EXHIBIT 1.1
3,700,000 SHARES
CLASS A COMMON STOCK
($.001 PAR VALUE)
FORM OF UNDERWRITING AGREEMENT
, 1998
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇.▇. ▇▇▇▇▇▇▇▇ & CO.
AS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS
▇/▇ ▇.▇. ▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned, American Medical Providers, Inc., a Delaware corporation
(the "Company"), hereby addresses you as the representatives (the
"Representatives") of each of the persons, firms and corporations listed on
Schedule II hereto (collectively, the "Underwriters") and hereby confirms its
agreement with the several Underwriters as follows:
1. DESCRIPTION OF SHARES. The Company proposes to issue and sell to the
Underwriters shares of its Class A Common Stock, par value $.001 per share (the
"Common Stock") (such 3,700,000 shares of Common Stock are herein referred to
as the "Firm Shares"). Solely for the purpose of covering over-allotments in
the sale of the Firm Shares, the Company further proposes to grant to the
Underwriters the right to purchase up to an additional 15% of Firm Shares (the
"Option Shares"), as provided in Section 3 of this Agreement. The Firm Shares
and the Option Shares are herein sometimes referred to as the "Shares" and are
more fully described in the Prospectus hereinafter defined.
2. PURCHASE, SALE AND DELIVERY OF FIRM SHARES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and each such Underwriter agrees, severally and not jointly, (a)
to purchase from the Company at a purchase price of $ per share, the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule II
hereto and (b) to purchase from the Company any additional number of Option
Shares which such Underwriter may become obligated to purchase pursuant to
Section 3 hereof.
The Company will deliver definitive certificates for the Firm Shares at the
office of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., ("▇▇▇▇▇▇▇") ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ("▇▇▇▇▇▇▇' Office"), or such other place as you and the Company may
mutually agree upon, for the accounts of the Underwriters against payment to the
Company of the purchase price for the Firm Shares sold by it to the several
Underwriters by wire transfer in immediately available funds to the account of
the Company at a bank designated by the Company reasonably acceptable to ▇▇▇▇▇▇▇
or by certified or bank cashier's check (in Federal Reserve funds) drawn to the
order of the Company and delivered to , or
at such other place as may be agreed upon between you and the Company (the
"Place of Closing"), at 10:00 a.m., St. Louis time, on ,
1998, or at such other time and date not later than four full business days
thereafter as you and the Company may agree, such time and date of payment and
delivery being herein called the "Closing Date."
The certificates for the Firm Shares so to be delivered will be made
available to you for inspection at ▇▇▇▇▇▇▇' Office (or such other place as you
and the Company may mutually agree upon) at least one full business day prior to
the Closing Date and will be in such names and denominations as you may request
at least two full business days prior to the Closing Date.
It is understood that an Underwriter, individually, may (but shall not be
obligated to) make payment on behalf of the other Underwriters whose wire
transfer shall not have been received prior to the Closing Date
for Shares to be purchased by such Underwriter. Any such payment by an
Underwriter shall not relieve the other Underwriters of any of their obligations
hereunder.
It is understood that the Underwriters propose to offer the Shares to the
public upon the terms and conditions set forth in the Registration Statement
hereinafter defined.
3. PURCHASE, SALE AND DELIVERY OF THE OPTION SHARES. The Company hereby
grants an option to the Underwriters to purchase from it on a pro rata basis up
to 555,000 Option Shares on the same terms and conditions as the Firm Shares;
provided, however, that such options may be exercised only for the purpose of
covering any over-allotments which may be made by them in the sale of the Firm
Shares. No Option Shares shall be sold or delivered unless the Firm Shares
previously have been, or simultaneously are, sold and delivered.
The options are exercisable on behalf of the several Underwriters by you,
as Representatives, at any time, and from time to time, before the expiration of
45 days from the date of this Agreement, for the purchase of all or part of the
Option Shares covered thereby, by notice given by you to the Company in the
manner provided in Section 13 hereof, setting forth the number of Option Shares
as to which the Underwriters are exercising the options, and the date of
delivery of said Option Shares, which date shall not be more than five business
days after such notice unless otherwise agreed to by the parties. You may
terminate the options at any time, as to any unexercised portion thereof, by
giving written notice to the Company to such effect.
You, as Representatives, shall make such allocation of the Option Shares
among the Underwriters as may be required to eliminate purchases of fractional
Shares.
Delivery of the Option Shares with respect to which the options shall have
been exercised shall be made available to or upon your order at ▇▇▇▇▇▇▇' Office
(or at such other place as you and the Company may mutually agree upon), against
payment by you of the per share purchase price to the Company by wire transfer
in immediately available funds at a bank designated by the Company reasonably
acceptable to ▇▇▇▇▇▇▇ or by certified or cashier's bank check (in Federal
Reserve funds) drawn to the order of the Company and delivered to the place of
Closing. Such payment and delivery shall be made at 10:00 a.m., St. Louis time,
on the date designated in the notice given by you as above provided for, unless
some other date and time are agreed upon, which date and time of payment and
delivery are called the "Option Closing Date." The certificates for the Option
Shares so to be delivered will be made available to you for inspection at
▇▇▇▇▇▇▇' Office at least one full business day prior to the Option Closing Date
and will be in such names and denominations as you may request at least two full
business days prior to the Option Closing Date. On the Option Closing Date, the
Company shall provide the Underwriters such representations, warranties,
opinions and covenants with respect to the Option Shares as are required to be
delivered on the Closing Date with respect to the Firm Shares.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY.
(a) The Company represents and warrants to and agrees with each
Underwriter that:
(i) A registration statement (Registration No. 333-39441) on Form S-1
with respect to the Shares, including a preliminary prospectus, and such
amendments to such registration statement as may have been required to the
date of this Agreement, has been carefully prepared by the Company pursuant
to and in conformity with the requirements of the Securities Act of 1933,
as amended (the "Act"), and the Rules and Regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder and has been filed with the Commission under the
Act. Copies of such registration statement, including any amendments
thereto, each related preliminary prospectus (meeting the requirements of
Rule 430 or 430A of the Rules and Regulations) contained therein, the
exhibits, financial statements and schedules have heretofore been delivered
by the Company to you. If such registration statement has not become
effective under the Act, a further amendment to such registration
statement, including a form of final prospectus, necessary to permit such
registration statement to become effective will be filed promptly by the
Company with the Commission. If such registration statement has become
effective under the Act, a final prospectus
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containing information permitted to be omitted at the time of effectiveness
by Rule 430A of the Rules and Regulations will be filed promptly by the
Company with the Commission in accordance with Rule 424(b) of the Rules and
Regulations. The term "Registration Statement" as used herein means the
registration statement as amended at the time it becomes or became
effective under the Act (the "Effective Date"), including financial
statements, schedules and all exhibits and, if applicable, the information
deemed to be included by Rule 430A of the Rules and Regulations. The term
"Prospectus" as used herein means (i) the prospectus as first filed with
the Commission pursuant to Rule 424(b) of the Rules and Regulations or,
(ii) if no such filing is required, the form of final prospectus included
in the Registration Statement at the Effective Date or (iii) if a Term
Sheet or Abbreviated Term Sheet (as such terms are defined in Rule 434(b)
and 434(c), respectively, of the Rules and Regulations) is filed with the
Commission pursuant to Rule 424(b)(7) of the Rules and Regulations, the
Term Sheet or Abbreviated Term Sheet and the last Preliminary Prospectus
filed with the Commission prior to the time the Registration Statement
became effective, taken together. The term "Preliminary Prospectus" as
used herein shall mean a preliminary prospectus as contemplated by Rule 430
or 430A of the Rules and Regulations included at any time in the
Registration Statement.
(ii) The Commission has not issued, and is not to the knowledge of
the Company threatening to issue, an order preventing or suspending the use
of any Preliminary Prospectus or the Prospectus nor instituted proceedings
for that purpose. Each Preliminary Prospectus at its date of issue, the
Registration Statement and the Prospectus and any amendments or supplements
thereto contains or will contain, as the case may be, all statements which
are required to be stated therein by, and in all material respects conform
or will conform, as the case may be, to the requirements of, the Act and
the Rules and Regulations. Neither the Registration Statement nor any
amendment thereto, as of the applicable effective date, and neither the
Prospectus nor any supplement thereto contains or will contain, as the case
may be, any untrue statement of a material fact or omits or will omit to
state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representation or warranty as to information contained in or omitted from
the Registration Statement or the Prospectus, or any such amendment or
supplement, in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of the Underwriters specifically
for use in the preparation thereof; it being understood that the only
information so provided by or on behalf of the Underwriters is the
information included in the last paragraph on the cover page and in the
first and third paragraphs under the caption "Underwriting" in the
Prospectus.
(iii) The filing of the Registration Statement and the execution and
delivery of this Agreement and each of the Operative Documents (as defined
below) to which the Company is a party have been duly authorized by the
Board of Directors of the Company; the execution and delivery of each of
the Operative Documents have been duly authorized by necessary action by
each of the other parties thereto; this Agreement and each such Operative
Document constitutes a valid and legally binding obligation of the Company
and each other party thereto enforceable in accordance with their
respective terms; the issue and sale of the Shares by the Company and the
performance of this Agreement and each such Operative Document and the
consummation of the transactions herein and therein contemplated will not
result in a violation of the Company's or any Acquired Practice's (as
defined below) certificate or articles of incorporation, bylaws (or other
organizational documents) or any law, statute or rule applicable to the
Company or any such Acquired Practice or result in a breach or violation of
any of the terms and provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any properties or assets of the Company or its subsidiaries or any
Acquired Practice or its subsidiaries under, any law or statute, or under
any indenture, mortgage, deed of trust, note, loan agreement, sale and
leaseback arrangement or other agreement or instrument to which the Company
or any of its subsidiaries or any Acquired Practice or its subsidiaries is
a party or by which they are bound or to which any of the properties or
assets of the Company or its subsidiaries or any Acquired Practice or its
subsidiaries is subject, or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or its
subsidiaries or
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any Acquired Practice or its subsidiaries or their respective properties;
no consent, approval, authorization, order, registration or qualification
of or with any court or governmental agency or body is required for the
consummation of the transactions herein or therein contemplated, except
such as may be required by the National Association of Securities Dealers,
Inc. (the "NASD") or under the Act or Rules and Regulations or any state
securities laws.
(iv) Except as described in the Prospectus, since September 30, 1997
neither the Company or any of its subsidiaries nor any Acquired Practice or
its subsidiaries has sustained any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree. Except as contemplated in the Prospectus,
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, neither the Company or its
subsidiaries nor the Acquired Practices or their respective subsidiaries
have incurred any material liabilities or material obligations, direct or
contingent, other than in the ordinary course of business, or entered into
any material transactions not in the ordinary course of business, and there
has not been any material change in the capital stock or long-term debt of
the Company or its subsidiaries or the Acquired Practices or their
respective subsidiaries or any material adverse change in the condition
(financial or other), net worth, business, affairs, management, prospects
or results of operations of the Company or its subsidiaries or any Acquired
Practice or its subsidiaries. The Company and its subsidiaries and the
Acquired Practices and their respective subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns and
paid all taxes shown as due thereon; all tax liabilities are adequately
provided for on the books of the Company and its subsidiaries and each of
the Acquired Practices and its subsidiaries; the Company and its
subsidiaries and each of the Acquired Practices and its subsidiaries have
made all necessary payroll tax payments and are current and up-to-date as
of the date of this Agreement; and the Company and its subsidiaries and
each of the Acquired Practices and its subsidiaries have no knowledge of
any tax proceeding or action pending or threatened against the Company or
its subsidiaries which might materially adversely affect the business,
condition (financial or other), prospects or results of operation of the
Company or its subsidiaries or the Acquired Practices or their respective
subsidiaries.
(v) Except as described in the Prospectus, there is not now pending
nor, to the knowledge of the Company, threatened or contemplated, any
action, suit or proceeding to which the Company or its subsidiaries or any
of the Acquired Practices or its subsidiaries is a party before or by any
court or public, regulatory or governmental agency or body which might be
expected to result (individually or in the aggregate) in any material
adverse change in the condition (financial or other), business, prospects
or results of operations of the Company or its subsidiaries or any of the
Acquired Practices or its subsidiaries, or might be expected to materially
and adversely affect (individually or in the aggregate) the properties or
assets thereof; and there are no contracts or documents of the Company or
its subsidiaries or any of the Acquired Practices or its subsidiaries which
would be required to be filed as exhibits to the Registration Statement by
the Act or by the Rules and Regulations which have not been filed as
exhibits to the Registration Statement.
(vi) The Company has duly and validly authorized capital stock as
described in the Prospectus; all outstanding shares of Common Stock of the
Company and the Shares conform, or when issued will conform, to the
description thereof in the Registration Statement and the Prospectus and
have been, or, when issued and paid for will be, duly authorized, validly
issued, fully paid and nonassessable; and the issuance of the Shares to be
purchased from the Company hereunder is not subject to preemptive rights.
Except as described in the Prospectus, no options, warrants or other rights
to purchase, agreement or other obligations to issue or other rights to
convert any obligations into shares of capital stock of the Company.
(vii) The Company and its subsidiaries and each of the Acquired
Practices and its subsidiaries have been duly incorporated or formed and
are validly existing as corporations, partnerships or limited liability
companies in good standing under the laws of the states or other
jurisdictions in which they are
4
incorporated or formed, with full power and authority (corporate and other)
to own, lease and operate their properties and conduct their businesses
and, with respect to the Company and its subsidiaries, as described in the
Registration Statement; the Company and its subsidiaries and each of the
Acquired Practices and its subsidiaries are duly qualified to do business
as foreign corporations, partnerships or limited liability companies in
good standing in each state or other jurisdiction in which their ownership
or leasing of property or conduct of business legally requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the ability of the Company and its subsidiaries
or any Acquired Practice and its subsidiaries to conduct its or their
business and, with respect to the Company and its subsidiaries, as
described in the Registration Statement; and the outstanding shares of
capital stock of the Company's and each Acquired Practice's subsidiaries
have been duly authorized and validly issued, are fully paid and
nonassessable and are owned by the Company or such Acquired Practice free
and clear of any mortgage, pledge, lien, encumbrance, charge or adverse
claim and are not the subject of any agreement or understanding with any
person; no options, warrants or other rights to purchase, agreement or
other obligations to issue or other rights to convert any obligations into
shares of capital stock or ownership interests in the subsidiaries are
outstanding. Upon the completion of the acquisition of the Acquired
Practices in the manner described in the Registration Statement, all of the
capital stock or operating assets and receivables, as the case may be, will
be owned by the Company free and clear of all liens, encumbrances and
claims; and with respect to any capital stock of any of the Acquired
Practices acquired by the Company, the Company will own 100% of such
capital stock; and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligations into shares of capital stock or ownership interests in any of
the Acquired Practices are outstanding.
(viii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the accounting firm which has certified
the financial statements filed with the Commission as a part of the
Registration Statement, is an independent public accounting firm within the
meaning of the Act and the Rules and Regulations.
(ix) The consolidated financial statements and schedules of the
Company and the Acquired Practices, including the notes thereto, filed with
and as a part of the Registration Statement, are accurate in all material
respects and present fairly the consolidated financial position of the
Company and its subsidiaries and such Acquired Practices and their
respective subsidiaries as of the respective dates thereof and the
consolidated results of operations and statements of cash flow for the
respective periods covered thereby, all in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved, except as otherwise disclosed in the Prospectus. The
summary financial data and selected financial data included in the
Registration Statement and Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the
audited financial statements in the Registration Statement and Prospectus.
(x) Neither the Company, any Acquired Practice nor any of their
respective subsidiaries is in default with respect to any contract or
agreement to which it is a party; provided that this representation shall
not apply to defaults which in the aggregate are not materially adverse to
the condition (financial or other) or the business, prospects or results of
operation of the Company, any Acquired Practice or their respective
subsidiaries.
(xi) Neither the Company or any of its subsidiaries nor any Acquired
Practice or any of its subsidiaries is in violation of any other laws,
ordinances or governmental rules or regulations to which it is subject, and
neither the Company or any subsidiary nor any Acquired Practice or any of
its subsidiaries has failed to obtain any other license, permit, franchise,
easement, consent, or other governmental authorization necessary to the
ownership, leasing and operation of its properties or to the conduct of its
business, which violation or failure might materially adversely affect the
business, operations, affairs, properties, prospects, profits or condition
(financial or other) of the Company or its subsidiaries or any Acquired
Practice and its subsidiaries. Neither the Company or any of its
subsidiaries nor any Acquired Practice or any of its subsidiaries has, at
any time during the past five years, (A) made any unlawful contributions to
any candidate for any political office, or failed fully to
5
disclose any contribution in violation of law, or (B) made any payment to
any state, federal or foreign government official, or other person charged
with similar public or quasi-public duty (other than payment required or
permitted by applicable law).
(xii) Except as described in the Prospectus, the Company and its
subsidiaries and each Acquired Practice and its subsidiaries own or
possess, or can acquire on reasonable terms, adequate patents, patent
licenses, trademarks, service marks and trade names necessary to conduct
the business now operated by them, and neither the Company nor any
subsidiary nor any Acquired Practice and its subsidiaries has received any
notice of infringement of or conflict with asserted rights of others with
respect to any patents, patent licenses, trademarks, service marks or trade
names which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on the
conduct of the business, condition (financial or other), prospects or
results of operation of the Company and its subsidiaries or any Acquired
Practice and its subsidiaries.
(xiii) The Company and its subsidiaries and each Acquired Practice
and its subsidiaries have good and marketable title to all property owned
by them, free and clear of all liens, encumbrances, restrictions and
defects except such as are described in the Registration Statement or do
not interfere with the use made and proposed to be made of such property;
and any property held under lease or sublease by the Company or its
subsidiaries and each Acquired Practice or its subsidiaries is held under
valid, subsisting and enforceable leases or subleases with such exceptions
as are not material and do not interfere with the use made and proposed to
be made of such property by the Company and its subsidiaries or such
Acquired Practice and its subsidiaries, and neither the Company or any of
its subsidiaries nor any Acquired Practice or its subsidiaries has any
notice or knowledge of any material claim of any sort which has been, or
may be, asserted by anyone adverse to the Company's or any Acquired
Practice's or any of their respective subsidiary's rights as lessee or
sublessee under any lease or sublease described above, or affecting or
questioning the Company's or any Acquired Practice's or any of their
respective subsidiary's rights to the continued possession of the leased or
subleased premises under any such lease or sublease in conflict with the
terms thereof.
(xiv) Except as described in the Prospectus, there is no factual
basis for any action, suit or other proceeding involving the Company or its
subsidiaries or any Acquired Practice or its subsidiaries or any of their
material assets for any failure of the Company or any of its subsidiaries
or any Acquired Practice or its subsidiaries, or any predecessor thereof,
to comply with any requirements of federal, state or local regulation
relating to air, water, solid waste management, hazardous or toxic
substances, or the protection of health or the environment. Except as
described in the Prospectus, none of the property owned or leased by the
Company or any of its subsidiaries or any Acquired Practice or its
subsidiaries is contaminated with any waste or hazardous substances, and
neither the Company nor any of its subsidiaries or any Acquired Practice or
its subsidiaries may be deemed an "owner or operator" of a "facility"
or "vessel" which owns, possesses, transports, generates or disposes of a
"hazardous substance" as those terms are defined in ^9601 of the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. ^9601 ET SEQ.
(xv) No labor disturbance exists with the employees of the Company or
its subsidiaries or any Acquired Practice or its subsidiaries or is
imminent which would have a material adverse effect on the business,
condition (financial or other), prospects or results of operation of the
Company and its subsidiaries or such Acquired Practice and its
subsidiaries.
(xvi) None of the Company nor the Acquired Practices has taken nor
will take, directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in stabilization or manipulation
of the price of the Company's Common Stock, and the Company is not aware of
any such action taken or to be taken by affiliates of the Company or any
Acquired Practice.
(xvii) None of the Company nor the Acquired Practices is an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
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(xviii) The information set forth under the caption
"Capitalization" in the Prospectus is true and correct. All of the shares
conform to the description thereof contained in the Registration Statement.
The form of certificates for the Shares conforms to the requirements of the
Delaware General Corporation Laws ("DGCL").
(xix) Upon completion of the acquisition of the Acquired Practices in
the manner described in the Registration Statement, the shares of Common
Stock to be issued in connection therewith will be duly authorized, validly
issued and fully paid and non-assessable.
(xx) The Company, each of the Acquired Practices and each of their
respective subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (1) transactions are
executed in accordance with management's general or specific authorization;
(2) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (3) access to assets
is permitted only in accordance with management's general or specific
authorization; and (4) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(xxi) The Company, each of the Acquired Practices and each of their
respective subsidiaries carry, or are covered by, insurance in such amounts
and covering such risks as is adequate for the conduct of their respective
businesses and the value of their respective properties and as is customary
for companies engaged in similar industries.
(xxii) The Company, each of the Acquired Practices and each of their
respective subsidiaries are in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined
in ERISA for which the Company or any of the Acquired Practices has
incurred and does not expect to incur liability under (I) Title IV of ERISA
with respect to termination of, or withdrawal from, any "pension plan" or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"Code"); and each "pension plan" for which the Company, any of the
Acquired Practices or any of their respective subsidiaries would have any
liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification.
(xxiii) The Company has filed a registration statement pursuant to
12(g) of the Exchange Act, to register the Common Stock, has filed an
application to include the shares on the NASDAQ/NMS under the symbol
"AMPZ", and has received notification that the listing has been approved
subject to notice of issuance of the shares.
(xxiv) Except as disclosed in the Prospectus, there are no business
relationships or related party transactions required to be disclosed
therein by Item 404 of Regulation S-K of the Commission.
(xxv) The material documents relating to the acquisitions discussed
in the Prospectus, including Management Services Agreements, Physician
Employment Agreements, Physician Engagement Agreements, Stock Purchase
Agreements, Business Purchase Agreements, Asset Purchase Agreements,
Registration Rights Agreements, Employment Agreements and Stockholder
Protection Agreements (collectively, the "Operative Documents") each as
described in the Prospectus, will have been duly and validly authorized and
delivered by the Company (the extent a party thereto) and each of the other
parties thereto and will be valid and binding obligations of the Company
and each of the other parties thereto enforceable in accordance with their
respective terms.
(xxvi) All offers and sales by the Company of the Company's
securities prior to the date hereof, including the offer and sale of the
shares of Common Stock in connection with the acquisition of the Acquired
Practices were at all relevant times duly registered or the subject of an
available exemption from the registration requirements of the Act and the
Rules and Regulations, and were duly registered
7
or the subject of an available exemption from the registration requirements
of the applicable state securities or Blue Sky laws, and any private
placement memoranda delivered in connection with offers and sales of the
Company's securities prior to the date hereof did not include any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading.
For purposes of this Agreement, Acquired Practices means,
collectively, the Company's acquisition of (a) the capital stock or certain
assets and receivables of the 46 separate podiatric practices (the
"Affiliated Practices"), (b) the capital stock of the podiatric practice
owned by ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "▇▇▇▇▇▇ Transfer"), (c) certain assets of
Pyramid Anesthesiology Group, Inc. (the "AnestheCare Acquisition') and (d)
Bellaire SurgiCare, Inc. and ▇▇▇▇▇▇▇ Outpatient Surgical Center, Inc. (the
"Ambulatory Surgery Center Acquisitions"), in each case, as described in
the Prospectus.
(b) Any certificate signed by any officer of the Company and delivered to
you or to counsel for the Underwriters shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered thereby.
5. ADDITIONAL COVENANTS. The Company covenants and agrees with the
several Underwriters that:
(a) If the Registration Statement is not effective under the Act, the
Company will use its best efforts to cause the Registration Statement to become
effective as promptly as possible, and it will notify you, promptly after it
shall receive notice thereof, of the time when the Registration Statement has
become effective. The Company (i) will prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations, if required, a
Prospectus containing information previously omitted at the time of
effectiveness of the Registration Statement in reliance on Rule 430A of the
Rules and Regulations or otherwise or a Term Sheet or Abbreviated Term Sheet, as
applicable; (ii) will not file any amendment to the Registration Statement or
supplement to the Prospectus of which the Underwriters shall not previously have
been advised and furnished with a copy or to which the Underwriters shall have
reasonably objected in writing or which is not in compliance with the Act or the
Rules and Regulations; and (iii) will promptly notify you after it shall have
received notice thereof of the time when any amendment to the Registration
Statement becomes effective or when any supplement to the Prospectus has been
filed.
(b) The Company will advise the Underwriters promptly, after it shall
receive notice or obtain knowledge thereof, of any request of the Commission for
amendment of the Registration Statement or for supplement to the Prospectus or
for any additional information, or of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the use of
the Prospectus or of the institution or threatening of any proceedings for that
purpose, and the Company will use its best efforts to prevent the issuance of
any such stop order preventing or suspending the use of the Prospectus and to
obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with the Underwriters and their counsel in
endeavoring to qualify the Shares for sale under the securities laws of such
jurisdictions as they may have designated and will make such applications, file
such documents, and furnish such information as may be necessary for that
purpose, provided the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction where it is not now so qualified or required to file such a consent
or to subject itself to taxation as doing business in any jurisdiction where it
is not now so taxed. The Company will, from time to time, file such statements,
reports, and other documents, as are or may be required to continue such
qualifications in effect for so long a period as the Underwriters may reasonably
request.
(d) The Company will deliver to, or upon the order of, the Underwriters,
without charge from time to time, as many copies of any Preliminary Prospectus
as they may reasonably request. The Company will deliver to, or upon the order
of, the Underwriters without charge as many copies of the Prospectus, as it
thereafter may be amended or supplemented, as they may from time to time
reasonably request. The Company consents to the use of such Prospectus by the
Underwriters and by all dealers to whom the Shares may be sold, both in
connection with the offering or sale of the Shares and for such other purposes
and for
8
such period of time thereafter as the Prospectus is required by law to be
delivered in connection with the offering or sale of the Shares. The Company
will deliver to the Underwriters at or before the Closing Date two signed copies
of the Registration Statement and all amendments thereto including all exhibits,
financial statements and schedules filed therewith, and will deliver to the
Underwriters such number of copies of the Registration Statement, without
exhibits, and of all amendments thereto, as they may reasonably request.
(e) If, during the period in which a prospectus is required by law to be
delivered by an Underwriter or dealer, any event shall occur as a result of
which, in the judgment of the Company or in your judgment or in the opinion of
counsel for the Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in light of the
circumstances existing at the time the Prospectus is delivered to a purchaser,
not misleading, or, if it is necessary at any time to amend or supplement the
Prospectus to comply with any law (including, without limitation, the Act and
the Rules and Regulations), the Company promptly will prepare and file with the
Commission an appropriate amendment to the Registration Statement or supplement
to the Prospectus so that the Prospectus as so amended or supplemented will not,
in the light of the circumstances when it is so delivered, be misleading, or so
that the Prospectus will comply with law.
(f) The Company will make generally available to its stockholders and will
file as an exhibit in a report pursuant to the Securities and Exchange Act of
1934, as amended (the "1934 Act"), as soon as it is practicable to do so, but
in any event not later than 15 months after the effective date of the
Registration Statement, an earnings statement in reasonable detail, covering a
period of at least 12 consecutive months beginning after the effective date of
the Registration Statement, which earnings statement shall satisfy the
requirements of Section 11(a) of the Act and Rule 158 of the Rules and
Regulations and will advise the Underwriters in writing when such statement has
been so made available.
(g) The Company will, for a period of five years from the Closing Date,
deliver to the Underwriters at their principal executive offices a reasonable
number of copies of annual reports, quarterly reports, current reports and
copies of all other documents, reports and information furnished by the Company
to its stockholders or filed with any securities exchange pursuant to the
requirements of such exchange or with the Commission pursuant to the Act or the
1934 Act. The Company will deliver to the Underwriters similar reports with
respect to any significant subsidiaries, as that term is defined in the Rules
and Regulations, which are not consolidated in the Company's financial
statements. Any report, document or other information required to be furnished
under this paragraph (g) shall be furnished as soon as practicable after such
report, document or information becomes available.
(h) The Company will apply the proceeds from the sale of the Shares as set
forth in the description under "Use of Proceeds" in the Prospectus, which
description complies in all respects with the requirements of Item 504 of
Regulation S-K.
(i) The Company will supply you with copies of all correspondence to and
from, and all documents issued to and by, the Commission in connection with the
registration of the Shares under the Act.
(j) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Company will furnish to you, as soon as they have been prepared,
copies of any unaudited interim consolidated financial statements of the Company
and its subsidiaries for any periods subsequent to the periods covered by the
financial statements appearing in the Registration Statement and the Prospectus.
(k) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Company will not issue or have issued on its behalf any press
releases or other communications directly or indirectly and will hold no press
conferences with respect to the Company or any of its subsidiaries, the
financial condition, results of operations, business, properties, assets or
liabilities of the Company or any of its subsidiaries, or the offering of the
Shares, without the prior written consent of ▇▇▇▇▇▇▇.
(l) The Company will use its best efforts to obtain approval for, and
maintain the quotation of the Shares on, the National Association of Securities
Dealers, Inc. Automated Quotation/National Market System (the "NASDAQ/NMS").
The Shares have been approved for listing on the NASDAQ/NMS, subject to notice
of issuance under the symbol "AMPZ."
9
(m) For a period of 180 days from the Effective Date, the Company will
not, and will use its best efforts to cause its directors, officers, 5%
stockholders and each owner of the Acquired Practices to not, directly or
indirectly sell, contract to sell or otherwise dispose of any shares of the
Company's Common Stock, any securities exchangeable for Common Stock or any
other rights to acquire such shares without the prior written consent of
▇▇▇▇▇▇▇, except for the Shares sold hereunder and except for sales of shares of
Common Stock to the Company's employees pursuant to the exercise of options
under the Company's 1997 Incentive and Non-Qualified Stock Option Plan as in
effect on the Effective Date.
(n) The Company and its subsidiaries will maintain and keep accurate books
and records reflecting their assets and maintain internal accounting controls
which provide reasonable assurance that (i) transactions are executed in
accordance with management's authorization, (ii) transactions are recorded as
necessary to permit the preparation of the Company's consolidated financial
statements and to maintain accountability for the assets of the Company and its
subsidiaries, (iii) access to the assets of the Company and its subsidiaries is
permitted only in accordance with management's authorization, and (iv) the
recorded accounts of the assets of the Company and its subsidiaries are compared
with existing assets at reasonable intervals.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of
the Underwriters to purchase and pay for the Shares, as provided herein, shall
be subject to the accuracy in all material respects, as of the date hereof and
as of the Closing Date (and, if applicable, the Option Closing Date), of the
representations and warranties of the Company contained herein, to the
performance in all material respects by the Company of its covenants and
obligations hereunder, and to the following additional conditions:
(a) All filings required by Rule 424 and Rule 430A of the Rules and
Regulations shall have been made. No stop order suspending the effectiveness of
the Registration Statement, as amended from time to time, shall have been issued
and no proceeding for that purpose shall have been initiated or, to the
knowledge of the Company or any Underwriter, threatened or contemplated by the
Commission, and any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or otherwise) shall
have been complied with to the reasonable satisfaction of the Underwriters.
(b) No Underwriter shall have disclosed in writing to the Company on or
prior to the Closing Date (and, if applicable, the Option Closing Date), that
the Registration Statement or Prospectus or any amendment or supplement thereto
contains an untrue statement of fact which, in the opinion of counsel to the
Underwriters, is material, or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein or is necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(c) On the Closing Date (and, if applicable, the Option Closing Date), you
shall have received the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the
Company, addressed to you and dated the Closing Date (and, if applicable, the
Option Closing Date), to the effect that:
(i) The Company and its subsidiaries have been duly incorporated and
are validly existing as corporations in good standing under the laws of the
states or other jurisdictions in which they are incorporated, with full
power and authority (corporate and other) to own, lease and operate their
properties and conduct their business as described in the Registration
Statement; the Company and its subsidiaries are duly qualified to do
business as foreign corporations in good standing in each state or other
jurisdiction in which their ownership or leasing of property or conduct of
business legally requires such qualification, except where the failure to
be so qualified would not have a material adverse effect on the ability of
the Company and its subsidiaries to conduct its or their business as
described in the Registration Statement; and the outstanding shares of
capital stock of the Company's subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and, to the knowledge of
such counsel after due inquiry, are owned by the Company free and clear of
any mortgage, pledge, lien, encumbrance, charge or adverse claim and are
not the subject of any agreement or understanding with any person; no
options, warrants or other rights to purchase, agreement or other
obligations to issue or other rights to convert any obligations into shares
of capital stock or ownership interests in the subsidiaries are
outstanding.
10
(ii) The Company has duly and validly authorized capital stock as set
forth under the heading "Capitalization" in the Prospectus; all
outstanding shares of Common Stock of the Company and the Shares conform to
the description thereof in the Prospectus under the heading "Description
of Capital Stock", and the outstanding shares of Common Stock have been
duly authorized and are validly issued, fully paid and non-assessable; the
Shares to be sold by the Company have been duly authorized and, when
delivered and paid for in accordance with this Agreement, will be validly
issued, fully paid and non-assessable, and the stockholders of the Company
have no preemptive rights with respect to the Shares.
(iii) Except as described in or contemplated by the Prospectus, to
the knowledge of such counsel, there are no outstanding securities of the
Company convertible or exchangeable into or evidencing the right to
purchase or subscribe for any shares of capital stock of the Company and
there are no outstanding or authorized options, warrants or rights of any
character obligating the Company to issue any shares of its capital stock
or any securities convertible or exchangeable into or evidencing the right
to purchase or subscribe for any shares of such stock; and except as
described in the Prospectus, to the knowledge of such counsel, no holder of
any securities of the Company or any other person has the right,
contractual or otherwise, which has not been satisfied or effectively
waived, 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 shares of Common Stock or other securities of the Company included
in the Registration Statement or the right, as a result of the filing of
the Registration Statement, to require registration under the Act of any
shares of Common Stock or other securities of the Company.
(iv) All offers and sales by the Company of its securities prior to
the date of this Agreement, including the offer and sale of the shares of
Common Stock in connection with the acquisition of the Acquired Practices
were at all relevant times duly registered or the subject of an available
exemption from the registration requirements of the Act and the Rules and
Regulations, and were duly registered or the subject of an exemption from
the registration requirements of the applicable state securities or Blue
Sky Laws, and any private placement memorandum delivered in connection with
offers and sales of the Company's securities prior to the date of this
Agreement did not, to the knowledge of such counsel after due inquiry,
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not
misleading.
(v) The Registration Statement has become effective under the Act
and, to the knowledge of such counsel, no stop order proceedings with
respect thereto have been instituted or are pending or threatened under the
Act.
(vi) This Agreement and each of the Operative Documents have been
duly authorized, executed and delivered by the Company to the extent a
party thereto and constitute the legal, valid and binding obligations of
the Company, except as such obligations may be subject to or limited by
bankruptcy, insolvency and general principles of equity and except as to
those provisions relating to indemnities and contribution for liabilities
arising under the Act.
(vii) To such counsel's knowledge, except as otherwise set forth in
the Prospectus all leases to which the Company is a party are valid and
binding.
(viii) Such counsel has been advised by the staff of the Commission
that the Registration Statement has become effective under the Act and, to
the knowledge of such counsel after due inquiry, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act.
(ix) The Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective effective or issue
date, comply as to form and appear on their face to be appropriately
responsive in all material respects to the requirements of the Act and the
applicable Rules and Regulations (except that such counsel need express no
opinion as to the financial statements or other financial data).
11
(x) The descriptions in the Registration Statement and Prospectus of
contracts and other documents filed as exhibits to the Registration
Statement are accurate in all material respects; all other material
agreements between the Company and third parties expressly referenced in
the Prospectus are legal, valid and binding obligations of the Company and
enforceable in accordance with their terms.
(xi) No authorization, approval, consent, order, registration or
qualification of or with any court or governmental body, authority or
agency is required with respect to the Company in connection with the
transactions contemplated by this Agreement, except such as may be required
under the Act or the Rules and Regulations or as may be required by the
NASD or under state securities laws in connection with the purchase and
distribution of the Shares by the Underwriters.
(xii) The filing of the Registration Statement has been duly
authorized by the Board of Directors of the Company. This Agreement and
each of the Operative Documents (to which the Company is a party) has been
duly authorized, executed and delivered by the Company. The performance of
this Agreement and the Operative Documents and the consummation of the
transactions herein and therein contemplated will not result in a violation
of the Company's certificate of incorporation, bylaws or other
organizational document or result in a breach or violation of any of the
terms and provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
properties or assets of the Company and its subsidiaries under, any
statute, or under any indenture, mortgage, deed of trust, note, loan
agreement, sale and leaseback arrangement, or any other agreement or
instrument known to such counsel after due inquiry to which the Company or
any of its subsidiaries is a party or by which they are bound or to which
any of the properties or assets of the Company or its subsidiaries are
subject, or any order, rule or regulation known to such counsel after due
inquiry of any court or governmental agency or body having jurisdiction
over the Company or its subsidiaries or their properties, except, in the
case of any such violation, breach, default, creation or imposition, to
such extent as does not materially adversely affect the business, condition
(financial or other), prospects or results of operation of the Company and
its subsidiaries.
(xiii) To the knowledge of such counsel after due inquiry, (A) there
are no material (individually, or in the aggregate) legal, governmental or
regulatory proceedings pending or threatened to which the Company or any
subsidiary is a party or of which the business or properties of the Company
or any subsidiary is the subject which are not disclosed in the
Registration Statement and Prospectus; (B) there are no contracts or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement which are not described or filed as required; and
(C) there are no statutes or regulations required to be described in the
Registration Statement or Prospectus which are not described as required.
(xiv) To the knowledge of such counsel after due inquiry, the Company
and each of its subsidiaries hold all licenses, certificates, permits and
approvals from all state, federal and other regulatory authorities, and
have satisfied in all material respects the requirements imposed by
regulatory bodies, administrative agencies or other governmental bodies,
agencies or officials, that are required for the Company and its
subsidiaries lawfully to own, lease and operate its properties and conduct
its business as described in the Prospectus, and, to the knowledge of such
counsel after due inquiry, each of the Company and its subsidiaries is
conducting its business in compliance in all material respects with all of
the laws, rules and regulations of each jurisdiction in which it conducts
its business.
(xv) The statements made in the Registration Statement under the
captions "Dividend Policy", "Capitalization", "Description of Capital
Stock", "Certain Transactions", "Shares Eligible for Future Sale",
"Management-Employment Agreements", "-- 1997 Incentive and Non-Qualified
Stock Option Plan" and "Certain Anti-Takeover and Other Provisions of
Delaware Law" and the Company's certificate of incorporation and bylaws,
to the extent that they constitute summaries of documents referred to
therein or matters of law or legal conclusions, have been reviewed by such
counsel and are accurate summaries and fairly present the information
disclosed therein.
12
(xvi) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
Such counsel shall confirm that in the course of its duties in connection
with the preparation of the Registration Statement and Prospectus, nothing came
to such counsel's attention that would lead them to believe that either the
Registration Statement or Prospectus or any amendment or supplement thereto
(other than the financial statements or other financial data as to which such
counsel need express no opinion) contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
In rendering the foregoing opinion, such counsel may rely, provided that
the opinion shall state that you and they are entitled to so rely, as to all
matters of fact, upon certificates and written statements of the executive
officers of, and accountants for, the Company.
(d) You shall have received on the Closing Date (and, if applicable, the
Option Closing Date), from ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇, counsel to the Underwriters,
such opinion or opinions, dated the Closing Date (and, if applicable, the Option
Closing Date) with respect to the incorporation of the Company, the validity of
the Shares, the Registration Statement, the Prospectus and other related matters
as you may reasonably require; the Company shall have furnished to such counsel
such documents as they reasonably request for the purpose of enabling them to
pass on such matters.
(e) On the business day immediately preceding the date of this Agreement
and on the Closing Date (and, if applicable, the Option Closing Date), you shall
have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, a letter or letters, dated the date of
this Agreement and the Closing Date (and, if applicable, the Option Closing
Date), respectively, in form and substance satisfactory to you, confirming that
they are independent public accountants with respect to the Company within the
meaning of the Act and the published Rules and Regulations, and the answer to
Item 509 of Regulation S-K set forth in the Registration Statement is correct
insofar as it relates to them, and stating to the effect set forth in Schedule
II hereto.
(f) Except as contemplated in the Prospectus, (i) neither the Company nor
any of its subsidiaries nor any Acquired Practice nor any of its subsidiaries
shall have sustained since September 30, 1997 any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree; and (ii) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, neither the Company
nor any of its subsidiaries shall have incurred any liability or obligation,
direct or contingent, or entered into transactions, and there shall not have
been any change in the capital stock or long-term debt of the Company and its
subsidiaries or any change in the condition (financial or other), net worth,
business, affairs, management, prospects or results of operations of the Company
or its subsidiaries or any Acquired Practice or any of its subsidiaries, the
effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material or adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being delivered
on such Closing Date (and, if applicable, the Option Closing Date) on the terms
and in the manner contemplated in the Prospectus.
(g) There shall not have occurred any of the following: (i) a suspension
or material limitation in trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or the establishing on such exchanges by
the Commission or by such exchanges of minimum or maximum prices which are not
in force and effect on the date hereof; (ii) a general moratorium on commercial
banking activities declared by either federal or state authorities; (iii) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this clause (iii) in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares in the manner contemplated in the Prospectus; (iv) any calamity or
crisis, change in national, international or world affairs, act of God, change
in the international or domestic markets, or change in the existing financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in this clause (iv) makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares in
the manner
13
contemplated in the Prospectus; or (v) the enactment, publication, decree, or
other promulgation of any federal or state statute, regulation, rule, or order
of any court or other governmental authority, or the taking of any action by any
federal, state or local government or agency in respect of fiscal or monetary
affairs, if the effect of any such event specified in this clause (v) in your
judgment makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares in the manner contemplated in the
Prospectus.
(h) You shall have received certificates, dated the Closing Date (and, if
applicable, the Option Closing Date) and signed by the President and the Chief
Financial Officer of the Company stating that (i) they have carefully examined
the Registration Statement and the Prospectus as amended or supplemented and
nothing has come to their attention that would lead them to believe that either
the Registration Statement or the Prospectus, or any amendment or supplement
thereto as of their respective effective or issue dates, contained, and the
Prospectus as amended or supplemented at such Closing Date, contains any untrue
statement of a material fact, or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, and, that (ii) all
representations and warranties made herein by the Company are true and correct
in all material respects at such Closing Date, with the same effect as if made
on and as of such Closing Date, and all agreements herein to be performed by the
Company on or prior to such Closing Date have been duly performed in all
material respects.
(i) The Company shall not have failed, refused, or been unable, at or
prior to the Closing Date (and, if applicable, the Option Closing Date) to have
performed in all material respects any agreement on their part to be performed
or any of the conditions herein contained and required to be performed or
satisfied by them at or prior to such Closing Date.
(j) The Company shall have furnished to you at the Closing Date (and, if
applicable, the Option Closing Date) such other certificates as you may have
reasonably requested as to the accuracy, on and as of such Closing Date, of the
representations and warranties of the Company and as to the performance by the
Company of their obligations hereunder.
(k) The Shares shall have been approved for trading upon official notice
of issuance on the NASDAQ/NMS under the symbol "AMPZ".
All such opinions, certificates, letters and documents will be in compliance
with the provisions hereof only if they are reasonably satisfactory to you and
to ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇, counsel for the several Underwriters. The Company
will furnish you with such conformed copies of such opinions, certificates,
letters and documents as you may request.
If any of the conditions specified above in this Section 6 shall not have
been satisfied at or prior to the Closing Date (and, if applicable, the Option
Closing Date) or waived by you in writing, this Agreement may be terminated by
you on notice to the Company.
7. INDEMNIFICATION.
The Company agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of the Act,
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter or such controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto,
or in any blue sky application or other document executed by the Company or
based on any information furnished by the Company, filed in any jurisdiction in
order to qualify any or all of the Shares under the securities laws thereof
("Blue Sky Application"), or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; and will reimburse each Underwriter and
each such controlling person for any legal or other expenses reasonably incurred
by such Underwriter or such controlling person in connection with investigating
or defending any
14
such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, such Preliminary Prospectus or the Prospectus, or such
amendment or supplement, or any Blue Sky Application in reliance upon and in
conformity with written information furnished to the Company by you or by any
Underwriter through you, specifically for use in the preparation thereof; it
being understood that the only information so provided by or on behalf of the
Underwriters is the information included in the last paragraph or the cover page
and in the first and third paragraphs under the caption "Underwritten in the
Prospectus". This indemnity agreement shall be in addition to any liabilities
which the Company may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Company, each of
its directors, each of its officers who have signed the Registration Statement
and, each person, if any, who controls the Company within the meaning of the
Act, against any losses, claims, damages or liabilities, joint or several, to
which the Company or any such director, officer or controlling person may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, any Preliminary Prospectus, the Prospectus, any
amendment or supplement thereto, or any Blue Sky Application or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Registration Statement, such Preliminary Prospectus or the Prospectus, such
amendment or supplement, or any Blue Sky Application in reliance upon and in
conformity with written information furnished to the Company by any such
Underwriter specifically for use in the preparation thereof; it being understood
that the only information so provided by or on behalf of the Underwriters is the
information included in the last paragraph on the cover page and in the first
and third paragraphs under the caption "Underwriting" in the Prospectus and
will reimburse any legal or other expenses reasonably incurred by the Company or
any such director, officer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity agreement shall be in addition to any liabilities which the
Underwriters may otherwise have.
(c) Any party which proposes to assert the right to be indemnified under
this Section 7 shall, within ten days after receipt of notice of commencement of
any action, suit or proceeding against such party in respect of which a claim is
to be made against an indemnifying party under this Section 7, notify each such
indemnifying party of the commencement of such action, suit or proceeding,
enclosing a copy of all papers served, but the omission so to notify such
indemnifying party of any such action, suit or proceeding shall not relieve such
indemnifying party from any liability which it may have to any indemnified party
otherwise than under this Section 7. In case any such action, suit or proceeding
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall wish, jointly with
any other indemnifying party, similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses, other than reasonable costs
of investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. The indemnified party shall have the right to employ
its own counsel in any such action, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the employment of
counsel by such indemnified party at the expense of the indemnifying party has
been authorized by the indemnifying party, (ii) the indemnified party shall have
been advised by such counsel in a written opinion that there may be a conflict
of interest between the indemnifying party and the indemnified party in the
conduct of the defense, or certain aspects of the defense, of such action (in
which case the indemnifying party shall not have the right to direct the defense
of such action with respect to those matters or aspects of the defense on which
a conflict exists or may exist
15
on behalf of the indemnified party) or (iii) the indemnifying party shall not in
fact have employed counsel to assume the defense of such action, in any of which
events such fees and expenses to the extent applicable shall be borne by the
indemnifying party. An indemnifying party shall not be liable for any settlement
of any action or claim effected without its consent. Each indemnified party, as
a condition of such indemnity, shall cooperate in good faith with the
indemnifying party in the defense of any such action or claim.
(d) If the indemnification provided for in this Section 7 is for any
reason, other than pursuant to the terms thereof, judicially determined (by the
entry of a final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right to appeal) to be
unavailable to an indemnified party under subsections (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company and the Underwriters
from the offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault, as applicable, of the Company and
the Underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as other relevant equitable considerations. The relative benefits
received by, as applicable, the Company and the Underwriters 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. The relative fault shall
be determined by reference to, among other things, whether the untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the underwriting discounts and
commissions applicable to the Shares purchased by such Underwriter. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, and agreements of the Company contained in Sections
7 and 11 herein or in certificates delivered pursuant hereto, and the agreements
of the Underwriters contained in Section 7 hereof, shall remain operative and in
full force and effect regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any Underwriter or any
controlling person, the Company or any of its officers, directors or any
controlling persons and shall survive delivery of the Shares to the Underwriters
hereunder.
9. SUBSTITUTION OF UNDERWRITERS.
(a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Shares on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Shares, then the Company
shall be entitled to a further period of
16
thirty-six hours within which to procure another party or parties reasonably
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Company that you have
so arranged for the purchase of such Shares, or the Company notifies you that it
has so arranged for the purchase of such Shares, you or the Company shall have
the right to postpone the Closing Date for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any persons substituted under this Section 9 with like effect as if such person
had originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters made by you or the Company as
provided in subsection (a) above, the aggregate number of Shares which remains
unpurchased does not exceed one tenth of the total Shares to be sold on the
Closing Date, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the Shares which such Underwriter agreed
to purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of Shares which
such Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters made by you or the Company as
provided in subsection (a) above, the number of Shares which remains unpurchased
exceeds one tenth of the total Shares to be sold on the Closing Date, or if the
Company shall not exercise the right described in subsection (b) above to
require the non-defaulting Underwriters to purchase Shares of the defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company
except for the expenses to be borne by the Company and the Underwriters as
provided in Section 11 hereof and the indemnity and contribution agreements in
Section 7 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. EFFECTIVE DATE AND TERMINATION.
(a) This Agreement shall become effective at 1:00 p.m., St. Louis time, on
the first business day following the effective date of the Registration
Statement, or at such earlier time after the effective date of the Registration
Statement as you in your discretion shall first release the Shares for offering
to the public; provided, however, that the provisions of Section 7 and 11 shall
at all times be effective. For the purposes of this Section 10(a), the Shares
shall be deemed to have been released to the public upon release by you of the
publication of a newspaper advertisement relating to the Shares or upon release
of telegrams, facsimile transmissions or letters offering the Shares for sale to
securities dealers, whichever shall first occur.
(b) This Agreement may be terminated by you at any time before it becomes
effective in accordance with Section 10(a) by notice to the Company; provided,
however, that the provisions of this Section 10 and of Section 7 and Section 11
hereof shall at all times be effective. In the event of any termination of this
Agreement pursuant to Section 9 or this Section 10(b) hereof, the Company shall
not then be under any liability to any Underwriter except as provided in Section
7 or Section 11 hereof.
(c) This Agreement may be terminated by you at any time at or prior to the
Closing Date by notice to the Company if any condition specified in Section 6
hereof shall not have been satisfied on or prior to the Closing Date. Any such
termination shall be without liability of any party to any other party except as
provided in Sections 7 and 11 hereof.
(d) This Agreement also may be terminated by you, by notice to the
Company, as to any obligation of the Underwriters to purchase the Option Shares,
if any condition specified in Section 6 hereof shall not have been satisfied at
or prior to the Option Closing Date or as provided in Section 9 of this
Agreement.
17
If you terminate this Agreement as provided in Sections 10(b), 10(c) or
10(d), you shall notify the Company by telephone or telegram, confirmed by
letter.
11. COSTS AND EXPENSES. The Company will bear and pay the costs and
expenses incident to the registration of the Shares and public offering thereof,
including, without limitation, (a) the fees and expenses of the Company's
accountants and the fees and expenses of counsel for the Company, (b) the
preparation, printing, filing, delivery and shipping of the Registration
Statement, each Preliminary Prospectus, the Prospectus and any amendments or
supplements thereto (except as otherwise expressly provided in Section 5(d)
hereof) and the printing, delivery and shipping of this Agreement, the Agreement
Among Underwriters, the Selected Dealer Agreement, and Underwriters'
Questionnaires, (c) the furnishing of copies of such documents (except as
otherwise expressly provided in Section 5(d) hereof) to the Underwriters, (d)
the registration or qualification of the Shares for offering and sale under the
securities laws of the various states, including the reasonable fees and
disbursements of Underwriters' counsel relating to such registration or
qualification, (e) the fees payable to the NASD and the Commission in connection
with their review of the proposed offering of the Shares, (f) all printing and
engraving costs related to preparation of the certificates for the Shares,
including transfer agent and registrar fees, (g) all initial transfer taxes, if
any, (h) all fees and expenses relating to the authorization of the Shares for
trading on NASDAQ/NMS, (i) all travel expenses, including air fare and
accommodation expenses, of representatives of the Company in connection with the
offering of the Shares and (j) all of the other costs and expenses incident to
the performance by the Company of the registration and offering of the Shares;
provided, however, that the Underwriters will bear and pay the fees and expenses
of the Underwriters' counsel (other than fees and disbursements relating to the
registration or qualification of the Shares for offering and sale under the
securities laws of the various states), the Underwriters' out-of-pocket
expenses, and any advertising costs and expenses incurred by the Underwriters
incident to the public offering of the Shares.
If this Agreement is terminated by you in accordance with the provisions of
Section 10(c), the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel to the Underwriters.
12. NOTICES. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to the
Underwriters shall be mailed, delivered, sent by facsimile transmission, or
telegraphed and confirmed c/o ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate, facsimile number (314)
289-7387, or if sent to the Company shall be mailed, delivered, sent by
facsimile transmission, or telegraphed and confirmed to the Company at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇.
Notice to any Underwriter pursuant to Section 7 shall be mailed, delivered, sent
by facsimile transmission, or telegraphed and confirmed to such Underwriter's
address as it appears in the Underwriters' Questionnaire furnished in connection
with the offering of the Shares or as otherwise furnished to the Company.
13. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, and the Company and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any person, corporation or other entity, other than the
parties hereto and their respective successors and assigns and the controlling
persons, officers and directors referred to in Section 7, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained; this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of the parties
hereto and their respective successors and assigns and said controlling persons
and said officers and directors, and for the benefit of no other person,
corporation or other entity. No purchaser of any of the Shares from any
Underwriter shall be construed a successor or assign by reason merely of such
purchase.
In all dealings with the Company under this Agreement you shall act on
behalf of each of the several Underwriters and the Company shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf of the
Underwriters, made or given by you on behalf of the Underwriters, as if the same
shall have been made or given in writing by the Underwriters.
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14. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
15. PRONOUNS. Whenever a pronoun of any gender or number is used herein,
it shall, where appropriate, be deemed to include any other gender and number.
16. APPLICABLE LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Missouri.
If the foregoing is in accordance with your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among the Company and the Underwriters.
AMERICAN MEDICAL PROVIDERS, INC.
By: __________________________________
Title: _______________________________
Accepted in St. Louis, Missouri as of the date first above written, on behalf of
ourselves and each of the several Underwriters named in Schedule I hereto.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
By: ____________________________________________________________________________
Title: _________________________________________________________________________
19
