1
Exhibit 1.1
5,000,000 Shares
OMNICARE, INC.
Common Stock
($1 Par Value)
UNDERWRITING AGREEMENT
[ ], 1996
CS FIRST BOSTON CORPORATION
XXXXXXXXXX SECURITIES
XXXXXXX XXXXX & COMPANY
PAINEWEBBER INCORPORATED, L.L.C.
XXXXX XXXXXX INC.
As Representatives of the Several Underwriters,
c/o CS First Xxxxxx Xxxxxxxxxxx,
Xxxx Xxxxxx Xxxxx,
Xxx Xxxx, XX 00000.
Dear Madames or Sirs:
1. Introductory. Omnicare, Inc., a Delaware corporation
("Company"), proposes to issue and sell to the several Underwriters named in
Schedule A hereto ("Underwriters") 4,000,000 shares of its Common Stock, $1 par
value per share ("Securities"; such 4,000,000 shares of Securities being
hereinafter referred to as the "U.S. Firm Securities"). The Company also
proposes to issue and sell to the Underwriters and the Managers (as defined
below), at the option of the Underwriters and the Managers, an aggregate of not
more than 750,000 additional shares ("Optional Securities") of Securities as
set forth below. The U.S. Firm Securities and the Optional Securities that may
be sold to the Underwriters ("U.S. Optional Securities") are herein
collectively called the "U.S. Securities".
It is understood that the Company is concurrently entering
into a Subscription Agreement, dated the date hereof ("Subscription
Agreement"), with CS First Boston Limited ("CSFBL"), Xxxxxxxxxx Securities,
PaineWebber Incorporated, Xxxxx Xxxxxx Inc. and Xxxxxxx Xxxxx & Company
("Managers") relating to the concurrent offering and sale by the Company of
1,000,000 shares of Securities (such 1,000,000 shares of Securities being
hereinafter referred to as the "International Firm Securities", which together
with the Optional Securities that may be sold to the Managers by the Company
("International Optional Securities") are hereinafter called
2
2
the "International Securities")), outside the United States and Canada
("International Offering"). The U.S. Securities and the International
Securities are collectively referred to as the "Offered Securities". To
provide for the coordination of their activities, the Underwriters and the
Managers have entered into an Agreement Between U.S. Underwriters and Managers
which permits them, among other things, to sell the Offered Securities to each
other for purposes of resale.
The Company hereby agrees with the several Underwriters as
follows:
2. Representations and Warranties of the Company The
Company represents and warrants to, and agrees with, the several Underwriters
that:
(a) A registration statement (No. 333-[ ]), relating to
the Offered Securities, including forms of prospectus relating to the
U.S. Securities and the International Securities, has been filed with
the Securities and Exchange Commission ("Commission") and either (i)
has been declared effective under the Securities Act of 1933 ("Act")
and is not proposed to be amended or (ii) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
("initial registration statement") has been declared effective, either
(i) an additional registration statement ("additional registration
statement") relating to the Offered Securities may have been filed
with the Commission pursuant to Rule 462(b) ("Rule 462(b)") under the
Act and, if so filed, has become effective upon filing pursuant to
such Rule and the Offered Securities all have been duly registered
under the Act pursuant to the initial registration statement and, if
applicable, the additional registration statement or (ii) such an
additional registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become effective upon
filing pursuant to such Rule and upon such filing the Offered
Securities will all have been duly registered under the Act pursuant
to the initial registration statement and such additional registration
statement. If the Company does not propose to amend the initial
registration statement or if an additional registration statement has
been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has
been filed with the Commission prior to the execution and delivery of
this Agreement, the most recent amendment (if any) to each such
registration statement has been declared effective by the Commission
or has become effective upon filing pursuant to Rule 462(c) ("Rule
462(c)") under the Act or, in the case of the additional registration
statement, Rule 462(b). For purposes of this Agreement, "Effective
Time" with respect to the initial registration statement or, if filed
prior to the execution and delivery of this Agreement, the additional
registration statement means (i) if the Company has advised the
Representatives that it does not propose to amend such registration
statement, the date and time as of which such registration statement,
or the most recent post-effective amendment thereto (if any) filed
prior to the execution and
3
3
delivery of this Agreement, was declared effective by the Commission
or has become effective upon filing pursuant to Rule 462(c), or (ii)
if the Company has advised the Representatives that it proposes to
file an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration statement,
as amended by such amendment or post-effective amendment, as the case
may be, is declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "Effective Time" with
respect to such additional registration statement means that date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "Effective Date" with respect to
the initial registration statement or the additional registration
statement (if any) means the date of the Effective Time thereof. The
initial registration statement, as amended at its Effective Time,
including all material incorporated by reference therein, including
all information contained in the additional registration statement (if
any) and including all information (if any) deemed to be a part of the
initial registration statement as of the Effective Time of the
additional registration statement pursuant to the General Instructions
of the Form on which it is filed and including all information (if
any) deemed to be a part of the initial registration statement as of
its Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the
Act, is hereinafter referred to as the "Initial Registration
Statement". The additional registration statement, as amended at its
Effective Time, including the contents of the initial registration
statement incorporated by reference therein and including all
information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "Additional Registration
Statement". The Initial Registration Statement and the Additional
Registration Statement are herein referred to collectively as the
"Registration Statements" and individually as a "Registration
Statement". The form of prospectus relating to the U.S. Securities
and the form of prospectus relating to the International Securities,
each as first filed with the Commission pursuant to and in accordance
with Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing
is required) as included in a Registration Statement, including all
material incorporated by reference in such prospectus, is hereinafter
referred to as the "U.S. Prospectus", and the "International
Prospectus", respectively; and the U.S. Prospectus and the
International Prospectus are hereinafter collectively referred to as
the "Prospectuses". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
(b) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement:
(i) on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of
4
4
the Commission ("Rules and Regulations") and did not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement
conformed, or will conform, in all respects to the requirements of the
Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and
(iii) on the date of this Agreement, the Initial Registration
Statement and, if the Effective Time of the Additional Registration
Statement is prior to the execution and delivery of this Agreement,
the Additional Registration Statement each conforms, and at the time
of filing of each of the Prospectuses pursuant to Rule 424(b) or (if
no such filing is required) at the Effective Date of the Additional
Registration Statement in which each of the Prospectuses is included,
each Registration Statement and each of the Prospectuses will conform,
in all respects to the requirements of the Act and the Rules and
Regulations, and none of such documents includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading. If the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement: on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement and each of
the Prospectuses will conform in all respects to the requirements of
the Act and the Rules and Regulations, and none of such documents will
include any untrue statement of a material fact or will omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do
not apply to statements in or omissions from a Registration Statement
or either of the Prospectuses based upon written information furnished
to the Company by any Underwriter through the Representatives or by
any Manager through CSFBL specifically for use therein, it being
understood and agreed that the only such information is that described
as such in Section 7(b).
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectuses; and the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification.
(d) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of
5
5
its incorporation, with corporate power and authority to own its
properties and conduct its business as described in the Prospectuses;
and each subsidiary of the Company is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification; all of the issued and
outstanding capital stock of each subsidiary of the Company has been
duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(e) The Offered Securities and all other outstanding shares
of capital stock of the Company have been duly authorized; all
outstanding shares of capital stock of the Company are, and, when the
Offered Securities have been delivered and paid for in accordance with
this Agreement and the Subscription Agreement on each Closing Date (as
defined below), the Offered Securities will have been, validly issued,
fully paid and nonassessable and will conform to the description
thereof contained in the Prospectuses; and the stockholders of the
Company have no preemptive rights with respect to the Securities.
(f) There are no contracts, agreements or understandings
between the Company and any person that would give rise to a valid
claim against the Company or any Underwriter or Manager for a
brokerage commission, finder's fee or other like payment in connection
with the sale of the Offered Securities.
(g) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in
the securities registered pursuant to a Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the Act, except for such
contracts and agreements as to which the Company has already satisfied
its obligation to file a registration statement under the Act or to
include securities in a registration statement filed by the Company
under the Act.
(h) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this
Agreement or the Subscription Agreement in connection with the
issuance and sale of Offered Securities by the Company, except such as
have been obtained and made under the Act and such as may be required
under state securities laws.
6
6
(i) The execution, delivery and performance of this Agreement
and the Subscription Agreement and the issuance and sale of the
Offered Securities will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or domestic or foreign order of any
governmental agency or body or any court, having jurisdiction over the
Company or any subsidiary of the Company or any of their properties,
or any agreement or instrument to which the Company or any such
subsidiary is a party or by which the Company or any such subsidiary
is bound or to which any of the properties of the Company or any such
subsidiary is subject, or the charter or by-laws of the Company or any
such subsidiary, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as contemplated by
this Agreement and the Subscription Agreement, respectively.
(j) This Agreement and the Subscription Agreement have been
duly authorized, executed and delivered by the Company.
(k) The Company and its subsidiaries have good and marketable
title in fee simple to all real properties and good and marketable
title to all other properties and assets owned by them, in each case
free from liens, encumbrances and defects that would materially affect
the value thereof or materially interfere with the use made or to be
made thereof by them; and all leased real and personal property held
by the Company or any of its subsidiaries is held under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by the Company and its
subsidiaries.
(l) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate have a
material adverse effect on the Company and its subsidiaries taken as a
whole.
(m) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent
that might have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(n) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights,
confidential information and other
7
7
intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of
or conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(o) Neither the Company nor any of its subsidiaries is in
violation of any statute, any rule, regulation, decision or order of
any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), or is subject to any
claim relating to any environmental laws, which violation
or claim would individually or in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as a whole;
and the Company is not aware of any pending investigation which might
lead to such a claim.
(p) There are no pending actions, suits or proceedings
against or affecting the Company, any of its subsidiaries or any of
their respective properties that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the condition (financial
or other), business, prospects, results of operations or general
affairs of the Company and its subsidiaries taken as a whole, or would
materially and adversely affect the ability of the Company to perform
its obligations under this Agreement or the Subscription Agreement, or
which are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are threatened
or, to the Company's knowledge, contemplated.
(q) To the Company's knowledge, the accountants who certified
the financial statements and supporting schedules included or
incorporated by reference in each Registration Statement are
independent public accountants as required by the Act and the Rules
and Regulations.
(r) The financial statements included in each Registration
Statement and the Prospectuses present fairly the financial position
of the Company and its consolidated subsidiaries as of the dates shown
and their results of operations and cash flows for the periods shown,
and such financial statements have been prepared in conformity with
the generally accepted accounting
8
8
principles in the United States applied on a consistent basis (except
as set forth in the accompanying footnotes) and comply with the
requirements of the Act; and the schedules present fairly the
information required to be stated therein and comply with the
requirements of the Act. The financial information and statistical
data set forth in each of the Prospectuses under the captions
"Capitalization,", "Selected Consolidated Financial Data" and
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" have been prepared on a basis consistent with
the consolidated financial statements of the Company. The pro forma
financial information incorporated by reference in each Registration
Statement complies with the requirements of the Act and the Rules and
Regulations; the assumptions of management described in the notes to
such pro forma financial information provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions described in such notes; the related pro forma
adjustments give appropriate effect to those assumptions and the pro
forma column reflects the proper application of those adjustments to
the historical financial statement amounts in the pro forma condensed
balance sheet and the pro forma condensed statement of income.
(s) Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectuses, there has
been no material adverse change, nor any development or event that may
result in a prospective material adverse change, in the condition
(financial or other), business, prospects, results of operations or
general affairs of the Company and its subsidiaries taken as a whole,
and, except as disclosed in or contemplated by the Prospectuses, there
has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(t) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectuses, will not be an
"investment company" as defined in the Investment Company Act of 1940.
(u) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes and the Company agrees to comply with such Section if prior
to the completion of the distribution of the Offered Securities it
commences doing such business.
(v) Except where the failure to file would not have a
material adverse effect, all tax returns required to be filed by the
Company or any of its subsidiaries, in any jurisdiction, have been so
filed, and all material taxes, including withholding taxes, penalties
and interest, assessments, fees and other charges due or claimed to be
due from such entities have been paid, other than
9
9
those being contested in good faith and for which adequate reserves
have been provided or those currently payable without material penalty
or interest. No material proposed additional tax assessments have
been asserted in writing against the Company or any of its
subsidiaries.
(w) The Offered Securities have been approved for listing on
the New York Stock Exchange (the "Stock Exchange") subject to official
notice of issuance.
3. Purchase, Sale and Delivery of Offered Securities. On
the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Company agrees to
sell to the Underwriters, and the Underwriters agree, severally and not
jointly, to purchase from the Company at a purchase price of $[ ] per
share, the respective numbers of shares of U.S. Firm Securities set forth
opposite the names of the Underwriters in Schedule A hereto.
The Company will deliver the U.S. Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price by certified or official bank check or checks in New York
Clearing House (next day) funds drawn to the order of the Company at the office
of Cravath, Swaine & Xxxxx, at 9:30 A.M., New York time, on [ ], 1996,
or at such other time not later than seven full business days thereafter as CS
First Boston Corporation ("CSFBC") and the Company determine, such time being
herein referred to as the "First Closing Date". For purposes of Rule 15c6-1
under the Securities Exchange Act of 1934, the First Closing Date (if later
than the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities for all the Offered Securities sold
pursuant to the Offerings. The certificates for the U.S. Firm Securities so to
be delivered will be in definitive form, in such denominations and registered
in such names as CSFBC requests and will be made available for checking and
packaging at the above office of Cravath, Swaine & Xxxxx, at least 24 hours
prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the
Company from time to time not more than 30 days subsequent to the date of the
initial public offering of the Offered Securities, the Underwriters and the
Managers may purchase all or less than all of the Optional Securities, which in
the case of the Underwriters shall be at the purchase price per Security to be
paid for the U.S. Firm Securities. Unless otherwise agreed between CSFBL and
CSFBC, the U.S. Optional Securities to be purchased by the Underwriters on any
Optional Closing Date (as defined below) shall be in the same proportion to all
the Optional Securities to be purchased by the Underwriters and Managers on
such Optional Closing Date as the U.S. Firm Securities bear to all the Offered
Securities. The Company agrees to sell to the Underwriters such U.S. Optional
Securities and the Underwriters agree, severally and
10
10
not jointly, to purchase such U.S. Optional Securities. Such U.S. Optional
Securities shall be purchased for the account of each Underwriter in the same
proportion as the number of shares of U.S. Firm Securities set forth opposite
such Underwriter's name bears to the total number of shares of U.S. Firm
Securities (subject to adjustment by CSFBC to eliminate fractions) and may be
purchased by the Underwriters only for the purpose of covering over-allotments
made in connection with the sale of the U.S. Firm Securities. No Optional
Securities shall be sold or delivered unless the U.S. Firm Securities and the
International Firm Securities previously have been, or simultaneously are, sold
and delivered. The right to purchase the Optional Securities or any portion
thereof may be exercised from time to time upon written or telegraphic notice
by the Underwriters to the Company setting forth the number of Optional
Securities as to which the several Underwriters are exercising the Option and
to the extent not previously exercised may be surrendered and terminated at any
time upon notice by CSFBC on behalf of Underwriters and the Managers to the
Company.
Each time for the delivery of and payment of the U.S. Optional
Securities, being herein referred to as an "Optional Closing Date", which may
be the First Closing Date (the First Closing Date and each Optional Closing
Date, if any, being sometimes referred to as a "Closing Date"), shall be
determined by CSFBC but shall be not later than five full business days after
written or telegraphic notice of election to purchase Optional Securities is
given. The Company will deliver the U.S. Optional Securities being purchased
on each Optional Closing Date to the Representatives for the accounts of the
several Underwriters, against payment of the purchase price therefor by
certified or official bank check or checks in New York Clearing House (next
day) funds drawn to the order of the Company, at the above office of Cravath,
Swaine & Xxxxx. The certificates for the U.S. Optional Securities will be in
definitive form, in such denominations and registered in such names as CSFBC
requests upon reasonable notice prior to such Optional Closing Date and will be
made available for checking and packaging at the above office of Cravath,
Swaine & Xxxxx, at a reasonable time in advance of the such Optional Closing
Date.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the U.S. Securities for sale to the
public as set forth in the U.S. Prospectus.
5. Certain Agreements of the Company. The Company agrees
with the several Underwriters that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement,
the Company will file the Prospectuses with the Commission pursuant to
and in accordance with subparagraph (1) (or, if applicable and if
consented to by CSFBC, subparagraph (4)) of Rule 424(b) not later than
the earlier of (A) the second business day following the execution and
delivery of this Agreement or (B) the
11
11
fifteenth business day after the Effective Date of the Initial
Registration Statement. The Company will advise CSFBC promptly of any
such filing pursuant to Rule 424(b). If the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement and an additional registration statement is
necessary to register a portion of the Offered Securities under the
Act but the Effective Time thereof has not occurred as of such
execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance
with Rule 462(b) on or prior to 10:00 P.M., New York time, on the date
of this Agreement or, if earlier, on or prior to the time the
Prospectus is printed and distributed to any Underwriter, or will make
such filing at such later date as shall have been consented to by CS
First Boston.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any registration statement as
filed or the related prospectus or the Initial Registration Statement,
the Additional Registration Statement (if any) or either of the
Prospectuses and will not effect such amendment or supplementation
without CSFBC's prior consent; and the Company will also advise CSFBC
promptly of the effectiveness of each Registration Statement (if the
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or either of the Prospectuses and of the institution by the
Commission of any stop order proceedings in respect of a Registration
Statement and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if
issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection
with sales by any Underwriter, Manager or dealer, any event occurs as
a result of which either or both of the Prospectuses as then amended
or supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend either or
both of the Prospectuses to comply with the Act, the Company will
promptly notify CSFBC of such event and will promptly prepare and, in
the case of the U.S. Prospectus, file with the Commission, at its own
expense, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance.
Neither CSFBC's consent to, nor the Underwriter's delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its security
12
12
holders an earnings statement covering a period of at least 12 months
beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional
Registration Statement) which will satisfy the provisions of Section
11(a) of the Act. For the purpose of the preceding sentence,
"Availability Date" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes the
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "Availability Date" means the
90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of
the Registration Statements (five of which will be signed and will
include all exhibits), each preliminary prospectus relating to the
U.S. Securities, and, so long as delivery of a prospectus relating to
the Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, the U.S.
Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as CSFBC
requests. The U.S. Prospectus shall be so furnished on or prior to
3:00 P.M., New York time, on the business day following the later of
the execution and delivery of this Agreement or the Effective Time of
the Initial Registration Statement. The Company will pay the expenses
of printing and distributing all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions in
the United States and Canada as CSFBC designates and will continue
such qualifications in effect so long as required for the
distribution.
(g) During the period of five years hereafter, the Company
will furnish to the Representatives and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such
year; and the Company will furnish to the Representatives (i) as soon
as available, a copy of each report or definitive proxy statement of
the Company filed with the Commission under the Securities Exchange
Act of 1934 or mailed to stockholders, and (ii) from time to time,
such other information concerning the Company as CSFBC may reasonably
request.
(h) The Company will indemnify and hold harmless the
Underwriters against any documentary, stamp or similar issuance tax,
including any interest and penalties, on the creation, issuance and
sale of the Offered Securities and on the execution and delivery of
this Agreement. All payments to be made by the Company hereunder
shall be made without withholding or deduction or on account of any
present or future taxes, duties or governmental charges
13
13
whatsoever unless the Company is compelled by law to deduct or
withhold such taxes, duties or charges. In that event, the Company
shall pay such additional amounts as may be necessary in order that
the net amounts received after such withholding or deduction shall
equal the amounts that would have been received if no withholding or
deduction had been made.
(i) The Company will reimburse the Underwriters (if and to
the extent incurred by them) for any travel expenses of the Company's
officers and employees and other expenses of the Company in connection
with attending or hosting meetings with prospective purchasers of the
Offered Securities.
(j) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the
obligations of the Company under this Agreement and will reimburse the
Underwriters (if and to the extent incurred by them) for any filing
fees and other expenses (including fees and disbursements of counsel)
incurred by them in connection with qualification of the Offered
Securities for sale under the laws of such jurisdictions in the United
States and Canada as CSFBC designates and the printing of memoranda
relating thereto, for the filing fee of the National Association of
Securities Dealers, Inc. relating to the Offered Securities and for
expenses incurred in distributing preliminary prospectuses and the
Prospectuses (including any amendments and supplements thereto) to the
Underwriters.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the U.S. Firm
Securities on the First Closing Date and the U.S. Optional Securities to be
purchased on each Optional
14
14
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of officers of the Company made pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be
prior to such filing of the amendment or post-effective amendment to
the registration statement to be filed shortly prior to such Effective
Time), of Price Waterhouse LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect
set forth in Schedule B hereto.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this
Agreement, the Effective Time shall have occurred not later than 10:00
P.M., New York time, on the date of this Agreement or such later date
as shall have been consented to by CSFBC. If the Effective Time of
the Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectuses are printed
and distributed to any Underwriter, or shall have occurred at such
later date as shall have been consented to by CS First Boston. If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, the U.S. Prospectus shall
have been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Company or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting
particularly the business or properties of the Company or its
subsidiaries which, in the judgment of a majority in interest of the
Underwriters including the Representatives, materially impairs the
investment quality of the Offered Securities; (ii) any downgrading in
the rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under
15
15
the Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by
Federal or New York authorities; or (v) any outbreak or escalation of
major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Underwriters including the Representatives, the
effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the U.S. Securities.
(d) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxxxx Xxxx & Xxxxx P.L.L., counsel for the
Company, to the effect that:
(i) the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectuses; and the Company is duly qualified to do business
as a foreign corporation in good standing in all other
jurisdictions in which its ownership or leasing of property or
the conduct of its business requires such qualification other
than jurisdictions in which the failure to so qualify would
not have a material adverse effect on the Company and its
subsidiaries taken as one enterprise;
(ii) each subsidiary of the Company has been duly
incorporated and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with
corporate power and authority to own its properties and
conduct its business as described in the Prospectuses; and
each subsidiary of the Company is duly qualified to do
business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or leasing of
property or the conduct of its business requires such
qualification other than jurisdictions in which the failure to
so qualify would not have a material adverse effect on the
Company and its subsidiaries taken as one enterprise; all of
the issued and outstanding capital stock of each subsidiary of
the Company has been duly authorized and validly issued and
is, to such counsel's knowledge, fully paid and nonassessable;
and
16
16
the capital stock of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free and clear of any perfected
security interests, and, to such counsel's knowledge, free and clear
of any other security interests, claims, liens, encumbrances and
defects;
(iii) the Company's authorized capital stock is as
set forth in the Prospectuses under "Description of Capital
Stock--General"; the Offered Securities delivered on such
Closing Date and all other outstanding shares of the Common
Stock of the Company have been duly authorized and validly
issued, are, to such counsel's knowledge, fully paid and
nonassessable and conform to the description thereof contained
in the Prospectuses; the Offered Securities are duly
authorized for listing, subject to official notice of
issuance, on the Stock Exchange; the certificates for the
Offered Securities are in valid form; and the stockholders of
the Company have no preemptive rights or similar rights with
respect to the Offered Securities;
(iv) no consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by this Agreement or the Subscription Agreement
in connection with the issuance or sale of the Offered
Securities by the Company, except such as have been obtained
and made under the Act and such as may be required under state
securities laws;
(v) the execution, delivery and performance of this
Agreement and the Subscription Agreement and the issuance and
sale of the Offered Securities will not result in a breach or
violation of any of the terms and provisions of, or constitute
a default under, any statute, any rule, regulation or order of
any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the Company
or any of their properties, or any agreement or instrument
known to such counsel to which the Company or any such
subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the charter or
by-laws of the Company or any such subsidiary, and the Company
has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement and the
Subscription Agreement, respectively;
(vi) the Initial Registration Statement was declared
effective under the Act as of the date and time specified in
such opinion, the Additional Registration Statement (if any)
was filed and became effective under the Act as of the date
and time (if determinable)
17
17
specified in such opinion, the Prospectuses either were filed with the
Commission pursuant to the subparagraph of Rule 424(b) specified in
such opinion on the date specified therein or were included in the
Initial Registration Statement or the Additional Registration
Statement (as the case may be), and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of a
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act; and such counsel do not know of any legal
or governmental proceedings required to be described in a Registration
Statement or the Prospectuses which are not described as required or
of any franchises, contracts or documents of a character required to
be described in a Registration Statement or the Prospectuses or to be
filed as exhibits to the Registration Statements which are not
described and filed as required;
(vii) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or
to which any of the properties of the Company or any of its
subsidiaries is subject that is required to be disclosed in a
Registration Statement which is not adequately disclosed in
the Prospectuses;
(viii) this Agreement and the Subscription Agreement
have been duly authorized, executed and delivered by the
Company;
(ix) the statements in the Prospectuses under the
headings "Description of Capital Stock" and, in the case of
the International Prospectus, "Certain United States Federal
Tax Consequences to Non-U.S. Holders" fairly summarize, in all
material respects, the matters therein described; and
(x) to such counsel's knowledge, no holders of
securities of the Company have rights to the registration of
such securities.
In giving their opinion, Xxxxxxxx Xxxx & Xxxxx P.L.L. shall
additionally state that although they are not passing upon, and do not assume
any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statements or the Prospectuses (except
as set forth in paragraph (ix) under Section 6(d) hereof) and they have not
made any independent check or verification thereof, they have participated in
conferences with officers and other representatives of the Company, counsel for
the Company, and representatives of the independent public accountants for the
Company, at which conferences the contents of the Registration Statements and
the Prospectuses were discussed and, on
18
18
the basis of the foregoing, (x) no facts have come to their attention that
would lead them to believe that the Registration Statements and the U.S.
Prospectus, and each amendment or supplement thereto (except the financial
statements contained therein), as of their respective effective or issue dates,
did not comply as to form in all material respects with the requirements of the
Act and the Rules and Regulations; and (y) such counsel have no reason to
believe either that any Registration Statement or either of the Prospectuses,
or any such amendment or supplement, as of their respective effective or issue
dates or as of such Closing Date, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
(e) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxx Xxxxx Xxxx & XxXxxx, healthcare counsel for
the Company, to the effect as follows:
(i) the issuance, sale and delivery of the Common
Stock of the Company pursuant to this Agreement and the
Subscription Agreement does not require any consent of any
healthcare agency or other healthcare regulatory body of any
State in which the Company or any of its subsidiaries operate
or any Federal Medicare or Medicaid laws and regulations; and
(ii) the statements in the Prospectus under the
caption "Business--[Reimbursement and Billing" and
"]Government Regulation" insofar as they purport to constitute
summaries of healthcare laws, regulations, policies and
interpretation, are accurate and fairly present the legal
issues purported to be described therein, and such counsel are
not aware of any other healthcare laws, rules, regulations,
policies or interpretations which are material to the
operations of the Company and its subsidiaries which have not
been adequately and accurately disclosed in the Prospectus.
(f) The Representatives shall have received from Cravath,
Swaine & Xxxxx, counsel for the Underwriters, such opinions and
letters, dated such Closing Date, with respect to the incorporation of
the Company, the validity of the Offered Securities delivered on such
Closing Date, the Registration Statements, the Prospectuses and other
related matters as the Representatives may require, and the Company
shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(g) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice- President and a
principal financial or accounting officer of the Company in which such
officers, to the best of
19
19
their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are
true and correct, that the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date, that no stop order
suspending the effectiveness of any Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission, that the Additional Registration
Statement (if any) satisfying the requirements of subparagraphs (1)
and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including
payment of the applicable filing fee in accordance with Rule 111(a) or
(b) under the Act, prior to the time the Prospectus was printed and
distributed to any Underwriter, and that, subsequent to the date of
the most recent financial statements in the Prospectuses, there has
been no material adverse change in the financial position or results
of operation of the Company and its subsidiaries except as set forth
in or contemplated by the Prospectuses or as described in such
certificate.
(h) The Representatives shall have received a letter, dated
such Closing Date, of Price Waterhouse LLP, which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than five days prior to such Closing Date for the purpose of this
subsection.
(i) On such Closing Date, the Managers shall have purchased
the International Firm Securities or the International Optional
Securities, as the case may be, pursuant to the Subscription
Agreement.
(j) The Company will furnish the Representatives with such
conformed copies of such opinions, certificates, letters and documents
as the Representatives reasonably request.
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, either of the Prospectuses, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company will not be
liable in any
20
20
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being understood
and agreed that the only information furnished by any Underwriter consists of
the information described as such in subsection (b) below.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement, either of the Prospectuses, or any amendment or supplement thereto,
or any related preliminary prospectus, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the following information in the U.S. Prospectus furnished on behalf of each
Underwriter: the last paragraph at the bottom of the cover page concerning the
terms of the offering by the Underwriters, the legend concerning
over-allotments and stabilizing on the inside front cover page and the
concession and reallowance figures appearing in the paragraph under the caption
"Underwriting".
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the
21
21
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion between the Company and the Underwriters as is appropriate
to reflect the relative benefits received by the Company on the one hand and
the Underwriters on the other from the offering of the U.S. Securities 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 Underwriters, respectively, in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Underwriters shall be deemed to be in the same
proportion as the total net proceeds from the offering of the U.S. Securities
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amounts in excess of the amount by which the total
price at which the U.S. Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to
22
22
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of the
Company who has signed the Registration Statement and to each person, if any,
who controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase U.S. Securities
hereunder on either the First Closing Date or any Optional Closing Date and the
aggregate number of shares of U.S. Securities that such defaulting Underwriter
or Underwriters agreed but failed to purchase does not exceed 10% of the total
number of shares of U.S. Securities that the Underwriters are obligated to
purchase on such Closing Date, CSFBC may make arrangements satisfactory to the
Company for the purchase of such U.S. Securities by other persons, including
any of the Underwriters, but if no such arrangements are made by such Closing
Date the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the U.S.
Securities that such defaulting Underwriters agreed but failed to purchase on
such Closing Date. If any Underwriter or Underwriters so default and the
aggregate number of shares of U.S. Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of U.S.
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to CSFBC and the Company for the purchase of such
U.S. Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company, except as provided in Section 9
(provided that if such default occurs with respect to U.S. Optional Securities
after the First Closing Date, this Agreement will not terminate as to the U.S.
Firm Securities or any U.S. Optional Securities purchased prior to such
termination). As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the Company or any of their
respective representatives, officers or
23
23
directors or any controlling person, and will survive delivery of and payment
for the U.S. Securities. If this Agreement is terminated pursuant to Section 8
or if for any reason the purchase of the U.S. Securities by the Underwriters is
not consummated, the Company shall remain responsible for the expenses to be
paid or reimbursed by them pursuant to Section 5 and the respective obligations
of the Company and the Underwriters pursuant to Section 7 shall remain in
effect and if any U.S. Securities have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5
shall also remain in effect. If the purchase of the U.S. Securities by the
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (iii), (iv), or (v) of Section 6(c), the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the U.S. Securities.
10. Notices. All communications hereunder will be in
writing and, if sent to the Underwriters, will be mailed, delivered or
telegraphed and confirmed to the Representatives, c/o CS First Boston
Corporation, Xxxx Xxxxxx Xxxxx, Xxx Xxxx, XX 00000, Attention: Investment
Banking Department--Transactions Advisory Group, or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at 2800 Chemed
Center, 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, Attention: Xxxxxx X.
Xxxxxx; provided, however, that any notice to an Underwriter pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
11. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7, and no
other person will have any right or obligation hereunder.
12. Representation of Underwriters. The Representatives will
act for the several Underwriters in connection with this financing, and any
action under this Agreement taken by the Representatives jointly or by CSFBC
will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to principles of conflicts of laws.
24
24
15. Miscellaneous. The Company hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to us a counterpart
hereof, whereupon this Agreement will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
by
-----------------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
CS FIRST BOSTON CORPORATION
XXXXXXXXXX SECURITIES
XXXXXXX XXXXX & COMPANY, L.L.C.
PAINEWEBBER INCORPORATED
XXXXX XXXXXX INC.
Acting on behalf of themselves and as
the Representatives of the several
Underwriters.
By CS FIRST BOSTON CORPORATION
by
---------------------------------------
Name:
Title:
25
SCHEDULE A
Number of
Underwriter U.S. Firm Securities
----------- --------------------
CS First Boston Corporation . . . . . . . . . . . . . . [ ]
Xxxxxxxxxx Securities . . . . . . . . . . . . . . . . . [ ]
Xxxxxxx Xxxxx & Company, L.L.C. . . . . . . . . . . . . [ ]
PaineWebber Incorporated . . . . . . . . . . . . . . . [ ]
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . . . . [ ]
---------
Total . . . . . . . . . . . . [ ]
==========
26
SCHEDULE B
LETTER OF INDEPENDENT PUBLIC ACCOUNTANTS
REFERRED TO IN SECTION 6(a)
(i) in their opinion the financial statements, including the
financial statement schedules, examined by them and included in the
Registration Statements comply in form in all material respects with the
applicable accounting requirements of the Act and the Rules and Regulations
with respect to registration statements on Form S-3;
[(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards No. 71,
Interim Financial Information, on the unaudited financial statements included
in the Registration Statements;]
(iii) on the basis of [the review referred to in clause
(ii)above,] a reading of the latest available interim financial statements of
the Company, inquiries of officials of the Company who have responsibility for
financial and accounting matters and other specified procedures, nothing came
to their attention that caused them to believe that:
[(A) the unaudited financial statements {and summary
of earnings} included in the Registration Statements do not comply as to form
in all material respects with the applicable accounting requirements of the Act
and the Rules and Regulations or any material modifications should be made to
such unaudited financial statements [and summary of earnings] for them to be in
conformity with generally accepted accounting principles;]
(B) at the date of the latest available interim
financial information read by such accountants, or at a subsequent specified
date not more than five days prior to the date of this Agreement, there was any
change in the capital stock or any increase in short-term obligations or
long-term obligations of the Company and its consolidated subsidiaries or any
decrease in consolidated net current assets or stockholder's equity, as
compared with amounts shown on the latest balance sheet included in the
Prospectuses, except in all instances for changes or increases or decreases
which the Registration Statements disclose have occurred or may occur; or
(C) for the period from the closing date of the
latest income statement included in the Prospectuses to the closing date of the
latest available income statement read by such accountants, there were any
decreases, as compared with the corresponding period of the previous year and,
to the extent possible, with the period of corresponding length beginning on
the first day of the last completed
27
2
quarter included in the latest income statement included in the Prospectuses,
in consolidated net sales, or income from operations, or in the total or per
share amounts of consolidated income from continuing operations or net income,
except in all instances for changes or decreases which the Registration
Statements disclose have occurred or may occur;
(D) the financial and other information appearing in
the Prospectuses under the captions "Selected Consolidated Financial Data" for
the [three]-year period ended December 31, 1995, or incorporated by reference
into the Registration Statements, do not comply in form in all material
respects with the applicable accounting requirements of the Act and the Rules
and Regulations;
except in all cases set forth in clauses (B) and (C) above for changes,
increases or decreases which are described in such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial information
contained in the Registration Statements and, to the extent possible, with the
period of corresponding length beginning on the first day of the last completed
quarter included in the latest income statement included in the Prospectuses,
(in each case to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in such letter and
have found such dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise specified in such
letter.
For purposes of Section 6(a), (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and delivery of
this Agreement, "Registration Statements" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective
amendment to be filed shortly prior to its Effective Time, (ii) if the
Effective Time of the Initial Registration Statement is prior to the execution
and delivery of this Agreement but the Effective Time of the Additional
Registration is subsequent to such execution and delivery, "Registration
Statements" shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be amended by
the post-effective amendment to be filed shortly prior to its Effective Time,
and (iii) "Prospectuses" shall mean the prospectuses included in the
Registration Statements. All financial statements and schedules included in
material incorporated by reference into the Prospectuses shall be deemed
included in the Registration Statements for purposes of this subsection.
