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EXHIBIT 1.1
Draft of November 11, 1997
3,000,000 SHARES
AMERICAN PHYSICIAN PARTNERS, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
, 1997
XXXXX XXXXXX INC.
BANCAMERICA XXXXXXXXX XXXXXXXX
XXXXX & COMPANY
XXXXX XXXXXXX INC.
As Representatives of the Several Underwriters
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
American Physician Partners, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell an aggregate of 3,000,000 shares (the
"Firm Shares") of its common stock, par value $0.0001 per share (the "Common
Stock"), to the several Underwriters named in Schedule I hereto (the
"Underwriters"). In addition, solely for the purpose of covering
over-allotments, the Company proposes to sell to the Underwriters, upon the
terms and conditions set forth in Section 2 hereof, up to an additional 450,000
shares (the "Additional Shares") of Common Stock. The Firm Shares and the
Additional Shares are hereinafter collectively referred to as the "Shares."
Concurrently with the closing of the transactions contemplated
hereby, the Company will acquire certain tangible and intangible assets, and
assume certain liabilities, of seven radiology practices (the "Founding
Affiliated Practices") located in California, Kansas, Maryland, New York and
Texas (the "Reorganizations").
The Company wishes to confirm as follows its agreement with
you (the "Representatives") and the other several Underwriters on whose behalf
you are acting, in connection with the several purchases of the Shares by the
Underwriters.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
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(collectively, the "Act"), a registration statement on Form S-1 under the Act
(the "registration statement"), including a prospectus subject to completion,
relating to the Shares. The term "Registration Statement" as used in this
Agreement means the registration statement (including all financial schedules
and exhibits) as amended at the time it becomes effective or, if the
registration statement became effective prior to the execution of this
Agreement, as supplemented or amended prior to the execution of this Agreement.
If it is contemplated, at the time this Agreement is executed, that a
post-effective amendment to the registration statement will be filed and must
be declared effective before the offering of the Shares may commence, the term
"Registration Statement" as used in this Agreement means the registration
statement as amended by said post-effective amendment. If an abbreviated
registration statement relating to the offering of the Shares is prepared and
filed with the Commission in accordance with Rule 462(b) under the Act (an
"Abbreviated Registration Statement"), the term "Registration Statement" as
used in this Agreement includes the Abbreviated Registration Statement. The
term "Prospectus" as used in this Agreement means the prospectus in the form
included in the Registration Statement, or, if the prospectus included in the
Registration Statement omits information in reliance on Rule 430A under the Act
and such information is included in a prospectus filed with the Commission
pursuant to Rule 424(b) under the Act, the term "Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement as supplemented by the addition of the Rule 430A information
contained in the prospectus filed with the Commission pursuant to Rule 424(b).
The term "Prepricing Prospectus" as used in this Agreement means the prospectus
subject to completion in the form included in the registration statement at the
time of the initial filing of the registration statement with the Commission
and as such prospectus shall have been amended from time to time prior to the
date of the Prospectus.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees,
subject to all the terms and conditions set forth herein, to issue and sell to
each Underwriter and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each Underwriter agrees, severally and not
jointly, to purchase from the Company, at a purchase price of $ per share
(the "purchase price per share"), the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule I hereto (or such number of Firm
Shares increased as set forth in Section 10 hereof). The foregoing
notwithstanding, the purchase price per share with respect to any Shares sold
by the Underwriters to GE Capital Corporation shall be $ .
The Company also agrees, subject to all the terms and
conditions set forth herein, 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 to purchase from the Company, at the purchase
price per share, pursuant to an option (the "over-allotment option") which may
be exercised at any time and from time to time prior to 9:00 p.m., New York
City time, on the 30th day after the date of the Prospectus (or, if such 30th
day shall be a Saturday or Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange is open for trading), up to an
aggregate of 450,000 Additional Shares from the Company. Additional Shares may
be purchased solely to cover over-allotments made in connection with the
offering of the Firm Shares. Upon any exercise of the over-allotment option,
each Underwriter, severally and not jointly, agrees to purchase from the
Company the number of Additional Shares (subject to such adjustments as you may
determine in order to avoid fractional shares) which bears the same proportion
to the aggregate number of Additional Shares to be purchased by the
Underwriters as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number of Firm Shares increased as
set forth in Section 10 hereof) bears to the aggregate number of Firm Shares.
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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 and payment for the Firm Shares shall be made at the office of
Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00
A.M., New York City time, on , 1997 (the "Closing Date"). The place
of closing for the Firm Shares and the Closing Date may be varied by agreement
between you and the Company.
Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at the aforementioned
office of Xxxxx Xxxxxx Inc. at such time on such date (the "Option Closing
Date"), which may be the same as the Closing Date but shall in no event be
earlier than the Closing Date nor earlier than two nor later than ten business
days after the giving of the notice hereinafter referred 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. The place of closing for any Additional
Shares and the Option Closing Date for such Additional Shares 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 by written notice, it being understood that
a facsimile transmission shall be deemed written notice, prior to 9:30 A.M.,
New York City time, on the second business day preceding the Closing Date or
any Option Closing Date, as the case may be. Such certificates shall be made
available to you in New York City for inspection and packaging not later than
9:30 A.M., New York City time, on the business day next preceding the Closing
Date or the Option Closing Date, as the case may be. 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 Option Closing Date, as
the case may be, against payment of the purchase price therefor in immediately
available funds.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters as follows:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for the registration statement or a post-effective
amendment thereto or any Abbreviated Registration Statement to be declared or,
in the case of an Abbreviated Registration Statement, to become effective
before the offering of the Shares may commence, the Company will endeavor to
cause the registration statement or such post-effective amendment or
Abbreviated Registration Statement to be declared or become effective, as the
case may be, as soon as possible and will advise you promptly and, if requested
by you, will confirm such advice in writing, when the registration statement or
such post-effective amendment or Abbreviated Registration Statement has become
effective.
(b) The Company will advise you promptly and, if
requested by you, will confirm such advice in writing: (i) of any request by
the Commission for amendment of or a supplement to the registration statement,
any Prepricing Prospectus or the Prospectus or for additional information; (ii)
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
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the initiation of any proceeding for such purpose; and (iii) within the period
of time referred to in paragraph (f) below, of any change in the Company's
condition (financial or other), business, prospects, properties, net worth or
results of operations, or of the happening of any event, which makes any
statement of a material fact made in the Registration Statement or the
Prospectus (as then amended or supplemented) untrue or which requires the
making of any additions to or changes in the Registration Statement or the
Prospectus (as then amended or supplemented) in order to state a material fact
required by the Act or the regulations thereunder to be stated therein or
necessary in order to make the statements therein not misleading in any
material respect, or of the necessity to amend or supplement the Prospectus (as
then amended or supplemented) to comply with the Act or any other law. If at
any time the Commission shall issue any stop order suspending the effectiveness
of the Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge, five
signed copies of the registration statement as originally filed with the
Commission and of each amendment thereto, including financial statements and
all exhibits to the registration statement and will also furnish to you,
without charge, such number of conformed copies of the registration statement
as originally filed and of each amendment thereto, but without exhibits, as you
may reasonably request.
(d) The Company will not (i) file any amendment to the
registration statement or make any amendment or supplement to the Prospectus of
which you shall not previously have been advised or to which you shall
reasonably object after being so advised or (ii) so long as, in the opinion of
counsel for the Underwriters, a prospectus is required to be delivered in
connection with sales by any Underwriter or dealer, file any information,
documents or reports pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), without delivering a copy of such information,
documents or reports to you, as Representatives of the Underwriters, prior to
or concurrently with such filing.
(e) Prior to the execution and delivery of this
Agreement, the Company has delivered or will deliver to you, without charge, in
such quantities as you have requested or may hereafter 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.
(f) As soon after the execution and delivery of this
Agreement as possible and thereafter from time to time for such period as in
the opinion of counsel for the Underwriters a prospectus is required by the Act
to be delivered in connection with sales by any Underwriter or dealer, the
Company will expeditiously deliver to each Underwriter and each dealer, without
charge, as many copies of the Prospectus (and of any amendment or supplement
thereto) as you may 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 during such period of time any event shall occur
that in the judgment of the Company or its counsel 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
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necessary to supplement or amend the Prospectus to comply with the Act or any
other law, the Company will forthwith prepare and, subject to the provisions of
paragraph (d) above, file with the Commission an appropriate supplement or
amendment thereto and will expeditiously furnish copies thereof to the
Underwriters and dealers in such quantities as you shall request. In the event
that the Company and you, as Representatives of the several Underwriters, agree
that the Prospectus should be amended or supplemented, the Company, if
requested by you, will promptly issue a press release announcing or disclosing
the matters to be covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and with 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
designate and will file such consents to service of process or other documents
necessary or appropriate in order to effect such registration or qualification;
provided, however, 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 that 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.
(h) The Company will make generally available to its
security holders a consolidated earnings statement, which need not be audited,
covering a twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months thereafter, as soon
as practicable after the end of such period, which consolidated earnings
statement shall satisfy the provisions of Section 11(a) of the Act.
(i) During the period of five years hereafter, the
Company will furnish to you (i) as soon as available, a copy of each report of
the Company mailed to stockholders or filed with the Commission, and (ii) from
time to time such other information concerning the Company as you may
reasonably request.
(j) If this Agreement shall terminate or shall be
terminated after execution pursuant to any provisions hereof (otherwise than
pursuant to the second paragraph of Section 10 hereof or by notice given by you
terminating this Agreement pursuant to Section 10 or Section 11 hereof), or if
this Agreement shall be terminated by the Underwriters because of any failure
or refusal on the part of the Company to comply with the terms or fulfill any
of the conditions of this Agreement, the Company agrees to reimburse the
Representatives for all out-of-pocket expenses (including fees and expenses of
counsel for the Underwriters) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale
of the Shares substantially in accordance with the description set forth under
the caption "Use of Proceeds" in the Prospectus.
(l) If Rule 430A of the Act is employed, the Company will
timely file the Prospectus pursuant to Rule 424(b) under the Act and will
advise you of the time and manner of such filing.
(m) The Company will not (and will not announce or
otherwise disclose any intention to) offer to sell, contract to sell, sell or
otherwise transfer or dispose of, or grant any option or warrant to purchase,
any shares of Common Stock (or any securities convertible into or exercisable
or exchangeable for Common Stock) for a period of 180 days after the date of
the Prospectus (the "Lock-up Period") without the prior written consent of
Xxxxx Xxxxxx Inc. except for (i) the sale of the Shares
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to the Underwriters pursuant to this Agreement, (ii) the issuance of
shares of Common Stock in connection with the Reorganizations, (iii) the
issuance of shares of Common Stock upon exercise of options or warrants
disclosed to be outstanding in the Prospectus, (iv) the grant pursuant to stock
option plans described in the Prospectus of stock options not exercisable
during the Lock-up Period and (v) the issuance of shares of Common Stock in
connection with acquisitions of radiology practices and/or imaging centers,
provided, that the recipients thereof agree to the same restrictions on
transfer and disposal as the officers and directors of the Company agree to
pursuant to Section 5(n) hereof for the remainder of the Lock-up Period. In
addition, without the prior written consent of Xxxxx Xxxxxx Inc., the Company
will enforce (and will not waive) during the Lock-up Period its agreements with
persons receiving Common Stock in connection with the Reorganizations, the
holders of the Company's 6% Convertible Promissory Notes (the "Convertible
Notes") and certain other persons holding, in the aggregate, 2,000,000 shares
of Common Stock pursuant to which all of such persons have agreed to
restrictions on the resale of Common Stock and, in the case of holders of the
Convertible Notes, Convertible Notes held by such persons, as contemplated in
the Prospectus.
(n) The Company has furnished or will furnish to you
"lock-up" letters, in form and substance satisfactory to you, signed by each of
its current officers and directors and each of its stockholders designated by
you.
(o) Except as stated in this Agreement and in the
Prepricing Prospectus and Prospectus, the Company has not taken, nor will it
take, directly or indirectly, any action designed to or that might reasonably
be expected to cause or result in stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of the Shares.
(p) The Company will use its best efforts to have the
Common Stock approved for quotation on The Nasdaq Stock Market's National
Market prior to or concurrently with the effectiveness of the registration
statement.
(q) The Company will call the Convertible Notes for
redemption as soon as practicable following the date of the Prospectus.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied when
so filed in all material respects with the provisions of the Act. The
Commission has not issued any order preventing or suspending the use of any
Prepricing Prospectus.
(b) The registration statement in the form in which it
first became or becomes effective, and also in such form as it may be when any
post-effective amendment thereto or any Abbreviated Registration Statement
shall become effective, and the Prospectus and any supplement or amendment
thereto when filed with the Commission under Rule 424(b) under the Act,
complied or will comply in all material respects with the provisions of the Act
and did not or will not at any such times contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except that this
representation and warranty does not apply to statements in or omissions from
the registration statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to the
Company in writing by or on behalf of such Underwriter through you expressly
for use therein.
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(c) All the outstanding shares of capital stock of the
Company and all the shares of Common Stock to be issued by the Company in
connection with the Reorganizations have been duly authorized and have been or,
when issued in connection with the Reorganizations, will have been validly
issued, are or, when issued in connection with the Reorganizations, will be
fully paid and nonassessable, are or, when issued in connection with the
Reorganizations, will be free of any preemptive or similar rights (other than
such rights as shall terminate upon completion of, and be inapplicable to, the
offering contemplated hereby) and have been or, when issued in connection with
the Reorganizations, will have been issued and sold in compliance with all
federal and state securities laws. The Shares 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 in all material respects to the description thereof in
the Registration Statement and the Prospectus.
(d) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus, and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify would not
have a material adverse effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Company and
the Subsidiaries (as defined herein), taken as a whole (a "Material Adverse
Effect").
(e) All of the Company's subsidiaries (collectively the
"Subsidiaries") are listed in an exhibit to the Registration Statement and are
referred to herein individually as a "Subsidiary" and collectively as the
"Subsidiaries." Each Subsidiary is a corporation duly organized, validly
existing and in good standing in the jurisdiction of its incorporation, 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 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, except
where the failure so to register or qualify would not have a Material Adverse
Effect. All the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable and are wholly-owned by the Company directly or indirectly
through one of the other Subsidiaries, free and clear of any lien, adverse
claim, security interest, equity or other encumbrance, except as disclosed in
the Registration Statement and the Prospectus (or any amendment or supplement
thereto) and except for the shares or interests pledged as security in
connection with that certain credit agreement among the Company, the
Subsidiaries and GE Capital Corporation (the "Credit Facility").
(f) Each Founding Affiliated Practice is a corporation,
partnership, professional association or limited liability company duly
organized, validly existing and in good standing in the jurisdiction of its
organization, with such legal power and authority as is necessary to own, lease
and operate its properties and to conduct its business as presently conducted
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 would not have a Material Adverse
Effect.
(g) There are no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened, against the Company,
any of the Subsidiaries or any of the Founding Affiliated Practices, or to
which the Company, any of the Subsidiaries or any of the Founding Affiliated
Practices, or any of their respective properties is subject, that are required
to be described in the
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Registration Statement or the Prospectus but are not described as required.
There are no agreements, contracts, indentures, leases or other instruments
that are required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement that are
not described or filed as required by the Act. Neither the Company, any of the
Subsidiaries, nor any of the Founding Affiliated Practices is involved in any
strike or labor dispute, and to the Company's knowledge no such action or
dispute is threatened.
(h) Except for such violations or defaults that,
individually or in the aggregate, would not have a Material Adverse Effect or a
material adverse effect on the ability of the Company and/or the Founding
Affiliated Practices to consummate the transactions contemplated hereby or the
Reorganizations (a "Material Transactional Effect"), neither the Company, nor
any of the Subsidiaries or Founding Affiliated Practices is (i) in violation of
its certificate of incorporation or by-laws or other organizational documents,
or of any law, ordinance, administrative or governmental rule or regulation
applicable to the Company, any of the Subsidiaries or any of the Founding
Affiliated Practices or of any decree of any court or governmental agency or
body having jurisdiction over the Company, any of the Subsidiaries or any of
the Founding Affiliated Practices, or (ii) in default in any respect in the
performance of any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any agreement,
indenture, lease or other instrument to which the Company, any of the
Subsidiaries or any of the Founding Affiliated Practices is a party or by which
any of them or any of their respective properties may be bound.
(i) Neither the issuance and sale of the Shares, the
execution, delivery or performance of this Agreement by the Company, the
consummation by the Company of the transactions contemplated hereby nor
consummation of the Reorganizations (i) requires any consent, approval,
authorization or other order of, or registration or filing with, any court,
regulatory body, administrative agency or other governmental body, agency or
official (except such as may be required for the registration of the Shares
under the Act and the Exchange Act, all of which have been or will be effected
in accordance with this Agreement, compliance with the securities or Blue Sky
laws of various jurisdictions, and except such as were required to have been,
and have or will have been, effected in connection with the Reorganizations,
including, without limitation, the filing of the related merger certificates
and the registration of the shares of Common Stock issuable in connection with
the Reorganizations under the Act) or conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the certificate
of incorporation or bylaws, or other organizational documents, of the Company,
any of the Subsidiaries or any of the Founding Affiliated Practices, (ii)
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, any indenture, bond, note, lease or other agreement or
instrument to which the Company, any of the Subsidiaries or any of the Founding
Affiliated Practices is a party or by which the Company, any of the
Subsidiaries or any of the Founding Affiliated Practices or any of their
respective properties may be bound, (iii) violates or will violate any statute,
law, regulation or filing or judgment, injunction, order or decree applicable
to the Company, any of the Subsidiaries or any of the Founding Affiliated
Practices or any of their respective properties, or (iv) will result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company, any of the Subsidiaries or any of the Founding
Affiliated Practices pursuant to the terms of any agreement or instrument to
which any of them is a party or by which any of them may be bound or to which
any of their respective property or assets is subject, except, in the case of
clauses (ii), (iii) or (iv) of this paragraph (i), for any such conflicts,
breaches, defaults, violations or liens or encumbrances that, individually or
in the aggregate, would not have a Material Adverse Effect or a Material
Transactional Effect.
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(j) The accountants, Xxxxxx Xxxxxxxx LLP and XxXxx, Xxxxx
& Blood LLP, who have certified or shall certify the financial statements
included in the Registration Statement and the Prospectus (or any amendment or
supplement thereto), are independent public accountants as required by the Act.
(k) The financial statements, together with the related
schedules and notes forming part of the Registration Statement and the
Prospectus (and any amendment or supplement thereto), comply in all material
respects with the requirements of the Act and present fairly the consolidated
financial position, results of operations and changes in stockholders' equity
and cash flows of the Company, and the financial position, results of
operations and changes in stockholders' equity and cash flows of each of the
Founding Affiliated Practices, 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; the pro forma
financial information included in the Registration Statement and the Prospectus
(and any amendment or supplement thereto) has been prepared in accordance with
the applicable published rules and regulations of the Commission with respect
to pro forma financial information and the assumptions used in preparing such
information are reasonable; and the other financial and statistical information
and data set forth in the Registration Statement and the Prospectus (and any
amendment or supplement thereto) are accurately presented and prepared on a
basis consistent with such financial statements and the books and records of
the Company and the Founding Affiliated Practices.
(l) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement.
The execution and delivery of, and the performance by the Company of its
obligations under, this Agreement have been duly and validly authorized by the
Company. This Agreement has been duly executed and delivered by the Company
and constitutes the valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnity and contribution hereunder may be limited by federal or state
securities laws or principles of public policy and subject to the qualification
that the enforceability of the Company's obligations hereunder may be limited
by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors' rights generally and by
general equitable principles.
(m) Each Agreement and Plan of Reorganization and Merger
and each Agreement and Plan of Exchange relating to the Reorganizations
(collectively, the "Reorganization Agreements") has been duly authorized,
executed and delivered by each party thereto, and constitutes the legal, valid
and binding agreement of each party thereto, enforceable against each party
thereto in accordance with its terms, subject to the qualification that the
enforceability of each party's obligations thereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and by general
equitable principles. Each Service Agreement being entered into by the Company
or any Subsidiary with the Founding Affiliated Practices in connection with the
Reorganizations (collectively, the "Service Agreements") has been duly
authorized by each party thereto and when executed and delivered by each party
thereto, each such Service Agreement will be enforceable against each party
thereto in accordance with its terms, subject to the qualification that the
enforceability of each party's obligations thereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and by general
equitable principles.
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(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), neither
the Company, any of the Subsidiaries, nor any of the Founding Affiliated
Practices has incurred any liability or obligation, direct or contingent, or
entered into any transaction that is material to the Company and the
Subsidiaries, taken as a whole, and there has not been any material change in
the capital stock, or material increase in the consolidated short-term or
long-term debt, of the Company and the Subsidiaries or the Founding Affiliated
Practices (other than as contemplated by the Registration Statement and the
Prospectus in connection with the Reorganizations), or any material adverse
change, or any development involving or which may reasonably be expected to
involve a prospective material adverse change, in the condition (financial or
other), business, prospects, properties, net worth or results of operations of
the Company and the Subsidiaries, taken as a whole, or any Founding Affiliated
Practice.
(o) The Company and each Subsidiary and Founding
Affiliated Practice 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 such as are
described in the Registration Statement and the Prospectus and except for such
liens, claims, security interests or other encumbrances as would not,
individually or in the aggregate, have a Material Adverse Effect. All the
property described in the Prospectus as being held under lease by the Company,
any of the Subsidiaries or any of the Founding Affiliated Practices is held by
it under valid, subsisting and enforceable leases.
(p) The Company has not distributed and, prior to the
later to occur of the Closing Date and completion of the distribution of the
Shares, will not distribute any offering material in connection with the
offering and sale of the Shares other than the Registration Statement, the
Prepricing Prospectus, the Prospectus or other materials, if any, permitted by
the Act and state securities or Blue Sky laws.
(q) The Company and each Subsidiary and Founding
Affiliated Practice has such permits, licenses, franchises, authorizations and
clearances ("Permits") of governmental or regulatory authorities as are
necessary to own, lease and operate 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 and except where the failure to have such
Permits would not, individually or in the aggregate, have a Material Adverse
Effect; the Company and each of the Subsidiaries and, to the Company's
knowledge, the Founding Affiliated Practices has fulfilled and performed all
its material obligations with respect to the Permits, and no event has occurred
which allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the rights
of the holder of any Permit, subject in each case to such qualification as may
be set forth in the Prospectus. Except as described in the Prospectus, none of
the Permits contains any restriction that is materially burdensome to the
Company, any of the Subsidiaries, or any of the Founding Affiliated Practices.
(r) Except as described in the Prospectus and except as
would not individually or in the aggregate have a Material Adverse Effect, the
properties, assets and operations of each of the Company, the Subsidiaries and
the Founding Affiliated Practices are in compliance with all applicable
federal, state, local and foreign laws (including, without limitation, common
law), rules and regulations, orders, decrees, judgments, permits and licenses
relating to worker health and safety, and to the protection and clean-up of the
natural environment and to the protection or preservation of natural resources,
including, without limitation, those relating to the processing, manufacturing,
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generation, handling, disposal, transportation or release of hazardous
materials (collectively, "Environmental Laws"). With respect to such
properties, assets and operations, there are no events, conditions,
circumstances, activities, practices, incidents, actions or plans of the
Company, the Subsidiaries or the Founding Affiliated Practices of which the
Company is aware that may interfere with or prevent compliance or continued
compliance with applicable Environmental Laws or otherwise result in liability
to the Company, the Subsidiaries or any of the Founding Affiliated Practices
pursuant to applicable Environmental Laws. Except as described in the
Prospectus and except as would not individually or in the aggregate have a
Material Adverse Effect, (A) to the Company's knowledge, none of the Company or
any of the Subsidiaries or the Founding Affiliated Practices is the subject of
any federal, state, local or foreign investigation pursuant to Environmental
Laws, (B) none of the Company or any of the Subsidiaries or the Founding
Affiliated Practices has received any written notice or claim pursuant to
Environmental Laws and (C) there are no pending, or, to the knowledge of the
Company, threatened actions, suits or proceedings against the Company or any of
the Subsidiaries or the Founding Affiliated Practices or their properties,
assets or operations, in connection with any Environmental Laws. The term
"hazardous materials" shall mean those substances that are regulated by or
pursuant to any applicable Environmental Laws.
(s) Each of the Company, the Subsidiaries and the
Founding Affiliated Practices is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
customary in the business in which it is engaged. All policies of insurance
insuring the Company, each of the Subsidiaries and the Founding Affiliated
Practices or their respective business, assets, employees, officers and
directors are in full force and effect, and the Company and each of the
Subsidiaries and Founding Affiliated Practices is in compliance with the terms
of such policies in all material respects. There are no claims by the Company
or any of the Subsidiaries or the Founding Affiliated Practices under any such
policy or instrument as to which any insurance company has informed the
Company, any of the Subsidiaries or any of the Founding Affiliated Practices
that it is denying liability or defending under a reservation of rights clause,
except for any such claims which if adversely decided would not, individually
or in the aggregate, have a Material Adverse Effect.
(t) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(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 authorization; 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.
(u) Neither the Company, any of the Subsidiaries, nor, to
the Company's knowledge, any of the Founding Affiliated Practices or any
employee or agent of the Company, any of the Subsidiaries, or any of the
Founding Affiliated Practices has made any payment of funds of the Company, any
of the Subsidiaries, or any of the Founding Affiliated Practices or received or
retained any funds in violation of any law, rule or regulation, which payment,
receipt or retention of funds is of a character required to be disclosed in the
Prospectus.
(v) There are no material Medicare or Medicaid
recoupments or recoupments of any third-party payor being sought, requested or
claimed, or to the Company's knowledge, threatened against the Company, any of
the Subsidiaries or any of the Founding Affiliated Practices.
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(w) Each of the Company, the Subsidiaries and the
Founding Affiliated Practices has filed all federal, state, local and foreign
tax returns and tax forms required to be filed, such returns and forms are
complete and correct in all material respects, and all taxes shown by such
returns or otherwise assessed that are due or payable have been paid, except
such taxes as are being contested in good faith and as to which adequate
reserves have been provided. All payroll withholdings required to be made by
the Company or any of the Subsidiaries or Founding Affiliated Practices with
respect to employees have been made. The charges, accruals and reserves on the
books of the Company, the Subsidiaries and the Founding Affiliated Practices in
respect of any tax liability for any year not finally determined are adequate
to meet any assessments or reassessments for additional taxes. There have been
no tax deficiencies asserted and, to the knowledge of the Company, no tax
deficiency might be reasonably asserted or threatened against the Company, any
of the Subsidiaries or any of the Founding Affiliated Practices that could,
individually or in the aggregate, have a Material Adverse Effect.
(x) No holder of any security of the Company has any
right to require registration of shares of Common Stock or any other security
of the Company because of the filing of the registration statement or the
consummation of the transactions contemplated by this Agreement and, except as
disclosed in the Prospectus, no person has the right to require registration
under the Act of any shares of Common Stock or other securities of the Company.
No person has the right, contractual or otherwise, to cause the Company to
permit such person to underwrite the sale of any of the Shares. Except as
described in or contemplated by the Prospectus, there are no outstanding
options, warrants or other rights calling for the issuance of, and there are no
commitments, plans or arrangements to issue, any shares of capital stock of the
Company or any of the Subsidiaries or any security convertible into or
exchangeable or exercisable for capital stock of the Company or any of the
Subsidiaries.
(y) The Company and each Subsidiary and Founding
Affiliated Practice owns or possesses all patents, trademarks, trademark
registrations, service marks, service xxxx registrations, trade names,
copyrights, licenses, inventions, trade secrets and rights described in the
Prospectus as being owned by them or any of them or necessary for the conduct
of, or material to, their respective businesses, and the Company is not aware
of any claim to the contrary or any challenge by any other person to the rights
of the Company or any of the Subsidiaries or Founding Affiliated Practices with
respect to the foregoing.
(z) The Company is not, and, upon the sale of the Shares
to be issued and sold by it hereunder and application of the net proceeds from
such sale as described in the Prospectus under the caption "Use of Proceeds,"
will not be an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
The foregoing representations and warranties are made with
respect to the state of affairs of the Company, the Subsidiaries and the
Founding Affiliated Practices both prior to and after giving effect to the
Reorganizations.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each of you and each other 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 reasonable costs
of investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prepricing Prospectus or
in the Registration Statement or the Prospectus or in any amendment or
supplement thereto, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the
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statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any such untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity with the
information relating to such Underwriter furnished in writing to the Company by
or on behalf of such Underwriter through you expressly for use in connection
therewith; provided, however, that the indemnification contained in this
paragraph (a) with respect to any Prepricing Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of Shares by such Underwriter to any person if (i) a copy
of the Prospectus shall not have been delivered or sent to such person within
the time required by the Act and the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in such
Prepricing Prospectus was corrected in the Prospectus and (ii) the Company
delivered the Prospectus to the several Underwriters in requisite quantity on a
timely basis to permit such delivery or sending. The foregoing indemnity
agreement shall be in addition to any liability which the Company may otherwise
have.
(b) If any action, suit or proceeding shall be brought
against any 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 the Company, and the Company shall
assume the defense thereof, including the employment of counsel and payment of
all fees and expenses. Such Underwriter or any such controlling person shall
have the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such 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
or (iii) the named parties to any such action, suit or proceeding (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 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, suit or proceeding on behalf of such Underwriter or such
controlling person). It is understood, however, that the Company shall, in
connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for all such
Underwriters and controlling persons not having actual or potential differing
interests with you or among themselves, which firm shall be designated in
writing by Xxxxx Xxxxxx Inc., and that all such fees and expenses shall be
reimbursed as they are incurred. The Company shall not be liable for any
settlement of any such action, suit or proceeding effected without its written
consent, but if settled with such written consent, or if there be a final
judgment for the plaintiff in any such action, suit or proceeding, the Company
agrees to indemnify and hold harmless any Underwriter and any such controlling
person, to the extent provided in the preceding paragraph, from and against any
loss, claim, damage, liability or expense by reason of such settlement or
judgment.
(c) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers who
sign the Registration Statement 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 relating to such Underwriter furnished in
writing to the Company by or on
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behalf of such Underwriter through you expressly for use in the Registration
Statement, the Prospectus or any Prepricing Prospectus, or any amendment or
supplement thereto. If any action, suit or proceeding shall be brought against
the Company, any of its directors, any such officer or any such controlling
person based on the Registration Statement, the Prospectus or any Prepricing
Prospectus, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Underwriter pursuant to this paragraph (c),
such Underwriter shall have the rights and duties given to the Company by
paragraph (b) above (except that if the Company shall have assumed the defense
thereof such Underwriter shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof, but the fees
and expenses of such counsel shall be at such Underwriter's expense), and the
Company, its directors, any such officer, and any such controlling person shall
have the rights and duties given to the Underwriters by paragraph (b) above.
The foregoing indemnity agreement shall be in addition to any liability which
the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 7
is unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (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 hand 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 and 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, in each case computed on the basis of the respective amounts
set forth in the notes to the table on the cover page of the Prospectus. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company on the one hand or by the Underwriters on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by a pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities and expenses referred to in paragraph (d)
above shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the
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provisions of this Section 7, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price of the 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 7 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.
(f) No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened action, suit or proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses
for which an indemnified party is entitled to indemnification or contribution
under this Section 7 shall be paid by the indemnifying party to the indemnified
party as such losses, claims, damages, liabilities or expenses are incurred.
The indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (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 7.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Firm Shares hereunder are
subject to the following conditions:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for the registration statement or a post-effective
amendment thereto or an Abbreviated Registration Statement to be declared or
become effective before the offering of the Shares may commence, the
registration statement or such post-effective amendment or Abbreviated
Registration Statement shall have become effective not later than 5:30 P.M.,
New York City time, on the date hereof, or at such later date and time as shall
be consented to in writing by you, and all filings, if any, required by Rules
424 and 430A under the Act shall have been timely made.
(b) Subsequent to the effective date of this Agreement,
there shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, prospects, properties, net worth, or results of operations of the
Company or any of the Subsidiaries or Founding Affiliated Practices not
contemplated by the Prospectus, which in your opinion, as Representatives of
the several Underwriters, would materially, adversely affect the market for the
Shares, or (ii) any event or development relating to or involving the Company
or any of the Subsidiaries or Founding Affiliated Practices, or any officer or
director of the Company or any of the Subsidiaries or Founding Affiliated
Practices, which makes any statement made in the Prospectus untrue or which, in
the opinion of the Company and its counsel or the Underwriters
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and their counsel, requires the making of any addition to or change in the
Prospectus in order to state a material fact required by the Act or any other
law to be stated therein or necessary in order to make the statements therein
not misleading, if amending or supplementing the Prospectus to reflect such
event or development would, in your opinion, as Representatives of the several
Underwriters, materially, adversely affect the market for the Shares.
(c) You shall have received on the Closing Date an
opinion of Xxxxxxx, Phleger & Xxxxxxxx LLP, counsel for the Company in
connection with the offering of the Shares, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to the effect
that:
(i) the Company is duly incorporated, validly
existing and in good standing under the laws of the State of Delaware
and has the corporate power and authority required to own and lease
its properties and to conduct its business as described in the
Registration Statement and the Prospectus, and is duly registered and
qualified to conduct its business and is in good standing as a foreign
corporation in each jurisdiction where the nature of its properties or
the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify or
to be in good standing would not have a Material Adverse Effect;
(ii) the authorized capital stock of the Company
is as set forth under the caption "Capitalization" in the Prospectus,
and the authorized capital stock of the Company conforms in all
material respects as to legal matters to the description contained in
the Prospectus under the caption "Description of Capital Stock";
(iii) all of the shares of capital stock of the
Company outstanding prior to the issuance of the Shares and all of the
shares of Common Stock being issued by the Company in connection with
the Reorganizations have been duly authorized and have been or, when
issued in connection with the Reorganizations, will have been validly
issued, fully paid and nonassessable and have been or, when issued in
connection with the Reorganizations, will have been registered in
accordance with, or issued and sold pursuant to exemptions from,
federal and state securities laws, respectively;
(iv) the Shares have been duly authorized and,
when issued and delivered to the Underwriters against payment therefor
in accordance with the terms of this Agreement, will be validly
issued, fully paid and nonassessable and (A) free of any statutory
preemptive rights arising under the Company's certificate of
incorporation or Delaware Law or (B) to the knowledge of such counsel,
similar rights that entitle or will entitle any person to acquire any
shares of capital stock of the Company upon the issuance and sale of
the Shares by the Company;
(v) the form of certificate for the Shares
conforms to the requirements of Delaware Law;
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(vi) the Registration Statement has become
effective under the Act and, to the 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; and any required filing of the
Prospectus pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b);
(vii) the Company has the corporate power and
authority to enter into this Agreement and to issue, sell and deliver
the Shares to the Underwriters as provided herein, and this Agreement
has been duly authorized, executed and delivered by the Company and is
a legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as
enforcement of rights to indemnity and contribution hereunder may be
limited by federal or state securities laws or principles of public
policy and subject to the qualification that the enforceability of the
Company's obligations hereunder may be limited by bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and by
general equitable principles;
(viii) to the knowledge of such counsel, the Company
is not in violation of its certificate of incorporation or bylaws, or
other organizational documents, or in default in the performance of
any material obligation, agreement or condition contained in any
indenture, bond, note, lease or other agreement or instrument to which
the Company is a party or by which it or any of its properties may be
bound that is filed as an exhibit to the Registration Statement;
(ix) neither the offer, sale or delivery of the
Shares, the execution, delivery or performance of this Agreement,
compliance by the Company with the applicable provisions hereof, nor
consummation by the Company of the transactions contemplated hereby,
conflicts or will conflict with or constitutes or will constitute a
breach of, or a default under, the certificate of incorporation or
bylaws, or other organizational documents, of the Company or any
indenture, bond, note, lease or other agreement or instrument to which
the Company is a party or by which the Company or any of its
properties is bound that is filed as an exhibit to the Registration
Statement, or to the knowledge of such counsel will result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company, nor will any such action result in
any violation of any existing federal law, regulation, ruling
(assuming compliance with all applicable state securities or Blue Sky
laws in connection with the offering of the Shares), judgment,
injunction, order or decree known to us and applicable to the Company
or any of its properties;
(x) no consent, approval, authorization or other
order of, or registration or filing with, any federal or state court,
regulatory body, administrative agency or other governmental body,
agency, or official is required on the part of the Company (except as
have been obtained under the Act and the Exchange Act or such as may
be required under the securities or Blue Sky laws of various
jurisdictions in connection with the offering of the Shares or by the
Nasdaq National Market relating to the purchase and distribution of
the Shares) for the valid issuance and sale of the Shares to the
Underwriters as contemplated by this Agreement;
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(xi) the Registration Statement and the Prospectus
(except with respect to the financial statements and the notes
thereto, and the schedules and other financial and statistical data
included therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Act;
(xii) to the knowledge of such counsel, there are
no legal or governmental proceedings pending or threatened against the
Company or any Subsidiary, or to which the Company or any Subsidiary
or any of their properties is subject, which are required to be
described in the Registration Statement or Prospectus that are not
described as required and there are no agreements, contracts,
indentures, leases or other instruments that are required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement that are not
described or filed as required, as the case may be;
(xiii) to the knowledge of such counsel, the Company
is not in violation of any federal, or state law, ordinance,
administrative or government rule or regulation applicable to it, or
of any decree of any court or governmental agency or body having
jurisdiction over it, (except with respect to any federal or state
health care law, rule or regulation, which matters are being covered
by a separate opinion pursuant to paragraph (e) below);
(xiv) except as described in or contemplated by the
Prospectus, such counsel knows of no outstanding option, warrant or
other right calling for the issuance of, and no commitment, plan or
arrangement to issue, any shares of capital stock of the Company or
any security convertible into or exchangeable or exercisable for
capital stock of the Company; except as described in the Prospectus,
such counsel does not know of any holder of any securities of the
Company or any other person who has the right, contractual or
otherwise, to cause the Company to sell or otherwise issue to them, or
to permit them to underwrite the sale of, any of the Shares or the
right to have any Common Stock or other securities of the Company
included in the Registration Statement; and, except as described in
the Prospectus, such counsel does not know of any holder of any
securities of the Company or any other person who has the right, as a
result of the filing of the Registration Statement, to require the
Company to register under the Act any shares of Common Stock or other
securities of the Company;
(xv) to the knowledge of such counsel, the
properties, assets and operations of the Company and each of the
Subsidiaries are in compliance with all applicable Environmental Laws,
except as would not individually or in the aggregate have a Material
Adverse Effect, and, with respect to such properties, assets and
operations, there are no events, conditions, circumstances,
activities, practices, incidents, actions or plans of the Company or
the Subsidiaries of which such counsel is aware that may interfere
with or prevent compliance or continued compliance with applicable
Environmental Laws or otherwise result in liability to the Company or
the Subsidiaries pursuant to applicable Environmental Laws; except as
described in the Prospectus and except as would not individually or in
the aggregate have a Material Adverse Effect, neither the Company nor
any Subsidiary is the subject of any federal, state, local or foreign
investigation pursuant to Environmental Laws, neither the Company nor
any Subsidiary has received any written notice or claim pursuant to
Environmental Laws and there are no pending or threatened actions,
suits or proceedings against the Company or any of the Subsidiaries or
their properties, assets or operations, in connection with any
Environmental Laws;
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(xvi) the statements in the Registration Statement
and Prospectus under the captions "Risk Factors -- Uncertainty
Regarding the Enforceability of Noncompetition Provisions," "Risk
Factors -- Government Regulation," "Risk Factors -- Reimbursement
Trends and Cost Containment," "Risk Factors -- Potential Liability and
Insurance; Legal Proceedings," "Risk Factors -- Shares Eligible for
Future Sale," "Business -- Government Regulation and Supervision,"
"Business -- Legal Proceedings," "Management -- Stock Option Plan,"
"Description of Capital Stock" and "Shares Eligible for Future Sale,"
insofar as they refer to statements of law or legal conclusions, are
accurate in all material respects and present fairly the information
purported to be shown; and
(xvii) upon the sale of the Shares and application
of the net proceeds as contemplated by the Prospectus, the Company
will not be an "investment company" or a person "controlled" by an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended.
In addition, such counsel shall state that although such counsel has
not undertaken, except as otherwise indicated in their opinion, to determine
independently, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements in the Registration Statement, such
counsel has participated in the preparation of the Registration Statement and
the Prospectus, including review and discussion of the contents thereof, and
nothing has come to the attention of such counsel that has caused it to believe
that the Registration Statement, at the time the Registration Statement became
effective, 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
state-ments therein not misleading, or that the Prospectus, as of its date and
as of the Closing Date or the Option Closing Date, as the case may be,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or that any amendment or supplement to the Prospectus, as of its
date, and as of the Closing Date or the Option Closing Date, as the case may
be, contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no opinion with
respect to the financial statements and the notes thereto and the schedules and
other financial and statistical data included in the Registration Statement or
the Prospectus).
In rendering their opinion as aforesaid, counsel may rely upon an
opinion or opinions, each dated the Closing Date, of other counsel retained by
them or the Company as to laws of any jurisdiction other than the federal laws
of the United States, the States of Texas and New York and the corporation law
of the State of Delaware, provided, however that (1) each such local counsel is
acceptable to the Representatives, (2) such reliance is expressly authorized by
each opinion so relied upon and a copy of each such opinion is delivered to the
Representatives and is, in form and substance, satisfactory to them and counsel
for the Underwriters and (3) counsel shall state in their opinion that they
believe that they and the Underwriters are justified in relying thereon. The
opinion rendered by counsel pursuant to this clause (c) on the Closing Date
shall specify that the opinion speaks as to the state of affairs regarding the
Company and the Subsidiaries as of the date of the opinion both prior to and
after giving effect to the Reorganizations.
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(d) You shall have received on the Closing Date an
opinion of XxXxxxxxx, Will & Xxxxx, counsel for the Company in connection with
the Reorganizations, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) each Subsidiary is duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of
its organization, and has the corporate power and authority required
to own and lease its properties and to conduct its business as is
presently conducted as described in the Registration Statement and the
Prospectus; each Subsidiary is duly registered and qualified to
conduct its business and is in good standing as a foreign corporation
in each jurisdiction where the nature of its properties or the conduct
of its business requires such registration or qualification, except
where failure so to register or qualify or to be in good standing
would 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, are fully paid and nonassessable and
are owned of record by the Company directly, or indirectly through one
of the other Subsidiaries, free and clear of any perfected security
interest or, to the knowledge of such counsel, any other lien, adverse
claim, equity or other encumbrance except as disclosed in the
Registration Statement and the Prospectus and except for the shares or
interest pledged as security in connection with the Credit Facility;
(ii) to the knowledge of such counsel, none of the
Subsidiaries is in violation of its certificate of incorporation or
bylaws, or other organizational documents, or in default in the
performance of any material obligation, agreement or condition
contained in any indenture, bond, note, lease or other agreement or
instrument to which either the Company or any Subsidiary is a party
and which is set forth as an exhibit to the Registration Statement
(the "Applicable Contracts");
(iii) to the knowledge of such counsel, none of the
Subsidiaries is in violation of any law, ordinance, administrative or
governmental rule or regulation applicable to it ("Applicable Laws")
or of any order or decree of any governmental agency or body having
jurisdiction over it and identified in the disclosure schedules to the
Agreements and Plans of Reorganization relating to the Reorganizations
("Applicable Orders") (except with respect to any federal or state
health care law, rule or regulation, as to which such counsel need not
express any opinion and which matters are being covered by paragraph
(e) below);
(iv) the Company and each Subsidiary has the
corporate power and corporate authority to execute, deliver and
perform all of its obligations under each Agreement and Plan of
Reorganization, Agreement and Plan of Exchange and Service Agreement
entered into in connection with the Reorganizations (the "Transaction
Documents") and to which it is a party. The execution and delivery of
each of the Transaction Documents and the consummation by the Company
and/or any such Subsidiary of the transactions contemplated thereby
have been duly authorized by all necessary corporate action on the
part of the Company and/or any such Subsidiary. The Transaction
Documents to which the Company and/or any Subsidiary is a party have
each been duly executed and delivered by the Company and/or any such
Subsidiary;
(v) each Transaction Document to which the
Company and/or any Subsidiary is a party constitutes the valid and
binding obligation of the Company and/or any such Subsidiary,
enforceable against the Company and/or any such Subsidiary in
accordance with its terms subject to the following qualifications: (i)
enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect affecting creditors' rights generally and by general principles
of equity (regardless of whether enforcement is sought in equity or at
law); and (ii) no opinion need be expressed as to the enforceability
of any rights to contribution or indemnification provided for in the
Transaction Documents which are violative of the public policy
underlying any law, rule or regulation (including any federal or state
securities law, rule or regulation);
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(vi) the execution, delivery and performance by
the Company and/or any Subsidiary of the Transaction Documents and
performance by the Company and/or any Subsidiary of its obligations
under the Transaction Documents, each in accordance with its terms,
does not (i) conflict with the certificate of incorporation or bylaws
of the Company and/or any such Subsidiary, (ii) constitute a material
breach of, or result in a material default under, any term or
provision of any Applicable Contract or (iii) to the knowledge of such
counsel, result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
Subsidiary (other than the Credit Facility);
(vii) neither the execution, delivery or
performance by the Company and/or any Subsidiary of the Transaction
Documents nor the compliance by the Company and/or any such Subsidiary
with the terms and provisions thereof will contravene any provision of
any Applicable Law; and
(viii) neither the execution, delivery or
performance by the Company and/or any Subsidiary of its obligations
under the Transaction Documents nor compliance by the Company and/or
any such Subsidiary with the terms thereof will contravene any
Applicable Order.
(e) You shall received on the Closing Date a reasoned
opinion of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, special health care counsel for the
Company, dated the Closing Date and addressed to you, as Representatives of the
several Underwriters, to the effect that:
(i) to the knowledge of such counsel, the Company
and each Subsidiary has all Permits as are required to be obtained by
the Company and each Subsidiary under federal and applicable
California, New York, Texas, Kansas and Maryland state health care
laws (collectively, the "Applicable Permits") in order to own, lease
and operate its properties and conduct its business as described in
the Prospectus, except where the failure to have any such Applicable
Permit would not individually or in the aggregate have a material
adverse effect on the business of the Company and its Subsidiaries
taken as a whole;
(ii) to the knowledge of such counsel, there are
no proceedings, pending or threatened, against the Company or any
Subsidiary that may cause any Applicable Permit to be revoked,
withdrawn, cancelled, suspended or not renewed, except where such
revocation, withdrawal, cancellation, suspension or nonrenewal, would
not individually or in the aggregate have a material adverse effect on
the business of the Company and the Subsidiaries taken as a whole;
(iii) to the knowledge of such counsel and subject
to such qualifications as may be set forth therein with respect to
anti-kickback laws, the Company's and each Subsidiary's business
practices as described in the Prospectus do not violate in any
material respect any applicable provisions of applicable federal and
California, New York, Texas, Kansas and Maryland state laws governing
the Medicare and/or Medicaid Programs;
(iv) to the knowledge of such counsel, no
individual with an ownership or control interest, as defined in 42
U.S.C. Section 1320a-3(a)(3), in the Company or any Subsidiary, or any
managing employee of the Company or any Subsidiary, as defined in 42
U.S.C. Section 1320a-5(b), is a person described in 42 U.S.C. Section
1320a-7(b)(8)(B); and
(v) to the knowledge of such counsel and subject
to such qualifications as may be set forth therein with respect to
anti-kickback laws, the Company and each Subsidiary's business
practices do not violate in any material respect any applicable
provisions of California, New York, Texas, Kansas or Maryland state
laws regarding physician ownership of (or financial relationship with)
and referral to entities providing health care goods or services, or
laws requiring disclosure of financial interests held by physicians in
entities to which they may refer patients for the provision of health
care goods or services.
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(f) With respect to each Founding Affiliated Practice,
you shall have received on the Closing Date a letter from counsel for such
Founding Affiliated Practice, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, authorizing your reliance on the
legal opinion delivered to the Company by such counsel pursuant to the
Reorganization Agreement with respect to such Founding Affiliated Practice (a
copy of which opinion shall be attached to such letter) as if such opinion were
addressed to you.
(g) You shall have received on the Closing Date an
opinion of Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, with respect to the matters referred to in clauses (iv) (other
than subclause (B) thereof), (vi), (vii), (xi) and the penultimate paragraph of
Section 8(c) hereof and such other related matters as you may request.
(h) You shall have received letters addressed to you and
dated the date hereof and the Closing Date from Xxxxxx Xxxxxxxx LLP and XxXxx,
Xxxxx & Blood LLP, independent certified public accountants, substantially in
the forms heretofore approved by you.
(i)(i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Company,
contemplated by the Commission at or prior to the Closing Date and any request
of the Commission for additional information (to be included in the
registration statement or the prospectus or otherwise) shall have been complied
with; (ii) there shall not have been any material change in the capital stock
of the Company nor any material increase in the short-term or long-term debt of
the Company and the Subsidiaries, taken as a whole, or of any of the Founding
Affiliated Practices from that set forth or contemplated in the Registration
Statement or the Prospectus (or any amendment or supplement thereto); (iii)
there shall not have been, since the respective dates as of which information
is given in the Registration Statement and the Prospectus (or any amendment or
supplement thereto), except as may otherwise be stated in the Registration
Statement and Prospectus (or any amendment or supplement thereto), any material
adverse change in the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Company and the
Subsidiaries, taken as a whole, or of any of the Founding Affiliated Practices;
(iv) neither the Company nor any of the Subsidiaries or Founding Affiliated
Practices shall have any liabilities or obligations, direct or contingent
(whether or not in the ordinary course of business), that are material to the
Company and the Subsidiaries, taken as a whole, or to any Founding Affiliated
Practice other than those reflected in or contemplated by the Registration
Statement or the Prospectus (or any amendment or supplement thereto); and (v)
all the representations and warranties of the Company contained in this
Agreement shall be true and correct in all material 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), as to the
matters set forth in this Section 8(i) and in Sections 8(j), (k) and (n)
hereof.
(j) 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.
(k) The Reorganizations shall have been consummated as of
the Closing Date on substantially the terms set forth in the Registration
Statement.
(l) The Shares shall have been approved for quotation
subject to notice of issuance on The Nasdaq Stock Market's National Market.
(m) The Company, the Subsidiaries and the Founding
Affiliated Practices shall not have received notices of termination relating to
contracts with their respective payors, vendors, customers or other parties,
the termination of which, individually or in the aggregate, would have a
Material Adverse Effect.
(n) The Company shall have entered into a $115 million
credit facility with GE Capital Corporation.
(o) The Company shall have furnished or caused to be
furnished to you such further certificates and documents as you shall have
reasonably requested.
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, as Representatives of the several
Underwriters, and counsel for the Underwriters.
Any certificate or document signed by any officer of the Company and
delivered to you, as Representatives of the several Underwriters, or to counsel
for the Underwriters, shall be deemed a representation or warranty by the
Company to each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of any Option
Closing Date of the conditions set forth in this Section 8, except that, if any
Option Closing Date is other than the Closing Date, the certificates, opinions
and letters referred to in paragraphs (c) through (i) and paragraph (o) shall
be dated the Option Closing Date in question and the opinions and letters
called for by paragraphs (c) through (g) shall be revised to reflect the sale
of Additional Shares.
9. EXPENSES. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder: (i) the preparation, printing or reproduction, and
filing with the Commission of the registration statement (including financial
statements and exhibits thereto), each Prepricing Prospectus, the Prospectus,
and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the registration statement, each
Prepricing Prospectus, the Prospectus, 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) the preparation, printing, authentication,
issuance and delivery of certificates for the Shares, including any stamp taxes
in connection with the offering of the Shares; (iv) the printing (or
reproduction) and delivery of this Agreement, the Blue Sky Memorandum and all
other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Shares; (v) the registration of the Common
Stock under the Exchange Act and the listing of the Shares on the Nasdaq
National Market; (vi) the registration or qualification of the Shares for offer
and sale under the securities or Blue Sky laws of the several states as
provided in Section 5(g) hereof (including the reasonable fees, expenses and
disbursements of counsel for the Underwriters relating to the preparation,
printing or reproduction, and delivery of the Blue Sky Memorandum and such
registration and qualification); (vii) the filing fees and the reasonable fees
and expenses of counsel for the Underwriters in connection with any filings
required to be made with the National Association of Securities Dealers, Inc.
in connection with the offering; (viii) the transportation and other expenses
incurred by or on behalf of representatives of the Company in connection with
presentations to prospective purchasers of the Shares; (ix) the fees and
expenses of the Company's accountants and the fees and expenses of
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counsel (including local and special counsel) for the Company; and (x) the
performance by the Company of its other obligations under this Agreement.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto;
or (ii) if, at the time this Agreement is executed and delivered, it is
necessary for the registration statement or a post-effective amendment thereto
or an Abbreviated Registration Statement to be declared or become effective
before the offering of the Shares may commence, when notification of the
effectiveness of the registration statement or such post-effective amendment
has been released by the Commission or such Abbreviated Registration Statement
has, pursuant to the provisions of Rule 462 under the Act, become effective.
Until such time as this Agreement shall have become effective, it may be
terminated by the Company, by notifying you, or by you, as Representatives of
the several Underwriters, by notifying the Company.
If any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they have agreed to purchase hereunder, and the
aggregate number of 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 Shares which the Underwriters are obligated to purchase on
the Closing Date, each non-defaulting Underwriter shall be obligated,
severally, in the proportion which the number of Firm 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 accordance with Section 20 of the Master
Agreement Among Underwriters of Xxxxx Xxxxxx Inc., to purchase the 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
Shares which it or they are obligated to purchase on the Closing Date and the
aggregate number of Shares with respect to which such default occurs is more
than one-tenth of the aggregate number of Shares which the Underwriters are
obligated to purchase on the Closing Date and arrangements satisfactory to you
and the Company for the purchase of such Shares by one or more non-defaulting
Underwriters or other party or parties approved by you and the Company are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case which does not result in termination of this Agreement, either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any such
default of any such Underwriter under this Agreement. The term "Underwriter"
as used in this Agreement includes, for all purposes of this Agreement, any
party not listed in Schedule I hereto who, with your approval and the approval
of the Company, purchases Shares which a defaulting Underwriter agreed, but
failed or refused, to purchase.
Any notice under this Section 10 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
11. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company, by notice to the Company, if prior to the Closing
Date or any Option Closing Date (if different from the Closing Date and then
only as to the Additional Shares), as the case may be, (i) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market shall have been suspended or materially
limited, (ii) a general moratorium on commercial banking activities in New York
shall have been declared by either federal or state authorities, or (iii) there
shall have
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occurred any outbreak or escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial or economic
conditions, the effect of which on the financial markets of the United States
is such as to make it, in your judgment, impracticable or inadvisable to
commence or continue the offering of the Shares at the offering price to the
public set forth on the cover page of the Prospectus or to enforce contracts
for the resale of the Shares by the Underwriters. Notice of such termination
may be given by telegram, telecopy or telephone and shall be subsequently
confirmed by letter.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set
forth in the last paragraph on the cover page, the stabilization legend on the
inside front cover page and the statements in the first, third and eighth
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 as such information is referred to in Sections 6(b)
and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10
and 11 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to the Company, at the office of
the Company at 0000 XxxxxxxXxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx, XX 00000-0000,
Attention: Xxxxxxx X. Xxxxxxx, President and Chief Executive Officer, with a
copy to Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, 0000 XxxXxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx Xxxxx, XX 00000, Attention: Xxxxxxx X. Xxxx, Esq.; or (ii) if to you,
as Representatives of the several Underwriters, care of Xxxxx Xxxxxx Inc., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment
Banking Division, with a copy to Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxx X. Xxxxxx, Esq.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company, its directors, its officers who sign the
Registration Statement and the controlling persons referred to in Section 7
hereof and, to the extent provided herein, their respective successors and
assigns and no other person shall acquire or have any right under or by virtue
of this Agreement. Neither the term "successor" nor the term "successors and
assigns" as used in this Agreement shall include a purchaser from any
Underwriter of any of the Shares in his status as such purchaser.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts,
this Agreement shall not become effective unless at least one counterpart
hereof shall have been executed and delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the
agreement between the Company and the several Underwriters.
Very truly yours,
AMERICAN PHYSICIAN PARTNERS, INC.
By:
-------------------------------------
Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
XXXXX XXXXXX INC.
BANCAMERICA XXXXXXXXX XXXXXXXX
XXXXX & COMPANY
XXXXX XXXXXXX INC.
As Representatives of the Several Underwriters
By: XXXXX XXXXXX INC.
By:
--------------------------------------------
Managing Director
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SCHEDULE I
AMERICAN PHYSICIAN PARTNERS, INC.
Number of
Underwriter Firm Shares
----------- -----------
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BancAmerica Xxxxxxxxx Xxxxxxxx . . . . . . . . . . . . . . . . . . . . . .
Xxxxx & Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxx Xxxxxxx Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
---------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . 3,000,000
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