available to
you in St. Petersburg, Florida for inspection and packaging not later than 9:30
a.m., St. Petersburg, Florida time, on the business date immediately preceding
the Closing Date or the Additional Closing Date, as the case may be. The
certificates evidencing the Firm Shares and any Additional Shares to be
purchased hereunder shall be delivered to you on the Closing Date or the
Additional Closing Date, as the case may be, against payment of the purchase
price therefor by certified or official bank check or checks to the order of, or
by wire transfer to the account of, the Company, in same day available funds
against the delivery of the certificates for the Firm Shares and any Additional
Shares, as the case may be.
5. COVENANTS AND AGREEMENTS OF THE COMPANY. The Company covenants and
agrees with the several Underwriters as follows:
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(a) The Company will use its best efforts to cause the
Registration Statement to become effective and will advise you promptly
and, if requested by you, will confirm such advice in writing (i) when
the Registration Statement has become effective and when any
post-effective amendment thereto becomes effective, (ii) if Rule 430A
under the Act is employed, when the Prospectus has been timely filed
pursuant to Rule 424(b) under the Act, (iii) of any request by the
Commission for amendments or supplements to the Registration Statement,
any Prepricing Prospectus or the Prospectus or for additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Shares for offering or sale in any
jurisdiction or the initiation of any proceeding for such purposes and
(v) within the period of time referred to in Section 5(e) below, of any
change in the Company's condition (financial or other), business,
prospects, properties, net worth or results of operations, or of any
event that comes to the attention of the Company that makes any
statement made in the Registration Statement or the Prospectus (as then
amended or supplemented) untrue in any material respect or that
requires the making of any additions thereto or changes therein in
order to make the statements therein not misleading in any material
respect, or of the necessity to amend or supplement the Prospectus (as
then amended or supplemented) to comply with the Act or any other law.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Company will make
every reasonable effort to obtain the withdrawal of such order at the
earliest possible time. If the Company elects to rely on Rule 434 under
the Act, the Company will provide the Underwriters with copies of the
form of Rule 434 Prospectus (including copies of a term sheet that
complies with the requirements of Rule 434 under the Act), in such
number as the Underwriters may reasonably request, and file with the
Commission in accordance with Rule 424(b) of the Act the form of
Prospectus complying with Rule 434(b)(2) of the Act before the close of
business on the first business day immediately following the date
hereof. If the Company elects not to rely on Rule 434 under the Act,
the Company will provide the Underwriters with copies of the form of
Prospectus, in such number as the Underwriters may reasonably request,
and file with the Commission such Prospectus in accordance with Rule
424(b) of the Act before the close of business on the second business
day immediately following the date hereof. To the extent applicable,
the copies of the Registration Statement and each amendment thereto
(including all exhibits filed therewith), any Prepricing Prospectus,
Prospectus or any Rule 434 Prospectus (in each case, as amended or
supplemented) furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to Xxxxx.
(b) The Company will furnish to you, without charge, two
signed duplicate originals of the Registration Statement as originally
filed with the Commission and of each amendment thereto, including
financial statements and all exhibits thereto, and will also furnish to
you, without charge, such number of conformed copies of the
Registration Statement as originally filed and of each amendment
thereto as you may reasonably request. To the extent applicable, the
copies of the Registration Statement and each amendment thereto
(including all exhibits filed therewith), any Prepricing Prospectus,
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Prospectus, any Rule 434 Prospectus or any Rule 462 Registration
Statement (in each case, as amended or supplemented) furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to Xxxxx.
(c) The Company will not file any Rule 462 Registration
Statement or any amendment to the Registration Statement or make any
amendment or supplement to the Prospectus unless (A) you shall have
previously been advised thereof and given a reasonable opportunity to
review such filing, amendment or supplement, and (B) you have not
reasonably objected to such filing, amendment or supplement after being
so advised.
(d) Prior to the execution and delivery of this Agreement, the
Company has delivered or will deliver to you, without charge, in such
quantities as you have requested or may hereafter reasonably request,
copies of each form of the Prepricing Prospectus. The Company consents
to the use, in accordance with the provisions of the Act and with the
securities or Blue Sky laws of the jurisdictions in which the Shares
are offered by the several Underwriters and by dealers, prior to the
date of the Prospectus, of each Prepricing Prospectus so furnished by
the Company.
(e) As soon after the execution and delivery of this Agreement
as is practicable and thereafter from time to time for such period as
in the reasonable opinion of counsel for the Underwriters a prospectus
is required by the Act to be delivered in connection with sales by any
Underwriter or dealer, and for so long a period as you may request for
the distribution of the Shares, the Company will deliver to each
Underwriter, without charge, as many copies of the Prospectus (and of
any amendment or supplement thereto) as they may reasonably request.
The Company consents to the use of the Prospectus (and of any amendment
or supplement thereto) in accordance with the provisions of the Act and
with the securities or Blue Sky laws of the jurisdictions in which the
Shares are offered by the several Underwriters and by all dealers to
whom Shares may be sold, both in connection with the offering and sale
of the Shares and for such period of time thereafter as the Prospectus
is required by the Act to be delivered in connection with sales by any
Underwriter or dealer. If at any time prior to the later of (i) the
completion of the distribution of the Shares pursuant to the offering
contemplated by the Registration Statement or (ii) the expiration of
prospectus delivery requirements with respect to the Shares under
Section 4(3) of the Act and Rule 174 thereunder, any event shall occur
that in the judgment of the Company or in the opinion of counsel for
the Underwriters is required to be set forth in the Prospectus (as then
amended or supplemented) or should be set forth therein in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary to
supplement or amend the Prospectus to comply with the Act or any other
law, the Company will forthwith prepare and, subject to Sections 5(a)
and 5(c) hereof, file with the Commission and use its best efforts to
cause to become effective as promptly as possible an appropriate
supplement or amendment thereto, and will furnish to each Underwriter
who has previously requested Prospectuses, without charge, a reasonable
number of copies thereof.
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(f) The Company will cooperate with you and counsel for the
Underwriters in connection with the registration or qualification of
the Shares for offering and sale by the several Underwriters and by
dealers under the securities or Blue Sky laws of such jurisdictions as
you may reasonably designate and will file such consents to service of
process or other documents as may be reasonably necessary in order to
effect and maintain such registration or qualification for so long as
required to complete the distribution of Shares; provided that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
which would subject it to service of process in suits, other than those
arising out of the offering or sale of the Shares, in any jurisdiction
where it is not now so subject. In the event that the qualification of
the Shares in any jurisdiction is suspended, the Company shall so
advise you promptly in writing.
(g) The Company will make generally available to its security
holders a consolidated earnings statement (in form complying with the
Provisions of Rule 158), which need not be audited, covering a
twelve-month period commencing after the effective date of the
Registration Statement and the Rule 462 Registration Statement, if any,
and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which consolidated earnings statement
shall satisfy the provisions of Section 11(a) of the Act.
(h) During the period ending five years from the date hereof,
the Company will furnish to you and, upon your request, to each of the
other Underwriters, (i) as soon as available, a copy of each proxy
statement, quarterly or annual report or other report of the Company
mailed to stockholders or filed with the Commission, the NASD or the
Nasdaq Stock Market or any securities exchange and (ii) from time to
time such other information concerning the Company as you may
reasonably request. To the extent applicable, the copies of the
Registration Statement and each amendment thereto (including all
exhibits filed therewith), any Prepricing Prospectus, Prospectus, any
Rule 434 Prospectus or any Rule 462 Registration Statement (in each
case, as amended or supplemented) furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with
the Commission pursuant to Xxxxx.
(i) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provision hereof (except pursuant to a
termination under Section 13 hereof) or if this Agreement shall be
terminated by the Underwriters because of any inability, failure or
refusal on the part of the Company or the Selling Stockholders to
perform any agreement herein or to comply with any of the terms or
provisions hereof, the Company agrees to reimburse you and the other
Underwriters for all out-of-pocket expenses (including travel expenses
and fees and expenses of counsel for the Underwriters but excluding
wages and salaries paid by you) reasonably incurred by you in
connection herewith.
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(j) The Company will apply the net proceeds from the sale of
the Shares to be sold by it hereunder for the purposes set forth under
"Use of Proceeds" in the Prospectus.
(k) If Rule 430A under the Act is employed, the Company will
timely file the Prospectus pursuant to Rule 424(b) under the Act.
(l) For a period of 180 days after the date of the Prospectus
first filed pursuant to Rule 424(b) under the Act, without your prior
written consent, the Company will not, directly or indirectly, issue,
sell, offer or contract to sell or otherwise dispose of or transfer any
shares of Common Stock or securities convertible into or exchangeable
or exercisable for shares of Common Stock (collectively, "Company
Securities") or any rights to purchase Company Securities, except for
issuances of Company Securities (i) to the Underwriters pursuant to
this Agreement, (ii) not exceeding an aggregate of [______] shares
Common Stock (including securities to purchase Common Stock) under the
Company's presently authorized Omnibus Executive Incentive Compensation
Plan, (iii) in accordance with the terms of options or warrants issued
by the Company on or prior to the date hereof and described in the
Registration Statement, (iv) to the owners of dental practices in
connection with the acquisition of the stock or assets of such
practices by the Company or by any professional association that has
entered into a management agreement with the Company relating to any
such dental practice or (v) in connection with the acquisition by the
Company of professional practice management organizations.
(m) Prior to the Closing Date or the Additional Closing Date,
as the case may be, the Company will furnish to you, as promptly as
possible, copies of any unaudited interim financial statements of the
Company for any period subsequent to the periods covered by the
financial statements appearing in the Prospectus.
(n) The Company will comply with all provisions of any
undertakings contained in the Registration Statement.
(o) The Company will not at any time, directly or indirectly,
take any action designed, or which might reasonably be expected to
cause or result in, or which will constitute, stabilization or
manipulation of the price of the shares of Common Stock to facilitate
the sale or resale of any of the Shares.
(p) The Company will use its best efforts to qualify or
register its Common Stock for sale in non-issuer transactions under (or
obtain exemptions from the application of) the Blue Sky laws of each
state where necessary to permit market making transactions and
secondary trading, and will comply with such Blue Sky laws and will
continue such qualifications, registrations and exemptions in effect
for a period of five years after the date hereof.
(q) The Company will timely file within the National
Association of Securities Dealers Automated Quotation National Market
System ("NASDAQ/NMS") all documents and notices required by the
NASDAQ/NMS of companies that have issued
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securities that are traded in the over-the-counter market and
quotations for which are reported by the NASDAQ/NMS.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter on the date hereof, and shall be
deemed to represent and warrant to each Underwriter on the Closing Date and the
Additional Closing Date, that:
(a) The Company satisfies all of the requirements of the Act
for use on Form S-1, and for the offering of Shares contemplated
hereby. Each Prepricing Prospectus included as part of the Registration
Statement as originally filed or as part of any amendment or supplement
thereto, or filed pursuant to Rule 424(a) under the Act, complied when
so filed in all material respects with the provisions of the Act,
except that this representation and warranty does not apply to
statements in or omissions from such Prepricing Prospectus (or any
amendment or supplement thereto) made in reliance upon and in
conformity with information relating to any Underwriter furnished to
the Company in writing by or on behalf of any Underwriter through you
expressly for use therein. The Commission has not issued any order
preventing or suspending the use of any Prepricing Prospectus.
(b) The Registration Statement (including any Rule 462
Registration Statement), in the form in which it becomes effective and
also in such form as it may be when any post-effective amendment
thereto shall become effective, and the Prospectus, and any supplement
or amendment thereto when filed with the Commission under Rule 424(b)
under the Act, will comply in all material respects with the provisions
of the Act and will not at any such times contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except that this representation and warranty does not apply
to statements in or omissions from the Registration Statement or the
Prospectus (or any amendment or supplement thereto) made in reliance
upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by or on behalf of any Underwriter
through you expressly for use therein.
(c) The capitalization of the Company is and will be as set
forth in the Prospectus as of the date set forth therein. All the
outstanding shares of Common Stock of the Company have been, and as of
the Closing Date will be, duly authorized and validly issued, are fully
paid and non-assessable and are free of any preemptive or similar
rights; except as set forth in the Prospectus, the Company is not a
party to or bound by any outstanding options, warrants, or similar
rights to subscribe for, or contractual obligations to issue, sell,
transfer or acquire, any of its capital stock or any securities
convertible into or exchangeable for any of such capital stock; the
Shares to be issued and sold to the Underwriters by the Company
hereunder have been duly authorized and, when issued and delivered to
the Underwriters against payment therefor in accordance with the terms
hereof, will be validly issued, fully paid and non-assessable and free
of any preemptive or similar rights; the capital stock of the Company
conforms to the description thereof in the Registration Statement and
the Prospectus (or any amendment
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or supplement thereto); and the delivery of certificates for the Shares
against payment therefor pursuant to the terms of this Agreement will
pass valid title, to the Shares, free and clear of any claim,
encumbrance or defect in title, to the several Underwriters purchasing
the Shares in good faith and without notice of any lien, claim or
encumbrance. The certificates for the Shares are in valid and
sufficient form.
(d) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware with
full power and authority to own, lease and operate its properties and
to conduct its business as presently conducted and as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto), and is duly registered and qualified to conduct
its business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure
to so register or qualify does not, individually or in the aggregate,
have a material adverse effect on the condition (financial or other),
business, properties, net worth, results of operations or prospects of
the Company and its subsidiaries taken as a whole (a "Material Adverse
Effect").
(e) The Company does not own a material interest in or
control, directly or indirectly, any other corporation, partnership,
joint venture, association, trust or other business organization,
except that prior to the Closing Date the Company shall form Dental
Care Alliance of Florida, Inc. and Dental Care Alliance of Michigan,
Inc., each of which shall be a wholly owned subsidiary of the Company
(collectively, the "Subsidiaries"). On the Closing Date, and on any
Additional Closing Date, each of the Subsidiaries will be a corporation
duly organized validly existing and in good standing under the laws of
the state of its incorporation with full corporate power and authority
to own, lease and operate its properties and to conduct its business as
contemplated by the Registration Statement and the Prospectus (and any
amendment or supplement thereto), and will be duly registered and
qualified to conduct its business and will be in good standing in each
other jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification,
except where the failure to so register or qualify does not,
individually or in the aggregate, have a Material Adverse Effect. On
the Closing Date, and on any Additional Closing Date, all of the
outstanding shares of capital stock of each of the Subsidiaries will
have been duly authorized and validly issued, fully paid and
nonassessable, and be owned by the Company directly or indirectly
through one of the other Subsidiaries, free and clear of any lien,
adverse claim, security interest, equity or other encumbrance.
(f) There are no legal or governmental proceedings pending or,
to the best knowledge of the Company, threatened, against the Company
or any of the Subsidiaries or to which the Company or any of the
Subsidiaries or to which any of their respective properties, is
subject, nor, to the best knowledge of the Company after reasonably
inquiry, pending or threatened against any of the dental practice
groups with which the Company has management service agreements (each a
"Practice Group") or any individual dentist practicing in any Practice
Group (each a "Dentist") or to which any
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Practice Group or any Dentist, or to which any of their respective
properties, is subject, in each case that are required to be described
in the Registration Statement or the Prospectus (or any amendment or
supplement thereto) but are not described as required. Except as
described in the Prospectus, there is no action, suit, inquiry,
proceeding, or investigation by or before any court or governmental or
other regulatory or administrative agency or commission pending or, to
the best knowledge of the Company, threatened, against or involving the
Company or any of the Subsidiaries nor, to the best knowledge of the
Company after reasonably inquiry, pending or threatened against any
Practice Group or any Dentist, in each case which might individually or
in the aggregate prevent or adversely affect the transactions
contemplated by this Agreement or result in a material adverse change
in the condition (financial or otherwise), properties, business, net
worth or results of operations or prospects of the Company or any of
its Subsidiaries nor, to the knowledge of the Company, is there any
basis for any such action, suit, inquiry, proceeding, or investigation.
There are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration
Statement or the Prospectus (or any amendment or supplement thereto) or
to be filed as an exhibit to the Registration Statement that are not
described or filed as required by the Act. All such contracts to which
the Company or any Subsidiary is a party have been duly authorized,
executed and delivered by the Company or such Subsidiary, constitute
valid and binding agreements of the Company and are enforceable against
the Company or such Subsidiary in accordance with the terms thereof,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights
and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity), and the
Company nor any Subsidiary, nor to the Company's knowledge, any other
party, is in breach of or default under any of such contracts.
(g) Neither the Company nor any of the Subsidiaries is in
violation of its certificate or articles of incorporation or bylaws, or
other organizational documents, nor is the Company or any of the
Subsidiaries in violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of the
Subsidiaries or of any decree of any court or governmental agency or
body having jurisdiction over the Company or any of the Subsidiaries,
or in default in any material respect in the performance of any
obligation, agreement or condition contained in (i) any bond,
debenture, note or any other evidence of indebtedness, or (ii) any
material agreement, indenture, lease or other instrument to which the
Company or any of the Subsidiaries is a party or by which any of them
or any of their respective properties may be bound; and there does not
exist any state of facts which constitutes an event of default on the
part of the Company or any of the Subsidiaries as defined in such
documents or which, with notice or lapse of time or both, would
constitute such an event of default.
(h) The execution and delivery of this Agreement and the
performance by the Company of its obligations under this Agreement have
been duly and validly authorized by the Company, and this Agreement has
been duly executed and delivered by the
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Company and constitutes the valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, conveyance, reorganization, and
similar laws affecting rights and remedies generally, and subject, as
to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding at law or
in equity).
(i) Neither the issuance and sale of the Shares, the
execution, delivery or performance of this Agreement by the Company nor
the consummation by the Company of the transactions contemplated hereby
(i) requires any consent, approval, authorization or other order of or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency or official (except such as
may be required for the registration of the Shares under the Act and
compliance with the securities or Blue Sky laws of various
jurisdictions, all of which will be, or have been, effected in
accordance with this Agreement) or conflicts with or will conflict with
or constitutes or will constitute a breach of, or a default under, the
certificate or articles of incorporation or bylaws, or other
organization documents, of the Company or any of the Subsidiaries or
(ii) conflicts or will conflict with or constitutes a breach of, or a
default under, any agreement, indenture, lease or other instrument to
which the Company or any of the Subsidiaries is a party or by which any
of them or any of their respective properties may be bound, or violates
any statute, law, regulation or filing or judgment, injunction, order
or decree applicable to the Company or any of the Subsidiaries or any
of their respective properties, or results in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of the Subsidiaries pursuant to the terms
of any agreement or instrument to which any of them is a party or by
which any of them may be bound or to which any of the property or
assets of any of them is subject, which conflicts, breaches or defaults
in this clause (ii) would be reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect.
(j) Except as described in the Prospectus, the Company does
not have outstanding and at the Closing Date (and the Additional
Closing Date, if applicable) will not have outstanding any options to
purchase or any warrants to subscribe for, or any securities or
obligations convertible into, or any contracts or commitments to issue
or sell, any shares of Common Stock or any such warrants or convertible
securities or obligations. No holder of securities of the Company has
rights to the registration of any securities of the Company because of
the filing of the Registration Statement that have not been satisfied
or heretofore waived in writing.
(k) Price Waterhouse, the certified public accountants who
have certified the financial statements filed as part of the
Registration Statement and the Prospectus (or any amendment or
supplement thereto), are independent public accountants as required by
the Act.
(l) The financial statements, together with related schedules
and notes, included in the Registration Statement and the Prospectus
(and any amendment or
-12-
supplement thereto) present fairly the consolidated financial position,
results of operations and changes in financial position of the Company
and the Subsidiaries on the basis stated in the Registration Statement
at the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical information
and data set forth in the Registration Statement and Prospectus (and
any amendment or supplement thereto) is accurately presented and
prepared on a basis consistent with such financial statements and the
books and records of the Company. No other financial statements or
schedules are required to be included in the Registration Statement.
(m) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the
Registration Statement and the Prospectus (or any amendment or
supplement thereto), (i) neither the Company nor any Subsidiary has
incurred any liabilities or obligations, indirect, direct or
contingent, or entered into any other transaction in any case other
than in the ordinary course of business or which could, individually or
in the aggregate, have a Material Adverse Effect; (ii) the Company and
its Subsidiaries have not sustained any material loss or interference
with their respective businesses or properties from fire, flood,
windstorm, accident or other calamity, whether or not covered by
insurance; (iii) the Company has not paid or declared any dividends or
other distributions with respect to its capital stock and the Company
and its Subsidiaries are not in default in the payment of principal or
interest on any outstanding debt obligations; (iv) there has not been
any change in the capital stock (other than upon the sale of the Shares
hereunder and upon the exercise of options and warrants described in
the Prospectus) or any material increase or decrease in indebtedness of
the Company, its Subsidiaries and its predecessors (other than in the
ordinary course of business); and (v) there has not been any Material
Adverse Effect, or any development involving or which may reasonably be
expected, individually or in the aggregate, to involve a potential
future Material Adverse Effect.
(n) The Company and each of the Subsidiaries has good and
marketable title to all property (real and personal) described in the
Prospectus as being owned by it, free and clear of all liens, claims,
security interests or other encumbrances except (i) such as are
described in the Prospectus (or any amendment or supplement thereto) or
(ii) such as are not materially burdensome and do not interfere in any
material respect with the use of the property or the conduct of the
business of the Company and the Subsidiaries taken as a whole. The
property (real and personal) held under lease by the Company and the
Subsidiaries is held by it under valid, subsisting and enforceable
leases with only such exceptions as in the aggregate are not materially
burdensome and do not interfere in any material respect with the
conduct of the business of the Company and the Subsidiaries taken as a
whole.
-13-
(o) The Company has not distributed and will not distribute on
or prior to the Closing Date or the Additional Closing Date, as the
case may be, any offering material in connection with the offering and
sale of the Shares other than the Prepricing Prospectus, the
Prospectus, or other offering material, if any, as permitted by the Act
and the Rules and Regulations.
(p) The Company has not taken, directly or indirectly, any
action which constituted, or any action designed, or which might
reasonably be expected to cause or result in or constitute, under the
Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares.
(q) The Company is not an "investment company," an "affiliated
person" of, or "promoter" or "principal underwriter" for an investment
company within the meaning of the Investment Company Act of 1940, as
amended.
(r) The Company and each of the Subsidiaries, and, to the
Company's knowledge, each Practice Group and each Dentist, (i) owns or
possesses and is operating in compliance with the terms, provisions and
conditions of all authorizations, approvals, orders, licenses,
registrations, certificates and permits (collectively, "Permits") of
and from all governmental regulatory officials and bodies necessary to
conduct their respective businesses, subject to such qualifications as
are set forth in the Prospectus (or any amendment or supplement
thereto), (ii) has made all necessary filings required under any
federal or state law, rule or regulation and (iii) has obtained all
necessary authorizations, consents and approvals (collectively,
"Approvals") from other persons or governmental agencies in each case
that are necessary to own or lease its properties and assets and to the
conduct of its business, except where the failure to so own or possess,
comply, file or obtain, individually or in the aggregate, would not
have a Material Adverse Effect. Each such Permit is valid and in full
force and effect and there is no proceeding pending or, to the
Company's knowledge, threatened (or any basis therefor) that could
cause any such Permit, filing or Approval that is material to the
conduct of the business of the Company as presently conducted to be
revoked, withdrawn, canceled, suspended or not renewed. Except as
described in the Prospectus, the Company and each of the Subsidiaries,
and, to the Company's knowledge, each Practice Group and each Dentist,
is operating in material compliance with all applicable laws and
regulations relating to health care and franchising, including, without
limitation, those relating to reimbursement by governmental agencies
and the corporate practice of medicine. The Company has not been made
aware of, or been put on notice that, any Dentist or Practice Group is
not practicing in material compliance with all such laws and
regulations.
(s) The Company does not know of any federal or state laws,
rules or regulations, or any legal or governmental proceedings,
relating to franchising or the provision of health care services or
reimbursement therefor in the jurisdictions in which the Company or any
of the Subsidiaries conduct their respective business, and there are no
contracts or documents to which the Company or any of the Subsidiaries
is a party, in each case the failure to comply with which, whether
singly or in the aggregate, would
-14-
have a Material Adverse Effect, which are not described in the
Registration Statement or the Prospectus.
(t) Neither the Company nor any of the Subsidiaries is
required to obtain or maintain any of the following: (a) certificates
of need or determinations of need issued by any state health planning
agency or state department of health; (b) accreditation or
authorization from the Joint Commission on the Accreditation of Health
Care Organizations or similar quasi-governmental organization; or (c)
registration, authorization or license from any federal or state
agency, insurance carrier or other third party payor in order for the
Practice Groups to receive reimbursement for professional services
provided to the public; except, in each case, for certificates,
determinations, accreditations, authorizations, registrations,
authorizations and licenses which have been obtained and are maintained
and are described in the Prospectus.
(u) The Company and its Subsidiaries are conducting their
respective businesses in compliance with the laws, rules and
regulations applicable thereto, including laws, rules and regulations
relating to franchising, the payment of fees for the referral of
patients, fee-splitting and the corporate practice of medicine. The
provisions of the Company's management agreements and its other
business arrangements with any Practice Group, and the operations of
the Company in accordance with the terms of such management agreements
or arrangements, are in compliance with applicable law and government
regulation, including without limitation laws, rules and regulations
relating to franchising the payment of fees for the referral of
patients, fee-splitting and the corporate practice of medicine.
(v) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or
other governmental body is necessary in connection with the execution
and delivery of this Agreement and the consummation of the transactions
herein contemplated, except such as have been obtained or made.
(w) The Company, its Subsidiaries and its predecessors have
complied and the Company and its Subsidiaries will comply in all
material respects with wage and hour determinations issued by the U.S.
Department of Labor under the Service Contract Act of 1965 and the Fair
Labor Standards Act in paying its employees' salaries, fringe benefits,
and other compensation for the performance of work or other duties in
connection with contracts with the U.S. government. The Company, its
Subsidiaries and its predecessors have complied and the Company and its
Subsidiaries will comply in all material respects with the terms of all
certifications and representations made to the U.S. Government in
connection with the submission of any bid or proposal or any contract.
The Company, its Subsidiaries and its predecessors have complied in all
material respects and the Company and its Subsidiaries will comply in
all material respects with the requirements of the American with
Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the
Employee Retirement Income Security Act, the Civil Rights Act of 1964
(Title VII), as amended, the Age Discrimination in Employment Act and
other applicable federal and state employment and labor laws.
-15-
(x) The Company and its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific
authorizations; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(y) Neither the Company, its Subsidiaries nor its predecessors
have, directly or indirectly, at any time during the past five years
(i) made any unlawful contribution to any candidate for political
office, or failed to disclose fully any contribution in violation of
law, or (ii) made any payment to any federal, state or foreign
governmental official, or other person charged with similar public or
quasi-public duties, other than payments required or permitted by the
laws of the United States or any jurisdiction thereof or applicable
foreign jurisdictions.
(z) The Company and the Subsidiaries have obtained all
required permits, licenses, and other authorizations, if any, which are
required under federal, state, local and foreign statutes, ordinances
and other laws relating to pollution or protection of the environment,
including laws relating to emissions, discharges, releases, or
threatened releases of pollutants, contaminants, chemicals, or
industrial, hazardous, or toxic materials or wastes into the
environment (including, without limitation, ambient air, surface water,
ground water, land surface, or subsurface strata) or otherwise relating
to the manufacture, processing, distribution use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants,
chemicals, or industrial, hazardous, or toxic materials or wastes, or
any regulation, rule, code, plan, order, decree, judgment, injunction,
notice, or demand letter issued, entered, promulgated, or approved
thereunder ("Environmental Laws"), other than such permits, licenses,
and other authorizations the failure of which to obtain could not,
individually or in the aggregate, have a Material Adverse Effect. The
Company and the Subsidiaries are in material compliance with all terms
and conditions of all required permits, licenses, and authorizations,
and are also in material compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules, and timetables contained in the Environmental
Laws. There is not pending or, to the best knowledge of the Company,
threatened civil or criminal litigation, notice of violation, or
administrative proceeding relating in any way to the Environmental Laws
(including but not limited to notices, demand letters, or claims under
the Resource Conservation and Recovery Act of 1976, as amended
("RCRA"), the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), the Emergency Planning
and Community Right to Know Act of 1986, as amended ("EPCRA"), the
Clean Air Act, as amended ("CAA"), or the Clean Water Act, as amended
("CWA") and similar federal, foreign, state, or local laws) involving
the Company or the Subsidiaries. There have not
-16-
been and there are not any past, present, or foreseeable future events,
conditions, circumstances, activities, practices, incidents, actions,
or plans which may interfere with or prevent continued compliance, or
which may give rise to any common law or legal liability, or otherwise
form the basis of any claim, action, demand, suit, proceeding, hearing,
study, or investigation, based on or related to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport,
or handling, or the emission, discharge, release, or threatened release
into the environment, of any pollutant, contaminant, chemical, or
industrial, hazardous, or toxic material or waste, including , without
limitation, any liability arising, or any claim, action, demand, suit,
proceeding, hearing, study, or investigation which may be brought,
under RCRA, CERCLA, EPCRA, CAA, CWA or similar federal, foreign, state
or local laws, which events, conditions, circumstances, activities,
practices, incidents, actions, or plans could, individually or in the
aggregate, have a Material Adverse Effect.
(aa) The Company and the Subsidiaries own and have full right,
title and interest in and to, or have valid licenses to use, each
material trade name, trademark or service xxxx under which the Company
or any of the Subsidiaries or any licensee conducts its business, and
the Company has created no lien or encumbrance on, or granted any right
or license with respect to, any such trade name, trademark or service
xxxx except as described in the Prospectus; there is no claim pending
against the Company or any of the Subsidiaries with respect to any
trade name, trademark or service xxxx and neither the Company nor any
of its Subsidiaries have received notice that any trade name, trademark
or service xxxx which it or its licensees use or have used in the
conduct of their respective businesses infringes upon or conflicts with
the rights of any third party.
(bb) All offers and sales of the Company's and its
Subsidiaries' capital stock prior to the date hereof were made in
compliance with the Act and all other applicable state and federal laws
or regulations (or in compliance with exemptions available under such
laws and regulations).
(cc) The Shares have been duly authorized for trading on the
NASDAQ/NMS subject to notice of issuance and upon consummation of the
offering contemplated hereby the Company will be in compliance with the
designation and maintenance criteria applicable to NASDAQ/NMS issuers.
(dd) All federal, state and local tax returns required to be
filed by or on behalf of the Company, any of its Subsidiaries or any of
its predecessors with respect to all periods ended prior to the date of
this Agreement have been filed (or are the subject of valid extension)
with the appropriate federal, state and local authorities and all such
tax returns, as filed, are accurate in all material respects. All
federal, state and local taxes (including estimated tax payments)
required to be shown on all such tax returns or claimed to be due from
or with respect to the business of the Company or any of the
Subsidiaries have been paid or reflected as a liability on the
financial statements of the Company and the Subsidiaries for
appropriate periods, except for those taxes or claims
-17-
therefor which are being contested by the Company in good faith and for
which appropriate reserves are reflected in the Company's financial
statements. All deficiencies asserted as a result of any federal, state
or local tax audits have been paid or finally settled and no issue has
been raised in any such audit which, by application of the same or
similar principles, reasonably could be expected to result in a
proposed deficiency for any other period no so audited. No state of
facts exists or has existed which would constitute grounds for the
assessment of any tax liability with respect to the periods which have
not been audited by appropriate federal, state or local authorities.
There are not outstanding agreements or waivers extending the statutory
period of limitation applicable to any federal, state or local tax
return for any period. On the Closing Date, and Additional Closing
Date, if any, all stock transfer and other taxes which are required to
be paid in connection with the sale of the shares to be sold by the
Company to the Underwriters will have been fully paid by the Company
and all laws imposing such taxes will have been complied with.
(ee) Except as set forth in the Prospectus, there are no
transactions with any director or executive officer of the Company,
with any nominee for election as a director of the Company, with any
beneficial owner of 5% or more of any class of securities of the
Company, with any promoter or affiliate of the Company (as such terms
are defined in Rule 405 promulgated under the Act), or with any member
of the immediate family of any of the foregoing persons, which are
required by the Act and the applicable rules and regulations thereunder
to be disclosed in the Registration Statement.
(ff) Each officer and director of the Company, each Selling
Stockholder and each beneficial owner of Common Stock or securities
entitling the holder to purchase Common Stock (other than persons who
hold options to purchase Common Stock issued under the Company's
Omnibus Executive Incentive Compensation Plan but do not hold any
Common Stock) has agreed in writing that such person will not directly
or indirectly, for a period of 180 days from the date that the
Registration Statement is declared effective by the Commission (the
"Lock-up Period"), offer, sell, contract to sell, grant any option to
purchase, pledge or otherwise dispose of or transfer (collectively, a
"Disposition") any shares of Common Stock or any securities convertible
into or exchangeable for, or any right to purchase of acquire, shares
of Common Stock (collectively, "Securities") now owned or hereafter
acquired directly by such person or with respect to which such person
has or hereafter acquires the power of disposition, otherwise than with
the prior written consent of Xxxxxxx Xxxxx & Associates except (i) for
bona fide gifts affected other than on any securities exchange or in
the over-the-counter market to donees that agree in writing to be bound
by such agreement, (ii) for sales made by Selling Stockholders to the
Underwriters pursuant to this Agreement to cover over-allotments, if
any, (iii) for testamentary dispositions and (iv) as otherwise set
forth in the lock-up letters from Xx. Xxxxxxx and Xx. Xxxxxx to the
Company and Xxxxxxx Xxxxx & Associates, each dated September [__],
1997. The foregoing restriction has been expressly agreed to preclude
the holder of the Securities from engaging in any hedging or other
transaction which is designed to or reasonably expected to lead to or
result in a Disposition of Securities during the Lock-up Period, even
if such
-18-
Securities would be disposed of by someone other than such holder. Such
prohibited hedging or other transactions would include, without
limitation, any short sale (whether or not against the box) or any
purchase, sale or grant of any right (including, without limitation,
any put or call option) with respect to any Securities or with respect
to any security (other than a broad-based market basket or index) that
includes, relates to or derives any significant party of its value from
Securities. Furthermore, such person has also agreed and consented to
the entry of stop transfer instructions with the Company's transfer
agent against the transfer of the Securities held by such person except
in compliance with this restriction. The Company has provided to
counsel for the Underwriters a complete and accurate list of all
securityholders of the Company and the Subsidiaries and the number and
type of securities held by each securityholder. The Company has
provided to counsel for the Underwriters true, accurate and complete
copies of all of the agreements pursuant to which its officers,
directors and stockholders have agreed to such or similar restrictions
(the "Lock-up Agreements") presently in effect or effected hereby. The
Company hereby represents and warrants that it will not release any of
its officers, directors or other stockholders from any Lock-up
Agreements currently existing or hereafter effected without the prior
written consent of Xxxxxxx Xxxxx & Associates.
(gg) Neither the Company nor any of its Subsidiaries (i)
conduct business or have affiliates which conduct business in or with
Cuba (ii) plan to commence doing business in or with Cuba after the
effective date of the Registration Statement, (iii) are required by
Florida law to report a material change in information previously
reported to the State of Florida regarding business conducted in or
with Cuba.
7. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. Each of
the Selling Stockholders hereby severally represents and warrants to each
Underwriter on the date hereof (except as otherwise set forth herein), and shall
be deemed to severally represent and warrant to each Underwriter on the
Additional Closing Date, if any, that:
(a) All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling Stockholder of
this Agreement, the Power of Attorney (the "Power of Attorney") and the
Custody Agreement (the "Custody Agreement") referred to in the last
paragraph of this Section 7, and for the sale and delivery of the
Shares to be sold by such Selling Stockholder hereunder, have been
obtained; and such Selling Stockholder has full right, power and
authority to enter into this Agreement, the Power of Attorney and the
Custody Agreement, and to sell, assign, transfer and deliver the Shares
to be sold by such Selling Stockholder hereunder.
(b) This Agreement, the Power of Attorney and the Custody
Agreement have been duly authorized, executed and delivered by such
Selling Stockholder and this Agreement, the Power of Attorney and the
Custody Agreement constitute the valid and binding agreements of such
Selling Stockholder enforceable against such Selling Stockholder in
accordance with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization or other laws of general
application relating to or
-19-
affecting enforcement of creditors' rights generally or the
availability of equitable remedies, regardless of whether such
enforcement is considered in a proceeding in equity or at law; the
performance of this Agreement, the Power of Attorney and the Custody
Agreement and the consummation of the transactions contemplated herein
and therein will not result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, voting trust agreement, note
agreement, lease or other agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder or such
Selling Stockholder's properties are bound, or under any order, rule or
regulation of any court or governmental agency or body applicable to
such Selling Stockholder or the business or property of such Selling
Stockholder.
(c) Such Selling Stockholder has, and immediately prior to the
Additional Closing Date, if any, such Selling Stockholder will have,
good and valid title to the Shares to be sold by such Selling
Stockholder hereunder, free and clear of all liens, encumbrances,
equities, stockholder agreements, voting trusts or claims of any nature
whatsoever, and, upon delivery of such Shares and payment therefor
pursuant hereto, good and valid title to such Shares, free and clear of
all liens, encumbrances, equities, stockholder agreements, voting
trusts or claims of any nature whatsoever (other than these arising by
or through the Underwriters), will pass to the several Underwriters.
(d) Such Selling Stockholder will not, during the Lock-up
Period, effect the Disposition of any Securities now owned or hereafter
acquired by such Selling Stockholder or with respect to which such
Selling Stockholder has or hereafter acquires the power of disposition,
without the prior written consent of Xxxxxxx Xxxxx & Associates. The
foregoing restriction is expressly agreed to preclude the holder of the
Securities from engaging in any hedging or other transaction which is
designed to or reasonably expected to lead to or result in a
Disposition of Securities during the Lock-up Period, even if such
Securities would be disposed of by someone other than the Selling
Stockholder. Such prohibited hedging or other transactions would
include, without limitation, any short sale (whether or not against the
box) or any purchase, sale or grant of any right (including, without
limitation, any put or call option) with respect to any Securities or
with respect to any security (other than a broad-based market basket or
index) that includes, relates to or derives any significant part of its
value from Securities. Such Selling Stockholder also agrees and
consents to the entry of stop transfer instructions with the Company's
transfer agent against the transfer of the securities held by such
Selling Stockholder except in compliance with this restriction.
(e) Such Selling Stockholder has not taken, and will not take,
directly or indirectly, any action designed to or which has constituted
or which might 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 the Shares or otherwise.
(f) No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body is
required for the consummation by the
-20-
Selling Stockholder of the transactions on his part contemplated herein
or in the Power of Attorney or the Custody Agreement, except such as
have been obtained under the Act and such as may be required under
state securities or Blue Sky laws or the by-laws and rules of the NASD
in connection with the purchase and distribution by the Underwriters of
the Shares to be sold by the Selling Stockholder.
(g) Such Selling Stockholder has read with the Registration
Statement, the Prepricing Prospectus and the Prospectus and has no
knowledge of any material fact or condition not set forth in the
Registration Statement, the Prepricing Prospectus or the Prospectus
which has adversely affected, or may reasonably be expected to
adversely affect, the business, properties, business prospects,
condition (financial or otherwise) or results of operations of the
Company, and the sale of the Shares proposed to be sold by such Selling
Stockholder is not prompted by any such knowledge.
(h) All information with respect to such Selling Stockholder
contained in the Registration Statement, the Prepricing Prospectus and
the Prospectus (as amended or supplemented, if the Company shall have
filed with the Commission any amendment or supplement thereto) complied
and will comply in all material respects with all applicable provisions
of the Act, contains and will contain all statements required to be
stated therein, and does not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading.
(i) Such Selling Stockholder is not aware (without having
conducted any investigation or inquiry) that any of the representations
and warranties of the Company set forth in Section 6 above is untrue or
inaccurate in any material respect.
(j) Other than as permitted by the Act and the Rules and
Regulations, such Selling Stockholder has not distributed and will not
distribute any Prepricing Prospectus or any other offering material in
connection with the offering and sale of the Shares.
(k) On the Closing Date, and on the Additional Closing Date,
if any, all stock transfer and other taxes (other than income taxes)
which are required to be paid in connection with the sale and transfer
of the Shares to be sold by the Selling Stockholders to the several
Underwriters hereunder will have been fully paid by such Selling
Stockholder and all laws imposing such taxes will have been fully
complied with.
In order to document the Underwriters' compliance with the reporting
and withholding provisions of the Tax Equity and Fiscal Responsibility Act of
1982 with respect to the transactions herein contemplated, the Selling
Stockholders severally agree to deliver to you at least two days prior to the
Closing a properly completed and executed United States Treasury Department Form
W-9 (or other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
-21-
Each of the Selling Stockholders represents and warrants that
certificates in negotiable form representing all of the Shares to be sold by
such Selling Stockholder hereunder have been placed in custody under a Custody
Agreement, in the form heretofore furnished to you, duly executed and delivered
by such Selling Stockholder to the Company, as custodian (the "custodian"), and
that such Selling Stockholder has duly executed and delivered a Power of
Attorney, in the form heretofore furnished to you, appointing Xxxxxx X. Xxxxxxx
and Xxxxxxxx Xxxx as such Selling Stockholder's attorneys-in-fact (the
"Attorneys-in-Fact") with authority to execute and deliver this Agreement on
behalf of such Selling Stockholder, to determine the purchase price to be paid
by the Underwriters to the Selling Stockholders as provided in Section 2 hereof,
to authorize the delivery of the Shares to be sold by such Selling Stockholder
hereunder or otherwise to act on behalf of such Selling Stockholder in
connection with the transactions contemplated by this Agreement and the Custody
Agreement. Each of the Selling Stockholders specifically agrees that the Shares
represented by the certificates held in custody for such Selling Stockholders
under the Custody Agreement are subject to the interest of the Underwriters
hereunder, and that the arrangements made by such Selling Stockholder for such
custody, and the appointment by such Selling Stockholder of the
Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable. Each
of the Selling Stockholders specifically agrees that the obligations of such
Selling Stockholders hereunder shall not be terminated by operation of law,
whether by the death or incapacity of any individual Selling Stockholder or, in
the case of an estate or trust, by the death or incapacity of any executor or
trustee or the termination of such estate or trust, or in the case of a
partnership or corporation, by the dissolution of such partnership or
corporation, or by the occurrence of any other event. If any individual Selling
Stockholder or any executor or trustee should die or become incapacitated, or if
any such estate or trust shall be terminated, or if any such partnership or
corporation should be dissolved, or if any other such event should occur before
the delivery of the Shares hereunder, certificates representing the Shares shall
be delivered by or on behalf of the Selling Stockholders in accordance with the
terms and conditions of this Agreement and the Custody Agreement, and actions
taken by the Attorneys-in-Fact pursuant to the Powers of Attorney shall be as
valid as if such death, incapacity, termination, dissolution or other event had
not occurred, regardless of whether or not the custodian, the Attorneys-in-Fact,
or any of them, shall have received notice of such death, incapacity,
termination, dissolution or other event.
8. EXPENSES. Whether not the transactions contemplated hereby are
consummated or this Agreement becomes effective or is terminated, the Company
and, unless otherwise paid by the Company, the Selling Stockholders will pay or
cause to be paid (in such proportions as they may agree among themselves) the
following: (i) the fees, disbursements and expenses of the Company's and Selling
Stockholders' counsel and accountants in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof and of any Prepricing Prospectus to the Underwriters and dealers; (ii)
the printing and delivery (including, without limitation, postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, the Prospectus, each Prepricing Prospectus, the Blue Sky
memoranda, the Power of Attorney, the Master Agreement Among Underwriters, this
Agreement, the Selected Dealers Agreement and all amendments or supplements to
any of them
-22-
as may be reasonably requested for use in connection with the offering and sale
of the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws or Blue Sky laws,
including the fees of the counsel for the Underwriters in connection therewith;
(iv) the filing fees incident to securing any required review by the NASD, of
the terms of the sale of the Shares and the reasonable fees and disbursements of
the Underwriters' counsel relating thereto; (v) the cost of preparing stock
certificates; (vi) the costs and charges of any transfer agent or registrar;
(vii) the cost of the tax stamps, if any, in connection with the issuance and
delivery of the Shares to the respective Underwriters; (viii) all other fees,
costs and expenses referred to in Item 13 of the Registration Statement and (ix)
all other costs and expenses incident to the performance of the obligations of
the Company and the Selling Stockholders hereunder which are not otherwise
specifically provided for in this Section. The provisions of this Section 8 are
intended to relieve the Underwriters from the payment of the expenses and costs
which the Selling Stockholders and the Company hereby agree to pay, but shall
not affect any agreement which the Selling Stockholders and the Company may make
or may have made, for the sharing of any of such expenses and costs. Such
agreements shall not impair the obligations of the Company and the Selling
Stockholders hereunder to the several Underwriters. Notwithstanding the
foregoing, in the event that the proposed offering is terminated for the reasons
set forth in Section 5(i) hereof, the Company agrees to reimburse the
Underwriters as provided in Section 5(i).
9. INDEMNIFICATION AND CONTRIBUTION. The Company and the Selling
Stockholders jointly and severally agree to indemnify and hold harmless you and
each other Underwriter, the directors, officers, employees and agents of 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 Securities Exchange Act of
1934, as amended (the "Exchange Act") from and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in any Prepricing Prospectus or in
the Registration Statement or the Prospectus or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon an untrue statement or
omission or alleged untrue statement or omission which has been made therein or
omitted therefrom in reliance upon and in conformity with the information
furnished in writing to the Company by or on behalf of any Underwriter through
you expressly for use in connection therewith, or (ii) any inaccuracy in the
representations and warranties of the Company or the Selling Stockholders
contained herein or any failure of the Company or the Selling Stockholders to
perform their respective obligations hereunder or under law; provided, however,
that with respect to any untrue statement or omission made in any Prepricing
Prospectus, the indemnity agreement contained in this subsection shall not inure
to the benefit of any Underwriter (or to the benefit of any person controlling
such Underwriter) from whom the person asserting any such losses, claims,
damages or liabilities purchased the Shares concerned if both (A) a copy of the
Prospectus was not sent or given to such person at or prior to the written
confirmation of the sale of such shares of Stock to such person as required by
the Act, and (B) the untrue statement or omission in the Prepricing Prospectus
was corrected in the
-23-
Prospectus. Notwithstanding anything in this Section 9, (A) each Selling
Stockholder shall be liable under clause (i) of this paragraph to the extent,
but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and conformity with
information furnished to the Company or any Underwriter by such Selling
Stockholder, either directly or through such Selling Stockholder's
representatives, for use in the preparation thereof and (B) in no event shall
any Selling Stockholder's obligation under this Section 9 exceed the total
proceeds received by such Selling Stockholder from the Underwriters in the
offering (it being agreed that the Company shall bear the balance).
In addition to its other obligations under this Section 9, the Company
and the Selling Stockholders agree that, as an interim measure during the
pendency of any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any statement or omission, or any inaccuracy in the
representations and warranties of the Company or the Selling Stockholders herein
or failure to perform its obligations hereunder, all as described in this
Section 9, it will reimburse each Underwriter on a quarterly basis for all
reasonable legal or other expenses incurred in connection with investigating or
defending any such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the Company's or the Selling Stockholders' obligation to
reimburse each Underwriter for such expenses and the possibility that such
payments might later be held to have been improper by a court of competent
jurisdiction. To the extent that any such interim reimbursement payment is so
held to have been improper, each Underwriter shall promptly return it to the
Company or the appropriate Selling Stockholders, as the case may be, together
with interest, compounded daily determined on the basis of the base lending rate
announced from time to time by Chase Manhattan Bank, N.A. (the "Prime Rate").
Any such interim reimbursement payments which are not made to the Underwriters
within 30 days of a request for reimbursement shall bear interest at the Prime
Rate from the date of such request.
If any action or claim shall be brought against any Underwriter or any
person controlling any Underwriter in respect of which indemnity may be sought
against the Company or the Selling Stockholders, such Underwriter or such
controlling person shall promptly notify in writing the party(s) against whom
indemnification is being sought (the "indemnifying party" or "indemnifying
parties"), and such indemnifying party(s) shall assume the defense thereof,
including the employment of counsel reasonably acceptable to such Underwriter or
such controlling person and payment of all fees and expenses. Such Underwriter
or any such controlling person shall have the right to employ separate counsel
(but the Company and the Selling Stockholders shall not be liable for the fees
and expenses of more than one counsel) in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or such controlling person unless (i) the
indemnifying party(s) has (have) agreed in writing to pay such fees and
expenses, (ii) the indemnifying party(s) has (have) failed to assume the defense
and employ counsel reasonably acceptable to the Underwriter or such controlling
person or (iii) the named parties to any such action (including any impleaded
parties) include both such Underwriter or such controlling person and the
indemnifying party(s), and such Underwriter or such controlling person shall
have been advised by its counsel that one or more legal defenses may be
available to the Underwriter
-24-
which may not be available to the Company, or that representation of such
indemnified party and any indemnifying party(s) by the same counsel would be
inappropriate under applicable standards of professional conduct (whether or not
such representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the indemnifying
party(s) shall not have the right to assume the defense of such action on behalf
of such Underwriter or such controlling person (notwithstanding its (their)
obligation to bear the fees and expenses of such counsel). The indemnifying
party(s) shall not be liable for any settlement of any such action effected
without its (their) written consent, but if settled with such written consent,
or if there be a final judgment for the plaintiff in any such action, the
indemnifying party(s) agrees to indemnify and hold harmless any Underwriter and
any such controlling person from and against any loss, claim, damage, liability
or expense by reason of such settlement or judgment, but in the case of a
judgment only to the extent stated in the immediately preceding paragraph.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, and any person who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act and the Selling Stockholders, to
the same extent as the foregoing indemnity from the Company and the Selling
Stockholders to each Underwriter, but only with respect to information furnished
in writing by or on behalf of such Underwriter through you expressly for use in
the Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto. If any action or claim shall be brought or
asserted against the Company, any of its directors, any such officers, or any
such controlling person or the Selling Stockholders based on the Registration
Statement, the Prospectus or any Prepricing Prospectus, or any amendment or
supplement thereto, and in respect of which indemnity may be sought against any
Underwriter pursuant to this paragraph, such Underwriter shall have the rights
and duties given to the Company and the Selling Stockholders by the preceding
paragraph (except that if the Company shall have assumed the defense thereof
such Underwriter shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof, but the fees and expenses of
such counsel shall be at such Underwriter's expense), and the Company, its
directors, any such officers, and any such controlling persons and the Selling
Stockholders shall have the rights and duties given to the Underwriters by the
immediately preceding paragraph.
In addition to its other obligations under this Section 9, each
Underwriter severally agrees that, as an interim measure during the pendency of
any claim, action, investigation, inquiry or other proceeding arising out of or
based upon any statement or omission, or any alleged statement or omission,
described in this Section 9 which relates to information furnished to the
Company in writing by or on behalf of the Underwriters through you expressly for
use in the Registration Statement, it will reimburse the Company (and, to the
extent applicable, each officer, director, controlling person or Selling
Stockholder) on a quarterly basis for all reasonable legal or other expenses
incurred in connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the
Underwriters' obligation to reimburse the Company (and, to the extent
applicable, each officer, director, controlling person or Selling Stockholder)
for such expenses and the possibility that such payments might later be held to
have been improper by a court of competent jurisdiction. To the extent that any
such interim reimbursement payment is so held to have
-25-
been improper, the Company (and, to the extent applicable, each officer,
director, controlling person or Selling Stockholder) shall promptly return it to
the Underwriters together with interest, compounded daily, determined on the
basis of the Prime Rate. Any such interim reimbursement payments which are not
made to the Company within 30 days of a request for reimbursement shall bear
interest at the Prime Rate from the date of such request.
If the indemnification provided for in this Section 9 is unavailable or
insufficient for any reason whatsoever to an indemnified party under the first
or fourth paragraph hereof with respect to any losses, claims, damages,
liabilities or expenses referred to therein, then an indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) 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 hand from the offering of the Shares
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Selling Stockholders on the one hand and the Underwriters on
the other hand in connection with the statements or omissions that resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Selling Stockholders on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company and the Selling
Stockholders bear to the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus; provided that, in the event that the Underwriters shall have
purchased any Additional Shares hereunder, any determination of the relative
benefits received by the Company and the Selling Stockholders or the
Underwriters from the offering of the Shares shall include the net proceeds
(before deducting expenses) received by the Company and the Selling
Stockholders, and the underwriting discounts and commissions received by the
Underwriters, from the sale of such Additional Shares, in each case computed on
the basis of the respective amounts set forth in the notes to the table on the
cover page of the Prospectus. The relative fault of the Company or the Selling
Stockholders on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Selling
Stockholders on the one hand or by the Underwriters on the other hand 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 pursuant to this Section 9
was determined by a pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
the immediately
-26-
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the amount by which the
underwriting discount applicable to the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of any such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to Section 9 are several in proportion to the respective numbers of
Firm Shares set forth opposite their names in Schedule I hereto (or such numbers
of Firm Shares increased as set forth in Section 11 hereof) and not joint.
Notwithstanding the second and fifth paragraphs of this Section 9, any
losses, claims, damages, liabilities or expenses for which an indemnified party
is entitled to indemnification or contribution under this Section 9 shall be
paid by the indemnifying party to the indemnified party as such losses, claims,
damages, liabilities or expenses are incurred. The indemnity, contribution and
reimbursement agreements contained in Section 9 and the representations and
warranties of the Company and the Selling Stockholders, respectively, set forth
in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter, the Company, its directors or officers
or any person controlling the Company or the Selling Stockholders, (ii)
acceptance of any Shares and payment therefor hereunder and (iii) any
termination of this Agreement. A successor to any Underwriter or any person
controlling any Underwriter, or to the Company, its directors or officers, or
any person controlling the Company or the Selling Stockholders, shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 9.
It is agreed that any controversy arising out of the operation of the
interim reimbursement arrangements set forth in the second and fifth paragraphs
of this Section 9, including the amounts of any requested reimbursement payments
and the method of determining such amounts, shall be settled by arbitration
conducted under the provisions of the Constitution and Rules of the Board of
Governors of the New York Stock Exchange, Inc. or pursuant to the Code of
Arbitration Procedure of the NASD. Any such arbitration must be commenced by
service of a written demand for arbitration or written notice of intention to
arbitrate, therein electing the arbitration tribunal. In the event the party
demanding arbitration does not make such designation of an arbitration tribunal
in such demand or notice, then the party responding to said demand or notice is
authorized to do so. Such an arbitration would be limited to the operation of
the interim reimbursement provisions contained in the second and fifth
paragraphs of this Section 9, and would not resolve the ultimate propriety or
enforceability of the obligations to reimbursement expenses which is created by
the provisions of the second and fifth paragraphs of this Section 9.
10. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase the Firm Shares hereunder are subject to the
following conditions:
-27-
(a) The Registration Statement shall have become effective not
later than 4:30 p.m., New York City time, on the date hereof, or at
such later date and time as shall be consented to in writing by you,
and all filings required by Rules 424(b), 430A and 462 under the Act
shall have been timely made.
(b) You shall be reasonably satisfied that since the
respective dates as of which information is given in the Registration
Statement and Prospectus, (i) there shall not have been any change in
the capital stock (other than pursuant to the exercise of options and
warrants disclosed in the Prospectus) of the Company or any of its
Subsidiaries or any material change in the indebtedness (other than in
the ordinary course of business) of the Company or any of its
Subsidiaries, (ii) except as set forth or contemplated by the
Registration Statement or the Prospectus, no material, verbal or
written agreement or other transaction shall have been entered into by
the Company, any of the Subsidiaries or any Practice Group, which is
not in the ordinary course of business or which could reasonably be
expected to result in a material reduction in the future earnings of
the Company and its Subsidiaries, (iii) no loss or damage (whether or
not insured) to the property of the Company, any of the Subsidiaries or
any Practice Group shall have been sustained which materially or
adversely affects the condition (financial or otherwise), business,
results of operations or prospects of the Company or any of its
Subsidiaries, (iv) no legal or governmental action, suit or proceeding
affecting the Company , the Subsidiaries or any Practice Group which is
material to the Company or the Subsidiaries or which affects or could
reasonably be expected to affect the transactions contemplated by this
Agreement shall be instituted or threatened, and (v) there shall not
have been any material change in the condition (financial or
otherwise), business, management, results or operations or prospects of
the Company or its Subsidiaries which makes it impractical or
inadvisable in your judgment to proceed with the public offering or
purchase the Shares as contemplated hereby.
(c) You shall have received on the Closing Date (and the
Additional Closing Date, if any) an opinion of Xxxxxxxxx Xxxxxxx
Xxxxxxx Xxxxxx Xxxxx & Xxxxxxx, P.A., as counsel for the Company, dated
the Closing Date, reasonably satisfactory to you and your counsel, to
the effect that:
(i) The Company is a corporation duly incorporated
and validly existing in good standing under the laws of the
State of Delaware with full corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the
Prospectus (and any amendment or supplement thereto), and is
duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business
requires such registration or qualification, except where the
failure to so register or qualify does not, individually or in
the aggregate, have a Material Adverse Effect.
-28-
(ii) Each of the Subsidiaries is a corporation duly
organized and validly existing in good standing under the laws
of the jurisdiction of its organization, with full corporate
power and authority to own, lease and operate its properties
and to conduct its business a described in the Registration
Statement and the Prospectus (and any amendment or supplement
thereto); and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its
business require such registration or qualification, except
where the failure to so register or qualify does not,
individually or in the aggregate, have a Material Adverse
Effect; and all of the outstanding shares of capital stock of
each of the Subsidiaries have been duly authorized and validly
issued, and are fully paid and nonassessable, and are owned by
the Company directly, or indirectly through one of the other
Subsidiaries, free and clear of any perfected security
interest, or to the best knowledge of such counsel after
reasonable inquiry, any other security interest, lien, adverse
claim, equity or other encumbrance.
(iii) The authorized capital stock of the Company
conforms in all respects to the description thereof contained
in the Prospectus under the caption "Description of Capital
Stock."
(iv) All shares of capital stock of the Company
outstanding prior to the issuance of the Shares to be issued
and sold by the Company hereunder, have been duly authorized
and validly issued, are fully paid and nonassessable and are
free of any preemptive or, to the best knowledge of such
counsel after reasonable inquiry, similar rights that entitle
or will entitle any person to acquire any Shares upon the
issuance thereof by the Company.
(v) To the knowledge of such counsel after reasonable
inquiry all offers and sales of the Company's and its
Subsidiaries capital stock were made in compliance with the
registration provisions of the Act and the registration
provisions of all other applicable state and federal laws or
regulations.
(vi) The Shares to be issued and sold to the
Underwriters by the Company and the Selling Stockholders
hereunder have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will be validly issued,
fully paid and nonassessable and free of any preemptive or, to
the best knowledge of such counsel after reasonable inquiry,
similar rights that entitle or will entitle any person to
acquire any Shares upon the issuance thereof by the Company.
(vii) The form of certificates for the Shares
conforms in all material respects to the requirements of the
applicable corporate laws of the State of Delaware.
-29-
(viii) The Registration Statement has become
effective under the Act and, to the best knowledge of such
counsel after reasonable inquiry, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose are pending before or
contemplated by the Commission.
(ix) The Company has all requisite corporate power
and authority to enter into this Agreement and to issue, sell
and deliver the Shares to be sold by it to the Underwriters as
provided herein, and this Agreement has been duly authorized,
executed and delivered by the Company and is a valid, legal
and binding agreement of the Company enforceable against the
Company in accordance with its terms, except as may be limited
by bankruptcy, insolvency, reorganization or other laws of
general application relating to or affecting enforcement of
creditors' rights generally or the availability of equitable
remedies, regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(x) Neither the Company nor any of its Subsidiaries
is in violation of its certificate or articles of
incorporation or bylaws, or other organizational documents.
(xi) Neither the offer, sale or delivery of the
Shares, the execution, delivery or performance of this
Agreement, compliance by the Company with all provisions
hereof nor consummation by the Company of the transactions
contemplated hereby conflicts or will conflict with or
constitutes or will constitute a breach of, or a default
under, the certificate or articles of incorporation or
by-laws, or other organizational documents, of the Company or
any of the Subsidiaries or any agreement, indenture, lease or
other instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of
their respective properties is bound that is known to such
counsel after reasonable inquiry or will result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of the
Subsidiaries, nor will any such action result in any violation
of any existing law, regulation, ruling (assuming compliance
with all applicable state securities and Blue Sky laws),
judgment, injunction, order or decree known to such counsel
after reasonable inquiry, applicable to the Company, the
Subsidiaries or any of their respective properties.
(xii) No consent, approval, authorization or other
order of, or registration or filing with, any court,
regulatory body, administrative agency or other governmental
body, agency or official is required on the part of the
Company (except such as have been obtained under the Act or
such as may be required under state securities or Blue Sky
laws governing the purchase and distribution of the Shares)
for the valid issuance and sale of the Shares to the
Underwriters under this Agreement.
-30-
(xiii) The Registration Statement and the Prospectus
and any supplements or amendments thereto (except for the
financial statements and the notes thereto and the schedules
and other financial and statistical data included therein, as
to which such counsel need not express any opinion) comply as
to form in all material respects with the requirements of the
Act.
(xiv) To the knowledge of such counsel after
reasonable inquiry (A) there are no legal or governmental
proceedings pending or threatened against the Company or any
of the Subsidiaries, or to which the Company or any of the
Subsidiaries, or any of their property, is subject, that are
required to be described in the Registration Statement or
Prospectus (or any amendment or supplement thereto) that are
not described as required therein, and (B) there are no
agreements, contracts, indentures, leases or other instruments
that are required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement that are not described or filed as
required, as the case may be. Such counsel has not been
informed of any legal or governmental proceedings pending or
threatened against any Practice Group, or to which any
Practice Group or any of its property is subject, that are
required to be described in the Registration Statement or
Prospectus (or any amendment or supplement thereto) that are
not described as required therein.
(xv) To the knowledge of such counsel after
reasonable inquiry, neither the Company nor any of the
Subsidiaries is in violation of any federal, Delaware or
Florida law, ordinance, administrative or governmental rule or
regulation applicable to the Company or any of the
Subsidiaries or of any decree of any court or federal,
Delaware or Florida governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries
except where such violations do not and will not, individually
or in the aggregate, have a Material Adverse Effect.
(xvi) To the knowledge of such counsel after
reasonable inquiry the Company and the Subsidiaries (i) own or
possess and are operating in compliance with the terms,
provisions and conditions of all Permits of and from all
federal, Delaware and Florida governmental regulatory
officials and bodies necessary to conduct their respective
businesses, (ii) have made all necessary filings required
under any federal, Delaware or Florida law, rule or regulation
and (iii) have obtained all necessary Approvals from other
federal, Delaware or Florida persons or governmental agencies
in each case that are necessary to own or lease its properties
and assets and to the conduct of its business, except where
the failure to so own or possess, comply, file or obtain,
individually or in the aggregate, would not have a Material
Adverse Effect. Each such Permit is valid and in full force
and effect and there is no proceeding pending or threatened
(or any basis therefor) that could cause any such Permit,
filing or Approval that is material to the conduct of the
business of the Company and the Subsidiaries taken as a whole
as presently conducted to be revoked, withdrawn, canceled,
suspended or not renewed.
-31-
(xvii) The property described in the Prospectus as
held under lease by the Company or its Subsidiaries is held
under valid, subsisting and enforceable leases, with only such
exceptions as in the aggregate are not material and do not
interfere in any material respect with the conduct of the
business of the Company and the Subsidiaries taken as a whole.
(xviii) Such counsel has reviewed all agreements,
contracts, indentures, leases or other documents or
instruments referred to in the Registration Statement and the
Prospectus (other than routine contracts entered into by the
Company or any of the Subsidiaries for the purchase of
materials or the sale of products, entered into in the normal
course of business) and such agreements, contracts,
indentures, leases or other documents or instruments are
fairly summarized or disclosed therein, and filed as exhibits
thereto as required, and such counsel does not know, after
reasonable inquiry, of any agreements, contracts, indentures,
leases or other documents or instruments required to be so
summarized or disclosed or filed which have not been so
summarized or disclosed or filed.
(xix) Such counsel has no reason to believe that the
descriptions in the Prospectus of United States, Delaware or
Florida statutes, regulations or legal or governmental
proceedings, insofar as they purport to summarize certain of
the provisions thereof, are other than accurate or fail to
fairly present the information required to be shown.
(xx) The Company is not an "investment company" or an
"affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended.
In rendering such opinion, counsel may rely, to the extent they deem
such reliance proper, upon an opinion or opinions, each dated the Closing Date,
of other counsel as to matters governed by the laws of jurisdictions other than
the United States or the State of Florida or the General Corporation Law of the
State of Delaware provided that (1) each such local counsel is acceptable to you
and your counsel, (2) counsel shall state in their opinion that they believe
that they and you are justified in relying thereon, and (3) such reliance is
expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to you and is in form and substance satisfactory to you. In
rendering such opinion, counsel may rely, to the extent they deem such reliance
proper, as to matters of fact upon certificates of officers of the Company and
of governmental officials. Copies of all such certificates shall be furnished to
you and your counsel on the Closing Date. In addition, such opinion may be
subject to such assumptions as are reasonable and customary in opinions of this
kind.
In rendering such opinion, in each case where such opinion is qualified
by "the best knowledge of such counsel after reasonable inquiry" or "known to
such counsel after reasonable inquiry," such counsel may rely as to matters of
fact upon certificates of executive and other
-32-
officers and employees of the Company as you and such counsel shall deem are
appropriate and such other procedures as you and such counsel shall mutually
agree; provided, however, in each such case, such counsel shall state that is
has no knowledge contrary to the information contained in such certificates or
developed by such procedures and knows of no reason why you should not
reasonably rely upon the information contained in such certificates or developed
by such procedures. Such counsel may state that their knowledge is limited to
the knowledge of shareholders, attorneys and other employees of such counsel's
firm that have given attention to matters involving the Company.
In addition to the opinion set forth above, such counsel shall
state that during the course of their participation in the preparation of the
Registration Statement and the Prospectus and the amendments thereto, nothing as
come to the attention of such counsel which has caused it to believe that the
Registration Statement and the Prospectus or any amendment thereto (except for
the financial statements and other financial and statistical information
contained therein or omitted therefrom as to which no opinion need be
expressed), at the date thereof, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Registration
Statement and the Prospectus as of the date of the opinion (except as
aforesaid), contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(d) You shall have received on the Closing Date (and the
Additional Closing Date, if any) the opinion of Xxxxxxxxx Xxxxxxx
Xxxxxxx Xxxxxx Xxxxx & Xxxxxxx, P.A., as counsel for the Selling
Stockholders, dated the Closing Date (and the Additional Closing Date,
if any) in form and substance satisfactory to you, to the effect that:
(i) This Agreement, the Power of Attorney and the
Custody Agreement have been duly authorized, executed and
delivered by or on behalf of each Selling Stockholder and
constitute valid and binding agreements of such Selling
Stockholder enforceable in accordance with their respective
terms, except as may be limited by bankruptcy, insolvency,
reorganization or other laws of general application relating
to or affecting enforcement of creditors' rights generally or
the availability of equitable remedies, regardless of whether
such enforcement is considered in a proceeding in equity or at
law; and the performance of this Agreement, the Power of
Attorney and the Custody Agreement and the consummation of the
transactions herein and therein contemplated will not result
in a breach or violation of any of the terms or provisions of,
or constitute a default under, any statute, indenture,
mortgage, deed of trust, voting trust agreement, note
agreement, lease or other agreement or instrument of which
such counsel is aware and to which such Selling Stockholder is
a party or by which such Selling Stockholder or its properties
are bound, or any order, rule or regulation, known to such
counsel of any court or governmental agency or body applicable
to such Selling Stockholders or the business or property of
such Selling Stockholders.
-33-
(ii) No consent, approval, authorization or order of,
or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or
official, has been or is required, and to the best knowledge
of such counsel after reasonable inquiry no other consent,
approval, authorization has been or is required, in each case
for the consummation of the transactions contemplated by this
Agreement, the Power of Attorney and the Custody Agreement in
connection with the Shares to be sold by each of the Selling
Stockholders hereunder, except consents, approvals,
authorizations or orders which have been duly obtained and are
in full force and effect, such as have been obtained under the
Act and such as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of
such Shares by the Underwriters.
(iii) To the best knowledge of such counsel after
reasonable inquiry, immediately prior to the Additional
Closing each Selling Stockholder has good and valid title to
the Shares to be sold by such Selling Stockholder under this
Agreement, free and clear of all liens, encumbrances, equities
or claims, and full right, power and authority to sell,
assign, transfer and deliver the Shares to be sold by such
Selling Stockholder hereunder.
(iv) The delivery by or on behalf of the Selling
Stockholders to the several Underwriters of certificates for
the Shares being sold by the Selling Stockholders pursuant to
this Agreement against payment therefor as provided herein
will convey good and valid title to such Shares to the several
Underwriters, free and clear of all security interests,
pledges, liens, encumbrances, equitable interests and adverse
claims. The Company is not an "adverse person," and has no
"adverse claim" with respect to the sale of Shares by the
Selling Stockholders for purposes of Section 678.302(2) of the
Florida Statutes. For purposes of such opinion, such counsel
shall be entitled to assume that (a) the several Underwriters
are without notice of any "adverse claim" as such term is
defined in Section 678.302(2) of the Florida Statues (except
that no such assumption may be made by such counsel with
respect to the Company), (b) the several Underwriters are
purchasers for value in good faith for purposes of Section
678.302 of the Florida Statutes and (c) the rights of the
several Underwriters are not limited by the provisions of
Section 678.302(4) of the Florida Statutes.
In rendering such opinion, such counsel may rely upon a certificate of
the Selling Stockholders as to matters of fact (i) with respect to ownership of
and liens, encumbrances, equities or claims on the Shares sold by the Selling
Stockholders, and (ii) with respect to any agreements, mortgages, deeds of
trust, voting trusts, notes, leases or other instruments provided that such
counsel shall state that they believe that both you and they are justified in
relying upon such certificates.
(e) You shall have received on the Closing Date (and the
Additional Closing Date, if any) the opinion of Xxxxxxxxx Traurig
Xxxxxxx Xxxxxx Xxxxx & Xxxxxxx, P.A.,
-34-
as special counsel for the Company for health care regulatory matters,
dated the Closing Date (and the Additional Closing Date, if any) in
form and substance satisfactory to you, to the effect that:
(i) The statements under the captions "Risk Factors
-- Governmental Regulation" and "-- Risks of Becoming Subject
to Licensure" and "Business -- Governmental Regulation" in the
Prospectus, insofar as such statements constitute a summary of
documents referred to therein or matters of Federal or Florida
law, are accurate summaries in all material respects and
fairly and correctly present the information called for with
respect to such documents and matters.
(ii) Such counsel does not know, after reasonable
inquiry, of any federal or Florida laws, rules or regulations,
or any federal or Florida legal or governmental proceedings,
relating to the provision of health care services or
reimbursement therefor in the jurisdictions in which the
Company or any of the Subsidiaries conduct their respective
businesses, or any contracts or documents to which the Company
or any of the Subsidiaries is a party, the failure to comply
with which could reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect, which are
not described in the Registration Statement or the Prospectus.
(iii) On the date of such opinion, neither the
Company nor any of the Subsidiaries are required to obtain or
maintain any of the following: (a) certificates of need or
determinations of need issued by any Florida state health
planning agency or Florida state department of health; (b)
accreditation or authorization from the Joint Commission on
the Accreditation of Health Care Organizations or similar
quasi-governmental organization; or (c) registration,
authorization or license from any federal or Florida agency,
insurance carrier or other third party payor in order for the
Practice Groups to receive reimbursement for professional
services provided to the public.
(iv) Such counsel has no reason to believe that the
Company, any of the Subsidiaries, or any Practice Group is not
conducting its respective businesses in material compliance
with the laws, rules and regulations applicable thereto,
including laws, rules and regulations relating to the payment
of fees for the referral of patients, fee-splitting and the
corporate practice of medicine. The provisions of the
Company's or any of the Subsidiaries' management agreements
and the other business arrangements described in the
Prospectus and the operations of the Company or any of the
Subsidiaries in accordance with the terms of such management
agreements or arrangements are in material compliance with
applicable law and government regulation, including without
limitation laws, rules and regulations relating to the payment
of fees for the referral of patients, fee-splitting and the
corporate practice of medicine.
-35-
(v) To the best knowledge of such counsel after
reasonable inquiry each Practice Group and each Dentist
practicing therein (i) owns or possesses and is operating in
compliance with the terms, provisions and conditions of all
Permits of and from all federal, Delaware and Florida
governmental regulatory officials and bodies necessary to
conduct their respective businesses, (ii) has made all
necessary filings required under any federal, Delaware or
Florida law, rule or regulation and (iii) has obtained all
necessary Approvals from other federal, Delaware or Florida
persons or governmental agencies in each case that are
necessary to own or lease its properties and assets and to the
conduct of its business, except where the failure to so own or
possess, comply, file or obtain, individually or in the
aggregate, would not have a Material Adverse Effect. Each such
Permit is valid and in full force and effect and there is no
proceeding pending or threatened (or any basis therefor) that
could cause any such Permit, filing or Approval that is
material to the conduct of the business of the Company and the
Subsidiaries taken as a whole as presently conducted to be
revoked, withdrawn, canceled, suspended or not renewed.
(vi) No approval, consent, order, authorization,
designation, declaration or filing by or with any Federal or
Florida regulatory, administrative or other governmental body
is necessary in connection with the execution and delivery of
this Agreement and the consummation of the transactions herein
contemplated, except such as have been obtained or made,
specifying the same.
In rendering such opinion such counsel may state that they express no
opinion regarding the applicability of any laws other than federal and Florida
laws and regulation relating to health care or relating to reimbursement for
health care services, to the businesses of the Company and the Subsidiaries
taken as a whole. In addition, in each case where such opinion is qualified by
"the best knowledge of such counsel after reasonable inquiry" or "know, after
reasonable inquiry," such counsel may rely as to matters of fact upon
certificates of executive and other officers and employees of the Company as you
and such counsel shall deem are appropriate and such other procedures as you and
such counsel shall mutually agree; provided, however, in each such case, such
counsel shall state that is has no knowledge contrary to the information
contained in such certificates or developed by such procedures and knows of no
reason why you should not reasonably rely upon the information contained in such
certificates or developed by such procedures. Such counsel may state that their
knowledge is limited to the knowledge of shareholders, attorneys and other
employees of such counsel's firm that have given attention to matters involving
the Company. Such opinion may be subject to such assumptions as are reasonable
and customary in opinions of this kind.
(f) You shall have received on the Closing Date (and the
Additional Closing Date, if any) the opinion of Frimet & Xxxxxxxx,
P.C., as special counsel for the Company for health care regulatory
matters, dated the Closing Date (and the Additional Closing Date, if
any) in form and substance satisfactory to you, to the effect that:
-36-
(i) The statements under the captions "Risk Factors
-- Governmental Regulation" and "-- Risks of Becoming Subject
to Licensure" and "Business -- Governmental Regulation" in the
Prospectus, insofar as such statements constitute a summary of
documents referred to therein or matters of [federal or]
Michigan law, are accurate summaries in all material respects
and fairly and correctly present the information called for
with respect to such documents and matters.
(ii) Such counsel does not know, after reasonable
inquiry, of any [federal or] Michigan laws, rules or
regulations, or any [federal or] Michigan legal or
governmental proceedings, relating to the provision of health
care services or reimbursement therefor in the jurisdictions
in which the Company or any of the Subsidiaries conduct their
respective businesses, or any contracts or documents to which
the Company or any of the Subsidiaries is a party, the failure
to comply with which could reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect, which are not described in the Registration Statement
or the Prospectus.
(iii) On the date of such opinion, neither the
Company nor any of the Subsidiaries are required to obtain or
maintain any of the following: (a) certificates of need or
determinations of need issued by any Michigan state health
planning agency or Michigan state department of health; (b)
accreditation or authorization from the Joint Commission on
the Accreditation of Health Care Organizations or similar
quasi-governmental organization; or (c) registration,
authorization or license from any [federal or] Michigan
agency, insurance carrier or other third party payor in order
for the Practice Groups to receive reimbursement for
professional services provided to the public.
(iv) Such counsel has no reason to believe that the
Company, any of the Subsidiaries, or any Practice Group is not
conducting its respective businesses in material compliance
with the laws, rules and regulations applicable thereto,
including laws, rules and regulations relating to the payment
of fees for the referral of patients, fee-splitting and the
corporate practice of medicine. The provisions of the
Company's or any of the Subsidiaries' management agreements
and the other business arrangements described in the
Prospectus and the operations of the Company or any of the
Subsidiaries in accordance with the terms of such management
agreements or arrangements are in material compliance with
applicable law and government regulation, including without
limitation laws, rules and regulations relating to the payment
of fees for the referral of patients, fee-splitting and the
corporate practice of medicine.
(v) To the best knowledge of such counsel after
reasonable inquiry each [Michigan] Practice Group and each
Dentist practicing therein (i) owns or possesses and is
operating in compliance with the terms, provisions and
conditions of all Permits of and from all [federal and]
Michigan governmental regulatory officials and bodies
necessary to conduct its business, (ii) has made all
-37-
necessary filings required under any [federal or] Michigan
law, rule or regulation and (iii) has obtained all necessary
Approvals from other [federal or] Michigan persons or
governmental agencies in each case that are necessary to own
or lease its properties and assets and to the conduct of its
business, except where the failure to so own or possess,
comply, file or obtain, individually or in the aggregate,
would not have a material adverse effect on the Company and
its Subsidiaries taken as a whole. Each such Permit is valid
and in full force and effect and there is no proceeding
pending or threatened (or any basis therefor) that could cause
any such Permit, filing or Approval that is material to the
conduct of the business of the Company as presently conducted
to be revoked, withdrawn, canceled, suspended or not renewed.
(vi) No approval, consent, order, authorization,
designation, declaration or filing by or with any [Federal or]
Michigan regulatory, administrative or other governmental body
is necessary in connection with the execution and delivery of
this Agreement and the consummation of the transactions herein
contemplated, except such as have been obtained or made,
specifying the same.
(vii) To the knowledge of such counsel after
reasonable inquiry there are no legal or governmental
proceedings pending or threatened against the Company or any
of the Subsidiaries, or to which the Company or any of the
Subsidiaries, or any of their property, is subject, that are
required to be described in the Registration Statement or
Prospectus (or any amendment or supplement thereto) that are
not described as required therein. Such counsel has not been
informed of any legal or governmental proceedings pending or
threatened against any Practice Group, or to which any
Practice Group or any of its property is subject, that are
required to be described in the Registration Statement or
Prospectus (or any amendment or supplement thereto) that are
not described as required therein.
(viii) To the knowledge of such counsel after
reasonable inquiry, neither the Company nor any Subsidiary is
in violation of any [federal or] Michigan law, ordinance,
administrative or governmental rule or regulation applicable
to the Company or any of the Subsidiaries or of any decree of
any court or [federal or] Michigan governmental agency or body
having jurisdiction over the Company or any subsidiary except
where such violations do not and will not, individually or in
the aggregate, have a Material Adverse Effect.
In rendering such opinion such counsel may state that they express no
opinion regarding the applicability of any laws other than federal and Michigan
laws and regulation relating to health care or relating to reimbursement for
health care services, to the businesses of the Company and the Subsidiaries
taken as a whole. In addition, in each case where such opinion is qualified by
"the best knowledge of such counsel after reasonable inquiry" or "know, after
reasonable inquiry," such counsel may rely as to matters of fact upon
certificates of executive and other officers and employees of the Company as you
and such counsel shall deem are
-38-
appropriate and such other procedures as you and such counsel shall mutually
agree; provided, however, in each such case, such counsel shall state that is
has no knowledge contrary to the information contained in such certificates or
developed by such procedures and knows of no reason why you should not
reasonably rely upon the information contained in such certificates or developed
by such procedures. Such counsel may state that their knowledge is limited to
the knowledge of shareholders, attorneys and other employees of such counsel's
firm that have given attention to matters involving the Company. Such opinion
may be subject to such assumptions as are reasonable and customary in opinions
of this kind.
(g) You shall have received on the Closing Date (and the
Additional Closing Date, if any) an opinion of Xxxxx, Xxxxxxx &
Xxxxxxxxx, LLP, as counsel for the Underwriters, dated the Closing Date
(and the Additional Closing Date, if any) with respect to the issuance
and sale of the Firm Shares, the Registration Statement and other
related matters as you may reasonably request and the Company and its
counsel shall have furnished to your counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters.
(h) You shall have received letters addressed to you and dated
the date hereof and the Closing Date from Price Waterhouse, independent
certified public accountants, substantially in the forms heretofore
approved by you.
(i)(i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall be pending or, to the knowledge of the Company,
shall be threatened or contemplated by the Commission at or prior to
the Closing Date; (ii) no order suspending the effectiveness of the
Registration Statement or the qualification or registration of the
Shares under the securities or Blue Sky laws of any jurisdiction shall
be in effect and no proceeding for such purpose shall be pending or, to
the knowledge of the Company, threatened or contemplated by the
Commission or the authorities of any jurisdiction; (iii) any request
for additional information on the part of the staff of the Commission
or any such authorities shall have been complied with to the
satisfaction of the staff of the Commission or such authorities; (iv)
after the date hereof no amendment or supplement to the Registration
Statement or the Prospectus shall have been filed unless a copy thereof
was first submitted to you and you did not object thereto in good
faith; and (v) all of the representations and warranties of the Company
contained in this Agreement shall be true and correct in all respects
on and as of the date hereof and on and as of the Closing Date as if
made on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed by the chief executive
officer and the chief financial officer of the Company (or such other
officers as are acceptable to you) to the effect set forth in this
Section 10(i) and in Sections 10(b) and 10(j) hereof.
(j) The Company shall not have failed in any respect at or
prior to the Closing Date to have performed or complied with any of its
agreements herein contained and required to be performed or complied
with by it hereunder at or prior to the Closing Date.
-39-
(k) You shall have received a certificate, dated on and as of
the Closing Date, by or on behalf of the Selling Stockholders to the
effect that as of such Closing Date such Selling Stockholders',
representations and warranties in this Agreement are true and correct
as if made on and as of such Closing Date, and that such Selling
Stockholders have performed all of their obligations and satisfied all
the conditions on such Selling Stockholders' part to be performed or
satisfied at or prior to the Closing Date.
(l) The Company and the Selling Stockholders shall have
furnished or caused to have been furnished to you such further
certificates and documents as you shall have reasonably requested.
(m) At or prior to the Closing Date, you shall have received
the written commitment of each of the Company's officers and directors
and each beneficial owner of Common Stock or securities entitling the
holder to purchase Common Stock not to, during the Lock-up Period,
directly or indirectly effect a Disposition of any shares of Common
Stock or any Securities now owned or hereafter acquired directly by
such person or with respect to which such person has or hereafter
acquires the power of disposition, otherwise than with the prior
written consent of Xxxxxxx Xxxxx.
(n) At or prior to the effective date of the Registration
Statement, you shall have received a letter from the Corporate
Financing Department of the NASD confirming that such Department has
determined to raise no objections with respect to the fairness or
reasonableness of the underwriting terms and arrangements of the
offering contemplated hereby.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you and your counsel.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of the Additional
Closing Date of the conditions set forth in this Section 10, except that, if the
Additional Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in paragraphs (c) through (l) shall be dated as
of the Additional Closing Date and the opinions called for by paragraphs (c) and
(d) shall be revised to reflect the sale of Additional Shares.
If any of the conditions hereinabove provided for in this Section 10
shall not have been satisfied when and as required by this Agreement, this
Agreement may be terminated by you by notifying the Company of such termination
in writing or by telegram at or prior to such Closing Date, but you shall be
entitled to waive any of such conditions.
11. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become effective
upon the later of (a) the execution and delivery hereof by the parties hereto,
and (b) release of notification of the effectiveness of the Registration
Statement by the Commission; provided, however, that the provisions of Sections
8 and 9 shall at all times be effective.
-40-
If any one or more of the Underwriters shall fail or refuse to purchase
Firm Shares which it or they have agreed to purchase hereunder, and the
aggregate number of Firm Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Firm Shares, each non-defaulting Underwriter
shall be obligated, severally, in the proportion which the number of Firm Shares
set forth opposite its name in Schedule I hereto bears to the aggregate number
of Firm Shares set forth opposite the names of all non-defaulting Underwriters
or in such other proportion as you may specify in the Agreement Among
Underwriters, to purchase the Firm Shares which such defaulting Underwriter or
Underwriters agreed, but failed or refused to purchase. If any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Shares and arrangements satisfactory
to you, the Company and the Selling Stockholders for the purchase of such Firm
Shares are not made within 48 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter, the
Company or the Selling Stockholders. In any such case which does not result in
termination of this Agreement, either you or the Company and the Selling
Stockholders shall have the right to postpone the Closing Date, but in no event
for longer than seven (7) days, in order that the required changes, if any, in
the Registration statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any such default
of any such Underwriter under this Agreement.
12. DEFAULT BY SELLING STOCKHOLDER. If on the Closing Date any Selling
Stockholder fails to sell the Firm Shares which such Selling Stockholder has
agreed to sell on such date as set forth in SCHEDULE II hereto, the Company
agrees that it will sell or arrange for the sale of that number of shares of
Common Stock to the Underwriters which represents Firm Shares which such Selling
Stockholder has failed to so sell, as set forth in SCHEDULE II hereto, or such
lesser number as may be requested by the Representatives.
13. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company or the Selling Stockholders by notice to the Company
and the Selling Stockholders, if prior to the Closing Date or the Additional
Closing Date (if different from the Closing Date and then only as to the
Additional Shares), as the case may be, in your sole judgment, (i) trading in
the Company's Common Stock shall have been suspended by the Commission or the
NASDAQ/NMS (ii) trading in securities generally on the New York Stock Exchange,
American Stock Exchange or NASDAQ/NMS shall have been suspended or materially
limited, or minimum or maximum prices shall have been generally established on
such exchange, or additional material governmental restrictions, not in force on
the date of this Agreement, shall have been imposed upon trading in securities
generally by any such exchange or by order of the Commission or any court or
other governmental authority, (iii) a general moratorium on commercial banking
activities shall have been declared by either federal or New York State
authorities or (iv) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions
-41-
or other material event the effect of which on the financial markets of the
United States is such as to make it, in your judgment, impracticable or
inadvisable to market the Shares or to enforce contracts for the sale of Shares.
Notice of such cancellation shall be promptly given to the Company and its
counsel by telegraph, telecopy or telephone and shall be subsequently confirmed
by letter.
14. INFORMATION FURNISHED BY THE UNDERWRITERS. The Company acknowledges
that the statements set forth under footnote (3) on the cover page of the
Prospectus and in the third and seventh paragraphs under the caption
"Underwriting" in any Prepricing Prospectus and in the Prospectus, constitute
the only information furnished by or on behalf of the Underwriters through you
or on your behalf as such information is referred to in Sections 6(a), 6(b) and
9 hereof.
15. MISCELLANEOUS. Except as otherwise provided in Sections 5 and 13
hereof, notice given pursuant to any of the provisions of this Agreement shall
be in writing and shall be delivered (i) if to the Company or Selling
Stockholders, to the office of the Company at Dental Care Alliance, 0000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxxxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxxxx (with copy
to Xxxxxxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxx & Xxxxxxx, P.A., 0000 Xxxxxxxx Xxxxxx,
Xxxxx, XX 00000, Attn.: Xxxxxx X. Xxxxxxxx) or (ii) if to you, as
Representatives of the Underwriters, to Xxxxxxx Xxxxx & Associates, Inc., 000
Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx;
(with copy to Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, Attn.: Xxxxxx X. Xxxxx).
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company, its directors and officers, and the other
controlling persons referred to in Section 9 hereof, the Selling Stockholders
and their respective successors and assigns, to the extent provided herein, and
no other person shall acquire or have any right under or by virtue of this
Agreement. Neither of the terms "successor" and "successors and assigns" as used
in this Agreement shall include a purchaser from you of any of the Shares in his
status as such purchaser.
16. APPLICABLE LAWS; COUNTERPARTS. This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida without
reference to choice of law principles thereunder.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument. This Agreement shall be effective
when, but only when, at least one counterpart hereof shall have been executed on
behalf of each party hereto.
-42-
THE COMPANY, THE SELLING STOCKHOLDERS AND THE UNDERWRITERS EACH HEREBY
IRREVOCABLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY
CLAIM BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
DENTAL CARE ALLIANCE, INC.
---------------------------
By:
----------------------------
Name:
----------------------------
Title:
-----------------------------
SELLING STOCKHOLDERS
By:
----------------------------
Name:
----------------------------
Title: Attorney-in-Fact
As Attorney-in-Fact acting on behalf of
each of the Selling Stockholders named
in Schedule II to this Agreement
CONFIRMED as of the date first above
mentioned, on behalf of itself and the other
several Underwriters named in Schedule I hereto.
XXXXXXX XXXXX & ASSOCIATES, INC.
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
-43-
SCHEDULE I
NAME NUMBER OF FIRM SHARES
---- ---------------------
Xxxxxxx Xxxxx & Associates, Inc........................
Xxxxxxx Xxxxx & Company, L.L.C.........................
TOTAL.................................................. _________
-44-
SCHEDULE II
FIRM SHARES ADDITIONAL SHARES TOTAL
----------- ----------------- ------
Company _____ _____ _____
-------
[Selling Stockholders] _____ _____ _____
----------------------
TOTAL _____ _____ _____
