Exhibit 1
2,600,000 SHARES (*)
PRIORITY HEALTHCARE CORPORATION
CLASS B COMMON STOCK
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UNDERWRITING AGREEMENT
St. Petersburg, Florida
May ___, 1999
Xxxxxxx Xxxxx & Associates, Inc.
First Union Capital Markets Corp.
SunTrust Equitable Securities Corporation
NationsBanc Xxxxxxxxxx Securities LLC
As Representatives of the Several Underwriters
c/o Raymond Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Priority Healthcare Corporation, an Indiana corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and
sell an aggregate of 2,600,000 shares of Class B Common Stock, $.01 par value
per share (the "Class B Common Stock"), of the Company, to the several
Underwriters named in Schedule I hereto (the "Underwriters"), subject to the
terms and conditions stated herein (such 2,600,000 aggregate shares to be
sold by the Company are hereinafter referred to as the "Firm Shares"). In
addition, the Company has agreed to sell to the Underwriters, upon the terms
and conditions set forth herein, up to an additional 390,000 shares (the
"Additional Shares") of the Class B Common Stock to cover over-allotments by
the Underwriters, if any. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "Shares."
The Company wishes to confirm as follows its agreement with you and the
other several Underwriters, on whose behalf you are acting, in connection
with the several purchases of the Shares from the Company.
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. ________), including a
prospectus subject to completion, relating to the Shares. Such registration
statement, as amended at the time when it becomes effective and as thereafter
amended by post-effective amendment, is referred to in this Agreement as the
"Registration Statement." The prospectus in the form included in the
Registration Statement, or, if the prospectus included in the Registration
Statement omits information in reliance upon Rule 430A under the Act and such
information is included in a
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(*) Plus an additional 390,000 shares subject to
Underwriters' over-allotment option
prospectus filed with the Commission pursuant to Rule 424(b) under the Act or
as part of a post-effective amendment to the Registration Statement after the
Registration Statement becomes effective, the prospectus as so filed, is
referred to in this Agreement as the "Prospectus." If the Company elects to
rely on Rule 434 under the Act, all references to the Prospectus shall be
deemed to include, without limitation, the form of prospectus and the term
sheet contemplated by Rule 434, taken together, provided to the Underwriters
by the Company in reliance on Rule 434 under the Act. If the Company files
another registration statement with the Commission to register a portion of
the Shares pursuant to Rule 462(b) under the Act (the "Rule 462 Registration
Statement"), then any reference to "Registration Statement" herein shall be
deemed to include the registration statement on Form S-3 (File No.
__________) and the Rule 462 Registration Statement, as each such
registration statement may be amended pursuant to the Act. The prospectus
subject to completion in the form included in the Registration Statement at
the time of the initial filing of such Registration Statement with the
Commission and as such prospectus is amended from time to time until the date
of the Prospectus are collectively referred to in this Agreement as the
"Prepricing Prospectus." Any reference in this Agreement to 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 Item 12 of Form S-3 under the Act, as of the date of 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, 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 (the "Exchange Act") which, upon filing, are
incorporated by reference therein, as required by paragraph (b) of Item 12 of
Form S-3. As used herein, the term "Incorporated Documents" means the
documents which at the time are incorporated by reference in the Registration
Statement, any Prepricing Prospectus, the Prospectus, or any amendment or
supplement thereto.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees to
sell the Firm Shares to the Underwriters and, upon the basis of the
representations, warranties and agreements of the Company herein contained
and subject to all the terms and conditions set forth herein, each
Underwriter agrees, severally and not jointly, to purchase from the Company
at a purchase price of $________ per Share (the "purchase price per Share"),
the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto.
The Company hereby also agrees to sell to the Underwriters, and upon the
basis of the representations, warranties and agreements of the Company herein
contained and subject to all the terms and conditions set forth herein, the
Underwriters shall have the right for 30 days from the date of the Prospectus
to purchase from the Company up to 390,000 Additional Shares at the purchase
price per Share for the Firm Shares. The Additional Shares may be purchased
solely for the purpose of covering over-allotments, if any, made in
connection with the offering of the Firm Shares. If any Additional Shares
are to be purchased, each Underwriter, severally and not jointly, agrees to
purchase the number of Additional Shares (subject to such adjustments as you
may determine to avoid fractional shares) which bears the same proportion to
the total number of Additional Shares to be purchased by the Underwriters as
the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto bears to the total number of Firm Shares.
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 Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and
initially to offer the Shares upon the terms set forth in the Prospectus.
4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery to the
Underwriters of the Firm Shares and payment therefor shall be made at the
offices of Xxxxxxx Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx, at 10:00 a.m., St. Petersburg, Florida time, on
________, 1999 (the "Closing Date"). The place of closing for the Firm
Shares and the Closing Date may be varied by agreement between the
Representative and the Company.
Delivery to the Underwriters of and payment for any Additional Shares to
be purchased by the Underwriters shall be made at the offices of Xxxxxxx
Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx.
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Xxxxxxxxxx, Xxxxxxx, at 10:00 a.m., Florida time, on such date or dates (the
"Additional 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 three nor
later than ten business days after the giving of the notice hereinafter
referred to) as shall be specified in a written notice from you on behalf of
the Underwriters to the Company of the Underwriters' determination to
purchase a number, specified in such notice, of Additional Shares. Such
notice may be given to the Company by you at any time within 30 days after
the date of the Prospectus. The place of closing for the Additional Shares
and the Additional Closing Date may be varied by agreement between you and
the Company.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such
denominations as you shall request prior to 1:00 p.m., Florida time, not
later than the second full business day preceding the Closing Date or the
Additional Closing Date, as the case may be. Such certificates shall be made
available to you in St. Petersburg, Florida for inspection and packaging not
later than 9:30 a.m., Florida time, on the business day immediately preceding
the Closing Date or the Additional Closing Date, as the case may be. The
certificates evidencing the Firm Shares and any Additional Shares to be
purchased hereunder shall be delivered to you on the Closing Date or the
Additional Closing Date, as the case may be, against payment of the purchase
price therefor by certified or official bank check or checks payable in New
York Clearing House (next day) funds. Payment for the Firm Shares sold by the
Company hereunder shall be delivered by the Representative to the Company.
5. COVENANTS AND AGREEMENTS OF THE COMPANY. The Company covenants
and agrees with the several Underwriters as follows:
(a) The Company will use its best efforts to cause the
Registration Statement and any amendments thereto to become effective, if
it has not already become effective, and will advise you promptly and, if
requested by you, will confirm such advice in writing (i) when the
Registration Statement has become effective and when any post-effective
amendment thereto becomes effective, (ii) if Rule 430A under the Act is
employed, when the Prospectus has been timely filed pursuant to Rule 424(b)
under the Act, (iii) of any request by the Commission for amendments or
supplements to the Registration Statement, any Prepricing Prospectus or the
Prospectus or for additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares
for offering or sale in any jurisdiction or the initiation of any
proceeding for such purposes and (v) within the period of time referred to
in Section 5(e) below, of any change in the Company's condition (financial
or other), business, prospects, properties, net worth or results of
operations, or of any event that comes to the attention of the Company that
makes any statement made in the Registration Statement or the Prospectus
(as then amended or supplemented) untrue in any material respect or that
requires the making of any additions thereto or changes therein in order to
make the statements therein not misleading in any material respect, or of
the necessity to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal or lifting of such order at the earliest possible
time. If the Company elects to rely on Rule 434 under the Act, the Company
will provide the Underwriters with copies of the form of Rule 434
Prospectus (including copies of a term sheet that complies with the
requirements of Rule 434 under the Act), in such number as the Underwriters
may reasonably request, and file with the Commission in accordance with
Rule 424(b) of the Act the form of Prospectus complying with Rule 434(c) of
the Act before the close of business on the first business day immediately
following the date hereof. If the Company elects not to rely on Rule 434
under the Act, the Company will provide the Underwriters with copies of the
form of Prospectus, in such number as the Underwriters may reasonably
request, and file with the Commission such Prospectus in accordance with
Rule 424(b) of the Act before the close of business on the first business
day immediately following the date hereof.
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(b) The Company will furnish to you, without charge, two
signed duplicate originals of the Registration Statement as originally
filed with the Commission and of each amendment thereto, including
financial statements and all exhibits thereto, and will also furnish to
you, without charge, such number of conformed copies of the Registration
Statement as originally filed and of each amendment thereto as you may
reasonably request.
(c) The Company will not file any Rule 462 Registration
Statement or any amendment to the Registration Statement or make any
amendment or supplement to the Prospectus unless (A) you shall have
previously been advised thereof and been given a reasonable opportunity to
review such filing, amendment or supplement, and (B) you have not
reasonably objected to such filing, amendment or supplement after being so
advised and having been given a reasonable opportunity to review same.
(d) Prior to the execution and delivery of this Agreement,
the Company has delivered or will deliver to you, without charge, in such
quantities as you have requested or may hereafter reasonably request,
copies of each form of the Prepricing Prospectus. The Company consents to
the use, in accordance with the provisions of the Act and with the
securities or Blue Sky laws of the jurisdictions in which the Shares are
offered by the several Underwriters and by dealers, prior to the date of
the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(e) As soon after the execution and delivery of this
Agreement as is practicable and thereafter from time to time for such
period as in the reasonable opinion of counsel for the Underwriters a
prospectus is required by the Act to be delivered in connection with sales
by any Underwriter or a dealer, and for so long a period as you may request
for the distribution of the Shares, the Company will deliver to each
Underwriter and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as they may
reasonably request. The Company consents to the use of the Prospectus (and
of any amendment or supplement thereto) in accordance with the provisions
of the Act and with the securities or Blue Sky laws of the jurisdictions in
which the Shares are offered by the several Underwriters and by all dealers
to whom Shares may be sold, both in connection with the offering and sale
of the Shares and for such period of time thereafter as the Prospectus is
required by the Act to be delivered in connection with sales by any
Underwriter or dealer. If at any time prior to the later of (i) the
completion of the distribution of the Shares pursuant to the offering
contemplated by the Registration Statement or (ii) the expiration of
prospectus delivery requirements with respect to the Shares under
Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that
in the judgment of the Company or in the opinion of counsel for the
Underwriters is required to be set forth in the Prospectus (as then amended
or supplemented) or should be set forth therein in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary to supplement or amend the
Prospectus to comply with the Act or any other law, the Company will
forthwith prepare and, subject to Sections 5(a) and 5(c) hereof, file with
the Commission and use its best efforts to cause to become effective as
promptly as possible an appropriate supplement or amendment thereto, and
will furnish to each Underwriter who has previously requested Prospectuses,
without charge, a reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the
Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as you may
reasonably designate and will file such consents to service of process or
other documents as may be reasonably necessary in order to effect and
maintain such registration or qualification for so long as required to
complete the distribution of the Shares; provided that in no event shall
the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would subject
it to general service of process in suits, other than those arising out of
the offering or sale of the Shares, in any jurisdiction where it is not now
so subject. In the event that the qualification of the Shares in any
jurisdiction is suspended, the Company shall so advise you promptly in
writing.
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(g) The Company will make generally available to its security
holders a consolidated earnings statement (in form complying with the
provisions of Rule 158), which need not be audited, covering a twelve-month
period commencing after the effective date of the Registration Statement
and the Rule 462 Registration Statement, if any, and ending not later than
15 months thereafter, as soon as practicable after the end of such period,
which consolidated earnings statement shall satisfy the provisions of
Section 11(a) of the Act.
(h) During the period ending three years from the date
hereof, the Company will furnish to you and, upon your request, to each of
the other Underwriters, (i) as soon as available, a copy of each proxy
statement, quarterly or annual report or other report of the Company mailed
to stockholders or filed with the Commission, the National Association of
Securities Dealers, Inc. (the "NASD") or The Nasdaq Stock Market or any
securities exchange and (ii) from time to time such other information
concerning the Company as you may reasonably request.
(i) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provision hereof (except pursuant to a
termination under Section 11 hereof) or if this Agreement shall be
terminated by the Underwriters because of any inability, failure or refusal
on the part of the Company to perform in all material respects any
agreement herein or to comply in all material respects with any of the
terms or provisions hereof or to fulfill in all material respects any of
the conditions of this Agreement, the Company agrees to reimburse you and
the other Underwriters for all out-of-pocket expenses (including travel
expenses and reasonable fees and expenses of counsel for the Underwriters
but excluding wages and salaries paid by you) reasonably incurred by you in
connection herewith.
(j) The Company will apply the net proceeds from the sale of
the Shares to be sold by it hereunder in accordance in all material
respects with the statements under the caption "Use of Proceeds" in the
Prospectus.
(k) If Rule 430A under the Act is employed, the Company will
timely file the Prospectus pursuant to Rule 424(b) under the Act.
(l) For a period of 120 days after the date of the Prospectus
first filed pursuant to Rule 424(b) under the Act, without your prior
written consent, the Company will not, directly or indirectly, issue, sell,
offer or contract to sell or otherwise dispose of or transfer any shares of
Class B Common Stock or securities convertible into or exchangeable or
exercisable for shares of Class B Common Stock (collectively, "Company
Securities") or any rights to purchase Company Securities, except to the
Underwriters pursuant to this Agreement and except for grants of options
pursuant to the Company's stock option plans in effect as of the date
hereof and except for issuances of shares of Class B Common Stock upon the
exercise of options outstanding as of the date hereof under such stock
option plans.
(m) Prior to the Closing Date or the Additional Closing Date,
as the case may be, the Company will furnish to you, as promptly as
possible, copies of any unaudited interim consolidated financial statements
of the Company and its subsidiaries for any period subsequent to the
periods covered by the financial statements appearing in the Prospectus.
(n) The Company will comply with all provisions of any
undertakings contained in the Registration Statement.
(o) The Company will not at any time, directly or indirectly
take any action designed, or which might reasonably be expected to cause or
result in, or which will constitute, stabilization or manipulation of the
price of the shares of Class B Common Stock to facilitate the sale or
resale of any of the Shares.
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(p) The Company will use its best efforts to qualify or
register its Class B Common Stock for sale in non-issuer transactions under
(or obtain exemptions from the application of) the Blue Sky laws of each
state where necessary to permit market making transactions and secondary
trading, and will comply with such Blue Sky laws and will continue such
qualifications, registrations and exemptions in effect for a period of five
years after the date hereof.
(q) The Company will timely file with the National
Association of Securities Dealers Automated Quotation National Market
System ("NASDAQ/NMS") all documents and notices required by the NASDAQ/NMS
of companies that have or will issue securities that are traded in the
over-the-counter market and quotations for which are reported by the
NASDAQ/NMS.
(r) The Company will not make any loan or extend any credit
to Bindley Western Industries, Inc. or any of its affiliates (collectively
"BWI"), including advancing additional funds to BWI under the revolving
credit promissory note described in the Prospectus, and the Company shall,
on or before December 31, 1999, demand repayment from BWI of the loan
balances outstanding under such revolving credit promissory note in the
amount set forth in the Prospectus.
6. REPRESENTATIONS AND WARRANTIES.
The Company hereby, represents and warrants to each Underwriter on
the date hereof, and shall be deemed to represent and warrant to each
Underwriter on the Closing Date and the Additional Closing Date, as the case
may be, that:
(a) The Company satisfies all of the requirements of the Act for
use of Form S-3 for the offering of Shares contemplated hereby. Each
Prepricing Prospectus included as part of the Registration Statement as
originally filed or as part of any amendment or supplement thereto, or
filed pursuant to Rule 424(a) under the Act, complied when so filed in all
material respects with the provisions of the Act, except that this
representation and warranty does not apply to statements in or omissions
from such Prepricing Prospectus (or any amendment or supplement thereto)
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by or on behalf of any
Underwriter through you expressly for use therein. No order preventing or
suspending the use of any Prepricing Prospectus has been issued and no
proceeding for that purpose has been instituted or threatened by the
Commission or the securities authority of any state or other jurisdiction.
(b) The Registration Statement (including any Rule 462
Registration Statement), in the form in which it becomes effective and also
in such form as it may be when any post-effective amendment thereto shall
become effective, and the Prospectus, and any supplement or amendment
thereto when filed with the Commission under Rule 424(b) under the Act,
will comply in all material respects with the provisions of the Act and
will not at any such times contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, except that this
representation and warranty does not apply to statements in or omissions
from the Registration Statement or the Prospectus (or any amendment or
supplement thereto) made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing
by or on behalf of any Underwriter through you expressly for use therein.
(c) The Incorporated Documents heretofore filed, 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 with the
requirements of the Exchange Act and the rules and regulations thereunder,
and any further Incorporated Documents so filed will, when they are filed,
conform in all material respects with the requirements of the Exchange Act
and the rules and regulations thereunder; no such Incorporated Document
when it was filed (or, if an amendment with respect to any such document
was filed, when such amendment was filed), contained an untrue statement of
a material fact or omitted to state a material fact
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required to be stated therein or necessary in order to make the
statements therein not misleading; and no such further Incorporated
Document, when it is filed, will contain an untrue statement of a
material fact or will omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading.
(d) The capitalization of the Company is and will be as set
forth in the Prospectus as of the date set forth therein. All the
outstanding shares of the capital stock of the Company have been, and as of
the Closing Date, and the Additional Closing Date, as the case may be, will
be, duly authorized and validly issued, are fully paid and nonassessable
and are free of any preemptive or similar rights; except as set forth in
the Prospectus, the Company is not a party to or bound by any outstanding
options, warrants, or similar rights to subscribe for, or contractual
obligations to issue, sell, transfer or acquire, any of its capital stock
or any securities convertible into or exchangeable for any of such capital
stock; the Shares to be issued and sold to the Underwriters by the Company
hereunder have been duly authorized and, when issued and delivered to the
Underwriters against payment therefor in accordance with the terms hereof
will be validly issued, fully paid and nonassessable and free of any
preemptive or similar rights; the capital stock of the Company conforms to
the description thereof incorporated by reference in the Registration
Statement and the Prospectus (or any amendment or supplement thereto); and
the delivery of certificates for the Shares against payment therefor
pursuant to the terms of this Agreement, will pass valid title to the
Shares, free and clear of any claim, encumbrance or defect in title, to the
several Underwriters purchasing such shares in good faith and without
notice of any lien, claim or encumbrance. The certificates for the Shares
are in valid and sufficient form.
(e) Each of the Company and its subsidiaries is a corporation
duly organized and validly existing as a corporation in good standing under
the laws of the state of its incorporation with full corporate power and
authority to own, lease and operate its properties and to conduct its
business as presently conducted and as described in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), and
is duly registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its properties
or the conduct of its business requires such registration or qualification,
except where the failure to so register or qualify does not have a material
adverse effect on the condition (financial or other), business, properties,
net worth, results of operations or prospects of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect").
(f) The issued shares of capital stock of each of the Company's
subsidiaries have been duly authorized and validly issued, are fully paid
and nonassessable and are owned by the Company free and clear of any
security interests, liens, encumbrances, equities or claims. The Company
does not have any subsidiaries and does not own a material interest in or
control, directly or indirectly, any other corporation, partnership, joint
venture, association, trust or other business organization, except for
those set forth in exhibit 21 to the Annual Report on Form 10-K of the
Company for the fiscal year ended December 31, 1998. As used in this
Agreement, subsidiaries shall mean direct and indirect subsidiaries of the
Company.
(g) There are no legal or governmental proceedings pending or,
to the best knowledge of the Company, threatened, against the Company or
its subsidiaries or to which the Company or its subsidiaries or any of
their properties are subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto) but are not described as required. Except as described in the
Prospectus, there is no action, suit, inquiry, proceeding, or investigation
by or before any court or governmental or other regulatory or
administrative agency or commission pending or, to the best knowledge of
the Company, threatened, against or involving the Company or its
subsidiaries, which might individually or in the aggregate prevent or
adversely affect the transactions contemplated by this Agreement or result
in a Material Adverse Effect, nor is there any basis for any such action,
suit, inquiry, proceeding, or investigation. There are no agreements,
contracts, indentures, leases or other instruments that are required to be
described in the Registration Statement or the Prospectus (or any amendment
or supplement thereto) or to be filed as an exhibit to or incorporated by
reference in the Registration
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Statement that are not described or filed or incorporated by reference
as required by the Act. All such contracts to which the Company or any
of its subsidiaries is a party have been duly authorized, executed and
delivered by the Company or the applicable subsidiary, constitute valid
and binding agreements of the Company or the applicable subsidiary and
are enforceable against the Company or the applicable subsidiary in
accordance with the terms thereof, and neither the Company or the
applicable subsidiary, nor to the best of the Company's knowledge, any
other party, is in breach of or in default under any of such contracts.
(h) Neither the Company nor any of its subsidiaries is: (i) in
violation of (aa) its articles of incorporation or bylaws or (bb) any law,
ordinance, administrative or governmental rule or regulation applicable to
the Company or any of its subsidiaries the violation of which would have a
Material Adverse Effect or (cc) any decree of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries; or (ii) in default in any material respect in the performance
of any obligation, agreement or condition contained in (aa) any bond,
debenture, note or any other evidence of indebtedness, or (bb) any material
agreement, indenture, lease or other material instrument to which the
Company or any of its subsidiaries is a party or by which any of their
properties may be bound; and there does not exist any state of facts which
constitutes an event of default on the part of the Company or any of its
subsidiaries as defined in such documents or which, with notice or lapse of
time or both, would constitute such an event of default.
(i) The Company's execution and delivery of this Agreement and
the performance by the Company of its obligations under this Agreement have
been duly and validly authorized by the Company, and this Agreement has
been duly executed and delivered by the Company, and this Agreement
constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except to the
extent enforceability may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally or by general
equitable principles and public policy exceptions.
(j) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement by the Company nor the
consummation by the Company of the transactions contemplated hereby or
thereby (i) requires any consent, approval, authorization or other order of
or registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency or official (except such as may
be required for the registration of the Shares under the Act, the listing
of the Shares for trading on the NASDAQ/NMS, and compliance with the
securities or Blue Sky laws of various jurisdictions, all of which will be,
or have been, effected in accordance with this Agreement and except for the
NASD's clearance of the underwriting terms of the offering contemplated
hereby as required under the NASD's Rules of Fair Practice), (ii) conflicts
with or will conflict with or constitutes or will constitute a breach of,
or a default under, the articles of incorporation or bylaws of the Company
or any agreement, indenture, lease or other instrument to which the Company
or any of its subsidiaries is a party or by which any of its properties may
be bound, (iii) violates any statute, law, regulation, ruling, filing,
judgment, injunction, order or decree applicable to the Company or any of
its subsidiaries or any of their properties, or (iv) results in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or its subsidiaries.
(k) Except as described in the Prospectus, neither the Company
nor any of its subsidiaries has outstanding, and at the Closing Date and
the Additional Closing Date, as the case may be, neither the Company nor
any of its subsidiaries will have outstanding, any options to purchase, or
any warrants to subscribe for, or any securities or obligations convertible
into, or any contracts or commitments to issue or sell, any shares of Class
B Common Stock or any such warrants or convertible securities or
obligations. No holder of securities of the Company has rights to the
registration of any securities of the Company as a result of or in
connection with the filing of the Registration Statement or the
consummation of the transactions contemplated hereby that have not been
satisfied or heretofore waived in writing.
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(l) PricewaterhouseCoopers LLP, the certified public accountants
who have certified the financial statements filed as part of the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), are independent public accountants as required by the Act.
(m) The financial statements, together with related schedules
and notes, included in the Registration Statement and the Prospectus (and
any amendment or supplement thereto), present fairly the financial
position, results of operations and changes in financial position of the
Company on the basis stated in the Registration Statement at the respective
dates or for the respective periods to which they apply; such statements
and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout
the periods involved, except as disclosed therein; and the other financial
and statistical information and data set forth in the Registration
Statement and Prospectus (and any amendment or supplement thereto) is
accurately presented and prepared on a basis consistent with such financial
statements and the books and records of the Company. No other financial
statements or schedules are required to be included in the Registration
Statement.
(n) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto), (i)
neither the Company nor any of its subsidiaries has incurred any material
liabilities or obligations, indirect, direct or contingent, or entered into
any transaction which is not in the ordinary course of business or which
could result in a material reduction in the future earnings of the Company;
(ii) neither the Company nor any of its subsidiaries has sustained any
material loss or interference with its business or properties from fire,
flood, windstorm, accident or other calamity, whether or not covered by
insurance; (iii) neither the Company nor any of its subsidiaries has paid
or declared any dividends or other distributions with respect to its
capital stock and the Company is not in default under the terms of any
class of capital stock of the Company or any outstanding debt obligations;
(iv) neither the Company nor any of its subsidiaries has made any loan or
extended any credit to BWI; (v) there has not been any change in the
authorized or outstanding capital stock of the Company or any material
change in the indebtedness of the Company (other than in the ordinary
course of business); and (vi) there has not been any material adverse
change, or any development having or which may reasonably be expected to
have a Material Adverse Effect.
(o) Each of the Company and its subsidiaries has good and
marketable title to all property (real and personal) described in the
Prospectus as being owned by it, free and clear of all liens, claims,
security interests or other encumbrances except (i) such as are described
in the financial statements included or incorporated by reference in the
Prospectus or (ii) such as are not materially burdensome and do not
interfere in any material respect with the use of the property or the
conduct of the business of the Company. All property (real and personal)
held under lease by the Company and its subsidiaries is held by it under
valid, subsisting and enforceable leases with only such exceptions as in
the aggregate are not materially burdensome and do not interfere in any
material respect with the conduct of the business of the Company or its
subsidiaries.
(p) The Company has not distributed and will not distribute any
offering material in connection with the offering and sale of the Shares
other than the Prepricing Prospectus, the Prospectus, or other offering
material, if any, as permitted by the Act.
(q) The Company has not taken, directly or indirectly, any
action which constituted, or any action designed, or which might reasonably
be expected to cause or result in or constitute, under the Act or
otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares or for any other
purpose.
9
(r) The Company is not an "investment company," an "affiliated
person" of, or "promoter" or "principal underwriter" for an investment
company within the meaning of the Investment Company Act of 1940, as
amended.
(s) Each of the Company and its subsidiaries has all permits,
licenses, franchises, approvals, consents and authorizations of
governmental or regulatory authorities (hereinafter "permit" or "permits")
as are necessary to own its properties and to conduct its business in the
manner described in the Prospectus, subject to such qualifications as may
be set forth in the Prospectus, except where the failure to have obtained
any such permit has not and will not have a Material Adverse Effect; each
of the Company and its subsidiaries has fulfilled and performed in all
material respects all of its obligations with respect to each such permit
and no event has occurred which allows, or after notice or lapse of time
would allow, revocation or termination of any such permit 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 described in the Prospectus, such permits
contain no restrictions that are materially burdensome to the Company or
any of its subsidiaries.
(t) Each of the Company and its subsidiaries has complied and
will comply with wage and hour determinations issued by the U.S. Department
of Labor under the Service Contract Act of 1965 and the Fair Labor
Standards Act in paying its employees' salaries, fringe benefits, and other
compensation for the performance of work or other duties in connection with
contracts with the U.S. government, except where the failure to comply has
not had and will not have a Material Adverse Effect. Each of the Company
and its subsidiaries has complied and will comply in all material respects
with the terms of all certifications and representations made to the U.S.
government in connection with the submission of any bid or proposal or any
contract. Each of the Company and its subsidiaries has complied and will
comply with the requirements of the American with Disabilities Act of 1990,
the Family and Medical Leave Act of 1993, the Employee Retirement Income
Security Act, the Civil Rights Act of 1964 (Title VII), as amended, the Age
Discrimination in Employment Act and other applicable federal and state
employment and labor laws, except where the failure to comply has not had
and will not have a Material Adverse Effect.
(u) The Company, and its subsidiaries, maintain a system of
internal accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management's
general or specific authorizations; and (iv) the recorded accountability
for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(v) Neither the Company, at any time, nor any of its
subsidiaries, since each has been held as a subsidiary of the Company, has,
directly or indirectly, (i) made any unlawful contribution to any candidate
for political office, or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any federal, state or foreign
governmental official, or other person charged with similar public or
quasi-public duties, other than payments required or permitted by the laws
of the United States or any jurisdiction thereof or applicable foreign
jurisdictions.
(w) Each of the Company and its subsidiaries has obtained all
required permits, licenses, and other authorizations, if any, which are
required under federal, state, local and foreign statutes, ordinances and
other laws relating to pollution or protection of the environment,
including laws relating to emissions, discharges, releases, or threatened
releases of pollutants, contaminants, chemicals, or industrial, hazardous,
or toxic materials or wastes into the environment (including, without
limitation, ambient air, surface water, ground water, land surface, or
subsurface strata) or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, chemicals, or industrial, hazardous, or toxic
materials or wastes, or any regulation, rule, code, plan, order, decree,
10
judgment, injunction, notice, or demand letter issued, entered,
promulgated, or approved thereunder ("Environmental Laws"), except where
the failure to obtain any such permit, license or other authorization has
not resulted in and will not result in a Material Adverse Effect. Each of
the Company and its subsidiaries is in material compliance with all terms
and conditions of all required permits, licenses, and authorizations, and
are also in material compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules,
and timetables contained in the Environmental Laws. There is no pending
or, to the best knowledge of the Company after due inquiry, threatened
civil or criminal litigation, notice of violation, or administrative
proceeding relating in any way to the Environmental Laws (including but not
limited to notices, demand letters, or claims under the Resource
Conservation and Recovery Act of 1976, as amended ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), the Emergency Planning and Community Right to
Know Act of 1986, as amended ("EPCRA"), the Clan Air Act, as amended
("CAA"), or the Clean Water Act, as amended ("CWA") and similar federal,
foreign, state, or local laws) involving the Company or any of its
subsidiaries. There have not been and there are not any past, present, or
foreseeable future events, conditions, circumstances, activities,
practices, incidents, actions, or plans which may interfere with or prevent
continued compliance, or which may give rise to any common law or legal
liability, or otherwise form the basis of any claim, action, demand, suit,
proceeding, hearing, study, or investigation, based on or related to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling, or the emission, discharge, release, or threatened
release into the environment, of any pollutant, contaminant, chemical, or
industrial, hazardous, or toxic material or waste, including, without
limitation, any liability arising, or any claim, action, demand, suit,
proceeding, hearing, study, or investigation which may be brought, under
RCRA, CERCLA, EPCRA, CAA, CWA or similar federal, foreign, state or local
laws.
(x) Each of the Company and its subsidiaries owns and has full
right, title and interest in and to, or has valid licenses to use, each
material trade name, trademark or service xxxx under which each of the
Company and its subsidiaries conducts all or any material part of its
business, and the Company has created no lien or encumbrance on, or granted
any right or license with respect to, any such trade name, trademark or
service xxxx; there is no claim pending against the Company or any of its
subsidiaries with respect to any trade name, trademark or service xxxx and
neither the Company nor any of its subsidiaries has received notice that
any trade name, trademark or service xxxx which it uses or has used in the
conduct of its business infringes upon or conflicts with the rights of any
third party. Neither the Company nor any of its subsidiaries has become
aware that any material trade name, trademark or service xxxx which it uses
or has used in the conduct of its business infringes upon or conflicts with
the rights of any third party.
(y) All offers, sales, conversions and redemptions of the
Company's capital stock and other securities through the date hereof were
made in compliance with the Act and all other applicable state and federal
laws or regulations.
(z) The Shares have been duly authorized for trading on the
NASDAQ/NMS under the symbol "PHCC," subject to notice of issuance of the
Shares being sold by the Company, and upon consummation of the offering
contemplated hereby the Company will be in compliance with the designation
and maintenance criteria applicable to Nasdaq National Market issuers.
(aa) All federal, state, local and foreign tax returns required
to be filed by or on behalf of the Company and its subsidiaries (and their
predecessors) with respect to all periods ended prior to the date of this
Agreement have been filed (or are the subject of valid extension) with the
appropriate federal, state, local and foreign authorities and all such tax
returns, as filed, are accurate in all material respects. All federal,
state, local and foreign taxes (including estimated tax and sales tax
payments) required to be shown on all such tax returns or claimed to be due
from or with respect to the business of the Company and its
11
subsidiaries (and their predecessors) have been paid or reflected as a
liability on the financial statements of the Company included or
incorporated by reference in the Prospectus for appropriate periods,
except for those taxes or claims therefor which are being contested by
the Company in good faith and for which appropriate reserves are
reflected in the Company's financial statements included or incorporated
by reference in the Prospectus. Except as disclosed in the Prospectus,
all deficiencies asserted as a result of any federal, state, local or
foreign tax audits have been paid or finally settled and no issue has
been raised in any such audit which, by application of the same or
similar principles, reasonably could be expected to result in a proposed
deficiency for any other period not so audited. There are no outstanding
agreements or waivers extending the statutory period of limitation
applicable to any federal, state, local or foreign tax return for any
period. On the Closing Date, and the Additional Closing Date, as the
case may be, all stock transfer and other taxes which are required to be
paid in connection with the sale of the shares to be sold by the Company
to the Underwriters will have been fully paid by the Company and all
laws imposing such taxes will have been complied with.
(bb) Except as set forth in the Prospectus or incorporated by
reference in the Registration Statement, there are no transactions with
"affiliates" (as defined in Rule 405 promulgated under the Act) or any
officer, director or security holder of the Company (whether or not an
affiliate) which are required by the Act and the applicable rules and
regulations thereunder to be disclosed.
(cc) The Company has procured the written agreement of its
officers and directors not to (i) directly or indirectly sell, offer or
contract to sell or otherwise dispose of or transfer any shares of Company
Securities owned or controlled by such persons now or hereafter or any
rights to purchase Company Securities for a period of 120 days after the
date of the Prospectus first filed pursuant to Rule 424(b) under the Act
(the "Restriction Period"), without your prior written consent, or
(ii) exercise or seek to exercise or effectuate in any manner any rights of
any nature that such persons have or may hereafter have to require the
Company to register under the Act any such person's sale, transfer or other
disposition of any Company Securities or other securities of the Company
held by any such persons, or to otherwise participate as a selling
securityholder in any manner in any registration effected by the Company
under the Act, including the registration to which this Agreement relates,
before the expiration of the Restriction Period.
(dd) Neither the Company nor any of its subsidiaries (i) conduct
business or have affiliates which conduct business in or with Cuba, (ii)
plan to commence doing business in or with Cuba after the effective date of
the Registration Statement or (iii) are required by Florida law to report a
material change in information previously reported to the State of Florida
regarding business conducted in or with Cuba.
(ee) No officer, director, nominee for director or shareholder of
the Company has a direct or indirect affiliation or association with any
member of the NASD.
7. EXPENSES. Whether or not the transactions contemplated hereby are
consummated or this Agreement becomes effective or is terminated, the Company
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof and of any Prepricing Prospectus to the Underwriters and
dealers; (ii) the printing and delivery (including, without limitation, postage,
air freight charges and charges for counting and packaging) of such copies of
the Registration Statement, the Prospectus, each Prepricing Prospectus, the
Incorporated Documents, the Blue Sky memoranda, the Master Agreement Among
Underwriters, this Agreement, the Selected Dealers Agreement 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 Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws or Blue Sky laws, including the reasonable attorneys' fees
and out-of-pocket expenses of the counsel for the Underwriters in connection
therewith; (iv) the filing fees incident to securing any
12
required review by the NASD of the terms of the sale of the Shares and the
reasonable fees and disbursements of the Underwriters' counsel relating
thereto; (v) the cost of preparing stock certificates; (vi) the costs and
charges of any transfer agent or registrar; (vii) the cost of the tax stamps,
if any, in connection with the issuance and delivery of the Shares to the
respective Underwriters; (viii) all other fees, costs and expenses referred
to in Item 13 of the Registration Statement, (ix) the transportation,
lodging, graphics and other expenses incidental to the Company's preparation
for and participation in the "roadshow" for the offering contemplated hereby,
and (x) all other costs and expenses incident to the performance of the
obligations of the Company hereunder which are not otherwise specifically
provided for in this Section 7. Notwithstanding the foregoing, in the event
that the proposed offering is terminated for the reasons set forth in Section
5(i) hereof, the Company agrees to reimburse the Underwriters as provided in
Section 5(i).
8. INDEMNIFICATION AND CONTRIBUTION. Subject to the limitations in
this paragraph below, the Company agrees to indemnify and hold harmless you and
each other Underwriter, the directors, officers, employees and agents of each
Underwriter, and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages, liabilities and expenses,
including, without limitation, reasonable costs of investigation and attorneys'
fees and expenses (collectively, "Damages") arising out of or based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in any
Prepricing Prospectus or in the Registration Statement or the Prospectus or in
any amendment or supplement thereto, or 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 to the extent that any such
Damages arise out of or are based upon an untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information furnished in
writing to the Company by or on behalf of any Underwriter through you expressly
for use in connection therewith, or (ii) any inaccuracy in or breach of the
representations and warranties of the Company contained herein or any failure of
the Company to perform its obligations hereunder or under law; PROVIDED,
HOWEVER, that with respect to any untrue statement or omission made in any
Prepricing Prospectus, the indemnity agreement contained in this paragraph shall
not inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such losses,
claims, damages or liabilities purchased the Shares concerned if both (y) a copy
of the Prospectus was not sent or given to such person at or prior to the
written confirmation of the sale of such Shares to such person as required by
the Act, and (z) the untrue statement or omission in the Prepricing Prospectus
was corrected in the Prospectus.
In addition to its other obligations under this Section 8, the Company
agrees that, as an interim measure during the pendency of any claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
untrue statement or omission, or any inaccuracy in the representations and
warranties of the Company herein or failure to perform its obligations
hereunder, all as set forth in this Section 8, it will reimburse each
Underwriter on a quarterly basis for all reasonable legal or other out-of-pocket
expenses incurred in connection with investigating or defending any such claim,
action, investigation, inquiry or other proceeding, notwithstanding the absence
of a judicial determination as to the propriety and enforceability of the
obligation of the Company to reimburse each Underwriter for such expenses and
the possibility that such payments might later be held to have been improper by
a court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, each Underwriter shall
promptly return it to the person(s) from whom it was received, together with
interest compounded daily determined on the basis of the base lending rate
announced from time to time by Chase Manhattan Bank, N.A. (the "Prime Rate").
Any such interim reimbursement payments which are not made to the Underwriters
within 30 days of a request for reimbursement shall bear interest at the Prime
Rate from the date of such request.
If any action or claim shall be brought against any Underwriter or any
person controlling any Underwriter in respect of which indemnity may be sought
against the Company, such Underwriter or such controlling person shall promptly
notify in writing the Company, and the Company shall assume the defense thereof,
including the employment of counsel reasonably acceptable to such Underwriter or
such controlling person and payment of all fees and expenses. Such Underwriter
or any such controlling person shall have the right to employ separate counsel
13
(but the Company shall not be liable for the fees and expenses of more than
one counsel) in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person unless (i) the Company has agreed in
writing to pay such fees and expenses, (ii) the Company has failed to assume
the defense and employ counsel reasonably acceptable to the Underwriter or
such controlling person or (iii) the named parties to any such action
(including any impleaded parties) include both such Underwriter or such
controlling person and the Company, and such Underwriter or such controlling
person shall have been advised by its counsel that one or more legal defenses
may be available to the Underwriter which may not be available to the
Company, or that representation of 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 on behalf of such Underwriter or such controlling
person (notwithstanding its obligation to bear the fees and expenses of such
counsel)). The Company shall not be liable for any settlement of any such
action 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, the Company agrees to indemnify and hold harmless any Underwriter and
any such controlling person from and against any loss, claim, damage,
liability or expense by reason of such settlement or judgment, but in the
case of a judgment only to the extent stated in the immediately preceding
paragraph.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, and its officers who sign the
Registration Statement, and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each Underwriter,
but only with respect to information furnished in writing by or on behalf of
such Underwriter through you expressly for use in the Registration Statement,
the Prospectus or any Prepricing Prospectus, or any amendment or supplement
thereto. If any action or claim shall be brought or asserted against the
Company, any of its directors, any such officers, or any such controlling
person based on the Registration Statement, the Prospectus or any Prepricing
Prospectus, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Underwriter pursuant to this paragraph,
such Underwriter shall have the rights and duties given to the Company by the
preceding paragraph (except that if the Company shall have assumed the
defense thereof such Underwriter shall not be required to do so, but may
employ separate counsel therein and participate in the defense thereof, but
the fees and expenses of such counsel shall be at such Underwriter's
expense), and the Company, its directors, any such officers, and any such
controlling persons shall have the rights and duties given to the
Underwriters by the immediately preceding paragraph.
If the indemnification provided for in this Section 8 is unavailable or
insufficient for any reason whatsoever to an indemnified party under the
first or fourth paragraph of this Section 8 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 (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company 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 shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus; provided that, in the
event that the Underwriters shall have purchased any Additional Shares
hereunder, any determination of the relative benefits received by the Company
or the Underwriters from the offering of the Shares shall include the net
proceeds (before deducting expenses) received by the Company, and the
underwriting discounts and commissions received by the Underwriters, from the
sale of such Additional Shares. 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
14
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.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8 was determined by a pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as a result of
the losses, claims, damages, liabilities and expenses referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price of the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 8 are several in proportion to the
respective numbers of Firm Shares set forth opposite their names in Schedule
I hereto (or such numbers of Firm Shares increased as set forth in Section 10
hereof) and not joint.
Notwithstanding the second paragraph of this Section 8, any losses,
claims, damages, liabilities or expenses for which an indemnified party is
entitled to indemnification or contribution under this Section 8 shall be
paid by the indemnifying party to the indemnified party as such losses,
claims, damages, liabilities or expenses are incurred. The indemnity,
contribution and reimbursement agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement
shall remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Company, its directors or officers or any
person controlling the Company, (ii) acceptance of any Shares and payment
therefor hereunder and (iii) any termination of this Agreement. A successor
to any Underwriter or any person controlling any Underwriter, or to the
Company, its directors or officers, or any person controlling the Company,
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 8.
It is agreed that any controversy arising out of the operation of the
interim reimbursement arrangements set forth in the second paragraph of this
Section 8, including the amounts of any requested reimbursement payments and
the method of determining such amounts, shall be settled by arbitration
conducted pursuant to the Code of Arbitration Procedure of the NASD. Any
such arbitration must be commenced by service of a written demand for
arbitration or written notice of intention to arbitrate, therein electing the
arbitration tribunal. In the event the party demanding arbitration does not
make such designation of an arbitration tribunal in such demand or notice,
then the party responding to said demand or notice is authorized to do so.
Such an arbitration would be limited to the operation of the interim
reimbursement provisions contained in the second paragraph of this Section 8,
and would not resolve the ultimate propriety or enforceability of the
obligation to reimburse expenses which is created by the provisions of the
second paragraph of this Section 8.
9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase the Firm Shares hereunder are subject to the
following conditions:
(a) The Registration Statement shall have become effective not
later than 12:00 noon, New York City time, on the date hereof, or at such
later date and time as shall be consented to in writing by you, and all
filings required by Rules 424(b), 430A and 462 under the Act shall have
been timely made.
(b) You shall be reasonably satisfied that since the respective
dates as of which information are given in the Registration Statement and
Prospectus, (i) there shall not have been any change in the
15
capital stock of the Company or any material change in the indebtedness
(other than in the ordinary course of business) of the Company, (ii)
except as set forth or contemplated by the Registration Statement or the
Prospectus, no material oral or written agreement or other transaction
shall have been entered into by the Company which is not in the ordinary
course of business or which could reasonably be expected to result in a
material reduction in the future earnings of the Company, (iii) no loss
or damage (whether or not insured) to the property of the Company shall
have been sustained which had or could reasonably be expected to have a
Material Adverse Effect, (iv) no legal or governmental action, suit or
proceeding affecting the Company or any of its properties which is
material to the Company or which affects or could reasonably be expected
to affect the transactions contemplated by this Agreement shall have
been instituted or threatened, and (v) there shall not have been any
material change in the condition (financial or otherwise), business,
management, results of operations or prospects of the Company or its
subsidiaries which makes it impractical or inadvisable in your judgment
to proceed with the public offering or purchase the Shares as
contemplated hereby.
(c) You shall have received on the Closing Date an opinion of
Xxxxx & Xxxxxxx, counsel to the Company, to the effect that:
(i) The Company is a corporation duly incorporated and
validly existing under the laws of the State of Indiana, with full
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto), and is duly registered or otherwise qualified
to conduct its business as a foreign corporation and is in good
standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration
or qualification, except where the failure to so register or qualify
does not have a Material Adverse Effect.
(ii) Each of the Company's subsidiaries is a corporation
validly existing in good standing under the laws of the jurisdiction
of its organization, with full corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus (and any
amendment or supplement thereto); and is duly registered and
qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification,
except where the failure to so register or qualify does not have a
Material Adverse Effect; and all of the outstanding shares of
capital stock of each of the subsidiaries have been duly authorized
and validly issued, and are fully paid and nonassessable, and are
owned by the Company directly, or indirectly through one of the
other subsidiaries, free and clear of any perfected security
interest, or to the best knowledge of such counsel after reasonable
inquiry, any other security interest, lien, adverse claim, equity or
other encumbrance.
(iii) The authorized and the aggregate outstanding capital
stock of the Company is as set forth in the Prospectus under the
caption "Capitalization" and the capital stock of the Company
conforms to the description in all material respects to the
description thereof incorporated by reference in the Prospectus.
Except as set forth in the Prospectus, to the best of such counsel's
knowledge, the Company is not a party to or bound by any outstanding
options, warrants or similar rights to subscribe for, or contractual
obligations to issue, sell, transfer or acquire, any of its capital
stock or any securities convertible into or exchangeable for any of
such capital stock.
(iv) All shares of capital stock of the Company
outstanding prior to the issuance of the Shares to be issued and
sold by the Company hereunder, have been duly authorized and validly
issued, are fully paid and nonassessable and are free of any
preemptive or, to the best knowledge of such counsel, similar rights
that entitle or will entitle any person to acquire any
16
Shares upon the issuance thereof by the Company, and no such
rights will exist as of the Closing Date.
(v) All offers and sales of the Company's securities
heretofore have been made in compliance in all material respects
with the registration requirements of the Act and other applicable
state securities laws or regulations or applicable exemptions
therefrom.
(vi) The Shares to be issued and sold to the Underwriters
by the Company hereunder have been duly authorized and, when issued
and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, (A) such Shares will be validly
issued, fully paid and nonassessable and free of any preemptive or,
to the best knowledge of such counsel, similar rights that entitle
or will entitle any person to acquire any Shares upon the issuance
thereof by the Company, and (B) good, valid and marketable title to
such Shares issued hereunder, free and clear of any claim,
encumbrance or defect in title of any nature (other than any arising
by or through the Underwriters), will pass to each Underwriter that
has purchased any portion of such Shares in good faith and without
knowledge of any such claim, encumbrance or defect.
(vii) The form of certificates for the Shares conforms in
all material respects to the requirements of the applicable
corporate laws of the State of Indiana.
(viii) The Registration Statement has become effective
under the Act and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose are pending before
or contemplated by the Commission.
(ix) The Company has all requisite corporate power and
authority to enter into this Agreement and to issue, sell and
deliver the Shares to be sold by it to the Underwriters as provided
herein, and this Agreement has been duly authorized, executed and
delivered by the Company and is a valid, legal and binding agreement
of the Company enforceable against the Company in accordance with
its terms, except to the extent enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally or by general equitable
principles, and except to the extent enforceability of the
provisions relating to indemnity and contribution for liabilities
under the Act may be limited by or under the Act, or by public
policy.
(x) Neither the Company nor any of the subsidiaries is
in violation of its certificate of incorporation or bylaws, and, to
the best knowledge of such counsel, the Company is not in default in
the performance of any obligation, agreement or condition contained
in any bond, indenture, note or other evidence of indebtedness or
any other agreement or obligation of the Company, where the default
would have, individually or in the aggregate, a Material Adverse
Effect.
(xi) Neither the offer, sale or delivery of the Shares,
the execution, delivery or performance of this Agreement, compliance
by the Company with all provisions hereof nor consummation by the
Company of the transactions contemplated hereby (A) conflicts or
will conflict with or constitutes or will constitute a breach of, or
a default under, the certificate of incorporation or bylaws of the
Company or any material agreement, indenture, lease or other
instrument known to such counsel to which the Company is a party or
by which any of its properties is bound, (B) creates or will result
in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company, or (C) violates or will
result in any violation of any existing law, statute, regulation,
ruling (assuming compliance with all applicable
17
state securities and Blue Sky laws), judgment, injunction, order
or decree which is known to such counsel and applicable to the
Company or any of its properties.
(xii) No consent, approval, authorization or other order
of, or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official
is required on the part of the Company (except such as have been
obtained under the Act or such as may be required under state
securities or Blue Sky laws governing the purchase and distribution
of the Shares) for the valid issuance and sale of the Shares to the
Underwriters under this Agreement.
(xiii) The Registration Statement and the Prospectus and
any supplements or amendments thereto (except for the financial
statements and the notes and the schedules thereto and other
financial and statistical data included therein, as to which such
counsel need not express any opinion) comply as to form in all
material respects with the requirements of the Act. Without
limiting the generality of the foregoing, any Rule 434 Prospectus
conforms in all material respects with the requirements of Rule 434
under the Act.
(xiv) To the best knowledge of such counsel, (A) there are
no legal or governmental proceedings pending or threatened against
the Company or any of its subsidiaries or to which the Company or
any of its subsidiaries or any of their respective properties is
subject, that are required to be described in the Registration
Statement or Prospectus (or any amendment or supplement thereto)
that are not described as required therein, and (B) there are no
agreements, contracts, indentures, leases or other instruments that
are required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to or incorporated by
reference in the Registration Statement that are not described or
filed or incorporated by reference as required, as the case may be.
(xv) The properties described in the Prospectus as held
under lease by the Company are held under duly executed leases.
(xvi) Such counsel has reviewed all agreements, contracts,
indentures, leases or other documents or instruments described or
referred to in the Registration Statement and the Prospectus (other
than routine contracts entered into by the Company for the purchase
of materials or the sale of products entered into in the normal
course of business, although such counsel has reviewed the forms of
such routine contracts), and such agreements, contracts (and forms
of contracts), indentures, leases or other documents or instruments
are fairly summarized or disclosed in all material respects therein,
and filed or incorporated by reference as exhibits thereto as
required, and such counsel does not know of any agreements,
contracts, indentures, leases or other documents or instruments
required to be so summarized or disclosed or filed or incorporated
by reference which have not been so summarized or disclosed or filed
or incorporated by reference.
(xvii) The descriptions in the Prospectus of statutes,
regulations or legal or governmental proceedings, insofar as they
purport to summarize certain of the provisions thereof, are accurate
in all material respects and fairly present the information required
to be presented by the Act and the rules and regulations thereunder.
(xviii) The Company is not an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
18
(xix) The Company and its subsidiaries have such permits,
licenses, franchises, approvals, consents and authorizations of
federal governmental or regulatory authorities (collectively the
"Federal Permits"), as are necessary for the Company and its
subsidiaries to own their properties and to conduct their business
in the manner described in the Prospectus, except where the failure
to have such Federal Permits would not individually or in the
aggregate have a Material Adverse Effect.
In rendering such opinion, in each case where such opinion is
qualified by "the best knowledge of such counsel" or "known to such
counsel", such counsel may rely as to matters of fact upon certificates of
executive and other officers and employees of the Company as you and such
counsel shall deem are appropriate and such other procedures as you and
such counsel shall mutually agree; provided, however, in each such case,
such counsel shall state that it has no knowledge contrary to the
information contained in such certificates or developed by such procedures
and knows of no reason why you should not reasonably rely upon the
information contained in such certificates or developed by such procedures.
Such counsel may state in such opinion that its knowledge is limited to the
knowledge of its attorneys and other representatives and employees that
have given attention to the Company's matters in connection with the
transactions contemplated by this Agreement.
In addition to the opinion set forth above, such counsel shall state
that during the course of their participation in the preparation of the
Registration Statement and the Prospectus and the amendments thereto, nothing
has come to the attention of such counsel which has caused them to believe or
given them reason to believe that the Registration Statement or the
Prospectus or any amendment thereto (except for the financial statements and
other financial and statistical information contained therein or omitted
therefrom as to which no opinion need be expressed), at the date thereof,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Registration Statement or the
Prospectus as of the date of the opinion (except as aforesaid), contains an
untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(d) You shall have received on the Closing Date an opinion of
Xxxxx & Xxxxxxx, as special Food and Drug Administration ("FDA") counsel to
the Company, substantially to the effect that the FDA would not require the
Company to file a New Drug Application with respect to its Priority
Healthcare Pharmacy.
(e) You shall have received on the Closing Date an opinion of
special counsel to the Company, to the effect that: (i) the Company and its
subsidiaries have such permits, licenses, franchises, approvals, consents
and authorizations of Florida governmental or regulatory authorities
(collectively the "Florida Permits"), as are necessary for the Company and
its subsidiaries to own their properties and to conduct their business in
the manner described in the Prospectus, except where the failure to have
such Florida Permits would not individually or in the aggregate have a
Material Adverse Effect; and (ii) neither the Company nor any of its
subsidiaries is in violation of any federal or Florida law, ordinance,
administrative or governmental rule or regulation applicable thereto or of
any decree of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries except where such violation
does not and will not have a Material Adverse Effect.
In rendering such opinion, counsel may rely, to the extent they deem
such reliance proper, as to matters of fact upon certificates of officers
of the Company and of government officials, provided that counsel shall
state their belief that they and you are justified in relying thereon.
Copies of all such certificates shall be furnished to you and your counsel
on the Closing Date.
19
(f) You shall have received on the Closing Date an opinion of
Xxxxxxxxx Xxxxxxx, P.A., as counsel for the Underwriters, dated the Closing
Date with respect to the issuance and sale of the Shares, the Registration
Statement and other related matters as you may reasonably request, and the
Company and its counsel shall have furnished to your counsel such documents
as they may reasonably request for the purpose of enabling them to pass
upon such matters.
(g) You shall have received letters addressed to you and dated
the date hereof and the Closing Date from (i) the firm of
PricewaterhouseCoopers LLP, independent certified public accountants, and
(ii) the Chief Financial Officer of the Company, substantially in the forms
heretofore approved by you.
(h) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or, to the knowledge of the Company, shall be
threatened or contemplated by the Commission at or prior to the Closing
Date; (ii) no order suspending the effectiveness of the Registration
Statement or the qualification or registration of the Shares under the
securities or Blue Sky laws of any jurisdiction shall be in effect and no
proceeding for such purpose shall be pending or, to the knowledge of the
Company, threatened or contemplated by the Commission or the authorities of
any jurisdiction; (iii) any request for additional information on the part
of the staff of the Commission or any such authorities shall have been
complied with to the satisfaction of the staff of the Commission or such
authorities; (iv) after the date hereof no amendment or supplement to the
Registration Statement or the Prospectus shall have been filed unless a
copy thereof was first submitted to you and you did not object thereto in
good faith; and (v) all of the representations and warranties of the
Company contained in this Agreement shall be true and correct in all
respects on and as of the date hereof and on and as of the Closing Date as
if made on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed by the chief executive
officer and the chief financial officer of the Company (or such other
officers as are acceptable to you) to the effect set forth in this Section
9(h) and in Sections 9(b) and 9(i) hereof.
(i) The Company shall not have failed in any material respect at
or prior to the Closing Date to have performed or complied with any of its
agreements herein contained and required to be performed or complied with
by it hereunder at or prior to the Closing Date.
(j) The Company shall have furnished or caused to have been
furnished to you such further certificates and documents as you shall have
reasonably requested.
(k) At or prior to the Closing Date, you shall have received the
written commitment of each of the Company's officers and directors not to
(i) directly or indirectly sell, offer or contract to sell, or otherwise
dispose of or transfer any shares of Company Securities owned or controlled
by such persons now or hereafter or any rights to purchase Company
Securities, before the expiration of the Restriction Period, without your
prior written consent, or (ii) exercise or seek to exercise or effectuate
in any manner any rights of any nature that such persons have or may
hereafter have to require the Company to register under the Act any such
person's sale, transfer or other disposition of any Company Securities or
other securities of the Company held by any such persons, or to otherwise
participate as a selling securityholder in any manner in any registration
effected by the Company under the Act, including the registration to which
this Agreement relates, before the expiration of the Restriction Period.
(l) At or prior to the effective date of the Registration
Statement, you shall have received a letter from the Corporate Financing
Department of the NASD confirming that such Department has determined to
raise no objections with respect to the fairness or reasonableness of the
underwriting terms and arrangements of the offering contemplated hereby.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
20
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of the Additional
Closing Date of the conditions set forth in this Section 9, except that, if
the Additional Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in paragraphs (c) through (j) shall be dated
as of the Additional Closing Date and the opinions called for by paragraphs
(c) through (f) shall be revised to reflect the sale of Additional Shares.
If any of the conditions hereinabove provided for in this Section 9
shall not have been satisfied when and as required by this Agreement, this
Agreement may be terminated by you by notifying the Company of such
termination in writing or by telegram at or prior to such Closing Date, but
you shall be entitled to waive any of such conditions.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective upon the later of (a) the execution and delivery hereof by the
parties hereto, and (b) release of notification of the effectiveness of the
Registration Statement by the Commission; provided, however, that the
provisions of Sections 7 and 8 shall at all times be effective.
If any one or more of the Underwriters shall fail or refuse to purchase
Firm Shares which it or they have agreed to purchase hereunder, and the
aggregate number of Firm Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate number of the Firm Shares, each non-defaulting
Underwriter shall be obligated, severally, in the proportion which the number
of Firm Shares set forth opposite its name in Schedule I hereto bears to the
aggregate number of Firm Shares set forth opposite the names of all
non-defaulting Underwriters or in such other proportion as you may specify in
the Agreement Among Underwriters, to purchase the Firm Shares which such
defaulting Underwriter or Underwriters agreed, but failed or refused to
purchase. If any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Firm Shares and arrangements satisfactory to you and the Company for the
purchase of such Firm Shares are not made within 48 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter 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
(7) days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any such default of any
such Underwriter under this Agreement.
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 the Additional Closing Date (if different from the Closing Date and
then only as to the Additional Shares), as the case may be, in your sole
judgment, (i) trading in the Company's Class B Common Stock shall have been
suspended by the Commission or the NASDAQ/NMS, (ii) trading in securities
generally on the New York Stock Exchange, American Stock Exchange or
NASDAQ/NMS shall have been suspended or materially limited, or minimum or
maximum prices shall have been generally established on such exchange, or
additional material governmental restrictions, not in force on the date of
this Agreement, shall have been imposed upon trading in securities generally
by any such exchange or by order of the Commission or any court or other
governmental authority, (iii) a general moratorium on commercial banking
activities shall have been declared by either federal or New York State
authorities or (iv) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions or other material event the
effect of which on the financial markets of the United States is such as to
make it, in your judgment, impracticable or inadvisable to market the Shares
or to enforce contracts for the sale of the Shares. Notice of such
cancellation shall be promptly given to the Company and its counsel by
telegraph, telecopy or telephone and shall be subsequently confirmed by
letter.
21
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The Company
acknowledges that (i) the last paragraph on the cover page of the Prospectus,
and (ii) the fifth, seventh, eighth, ninth and tenth paragraphs under the
caption "Underwriting" in any Prepricing Prospectus and in the Prospectus,
constitute the only information furnished by or on behalf of the Underwriters
through you or on your behalf as such information is referred to in Sections
6(a), 6(b) and 8 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5 and 11
hereof, notice given pursuant to any of the provisions of this Agreement
shall be in writing and shall be delivered (i) if to the Company to the
office of the Company at 000 Xxxx Xxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxx (with copy to Xxxxx &
Xxxxxxx, 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxx, 00000,
Attention: Xxxxx X. Xxxxxxxxx, Esq.), or (iii) if to you, as Representative
of the Underwriters, to Xxxxxxx Xxxxx & Associates, Inc., 000 Xxxxxxxx
Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, Managing
Director (with copy to Xxxxxxxxx Xxxxxxx, P.A., 0000 Xxxxxxxx Xxxxxx, Xxxxx,
Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx, Esq.).
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company and their respective directors and officers.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida without
reference to choice of law principles thereunder.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
This Agreement shall be effective when, but only when, at least one
counterpart hereof shall have been executed on behalf of each party hereto.
The Company and the Underwriters each hereby irrevocably waive any right
they may have to a trial by jury in respect to any claim based upon or
arising out of this Agreement or the transactions contemplated hereby.
22
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the several Underwriters.
Very truly yours,
PRIORITY HEALTHCARE CORPORATION
By: ------------------------------------
Xxxxxx X. Xxxxx
President and Chief Executive Officer
CONFIRMED as of the date first above
mentioned, on behalf of the Representatives
and the other several Underwriters named
in Schedule I hereto.
XXXXXXX XXXXX & ASSOCIATES, INC.
By: ---------------------------
Xxxxx X. Xxxxxxx
Authorized Representative
23
SCHEDULE I
NUMBER OF
NAME FIRM
SHARES
----------------------------------------------------------------- ----------
Xxxxxxx Xxxxx & Associates, Inc . . . . . . . . . . . . . . . .
First Union Capital Markets Corp.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
NationsBanc Xxxxxxxxxx Securities LLC
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SunTrust Equitable Securities
Corporation . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
------------------------
TOTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,600,000
