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EXHIBIT 1
17,000,000 Securities
MEDPARTNERS,INC.
____% TAPSSM
(Threshold Appreciation Price SecuritiesSM)
UNDERWRITING AGREEMENT
September __, 1997
XXXXX XXXXXX INC.
CREDIT SUISSE FIRST BOSTON
CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
XXXXXXXXXX SECURITIES
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXX XXXXXXX INC.
As Representatives of the Several Underwriters
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
MedPartners, Inc., a Delaware corporation (the "Company"), and the several
Underwriters named in Schedule I hereto (the "Underwriters") propose, subject
to the terms and conditions stated herein, to enter into the Purchase Contracts
referred to in the Purchase Contract Agreement dated as of September __, 1997
(the "Purchase Contract Agreement") between the Company and The First National
Bank of Chicago, as Purchase Contract Agent (the "Purchase Contract Agent"),
relating to an aggregate of 17,000,000 ____% TAPSSM (Threshold Appreciation
Price SecuritiesSM), Stated Amount $_____ per Security ("TAPS"). Such TAPS are
herein referred to as the "Firm Securities." In connection therewith, the
Underwriters propose, subject to the terms and conditions stated herein, to
purchase at the direction of the Company and for the benefit of holders of the
TAPS, Treasury Notes of the United States Government bearing interest at the
rate of ____% per annum and maturing on ___________, 2000 (the "Treasury
Notes"), having an aggregate principal amount equal to the aggregate Stated
Amount of the Firm Securities, which Treasury Notes will be underlying the
TAPS. The Treasury Notes will be pledged with PNC Bank, Kentucky, Inc., as
collateral agent for the Company (the "Collateral Agent"), to secure the TAPS
holders' obligations to purchase
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common stock, $.001 par value, of the Company (the "Common Stock") under the
Purchase Contracts. The Company proposes to grant to the Underwriters an option
to enter into Purchase Contracts relating to up to an aggregate of 2,550,000
additional TAPS (the "Additional Securities") and, in the event any such
additional Purchase Contracts are entered into, the Underwriters propose to
purchase, at the direction of the Company, additional Treasury Notes underlying
such Additional Securities, which would also be pledged to the Collateral Agent.
The Firm Securities and all or any part of the Additional Securities subject to
the over-allotment option described in Section 2 hereof are collectively
referred to herein as the "Securities." Capitalized terms used herein without
definition shall be used as defined in the Purchase Contract Agreement.
The Company wishes to confirm as follows its agreement with you (the
"Representatives") and the other several Underwriters on whose behalf you are
acting, in connection with the several purchases of the Securities by the
Underwriters.
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-3 (File No. 333-30921) under the Act
(the "registration statement"), including a prospectus subject to completion
relating to the Securities. The term "Registration Statement" as used in this
Agreement means the registration statement (including all financial schedules
and exhibits), as amended at the time it becomes effective, and, if applicable,
as thereafter amended by post-effective amendment, including any registration
statement filed pursuant to Rule 462(b) under the Act. The term "Prospectus"
as used in this Agreement means the prospectus in the form included in the
Registration Statement at the time it was declared effective, or, if the
prospectus included in the Registration Statement omits information in reliance
on Rule 430A under the Act and such information is included in the prospectus
filed with the Commission pursuant to Rule 424(b) under the Act, the term
"Prospectus" as used in this Agreement means the prospectus in the form
included in the Registration Statement at the time it was declared effective,
as supplemented by the addition of the Rule 430A information contained in the
prospectus filed with the Commission pursuant to Rule 424(b). The term
"Prepricing Prospectus" as used in this Agreement means the prospectus subject
to completion in the form included in the registration statement at the time of
the initial filing of the registration statement with the Commission, and as
such prospectus shall have been amended from time to time prior to the date of
the Prospectus. Any reference herein to the registration statement, the
Registration Statement, any Prepricing Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Form S-3 under the Act, as of the date of the registration
statement, the Registration Statement, such Prepricing Prospectus or the
Prospectus, as the case may be, and any reference to any amendment or
supplement to the registration statement, the Registration Statement, any
Prepricing Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after such date under the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") and deemed incorporated by reference pursuant
to Form S-3 under the Act. As used herein, the term "Incorporated Documents"
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means the documents which at the time are incorporated by reference in the
registration statement, the Registration Statement, any Prepricing Prospectus,
the Prospectus or any amendment or supplement thereto.
2. Agreements to Sell and Purchase. Subject to such adjustments as you
may determine in order to avoid fractional Securities, the Company and each
Underwriter, severally and not jointly, hereby agree, subject to all the terms
and conditions set forth herein and upon the basis of the representations,
warranties and agreements of the Company herein contained, to enter into the
Purchase Contracts underlying the number of Firm Securities set forth in
Schedule I hereto. In connection therewith, the Underwriters agree to purchase,
at the direction of the Company and for the benefit of holders of the TAPS, the
Treasury Notes underlying the Firm Securities with respect to which the Company
and the Underwriters are to enter into the Purchase Contracts. The Treasury
Notes will be pledged with the Collateral Agent to secure the holders'
obligations to purchase Common Stock under the Purchase Contracts. Such pledge
shall be effected by the transfer to the Collateral Agent by Federal Reserve
Bank-Wire of the Treasury Notes to be pledged on the Closing Date (as
hereinafter defined) in accordance with the Pledge Agreement.
The price per Firm Security to be paid by the Underwriters shall be
$________ ([all] [a portion of which] will be paid by the Underwriters to
purchase Treasury Notes underlying such Firm Security). The purchase price of
the Treasury Notes underlying each Firm Security shall be $_______. In the
event the purchase price of the Treasury Notes exceeds their aggregate
principal amount, the Company shall pay to the Underwriters the amount of such
excess as the additional purchase price necessary to acquire such Treasury
Notes. In connection with the transactions contemplated by this Agreement, the
Company also agrees to pay the Underwriters on the Closing Date (as hereinafter
defined) commission in the amount of $________ per Firm Security.
The Company also agrees, subject to all the terms and conditions set forth
herein 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, that the Underwriters shall have the right to enter into Purchase
Contracts relating to up to an aggregate of 2,550,000 Additional Securities,
pursuant to an option (the "over-allotment option") which may be exercised at
any time and from time to time prior to 5:00 P.M., New York City time, on the
30th day after the date of the Prospectus (or, if such 30th day shall be a
Saturday or Sunday or a holiday, on the next business day thereafter when the
New York Stock Exchange is open for trading). Upon any exercise of the
over-allotment option, each Underwriter, severally and not jointly, agrees to
enter into Purchase Contracts with the Company relating to that number of
Additional Securities (subject to such adjustments as you may determine in
order to avoid fractional Securities) which bears the same proportion to the
aggregate number of Additional Securities as the number of Firm Securities set
forth opposite the name of such Underwriter in Schedule I hereto (or such number
of Firm Securities increased as set forth in Section 10 hereof) bears to the
aggregate number of Firm Securities. In connection with any exercise of the
over-allotment option, the Underwriters agree to purchase, at the direction of
the Company and for the benefit of holders of the TAPS, the
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Treasury Notes underlying the Additional Securities with respect to which the
Company and the Underwriters are to enter into the Purchase Contracts (which
Treasury Notes shall have an aggregate principal amount equal to the aggregate
Stated Amount of the Additional Securities and shall be pledged to the
Collateral Agent to secure TAPS holders' obligations to purchase Common Stock
under such Purchase Contracts in the same manner as the pledge of Treasury Notes
underlying the Firm Securities).
The price per Additional Security to be paid by the Underwriters shall be
equal to the price to be paid by the Underwriters per Firm Security (including
such amount as is to be paid by the Underwriters to purchase Treasury Notes
underlying such Firm Security); provided that if the price of Treasury Notes
underlying each Additional Security differs from the price of Treasury Notes
underlying each Firm Security, then the price to be paid by the Underwriters
per Additional Security shall be adjusted such that the difference in the price
of Treasury Notes underlying each Additional Security from that with respect to
each Firm Security shall be for the account of the Underwriters. In connection
with any exercise of the over-allotment option, the Company also agrees to pay
to the Underwriters on the Option Closing Date (as hereinafter defined)
commission in an amount per Additional Security equal to the commission payable
per each Firm Security.
3. Terms of Public Offering. The Company has been advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Securities as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable and initially to offer the
Securities upon the terms set forth in the Prospectus.
4. Delivery of the Securities and Payment Therefor. Delivery to the
Underwriters of certificates for the Firm Securities with respect to which the
Underwriters enter into Purchase Contracts hereunder, against delivery to the
Collateral Agent of the Treasury Notes relating to the Firm Securities by or on
behalf of the Underwriters, and payment by wire transfer of same-day funds to
an account designated by the Representatives of the commissions payable by the
Company to the Underwriters in respect of the Firm Securities shall be made at
the office of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, at 10:00 A.M., New York City time, on September __, 1997 (the "Closing
Date"). The place of closing for the Firm Securities and the Closing Date may
be varied by agreement between you and the Company.
Delivery to the Underwriters of certificates for any Additional Securities
with respect to which the Underwriters enter into Purchase Contracts upon any
exercise of the over-allotment option, against delivery to the Collateral Agent
of the Treasury Notes relating to the Additional Securities by or on behalf of
the Underwriters, and payment by wire transfer of same-day funds to an account
designated by the Representatives of the commissions payable by the Company to
the Underwriters in respect of the Additional Securities shall be made at the
aforementioned office of Xxxxx Xxxxxx Inc. at such time on such date (the
"Option Closing Date"), which may be the same as the Closing Date but shall in
no event be earlier than the Closing Date nor earlier than two nor later than
ten business days after the giving of the notice hereinafter referred
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to, as shall be specified in a written notice from you on behalf of the
Underwriters to the Company of the Underwriters' determination to enter into a
number, specified in such notice, of Purchase Contracts relating to Additional
Securities. The place of closing for any Additional Securities and the Option
Closing Date for such Securities may be varied by agreement between you and the
Company.
Certificates for the Firm Securities and for any Additional Securities
with respect to which the Underwriters enter into Purchase Contracts hereunder
shall be registered in such names and in such denominations as you shall
request prior to 9:30 A.M., New York City time, on the second business day
preceding the Closing Date or any Option Closing Date, as the case may be.
Such certificates shall be made available to you in New York City for
inspection and packaging not later than 9:30 A.M., New York City time, on the
business day next preceding the Closing Date or the Option Closing Date, as the
case may be.
5. Agreements of the Company. The Company agrees with the several
Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Securities may commence, the
Company will endeavor to cause the Registration Statement or such post-effective
amendment to become effective as soon as possible and will advise you promptly
and, if requested by you, will confirm such advice in writing, when the
Registration Statement or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you, will
confirm such advice in writing: (A) of any request by the Commission for
amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information; (B) 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 Securities
for offering or sale in any jurisdiction or the initiation of any proceeding for
such purpose; and (C) within the period of time referred to in paragraph (f)
below, of any change in the Company's condition (financial or other), business,
prospects, properties, net worth or results of operations, or of the happening
of any event, including the filing of any information, documents or reports
pursuant to the Exchange Act that makes any statement of a material fact made in
the Registration Statement or the Prospectus (as then amended or supplemented)
untrue or which requires the making of any additions to or changes in the
Registration Statement or the Prospectus (as then amended or supplemented) in
order to state a material fact required by the Act or the regulations thereunder
to be stated therein or necessary in order to make the statements therein not
misleading, 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.
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(c) The Company will furnish to you, without charge, six signed copies
of the registration statement as originally filed with the Commission and of
each amendment thereto, including financial statements and all schedules,
exhibits and Incorporated Documents 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, but without exhibits and
Incorporated Documents, as you may request.
(d) The Company will not (A) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus of which you
shall not previously have been advised or to which you shall object after being
so advised or (B) so long as, in the opinion of counsel for the Underwriters, a
Prospectus is required to be delivered in connection with sales by any
Underwriter or dealer, file any information, documents or reports pursuant to
the Exchange Act which upon filing will become an Incorporated Document, without
delivering a copy of such information, documents or reports to you, as
Representatives of the Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the Company
has delivered to you, without charge, in such quantities as you have requested,
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 Securities 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.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the 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, the Company will
expeditiously deliver to each Underwriter and each dealer, without charge, as
many copies of the Prospectus (and of any amendment or supplement thereto) as
you may 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
Securities are offered by the several Underwriters and by all dealers to whom
Securities may be sold, both in connection with the offering and sale of the
Securities 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 during such period of time 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, or to file under the Exchange Act any
document which upon filing becomes an Incorporated Document, to comply with the
Act or any other law, the Company will forthwith prepare and, subject to the
provisions of paragraph (d) above, file with the Commission an appropriate
supplement or amendment thereto or Incorporated Document, and will expeditiously
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furnish to the Underwriters and dealers a reasonable number of copies thereof.
In the event that the Company and you, as Representatives of the several
Underwriters, agree that the Prospectus should be amended or supplemented or
that a document should be filed under the Exchange Act that upon filing becomes
an Incorporated Document, the Company, if requested by you, will promptly issue
a press release announcing or disclosing the matters to be covered by the
proposed amendment or supplement or such document.
(g) The Company will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the
Securities for offering and sale by the several Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as you may designate
and will file such consents to service of process or other documents necessary
or appropriate in order to effect such registration or qualification; provided
that in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now otherwise required to be 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 Securities, in any
jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security holders a
consolidated earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement 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.
(i) During the period of five years hereafter, the Company will furnish
to you (A) as soon as available, a copy of each report of the Company mailed to
stockholders or filed with the Commission or the New York Stock Exchange and (B)
from time to time such other information concerning the Company as you may
request.
(j) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 hereof or by notice given by you terminating this
Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement
shall be terminated by the Underwriters because of any failure or refusal on the
part of the Company to comply with the terms or fulfill any of the conditions of
this Agreement, the Company agrees to reimburse the Representatives for all
out-of-pocket expenses (including fees and expenses of counsel for the
Underwriters) incurred by you in connection herewith.
(k) The Company will apply the net proceeds, if any, received by it from
the sale of the Securities in accordance with the description set forth in "Use
of Proceeds" in the Prospectus.
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(l) If Rule 430A of the Act is employed, the Company will timely file
the Prospectus pursuant to Rule 424(b) under the Act and will advise you of the
time and manner of such filing.
(m) During a period of 90 days after the date of the Prospectus, the
Company will not, without the prior written consent of Xxxxx Xxxxxx Inc.,
directly or indirectly, sell, offer to sell, grant any option for the sale of,
or otherwise dispose of, or enter into any agreement to sell, any Securities,
Purchase Contracts or Common Stock or any securities of the Company similar to
the Securities, Purchase Contracts or Common Stock or any security convertible
into or exchangeable or exercisable for Securities, Purchase Contracts or Common
Stock; provided, however, that such restriction shall not affect the ability of
the Company to take any such action (i) in connection with any employee benefit,
dividend reinvestment or stock purchase plan of the Company or its subsidiaries,
(ii) in connection with the acquisition of assets or businesses, provided the
recipients thereof agree to the same restrictions on transfer and disposal as
the executive officers and directors do under Section 5(n) (except that the
recipients of shares issued in connection with the acquisition of HealthFirst
Medical Group, P.C. and valued at an aggregate of $2.35 million need not so
agree) or (iii) in connection with the offering of the Securities made in
connection with the Prospectus.
(n) The Company has furnished or will furnish to you "lock-up" letters,
in form and substance satisfactory to you, signed by each of its executive
officers and directors.
(o) The Company will reserve and keep available at all times, free of
preemptive or other similar rights and liens and adverse claims, sufficient
shares of Common Stock to satisfy its obligations to issue shares of Common
Stock upon settlement of the Purchase Contracts.
(p) Except as stated in this Agreement and in the Prepricing Prospectus
and Prospectus, the Company has not taken, nor will it take, directly or
indirectly, any action designed to or that might reasonably be expected to cause
or result in stabilization or manipulation of the price of the Securities or the
Common Stock to facilitate the sale or resale of the Securities.
(q) The Company will use its best efforts to have the Securities and the
shares of Common Stock issuable upon settlement of the Purchase Contracts listed
subject to official notice of issuance on the New York Stock Exchange and to
cause the Securities to be registered under the Exchange Act concurrently with
the effectiveness of the registration statement.
6. Representations and Warranties of the Company. The Company represents
and warrants to each Underwriter that:
(a) The execution and delivery of, 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, except as
enforcement of rights to indemnity and contribution hereunder may be limited by
federal or state securities laws or principles of public policy and subject to
the qualification that the enforceability of the Company's obligations
hereunder may be limited by bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors' rights generally and by
general equitable principles.
(b) 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 under the Act, complied when so filed in all
material respects with the provisions of the Act. The Commission has not issued
any order preventing or suspending the use of any Prepricing Prospectus.
(c) The Company meets the requirements for use of Form S-3 under the
Act. The registration statement in the form in which it became or becomes
effective and also in such form as it may be when any post-effective amendment
thereto shall become effective, including any registration statement filed
pursuant to Rule 462(b) under the Act, and the Prospectus and any supplement or
amendment thereto when filed with the Commission under Rule 424(b) under the
Act, complied or will comply in all material respects with the provisions of the
Act and did not or 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 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.
(d) The Company has not distributed and, prior to the later to occur of
(A) the Closing Date and (B) completion of the distribution of the Securities,
will not distribute any offering material in connection with the offering and
sale of the Securities other than the Registration Statement, the Prepricing
Prospectus, the Prospectus or other materials, if any, permitted by the Act.
(e) The Company is a corporation duly organized 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 presently conducted and as disclosed in the Registration Statement
and the Prospectus, 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 so to register or qualify does not and
will not have a material adverse effect on the condition (financial or other),
business, prospects, properties, net worth or results of operations of the
Company and the Subsidiaries (as hereinafter defined) taken as a whole (a
"Material Adverse Effect").
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(f) All the Company's subsidiaries (as defined in the Act but excluding
those subsidiaries which when considered in the aggregate as a single subsidiary
would not constitute a "significant subsidiary" (as defined in the Act)) are
referred to herein individually as a "Subsidiary" and collectively as the
"Subsidiaries." Each Subsidiary that is a corporation is duly organized, validly
existing and in good standing in the jurisdiction of its incorporation, and each
Subsidiary that is a partnership, association or business organization is
legally formed and validly existing under the laws of the jurisdiction of its
organization. Each Subsidiary has full corporate or organizational power and
authority to own, lease and operate its properties and to conduct its business
as presently conducted. Each Subsidiary is duly registered and qualified to
conduct its business (and, if a corporation, 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
so to register or qualify does not and will not have a Material Adverse Effect;
all the outstanding shares of capital stock of each Subsidiary which is a
corporation have been duly authorized and validly issued, are fully paid and
nonassessable, and all ownership interests in each Subsidiary which is not a
corporation have been validly created pursuant to the partnership or other
agreements or organizational documents of each such Subsidiary, and, except as
disclosed in the Prospectus, the shares or other interests owned by the Company
are 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.
(g) The authorized and outstanding capital stock of the Company is as
set forth under the caption "Capitalization" in the Prospectus and all the
outstanding shares of Common Stock of the Company (A) have been duly authorized
and validly issued, (B) are fully paid and nonassessable, (C) are free of any
preemptive or similar rights and (D) have been issued and sold in compliance
with all applicable federal and state securities laws; and the capital stock of
the Company conforms to the description thereof in the Registration Statement
and the Prospectus.
(h) Except as disclosed in the Prospectus, there are no outstanding
options, warrants or other rights calling for the issuance of, nor any
commitment, plan or arrangement, to issue, any shares of capital stock of the
Company or any security convertible into or exchangeable or exercisable for
capital stock of the Company.
(i) Except as disclosed in the Prospectus, no holder of any security of
the Company or any other person has the right, contractual or otherwise, which
right has not been fully complied with or waived in writing by the holder
thereof with evidence of such waiver heretofore delivered to you, (A) to cause
the Company to sell or otherwise issue to them, or to permit them to underwrite
the sale of, the Securities, (B) to have any Common Stock or other securities of
the Company included in the registration statement or (C) as a result of the
filing of the registration statement, to require registration under the Act of
any shares of Common Stock or other securities of the Company.
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(j) The Securities have been duly authorized by the Company for issuance
and sale to the Underwriters and, when issued and delivered by the Company
pursuant to this Agreement against payment therefor as provided herein, will be
validly issued and fully paid and non-assessable and conform to all statements
relating to the Securities contained in the Prospectus and the Registration
Statement, and the issuance of the Securities is not subject to preemptive or
other similar rights.
(k) The shares of Common Stock to be issued and sold by the Company
pursuant to the Purchase Contract Agreement (the "Shares") and the preferred
stock purchase rights (the "Rights") to be issued with the Shares have been duly
and validly authorized and reserved for issuance; the Shares, when issued and
delivered in accordance with the provisions of the Purchase Contract Agreement
and the Pledge Agreement dated as of September __, 1997 (the "Pledge Agreement")
among the Company, the Collateral Agent and the Purchase Contract Agent, will be
duly authorized, validly issued and fully paid and non-assessable and will
conform to the descriptions of the Common Stock and the Rights contained in the
Prospectus and the Registration Statement; and the issuance of the Shares will
not be subject to preemptive or other similar rights.
(l) Each of the Purchase Contract Agreement and the Pledge Agreement has
been duly and validly authorized by the Company, and each has been duly executed
and delivered by the Company and constitutes a valid and legally binding
agreement of the Company enforceable against the Company in accordance with its
terms, subject to the qualification that the Company's obligations thereunder
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and by general
equitable principles.
(m) There are no legal or governmental proceedings pending or, to the
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, that are required to be disclosed
in the Registration Statement or the Prospectus but are not disclosed as
required, and there are no agreements, indentures, leases or other instruments
that are required to be disclosed in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement or an
Incorporated Document that are not disclosed or filed as required by the Act or
the Exchange Act.
(n) Neither the Company nor any of the Subsidiaries is (A) in violation
of its respective certificate or articles of incorporation or by-laws, or other
organizational documents; (B) in violation of any statute, law, regulation,
ordinance, administrative or governmental rule or regulation applicable to the
Company or any of the Subsidiaries or of any order, ruling, judgment, injunction
or decree of any court or governmental agency or body having jurisdiction over
the Company or any of the Subsidiaries or any of their respective properties; or
(C) in default in any material respect in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any material agreement, indenture, lease or other
instrument to which the Company or any of the Subsidiaries is a
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party or by which any of them or any of their respective properties may be
bound, and no condition or state of facts exists, which with the passage of time
or the giving of notice or both, would constitute such default, except in the
case of (B) and (C) above, for such violations or defaults which, individually
or in the aggregate, would not have a Material Adverse Effect.
(o) Neither of (i) the entry into the Purchase Contracts relating to the
Securities by the Company, the offer of the Securities as contemplated herein
and in the Prospectus and the issue and sale of the Shares by the Company
pursuant to the Purchase Contracts nor (ii) the execution, delivery and
performance by the Company of all of the provisions of this Agreement, the
Purchase Contracts, the Purchase Contract Agreement and the Pledge Agreement,
the consummation of the transactions contemplated herein and therein and the
compliance by the Company with its obligations hereunder and thereunder (A)
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 Securities under the Act and the Exchange Act and compliance
with the securities or Blue Sky laws of various jurisdictions, all of which have
been or will be effected in accordance with this Agreement); (B) conflicts or
will conflict with or constitutes or will constitute a breach or violation of,
or default under, the certificate or articles of incorporation or by-laws, or
other organizational documents, of the Company or any of the Subsidiaries; (C)
conflicts or will conflict with or constitutes or will constitute a breach or
violation 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; (D)
violates or will violate any statute, law, regulation, ordinance, administrative
or governmental rule or regulation applicable to the Company or any of the
Subsidiaries or any order, ruling, judgment, injunction or decree of any court
or governmental agency or body having jurisdiction over the Company or any of
the Subsidiaries or any of their respective properties; or (E) 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 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.
(p) The conduct of the business of the Company and each of the
Subsidiaries as presently conducted and as disclosed in the Prospectus complies
with all applicable laws, ordinances and administrative or governmental rules or
regulations applicable to the Company and each Subsidiary and with all orders,
rulings, judgments or decrees of any courts or governmental agencies or bodies
having jurisdiction over the Company and each Subsidiary. To the Company's
knowledge, each affiliated physician group, affiliated medical group and
independent practice association (as such terms are used in the Prospectus and
hereinafter referred to collectively, as the "Affiliated Groups") is operating
in material compliance with all applicable health care laws, rules and
regulations, including, without limitation, those relating to reimbursement by
government agencies and fraudulent or wrongful xxxxxxxx, and no physician in an
Affiliated Group is practicing in conflict with or violation of any such laws,
rules or regulations.
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(q) Except as disclosed in the Prospectus, to the Company's knowledge,
none of the Company, any of the Subsidiaries, any employee or agent of the
Company or any Subsidiary or any physician in any Affiliated Group has made any
payment of funds or received or retained any funds in violation of any law, rule
or regulation, including laws and regulations prohibiting fee-splitting or fees
for the referral of patients.
(r) Except as disclosed in the Prospectus, there are no Medicare,
Medicaid, or any other managed care recoupment or recoupments of any third-party
payor being sought, threatened, requested or claimed against the Company, any of
the Subsidiaries or to the Company's knowledge, any Affiliated Group or any
physician in any Affiliated Group, which individually or in the aggregate could
result in a Material Adverse Effect.
(s) No labor dispute with the employees of the Company or any of the
Subsidiaries exists or, to the knowledge of the Company, is imminent.
(t) All employee benefit plans (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"))
established, maintained or contributed to by the Company or any of the
Subsidiaries (the "Plans") comply in all material respects with requirements of
ERISA and the Internal Revenue Code of 1986, as amended (the "Code"). With
respect to the Plans, neither the Company nor any of the Subsidiaries has any
liability, contingent or otherwise, under ERISA or the Code, nor does the
Company expect that any such liability will be incurred, that could, singly or
in the aggregate, have a Material Adverse Effect and no employee pension benefit
plan (as defined in Section 3(2) of ERISA) has incurred or assumed an
"accumulated funding deficiency" within the meaning of Section 302 of ERISA or
has incurred or assumed any material liability (other than for the payment of
premiums) to the Pension Benefit Guaranty Corporation.
(u) The Company and each of the Subsidiaries has good and marketable
title to all property (real and personal) disclosed in the Prospectus as being
owned by it, free and clear of all liens, claims, security interests or other
encumbrances, except such as are disclosed in the Registration Statement and the
Prospectus or in a document filed as an exhibit to the Registration Statement or
an Incorporated Document and all the property disclosed in the Prospectus as
being held under lease by the Company and each of the Subsidiaries is held by it
under valid, subsisting and enforceable leases.
(v) The Company and each of the Subsidiaries, and to the Company's
knowledge, each Affiliated Group has such consents, approvals, permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") as are necessary to own its respective properties and to
conduct its business as presently conducted, subject to such qualifications as
may be set forth in the Prospectus; the Company and each of the Subsidiaries,
and to the Company's knowledge, each Affiliated Group has fulfilled and
performed all of its material obligations with respect to such permits and no
event has occurred which allows, or after notice or lapse of time
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would allow, revocation or termination thereof or result in any other material
impairment of the rights of the holder of any such permit, subject in each case
to such qualification as may be set forth in the Prospectus; and, except as
disclosed in the Prospectus, none of such permits contains any restriction that
is materially burdensome to the Company, any of the Subsidiaries or any
Affiliated Group.
(w) The Company and the Subsidiaries own or possess all patents,
trademarks, trademark registrations, service marks, service xxxx registrations,
trade names, copyrights, licenses, inventions, trade secrets and rights
disclosed in the Prospectus as being owned by them or any of them or necessary
for the conduct of their respective businesses, and the Company is not aware of
any claim to the contrary or any challenge by any other person to the rights of
the Company and the Subsidiaries with respect to the foregoing.
(x) The Company and each of the Subsidiaries, and to the Company's
knowledge, each of the Affiliated Groups is insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are customary in the businesses or professions in which they are engaged; all
policies of insurance insuring the Company and/or the Subsidiaries or their
respective businesses, assets, employees, officers and directors and to the
Company's knowledge, the Affiliated Groups are in full force and effect; the
Company and each of the Subsidiaries, and to the Company's knowledge, each of
the Affiliated Groups are in compliance with the terms of such policies and
instruments in all material respects; and there are no claims by the Company or
any of the Subsidiaries, or to the Company's knowledge, any of the Affiliated
Groups under any such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights clause.
(y) 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), neither the Company nor any
of the Subsidiaries has incurred any liability or obligation, direct or
contingent, or entered into any transaction, not in the ordinary course of
business, that is material to the Company and the Subsidiaries taken as a whole,
and there has not been any change in the capital stock, or material increase in
the short-term debt or long-term debt, of the Company or any of the
Subsidiaries, or any material adverse change, or any development having or which
may reasonably be expected to have a Material Adverse Effect.
(z) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are executed
in accordance with management's general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and (D) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
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(aa) The Company and each of the Subsidiaries have duly filed with
appropriate governmental authorities all tax returns required to be filed, which
returns are complete and correct and neither the Company nor any Subsidiary is
in default in the payment of any taxes which were payable pursuant to said
returns or any assessments with respect thereto and there is no tax deficiency
that has been asserted against the Company or any Subsidiary that would, if
adversely determined, have a Material Adverse Effect.
(ab) The historical financial statements, together with related
schedules and notes, included and incorporated by reference in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), present
fairly the information shown therein on the basis stated therein 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; [the pro forma financial
statements and other pro forma financial information included and incorporated
by reference in the Registration Statement and the Prospectus (and any amendment
or supplement thereto) present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with respect
to pro forma financial statements and have been properly compiled on the pro
forma bases described therein and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate to give
effect to the transactions or circumstances referred to therein;] and the other
financial and statistical information and data included in the Registration
Statement and the Prospectus (and any amendment or supplement thereto) are
accurately presented and prepared on a basis consistent with such financial
statements and the books and records of the Company and the Subsidiaries.
(ac) The accountants Ernst & Young LLP who have certified or shall
certify the consolidated financial statements of the Company [and InPhyNet
Medical Management Inc.] included and incorporated by reference in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto) are independent public accountants as required by the Act and the
Exchange Act.
(ad) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of medical wastes or hazardous
substances by the Company or any of the Subsidiaries (or, to the knowledge of
the Company, any of its predecessors in interest) at, upon or from any of the
property now or previously owned or leased by the Company or any of the
Subsidiaries, in violation of any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit or which would require remedial action under
any applicable law, ordinance, rule, regulation, order, judgment, decree or
permit, except for any violation or remedial action which would not have, or
could not be reasonably likely to have, singularly or in the aggregate with all
such violations and remedial actions, a Material Adverse Effect; there has been
no material spill, discharge, leak, emission, injection, escape, dumping or
release of any kind onto such property or of any medical wastes or hazardous
substances due to or caused by the Company or any of the Subsidiaries or with
respect to which the
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Company or any of the Subsidiaries had knowledge, except for any such spill,
discharge, leak, emission, injection, escapes, dumpings or releases which would
not have or would not be reasonably likely to have, singularly or in the
aggregate with all such spills, discharges, leaks, emissions, injections,
escapes, dumpings or releases, a Material Adverse Effect; and the terms
"hazardous substances" and "medical wastes" shall have the meanings specified in
any applicable local, state, federal and foreign laws or regulations with
respect to environmental protection.
(ae) The Company is not now, and after sale of the Securities to be sold
by it hereunder and application of the net proceeds, if any, from such sale as
disclosed in the Prospectus under the caption "Use of Proceeds" will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended (the "1940 Act").
(af) The Company has complied with all provisions of Florida Statutes,
Section 517.075, relating to issuers doing business with Cuba.
(ag) The Incorporated Documents heretofore filed were filed in a timely
manner and, when they were filed (or, if any amendment with respect to any such
document was filed, when such amendment was filed), conformed in all material
respects to the requirements of the Exchange Act and did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
any further Incorporated Documents will, when so filed, be filed in a timely
manner and conform in all material respects to the requirements of the Exchange
Act 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 to make the
statements therein not misleading.
(ah) Neither the Company nor any of the Subsidiaries (A) employs any of
the physicians in any Affiliated Group, (B) exercises any influence or control
over the practice of medicine by such physicians, or (C) represents to the
public that it offers medical services; and the Company and each of the
Subsidiaries contracts with the physicians or Affiliated Groups as independent
contractors to provide medical services and is not engaged in the practice of
medicine.
(ai) Each of the practice management agreements to which the Company
and/or any of its Subsidiaries is a party and which is currently in effect (each
a "Practice Management Agreement") has been duly authorized, executed and
delivered by the Company and each Subsidiary which is a party to said agreement
and is a valid, legal and binding agreement of the Company and each such
Subsidiary enforceable against the Company and such Subsidiary in accordance
with its terms; and the business of the Company and the Subsidiaries as
presently conducted, and the terms of each of the Practice Management Agreements
and the performance thereof by the Company and the Subsidiaries which are party
thereto, do not violate any statute, administrative or governmental rule or
regulation applicable to the Company or such Subsidiaries or laws prohibiting
the corporate practice or medicine, fee-splitting or fees for the referral of
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patients, or any orders, rulings, judgments or decrees of any courts or
governmental agencies or bodies having jurisdiction over the Company and/or the
Subsidiaries.
7. Indemnification and Contribution
(a) The Company agrees to indemnify and hold harmless each of you and
each other Underwriter, each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act and
the agents, employees, officers and directors of each Underwriter and each such
controlling person from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon 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 not misleading, except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon any 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
relating to such Underwriter furnished in writing to the Company by or on behalf
of any Underwriter through you expressly for use in connection therewith;
provided, however, that the indemnification contained in this paragraph (a) with
respect to any Prepricing Prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter or any
agent, employee, officer or director of such Underwriter or such controlling
person) on account of any such loss, claim, damage, liability or expense arising
from the sale of the Securities by such Underwriter to any person if a copy of
the Prospectus shall not have been delivered or sent to such person within the
time required by the Act and the regulations thereunder, and the untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in such Prepricing Prospectus was corrected in the
Prospectus, provided that the Company has delivered the Prospectus to the
several Underwriters in requisite quantity on a timely basis to permit such
delivery or sending. The foregoing indemnity agreement shall be in addition to
any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
person (the "indemnified party") entitled to indemnification pursuant to the
preceding paragraph in respect of which indemnity may be sought against the
Company pursuant to the provisions of the preceding paragraph, such indemnified
party shall promptly notify the Company, and the Company shall assume the
defense thereof, including the employment of counsel and payment of all fees and
expenses. Such indemnified party shall have the right to employ separate counsel
in any such action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (A) the Company has agreed in writing to pay such
fees and expenses, (B) the Company has failed to assume the defense and employ
counsel, or (C) the named parties to any such action, suit or proceeding
(including any impleaded parties) include both such indemnified party and the
Company and such indemnified party shall have been advised by its counsel that
representation of
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such indemnified party and the Company 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 Company shall not
have the right to assume the defense of such action, suit or proceeding on
behalf of such indemnified party). It is understood, however, that the Company
shall, in connection with any one such action, suit or proceeding or separate
but substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for all such
indemnified parties not having actual or potential differing interests with you
or among themselves, which firm shall be designated in writing by Xxxxx Xxxxxx
Inc., and that all such fees and expenses shall be reimbursed as they are
incurred. The Company shall not be liable for any settlement of any such action,
suit or proceeding effected without its written consent, but if settled with
such written consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the Company agrees to indemnify and hold
harmless any indemnified party, to the extent provided in the preceding
paragraph, from and against any loss, claim, damage, liability or expense by
reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, any person who controls the Company within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act and the agents and employees of
the Company and each such controlling person, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with respect
to information relating to such Underwriter 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, suit or proceeding shall be brought against the Company,
any of its directors, any such officer, any such controlling person or any agent
or employee of the Company or any such controlling person 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 (c), such Underwriter
shall have the rights and duties given to the Company by paragraph (b) above
(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 officer, any such controlling person and any agents and
employees of the Company and each such controlling person shall have the rights
and duties given to the Underwriters by paragraph (b) above.
(d) If the indemnification provided for in this Section 7 is unavailable
to an indemnified party under paragraphs (a) or (c) hereof in respect of 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 (A) in such proportion
as is appropriate to reflect the relative
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benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities, or (B) if the allocation
provided by clause (A) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (A) above but also the relative fault of the Company 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 on the one hand and the Underwriters on the
other hand shall be deemed to be in the same proportion as the initial public
offering price of the Securities (as set forth in the table on the cover page of
the Prospectus) less the total underwriting discounts and commissions received
by the Underwriters (as set forth in the table on the cover page of the
Prospectus) bear to the total underwriting discounts and commissions received by
the Underwriters (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 Securities hereunder, any determination of the relative
benefits received by the Company or the Underwriters from the offering of the
Securities shall take into account the initial public offering price and the
underwriting discounts and commissions giving effect to the sale of the
Additional Securities. The relative fault of the Company 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 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.
(e) The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were 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 paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) above 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
any claim or defending any such action, suit or proceeding. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price of the Securities
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 such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective numbers of Firm Securities set forth opposite their names in Schedule
I hereto (or such numbers of Firm Securities increased as set forth in Section
10 hereof) and not joint.
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(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (A) any
investigation made by or on behalf of any indemnified party, the Company, its
directors and officers, any person who controls the Company and the agents and
employees of the Company and each such controlling person, (B) acceptance of any
Securities and payment therefor hereunder, and (C) any termination of this
Agreement. A successor to any Underwriter or any person controlling any
Underwriter, or to the Company, its directors or officers, any person who
controls the Company and the agents and employees of the Company and each such
controlling person shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 7.
8. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase the Firm Securities hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the registration statement or a post-effective amendment thereto
to be declared effective before the offering of the Securities may commence, the
registration statement or such post-effective amendment shall have become
effective not later than 5:30 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, if any, required by Rules 424 and 430A under the Act shall have been
timely made; no stop order suspending the effectiveness of the registration
statement shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Company or any Underwriter,
threatened by the Commission, and any request of the Commission for additional
information (to be included in the registration statement or the prospectus or
otherwise) shall have been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not
have occurred (A) any change, or any development involving a prospective change,
in or affecting the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Company or the
Subsidiaries not contemplated by the Prospectus, which in your opinion, as
Representatives of several Underwriters, would materially adversely affect the
market for the Securities, or (B) any event or development relating to or
involving the Company or any officer or director of the Company which
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makes any statement made in the Prospectus untrue or which, in the opinion of
the Company and its counsel or the Underwriters and their counsel, requires the
making of any addition to or change in the Prospectus in order to state a
material fact required by the Act or any other law to be stated therein or
necessary in order to make the statements therein not misleading, if amending or
supplementing the Prospectus to reflect such event or development would, in your
opinion, as Representatives of the several Underwriters, materially adversely
affect the market for the Securities.
(c) You shall have received on the Closing Date an opinion of Xxxxxxx
Xxxxxxxxx & Xxxxx, L.L.C., counsel for the Company, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, 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 presently conducted and as disclosed in the Registration
Statement and the Prospectus, 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 so to register or
qualify does not and will not have a Material Adverse Effect;
(ii) To the best knowledge of such counsel, after reasonable
inquiry, the Company has no subsidiaries other than the Subsidiaries. Each
Significant Subsidiary (as defined in Schedule II hereto) is duly organized,
validly existing and in good standing in the jurisdiction of its incorporation,
if a corporation, and is legally formed and validly existing under the laws of
the jurisdiction of its organization, if a partnership, association or business
organization, with full corporate or organizational power and authority to own,
lease and operate its properties and to conduct its business as presently
conducted. Each Significant Subsidiary is duly registered and qualified to
conduct its business (and, if a corporation, 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
so to register or qualify does not and will not have a Material Adverse Effect;
all the outstanding shares of capital stock of each Significant Subsidiary which
is a corporation have been duly authorized and validly issued, are fully paid
and nonassessable, and all ownership interests in each Significant Subsidiary
which is not a corporation have been validly created pursuant to the partnership
or other agreements or organizational documents of each such Significant
Subsidiary, and, except as disclosed in the Prospectus, the shares or other
interests owned by the Company are 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 encumbrances;
(iii) The authorized and outstanding capital stock of the
Company is as set forth under the caption "Capitalization" in the Prospectus;
and the authorized capital stock of the Company conforms in all material
respects as to legal matters to the description thereof contained in the
Prospectus under the caption "Description of Capital Stock";
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(iv) All the outstanding shares of capital stock of the Company
(A) have been duly authorized and validly issued, (B) are fully paid and
nonassessable, (C) are free of any preemptive or similar rights and (D) have
been issued and sold in compliance with all applicable federal and state
securities laws;
(v) The Securities have been duly authorized for issuance and
sale to the Underwriters pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and fully paid and
non-assessable; and the issuance of the Securities is not subject to preemptive
or other similar rights arising by law or, to the best of such counsel's
knowledge, otherwise;
(vi) The Shares have been duly and validly authorized and
reserved for issuance and, when issued and delivered by the Company in
accordance with the provisions of the Purchase Contract Agreement and the Pledge
Agreement, will be fully paid and non-assessable; and the issuance of such
Shares will not be subject to preemptive or other similar rights arising by law
or, to the best of such counsel's knowledge, otherwise;
(vii) The Securities and the Common Stock are each registered
under the Exchange Act, and the Securities and the Shares have been authorized
for listing on the New York Stock Exchange, subject to official notice of
issuance;
(viii) The Securities, the Purchase Contract Agreement, the
Purchase Contracts, the Treasury Notes, the Shares and the Pledge Agreement
conform in all material respects to the respective descriptions thereof
contained in the Prospectus and the Registration Statement;
(ix) The certificate(s) used to evidence the Securities are in
the form provided for by the Purchase Contract Agreement and comply with all
applicable statutory requirements and with the requirements of the New York
Stock Exchange;
(x) The form of certificate for the Common Stock conforms to
the requirements of the Delaware General Corporation Law and the New York Stock
Exchange;
(xi) The Rights to be issued with the Shares have been duly
authorized and, upon issuance of such Shares, will be validly issued and conform
to the description thereof in the Prospectus and the Registration Statement;
(xii) Except as disclosed in the Prospectus, there are no
outstanding options, warrants or other rights calling for the issuance of, and
such counsel does not know of any commitment, plan or arrangement to issue, any
shares of capital
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stock of the Company or any security convertible into or exchangeable or
exercisable for capital stock of the Company;
(xiii) Except as disclosed in the Prospectus, no holder of any
security of the Company or any other person has the right, contractual or
otherwise, which right has not been fully complied with or waived in writing by
the holder thereof, (A) to cause the Company to sell or otherwise issue to them,
or to permit them to underwrite the sale of, the Securities, (B) to have any
Common Stock or other securities of the Company included in the registration
statement or (C) as a result of the filing of the registration statement, to
require registration under the Act of any shares of Common Stock or other
securities of the Company;
(xiv) The Company has full corporate power and authority to enter
into this Agreement, the Purchase Contract Agreement, the Purchase Contracts and
the Pledge Agreement and to perform its obligations hereunder and thereunder,
including to issue, sell and deliver the Securities to be sold by it to the
Underwriters as provided herein;
(xv) This Agreement has been duly and validly authorized,
executed and delivered by the Company and is a legal, valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except as enforcement of rights to indemnity and contribution hereunder
may be limited by federal or state securities laws or principles of public
policy and subject to the qualification that the enforceability of the Company's
obligations hereunder may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights generally
and by general equitable principles;
(xvi) The Purchase Contract Agreement, the Purchase Contracts
relating to the Securities being delivered on the Closing Date and the Pledge
Agreement have been duly and validly authorized, executed and delivered by the
Company and each is a legal, valid and binding agreement of the Company (and
together they create, to the extent provided therein, a valid interest of the
holders of the Securities in the Treasury Notes), enforceable against the
Company in accordance with its terms, except as enforceability of the Company's
obligations thereunder may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights generally
and by general equitable principles, provided, however, that upon the occurrence
of a Termination Event, Section 365(e) of the Bankruptcy Code (11 U.S.C. Section
101-1330, as amended) will not substantively limit the provisions of Sections
4.2 and 5.8 of the Purchase Contract Agreement and Section 4(a) of the Pledge
Agreement that require termination of the Purchase Contracts and release of the
Collateral Agent's security interest in the Treasury Notes, provided further,
however, that procedural restrictions respecting relief from the automatic stay
under Section 362 of the Bankruptcy Code may affect the timing of the exercise
of such rights and remedies; and the Pledge Agreement creates, as collateral
security for the performance when due by the holders from time to time of the
Securities of their respective obligations under the Purchase Contracts
constituting part of such Securities, a legal and valid security interest (as
that term is defined in the Uniform Commercial Code,
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as adopted and in effect in the State of New York), in favor of the Collateral
Agent, in the right, title and interest of such holders in the Treasury Notes
constituting a part of such Securities (collectively, the "Pledged Treasury
Notes"), and upon the Federal Reserve Bank through which such Pledged Treasury
Notes have been purchased making appropriate entries in its records to reflect
the transfer and pledge to the Collateral Agent of such Pledged Treasury Notes
in accordance with 31 C.F.R. Section 306 or similar federal regulations
governing the transfer of U.S. Government book-entry securities, such security
interest will be perfected.
(xvii) 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 as have been obtained under the Act and the Exchange Act or such
as may be required under state securities or Blue Sky laws governing the
purchase and distribution of the Shares) for the entry into the Purchase
Contracts relating to the Securities, the issuance and sale of the Securities
hereunder, the issuance and sale of the Shares by the Company pursuant to such
Purchase Contracts or the consummation by the Company of any of the transactions
contemplated under this Agreement, such Purchase Contracts, the Purchase
Contract Agreement and the Pledge Agreement;
(xviii) Neither (a) the entry into the Purchase Contracts relating
to the Securities by the Company, the offer of the Securities by the Company as
contemplated herein and in the Prospectus and the issue and sale of the Shares
by the Company pursuant to the Purchase Contracts nor (b) the execution,
delivery and performance by the Company of all of the provisions of this
Agreement, the Purchase Contracts, the Purchase Contract Agreement and the
Pledge Agreement, the consummation of the transactions contemplated herein and
therein and the compliance by the Company with its obligations hereunder and
thereunder (A) conflicts or will conflict with, or constitutes or will
constitute a breach or violation 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 Significant Subsidiaries; (B) conflicts or will conflict
with or constitutes or will constitute a breach or violation of, or a default
under, any agreement, indenture, lease or other instrument to which the Company
or any of the Significant Subsidiaries is a party or by which any of them or any
of their respective properties is bound that is an exhibit to the Registration
Statement or any Incorporated Document, or is known to such counsel after
reasonable inquiry; (C) violates or will violate any statute, law, regulation,
ordinance, administrative or governmental rule or regulation applicable to the
Company or any of the Significant Subsidiaries (assuming compliance with all
applicable state securities and Blue Sky laws) or any order, ruling, judgment,
injunction or decree of any court or governmental agency or body having
jurisdiction over the Company or any of the Significant Subsidiaries or any of
their respective properties; or (D) 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 Significant Subsidiaries pursuant to the terms of any agreement or
instrument that is an exhibit to the Registration Statement or any Incorporated
Document, or is known to such counsel after reasonable inquiry;
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(xix) To the best knowledge of such counsel after reasonable
inquiry, neither the Company nor any of the Significant Subsidiaries is (A) in
violation of its respective certificate or articles of incorporation or by-laws,
or other organizational documents; (B) in violation of any statute, law,
regulation, ordinance, administrative or governmental rule or regulation
applicable to the Company or any of the Significant Subsidiaries or of any
order, ruling, judgment, injunction or decree of any court or governmental
agency or body having jurisdiction over the Company or any of the Significant
Subsidiaries or any of their respective properties; or (C) in default in any
material respect in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of indebtedness or
in any material agreement, indenture, lease or other instrument to which the
Company or any of the Significant Subsidiaries is a party or by which any of
them or any of their respective properties may be bound, and no condition or
state of facts exists, which with the passage of time or the giving of notice or
both, would constitute such a default, except in the case of (B) and (C) above,
for such violations or defaults which, individually or in the aggregate, would
not have a Material Adverse Effect;
(xx) To the best knowledge of such counsel after reasonable
inquiry, neither the Company nor any of the Significant Subsidiaries is in
violation of any health care statute, law, ordinance, decree, administrative or
governmental rule or regulation applicable to the Company or any of the
Significant Subsidiaries, including, without limitation, those relating to
reimbursement by government agencies and fraudulent or wrongful xxxxxxxx, or any
health care judgment, injunction, order or decree of any court or government
entity or instrumentality of the United States of America having jurisdiction
over the Company or any of the Significant Subsidiaries;
(xxi) To the best knowledge of such counsel after reasonable
inquiry, neither the Company nor any of the Significant Subsidiaries nor any
employee or agent of the Company or any Significant Subsidiary has made any
payment of funds or received or retained any funds in violation of any law, rule
or regulation, including, without limitation, any law, rule or regulation
prohibiting fee-splitting or fees for the referral of patients;
(xxii) The Company and each of the Significant Subsidiaries is
duly licensed or authorized in each jurisdiction where it is required to be so
licensed or authorized to conduct its respective businesses; the Company and
each of the Significant Subsidiaries has all other necessary consents,
approvals, permits, licenses, franchises and authorizations of and from all
regulatory authorities to conduct its respective businesses as presently
conducted, and, to the best of such counsel's knowledge after reasonable
inquiry, neither the Company nor any of the Significant Subsidiaries has
received any notification from any regulatory authority, including, without
limitation, any health care regulatory authority, to the effect that any
additional approval is required to be obtained by the Company or any of the
Significant Subsidiaries;
(xxiii) To the best knowledge of such counsel after reasonable
inquiry, neither the Company nor any of the Significant Subsidiaries (A)
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employs any of the physicians in any Affiliated Group, (B) exercises any
influence or control over the practice of medicine by such physicians, or (C)
represents to the public that it offers medical services; and the Company and
each of the Significant Subsidiaries contracts with the physicians or Affiliated
Groups as independent contractors to provide medical services and is not engaged
in the practice of medicine;
(xxiv) Each Practice Management Agreement has been duly
authorized, executed and delivered by the Company and each Significant
Subsidiary which is a party thereto and each such Practice Management Agreement
is a valid, legal and binding agreement of the Company and each such Significant
Subsidiary, enforceable against the Company and such Significant Subsidiary in
accordance with its terms, subject to the qualification that the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium,
and other laws relating to or affecting creditors' rights generally and by
general equitable principles; and the business of the Company and the
Significant Subsidiaries as presently conducted, and the terms of each Practice
Management Agreement and the performance thereof by the Company and the
Significant Subsidiaries which are party thereto, do not violate any statute,
administrative or governmental rule or regulation applicable to the Company or
such Significant Subsidiaries or laws prohibiting the corporate practice of
medicine, fee-splitting or fees for the referral of patients, or any ruling,
judgment, injunction, order or decree of any court or government entity or
instrumentality having jurisdiction over the Company and/or the Significant
Subsidiaries;
(xxv) To the best knowledge of such counsel, there are no legal
or governmental proceedings pending or threatened, against the Company or any of
the Significant Subsidiaries, or to which the Company or any of the Significant
Subsidiaries, or to which any of their respective properties is subject, that
are required to be disclosed in the Registration Statement or the Prospectus and
that are not disclosed as required;
(xxvi) Except as disclosed in the Prospectus, the Company and the
Significant Subsidiaries own all patents, trademarks, trademark registrations,
service marks, service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights disclosed in the Prospectus as being owned
by them or any of them or necessary for the conduct of their respective
businesses, and such counsel is not aware of any claim to the contrary or any
challenge by any other person to the rights of the Company and the Significant
Subsidiaries with respect to the foregoing;
(xxvii) The statements in the Registration Statement and Prospectus
insofar as such statements constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein;
(xxviii) The statements in the Prospectus under the caption "Certain
Federal Income Tax Consequences" have been reviewed by such counsel and,
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insofar as they constitute legal conclusions or matters of law, fairly summarize
the matters referred to therein;
(xxix) Such counsel does not know of any agreements, indentures,
leases or other instruments required to be disclosed in the Registration
Statement or the Prospectus (or any amendment or supplement thereto) or to be
filed as an exhibit to the Registration Statement or any Incorporated Document
that are not so disclosed or filed as required by the Act and the Exchange Act,
and such agreements, indentures, leases or other instruments as are summarized
in the Registration Statement or the Prospectus are fairly summarized in all
material respects;
(xxx) 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 or incorporated by reference 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;
(xxxi) The Registration Statement and all post-effective
amendments, if any, have 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; and any
required filing of the Prospectus pursuant to Rule 424(b) has been made in
accordance with Rule 424(b);
(xxxii) Each Incorporated Document, at the time it was filed with
the Commission, complied as to form in all material respects with the
requirements of the Exchange Act; and
(xxxiii) The Company is not, and after the sale of the Securities
and the application of the net proceeds, if any, therefrom as disclosed in the
Prospectus under the caption "Use of Proceeds" will not be, an "investment
company" within the meaning of the 1940 Act.
In addition, such counsel shall state that they have participated in the
preparation of the Registration Statement and the Prospectus, including review
and discussion of the contents thereof, and nothing has come to the attention
of such counsel that has caused them to believe that the Registration Statement
at the time the Registration Statement became or becomes effective contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any amendment or supplement to
the Prospectus, as of their respective dates, and as of the Closing Date or the
Option Closing Date, as the case may be, contained or contains any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were or are made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and the notes thereto and the schedules
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and other financial and statistical data included or incorporated by reference
in the Registration Statement or the Prospectus).
In rendering their opinions as aforesaid, such counsel may rely upon an
opinion or opinions, each dated the Closing Date, of other counsel retained by
them or the Company as to laws of any jurisdiction other than the United States
and the States of Delaware and Alabama, provided that (A) each such local
counsel is acceptable to the Representatives, (B) such reliance is expressly
authorized by each opinion so relied upon and a copy of each such opinion is
delivered to the Representatives and is in form and substance satisfactory to
them and their counsel, and (C) counsel shall state in their opinion that they
believe that they and the Underwriters are justified in relying thereon.
(d) You shall have received on the Closing Date an opinion of Xxxxx
Xxxxxxxxxx, counsel for the Underwriters, dated the Closing Date and addressed
to you, as Representatives of the several Underwriters, with respect to certain
of the matters referred to in paragraph (c) of this Section 8 (including the
penultimate paragraph thereof) and such other related matters as you may
request.
(e) You shall have received letters addressed to you, as Representatives
of the several Underwriters, and dated the date hereof and the Closing Date from
Ernst & Young LLP, independent certified public accountants, substantially in
the forms heretofore approved by you.
(f) (A) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been taken or, to the knowledge of the Company, shall be contemplated by the
Commission at or prior to the Closing Date; (B) there shall not have been any
change in the capital stock of the Company or any material increase in the
short-term or long-term debt of the Company (other than in the ordinary course
of business) from that set forth or contemplated in the Registration Statement
or the Prospectus (or any amendment or supplement thereto); (C) there shall not
have been, since the respective dates as of which information is given in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), except as may otherwise be stated in the Registration Statement and
the Prospectus (or any amendment or supplement thereto), any material adverse
change in the condition (financial or other), business, prospects, properties,
net worth or results of operations of the Company and the Subsidiaries taken as
a whole; (D) the Company and the Subsidiaries shall not have any liabilities or
obligations, direct or contingent (whether or not in the ordinary course of
business), that are material to the Company and the Subsidiaries, taken as a
whole, other than those reflected in the Registration Statement or the
Prospectus (or any amendment or supplement thereto); and (E) all the
representations and warranties of the Company contained in this Agreement shall
be true and correct 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 8(f) and in Sections
8(g) and 8(i) hereof.
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(g) The Company shall not have failed 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.
(h) You shall have received a certificate dated the Closing Date signed
by the chief accounting officer of the Company substantially in the form
heretofore approved by you, respecting the Company's compliance with the
financial covenants set forth in the Company's credit agreement with
NationsBank, National Association (South) (the "Credit Agreement"), and certain
other agreements of the Company.
(i) There shall not have been any announcement by any "nationally
recognized statistical rating organization," as defined for purposes of Rule
436(g) under the Act, that (i) it is downgrading its rating assigned to any
class of securities of the Company or (ii) except as disclosed in the
Registration Statement and the Prospectus, it is reviewing its ratings assigned
to any class of securities of the Company with a view to possible downgrading,
or with negative implications, or direction not determined.
(j) Prior to the date of this Agreement, the Company shall have received
and shall have furnished to you copies of the written consent of the lenders
party to the Credit Agreement to the consummation by the Company of the
transactions contemplated by the Prospectus and this Agreement.
(k) The Securities and the Shares shall have been listed subject to
official notice of issuance on the New York Stock Exchange.
(l) The Company shall have furnished or caused to be furnished to you
such further certificates and documents as you shall have requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and your counsel.
Any certificate or document signed by any officer of the Company and
delivered to you, as Representatives of the Underwriters, or to counsel for the
Underwriters, shall be deemed a representation and warranty by the Company to
each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase Additional
Securities hereunder are subject to the satisfaction on and as of any Option
Closing Date of the conditions set forth in this Section 8, except that, if any
Option Closing Date is other than the Closing Date, the certificates, opinions
and letters referred to in this Section 8 shall be dated the Option Closing
Date in question and the opinions or letters called for by paragraphs (c), (d)
and (e) of this Section 8 shall be revised to reflect the sale of Additional
Securities.
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9. Expenses. The Company agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance by it of its
obligations hereunder: (A) the preparation, printing or reproduction, and
filing with the Commission of the registration statement (including the
financial statements and exhibits thereto), each Prepricing Prospectus, the
Prospectus, and each amendment or supplement to any of them; (B) the printing
(or reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the registration
statement, each Prepricing Prospectus, the Prospectus, the Incorporated
Documents and all amendments or supplements to any of them as may be reasonably
requested for use in connection with the offering and sale of the Securities;
(C) the preparation, printing, authentication, issuance and delivery of
certificates for the Securities, including any stamp taxes in connection with
the original issuance and sale of the Securities; (D) the printing (or
reproduction) and delivery of this Agreement, the Purchase Contract Agreement,
the Pledge Agreement, the preliminary and supplemental Blue Sky Memoranda and
all other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Securities; (E) the registration of the
Securities under the Exchange Act and the listing of the Securities and the
Shares on the New York Stock Exchange; (F) the registration or qualification of
the Securities for offer and sale under the securities or Blue Sky laws of the
several states as provided in Section 5(g) hereof (including the reasonable
fees, expenses and disbursements of counsel for the Underwriters relating to
the preparation, printing or reproduction, and delivery of the preliminary and
supplemental Blue Sky Memoranda and such registration and qualification); (G)
the filing fees and the fees and expenses of counsel for the Underwriters in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc.; (H) the transportation and other expenses incurred by
or on behalf of representatives of the Company in connection with presentations
to prospective purchasers of the Securities; (I) the fees and expenses of the
Purchase Contract Agent and the Collateral Agent; (J) the fees and expenses of
the Company's accountants; and (K) the fees and expense of counsel (including
local and special counsel) for the Company.
10. Effective Date of Agreement. This Agreement shall become effective:
(A) upon the execution and delivery hereof by the parties hereto; or (B) if, at
the time this Agreement is executed and delivered, it is necessary for the
registration statement or a post-effective amendment thereto to be declared
effective before the offering of the Securities may commence, when notification
of the effectiveness of the registration statement or such post-effective
amendment has been released by the Commission. Until such time as this
Agreement shall have become effective, it may be terminated by the Company, by
notifying you, or by you, as Representatives of the several Underwriters, by
notifying the Company.
If any one or more of the Underwriters shall fail or refuse to purchase
Securities which it or they are obligated to purchase hereunder on the Closing
Date, and the aggregate number of Securities which such defaulting Underwriter
or Underwriters are obligated but fail or refuse to purchase is not more than
one-tenth of the aggregate number of Securities which the Underwriters are
obligated to purchase on the Closing Date, each non-defaulting Underwriter
shall be obligated, severally, in the proportion which the number of Firm
Securities set forth opposite its name in Schedule I hereto bears
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to the aggregate number of Firm Securities set forth opposite the names of all
non-defaulting Underwriters or in such other proportion as you may specify in
accordance with Section 20 of the Master Agreement Among Underwriters of Xxxxx
Xxxxxx Inc., to purchase the Securities which such defaulting Underwriter or
Underwriters are obligated, but fail or refuse, to purchase. If any one or more
of the Underwriters shall fail or refuse to purchase Securities which it or they
are obligated to purchase on the Closing Date and the aggregate number of
Securities with respect to which such default occurs is more than one-tenth of
the aggregate number of Securities which the Underwriters are obligated to
purchase on the Closing Date and arrangements satisfactory to you and the
Company for the purchase of such Securities by one or more non-defaulting
Underwriters or other party or parties approved by you and the Company 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. In any
such case which does not result in termination of this Agreement, either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven 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. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Company,
purchases Securities which a defaulting Underwriter is obligated, but fails or
refuses, to purchase.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. 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, by notice to the Company, if prior to the Closing
Date or any Option Closing Date (if different from the Closing Date and then
only as to the Additional Securities), as the case may be, (A) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market shall have been suspended or materially
limited, (B) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or state authorities, or (C) 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, 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
commence or continue the offering of the Securities at the offering price to
the public set forth on the cover page of the Prospectus or to enforce
contracts for the resale of the Securities by the Underwriters. Notice of such
termination may be given to the Company by telegram, telecopy or telephone and
shall be subsequently confirmed by letter.
12. Information Furnished by the Underwriters. The statements set forth
in the last paragraph of the cover page, the stabilization legend on the inside
cover page, and the statements in the first and third paragraphs under the
caption "Underwriting" in any Prepricing Prospectus and in the Prospectus,
constitute the only
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information furnished by or on behalf of the Underwriters through you as such
information is referred to in Sections 6(c) and 7 hereof.
13. Miscellaneous. Except as otherwise provided in Sections 5, 10 and 11
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (A) if to the Company, at the office of the
Company at 0000 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxxxxx, XX 00000, Attention:
J. Xxxxxx Xxxxxxxx, Xx., Esq., with a copy to Xxxxxxx Xxxxxxxxx & Xxxxx,
L.L.C., 0000 XxXxxxx/Xxxxxxx Xxxxx, 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, XX
00000, Attention: Xxxxxx X. Xxx Xxxxxx, Esq. and X. Xxxxxxx XxXxxxxx, Jr.,
Esq.; and (B) if to you, as Representatives of the several Underwriters, care
of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention:
Manager, Investment Banking Division, with a copy to Xxxxx Xxxxxxxxxx, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxxx X. Xxxxxx,
Esq.
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 and agents and employees referred to in Section 7 hereof
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 the term "successor" nor the term "successors and assigns"
as used in this Agreement shall include a purchaser from any Underwriter of any
of the Securities in his status as such purchaser.
14. Applicable Law; Counterparts. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York.
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This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
MEDPARTNERS, INC.
By:
----------------------------------
Name:
Title:
Confirmed as of the date first above
mentioned on behalf of themselves and
the other several Underwriters named in
Schedule I hereto.
XXXXX XXXXXX INC.
CREDIT SUISSE FIRST BOSTON
CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
XXXXXXXXXX SECURITIES
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXX XXXXXXX INC.
As Representatives of the Several Underwriters
By XXXXX XXXXXX INC.
By:
---------------------------------------
Managing Director
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SCHEDULE I
MEDPARTNERS, INC.
Number of
Underwriter Firm Securities
----------- ---------------
Xxxxx Xxxxxx Inc.....................................
Credit Suisse First Boston Corporation...............
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated...
Xxxxxxxxxx Securities................................
Xxxxxx Xxxxxxx & Co. Incorporated....................
Xxxxx Xxxxxxx Inc....................................
----------
Total.......................................... 17,000,000
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35
SCHEDULE II
MEDPARTNERS, INC.
SIGNIFICANT SUBSIDIARIES
