Exhibit 1.1
FORM OF UNDERWRITING AGREEMENT
PlanVista Corporation
Shares of Common Stock
________________, 2002
FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ & CO., INC.
as Representative of the several Underwriters
c/o Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
PlanVista Corporation, a Delaware corporation (the "Company"),
and certain stockholders of the Company listed on Schedule I hereto (the
"Selling Stockholders"), each confirms its agreement with each of the
Underwriters listed on Schedule II hereto (collectively, the "Underwriters"),
for whom Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. is acting as representative (in
such capacity, the "Representatives"), with respect to the sale by the Company
and each Selling Stockholder of an aggregate of ____________ shares (the
"Initial Shares") of Common Stock, par value $0.01 per share, of the Company
("Common Stock") in the respective numbers of shares set forth opposite the
names of the Company and each such Selling Stockholder in Schedule I hereto, and
the purchase by the Underwriters, acting severally and not jointly, of the
respective number of shares of Common Stock set forth opposite the names of the
Underwriters in Schedule II hereto. The Company also confirms the grant of the
option described in Section 1(b) hereof to purchase all or any part of
__________ additional shares of Common Stock to cover overallotments (the
"Option Shares"), if any, from the Company to the Underwriters, acting severally
and not jointly. The _________ shares of Common Stock to be purchased by the
Underwriters and all or any part of the ___________ shares of Common Stock
subject to the option described in Section l(b) hereof are hereinafter called,
collectively, the "Shares".
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission"), a registration statement on Form S-1
(No. 333-66540) and a related preliminary prospectus for the registration of the
Shares under the Securities Act of 1933, as amended (the "Securities Act"), and
the rules and regulations thereunder (the "Securities Act Regulations"). The
Company has prepared and filed such amendments thereto and such amended
preliminary prospectuses as may have been required to the date hereof, and will
file such additional amendments thereto and such amended prospectuses as may
hereafter be required. The registration statement has been declared effective
under the Securities Act by the Commission. The registration statement as
amended at the time it became effective (including all exhibits, financial
schedules and information deemed (whether by incorporation by reference or
otherwise) to be a part of the registration statement at the time it became
effective pursuant to Rule 430A of the Securities Act Regulations or otherwise)
is hereinafter called the "Registration Statement," except that, if the Company
files a post-effective amendment to such registration statement which becomes
effective prior to the Closing Time (as defined below), "Registration Statement"
shall refer to such registration statement as so amended. Any registration
statement filed pursuant to Rule 462(b) of the Securities Act Regulations is
hereinafter called the "Rule 462(b) Registration Statement," and after such
filing the term "Registration Statement" shall include the 462(b) Registration
Statement. Each prospectus included in the registration statement, or amendments
thereof or supplements thereto, before it became effective under the Securities
Act and any prospectus filed with the Commission by the Company with the consent
of the Underwriters pursuant to Rule 424(a) of the Securities Act Regulations is
hereinafter called the "Preliminary Prospectus." The term "`Prospectus" means
the prospectus in the form included in the Registration Statement at the time of
effectiveness, or if Rule 430A of the Securities Act Regulations is relied upon,
the term "Prospectus" shall also include the final prospectus, as first filed
with the Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the
Securities Act Regulations, and any amendments thereof or supplements thereto.
The Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus.
The Company and the Selling Stockholders understand that the
Underwriters propose to make a public offering of the Shares as soon as the
Underwriters deem advisable after the effective date of the Registration
Statement and this Agreement has been executed and delivered. The Company and
the Selling Stockholders hereby confirm that the Underwriters and dealers have
been authorized to distribute or cause to be distributed each Preliminary
Prospectus and are authorized to distribute the Prospectus (as from time to time
amended or supplemented if the Company furnishes any amendments or supplements
thereto to the Underwriters).
Each of the certain Selling Stockholders listed on Schedule IV
hereto has executed and delivered a Custody Agreement and a Power of Attorney in
the form attached hereto as Exhibit A (the "Agreement and Power of Attorney")
pursuant to which each Selling Stockholder party thereto has placed the Initial
Shares to be sold by it pursuant to this Agreement in custody and appointed the
person designated therein (the "Attorney-in-Fact") with the authority to execute
and deliver this Agreement on behalf of such Selling Stockholder and to take
certain other actions with respect thereto and hereto.
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The Company, the Selling Stockholders and the Underwriters
agree as follows:
1. Sale and Purchase:
(a) Initial Shares. Upon the basis of the warranties and
representations and other terms and conditions herein set forth, at the purchase
price per share of $________ (which price reflects the Company's one-for-five
reverse stock split, effected shortly prior to the effectiveness of the
Registration Statement), the Company agrees to sell to the Underwriters the
number of Initial Shares set forth in Schedule I opposite its name and each
Selling Stockholder agrees to sell to the Underwriters the number of Initial
Shares set forth in Schedule I opposite such Selling Stockholder's name, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and the Selling Stockholders the number of Initial Shares set forth in Schedule
II opposite such Underwriter's name, plus any additional number of Initial
Shares which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 8 hereof, subject in each case, to such adjustments among
the Underwriters as the Representative in its sole discretion shall make to
eliminate any sales or purchases of fractional shares. The Underwriters may from
time to time increase or decrease the public offering price of the Initial
Shares from the initial price of such Initial Shares in the offering to such
extent as the Underwriters may determine.
(b) Option Shares. In addition, upon the basis of the warranties and
representations and other terms and conditions herein set forth, at the purchase
price per share set forth in paragraph (a), the Company hereby grants an option
to purchase all or any part of the ____________shares of Common Stock set forth
opposite the name of the Company in Schedule I hereto to the Underwriters. The
option hereby granted will expire 30 days after the date hereof and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Shares upon notice by the Representative to the
Company setting forth the number of Option Shares as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Shares. Any such time and date of delivery (a "Date of
Delivery") shall be determined by the Representative, but shall not be later
than three full business days (or earlier, without the consent of the Company,
than two full business days) after the exercise of said option, nor in any event
prior to the Closing Time, as hereinafter defined. If the option is exercised as
to all or any portion of the Option Shares, the Company will sell that number of
Option Shares then being purchased, and each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Option Shares then being purchased which the number of Initial Shares set forth
in Schedule II opposite the name of such Underwriter bears to the total number
of Initial Shares, subject in each case to such adjustments among the
Underwriters as the Representative in its sole discretion shall make to
eliminate any sales or purchases of fractional shares. The Underwriters may from
time to time increase or decrease the
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public offering price of the Option Shares from the initial price of such Option
Shares in the offering to such extent as the Underwriters may determine.
2. Payment and Delivery:
(a) Initial Shares. Payment of the purchase price for the Initial
Shares shall be made to the Company and the Selling Stockholders by wire
transfer of immediately available funds or certified or official bank check
payable in federal (same-day) funds at the offices of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
(unless another place shall be agreed upon by the Representative and the
Company) against delivery of the certificates for the Initial Shares to the
Representative for the respective accounts of the Underwriters. Such payment and
delivery shall be made at 9:30 a.m., New York City time, on the third (fourth,
if pricing occurs after 4:30 p.m., New York City time) business day after the
date hereof (unless another time, not later than ten business days after such
date, shall be agreed to by the Representative and the Company). The time at
which such payment and delivery are actually made is hereinafter sometimes
called the "Closing Time." Certificates for the Initial Shares shall be
delivered to the Representative in definitive form registered in such names and
in such denominations as the Representative shall specify. For the purpose of
expediting the checking of the certificates for the Initial Shares by the
Representative, the Company agrees to make such certificates available to the
Representative for such purpose at least one full business day preceding the
Closing Time.
(b) Option Shares. In addition, in the event the option with respect to
the Option Shares is exercised in whole or in part on one or more occasions,
payment of the purchase price for the Option Shares so purchased shall be made
to the Company by wire transfer of immediately available funds or certified or
official bank check payable in federal (same-day) funds at the offices of
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ (unless another place shall be agreed upon by the
Representative and the Company), against delivery of the certificates for the
Option Shares to the Representative for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 9:30 a.m., New York
City time, on each Date of Delivery determined pursuant to Section 1(b) above.
Certificates for the Option Shares shall be delivered to the Representative in
definitive form registered in such names and in such denominations as the
Representative shall specify. For the purpose of expediting the checking of the
certificates for the Option Shares by the Representative, the Company agrees to
make such certificates available to the Representative for such purpose at least
one full business day preceding the relevant Date of Delivery.
3. Representations and Warranties of the Company and the Selling
Stockholders:
I. The Company represents and warrants to each Underwriter that:
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(a) each subsidiary of the Company is named in Exhibit 21.1 to
the Registration Statement (collectively, the "Subsidiaries"). Each of the
Company and each Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its respective jurisdiction
of incorporation with full corporate power and authority to own, lease, license
and operate its respective assets and properties and to conduct its respective
business as described in the Registration Statement and Prospectus and, in the
case of the Company, to execute and deliver this Agreement and to consummate the
transactions contemplated hereby and thereby (including the issuance and sale of
the Shares to be sold by it);
(b) each of the Company and each Subsidiary is duly qualified
or licensed to do business as a foreign corporation by each jurisdiction in
which the nature of the business conducted by it or the location of the assets
or properties owned, leased, licensed or operated by it requires such
qualification or license and in which the failure, individually or in the
aggregate, to be so qualified or licensed could have a material adverse effect
on the assets, business, operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its Subsidiaries taken as
a whole, and the Company and each of the Subsidiaries are duly qualified, and
are in good standing, in each jurisdiction in which they own or lease real
property or maintain an office and in which such qualification is necessary,
except where the failure to be so qualified and in good standing would not have
a material adverse effect on the assets, business, operations, earnings,
prospects, properties or condition (financial or otherwise) of the Company and
its Subsidiaries taken as a whole; except as disclosed in the Prospectus, no
Subsidiary is prohibited or restricted, directly or indirectly, from paying
dividends to the Company, or from making any other distribution with respect to
such Subsidiary's capital stock or from repaying to the Company or any other
Subsidiary any amounts which may from time to time become due under any loans or
advances to such Subsidiary from the Company or such other Subsidiary, or from
transferring any such Subsidiary's property or assets to the Company or to any
other Subsidiary; other than as disclosed in the Prospectus, the Company does
not control or own, directly or indirectly, any capital stock or other equity
securities of any other corporation or any ownership interest in any
partnership, joint venture or other association;
(c) the Company and its Subsidiaries are in compliance in all
material respects with all applicable laws, rules, regulations, orders, decrees
and judgments, including those relating to transactions with affiliates;
(d) neither the Company nor any of its Subsidiaries is in
breach or violation of or in default under (nor has any event occurred which
with notice, lapse of time or both would constitute a breach of or default
under), any term or provision of its respective certificate of incorporation or
charter or by-laws, or in the performance or observance of any obligation,
agreement, covenant or condition contained in any license, indenture, mortgage,
deed of trust, loan or credit agreement or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which any of them
or their respective properties is bound, except for such breaches or defaults
which
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would not have a material adverse effect on the assets, business, operations,
earnings, prospects, properties or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole; and the execution, delivery and
performance of this Agreement and consummation of any of the transactions
contemplated hereby and thereby (including the issuance and sale of the Shares
to be sold by it), will not give rise to a right to terminate or accelerate the
due date of any payment due under, or conflict with, or result in any breach or
violation of, or constitute a default under (nor constitute any event which with
notice, lapse of time or both would constitute a breach of or default under), or
require any consent or waiver under, any provision of the certificate of
incorporation or charter or by-laws of the Company or any of its Subsidiaries,
or any provision of any franchise, permit, license, indenture, mortgage, deed of
trust, loan or credit agreement or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which any of them or their
respective properties may be bound or affected, or under any federal, state,
local or foreign law, regulation or rule or any decree, judgment or order
applicable to the Company or any of its Subsidiaries, or result in the creation
or imposition of any lien, charge, claim or encumbrance upon any property or
asset of the Company or its Subsidiaries, except for such consents or waivers
which have already been obtained and are in full force and effect;
(e) all necessary corporate action has been duly and validly
taken by the Company to authorize the execution, delivery and performance of
this Agreement and the issuance and sale of the Shares by the Company; this
Agreement has been duly authorized, executed and delivered by the Company and
isthe legal, valid and binding agreement of the Company enforceable in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, and by general principles of equity, and except to the extent that
the indemnification and contribution provisions of Section 9 hereof may be
limited by federal or state securities laws and public policy considerations in
respect thereof;
(f) no approval, authorization, consent, license, permit,
certificate or order of or filing by or with any federal, state or local
governmental or regulatory commission, board, body, authority or agency is
required in connection with the Company's execution, delivery and performance of
this Agreement, its consummation of the transaction contemplated hereby, or its
sale and delivery of the Shares, other than (A) such as have been obtained and
are in full force and effect, or will have been obtained and will be in full
force and effect at the Closing Time or the relevant Date of Delivery, as the
case may be, under the Securities Act, (B) such approvals as have been obtained
and are in full force and effect in connection with the approval of the
quotation of the Shares on the Nasdaq National Market and (C) any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriters; all actions necessary
to delist the Common Stock from the New York Stock Exchange have been duly taken
and such delisting has been effected;
(g) each of the Company and its Subsidiaries has all
necessary licenses, authorizations, consents, permits, certificates and
approvals and has made all
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necessary filings required under any federal, state or local law, regulation or
rule, and has obtained all necessary licenses, authorizations, consents,
permits, certificates and approvals from other persons, required in order to
own, lease and license their respective assets and properties and conduct their
respective businesses as described in the Prospectus, all of which are valid and
in full force and effect, except to the extent that any failure to have any such
licenses, authorizations, consents or approvals, to make any such filings or to
obtain any such licenses, authorizations, consents, permits, certificates or
approvals would not, individually or in the aggregate, have a material adverse
effect on the assets, business, operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its Subsidiaries taken as
a whole; neither the Company nor any of its Subsidiaries is required by any
applicable law to obtain accreditation or certification from any governmental
agency or authority in order to provide the products and services which it
currently provides or which it proposes to provide as set forth in the
Prospectus; neither the Company nor any of its Subsidiaries is in violation of,
in default under, or has received any notice regarding a possible violation,
default or revocation of any such license, authorization, consent, permit,
certificate or approval or any federal, state, local or foreign law, regulation
or rule or any decree, order or judgment applicable to the Company or any of its
Subsidiaries the effect of which could be material and adverse to the assets,
business, operations, earnings, prospects, properties or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole; no event has
occurred that allows, or after notice or lapse of time would allow, revocation
or termination of any such license, authorization, consent, permit, certificate
or approval or results in any other material impairment of the rights of the
Company or any Subsidiary thereunder; and no such license, authorization,
consent, permit, certificate or approval contains a materially burdensome
restriction that is not adequately disclosed in the Registration Statement and
the Prospectus;
(h) the Company has an authorized capitalization as set forth
in the Prospectus under the caption "Capitalization;" the outstanding shares of
capital stock of the Company and its Subsidiaries have been duly and validly
authorized and issued and are fully paid and non-assessable and none of them was
issued in violation of any preemptive or other similar right, and all of the
outstanding shares of capital stock of the Subsidiaries are directly or
indirectly owned of record and beneficially by the Company; all securities
issued by the Company, any of its Subsidiaries or any trust established by the
Company or any Subsidiary, have been issued and sold in compliance with (x) all
applicable federal and state securities laws, (y) the laws of the applicable
jurisdiction of incorporation of the issuing entity and (z) to the extent
applicable, the requirements of the New York Stock Exchange and the Nasdaq
National Market; except as disclosed in the Prospectus, there are no outstanding
(i) securities or obligations of the Company or any of its Subsidiaries
convertible into or exchangeable for any capital stock of the Company or any
such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase
from the Company or any such Subsidiary any such capital stock or any such
convertible or exchangeable securities or obligations, or (iii) obligations,
commitments, plans or arrangements of the Company or any such Subsidiary to
issue any shares of capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants,
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rights or options; there are no statutory preemptive or other similar rights to
subscribe for or to purchase or acquire any shares of capital stock of the
Company or any such rights pursuant to its certificate of incorporation or
by-laws or any agreement or instrument to or by which the Company is a party or
bound;
(i) each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the Securities Act and no stop
order preventing or suspending the effectiveness of the Registration Statement
or any Rule 462(b) Registration Statement or the use of the Prospectus has been
issued under the Securities Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are threatened by
the Commission, and any request on the part of the Commission for additional
information has been complied with; any required filing of the Prospectus and
any supplement thereto pursuant to Rule 424(b) of the Securities Act Regulations
has been or will be made in the manner and within the time period required by
such Rule 424(b);
(j) the Preliminary Prospectus and the Registration Statement
comply and the Prospectus and any further amendments or supplements thereto
will, when they have become effective or are filed with the Commission, as the
case may be, comply in all material respects with the requirements of the
Securities Act, the Securities Act Regulations, the Securities Exchange Act of
1934, as amended (the "Exchange Act") and the rules and regulations of the
Commission promulgated thereunder; the Registration Statement did not, and any
amendment thereto will not, in each case as of the applicable effective date,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and the Preliminary Prospectus does not, and the Prospectus or any
amendment or supplement thereto will not, as of the applicable filing date and
at the Closing Time and on each Date of Delivery (if any), 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, in the light of the
circumstances under which they were made, not misleading; when any related
Preliminary Prospectus was first filed with the Commission (whether filed as
part of the Registration Statement or any amendment thereto or pursuant to Rule
424(a) of the Securities Act Regulations), and when any amendment thereof or
supplement thereto was first filed with the Commission, such Preliminary
Prospectus, as amended or supplemented, complied in all material respects with
the applicable provisions of the Securities Act and the Securities Act
Regulations and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no warranty or
representation with respect to any statement contained in the Registration
Statement or the Prospectus in reliance upon and in conformity with the
information concerning the Underwriters and furnished in writing by or on behalf
of the Underwriters through the Representative to the Company expressly for use
in the Registration Statement or the Prospectus (that information being limited
to that described in the last sentence of the first paragraph of Section 9(b)
hereof); all
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information furnished to the Underwriters by the Company for use in the
preparation of the documents to be filed with the National Association of
Securities Dealers, Inc. or state securities or blue sky authorities is true and
correct and does not contain an untrue statement of a material fact nor does it
omit to state any material fact required to be stated therein or necessary to
make such information not misleading;
(k) the Preliminary Prospectus was and the Prospectus
delivered to the Underwriters for use in connection with this offering will be
identical to the versions of the Preliminary Prospectus and Prospectus created
to be transmitted to the Commission for filing via the Electronic Data Gathering
Analysis and Retrieval System ("▇▇▇▇▇"), except to the extent permitted by
Regulation S-T;
(l) all legal or governmental proceedings, contracts, leases
or documents of a character required to be filed as exhibits to the Registration
Statement or to be summarized or described in the Prospectus have been so filed,
summarized or described as required; the summaries and descriptions in the
Registration Statement and the Prospectus of the contracts, leases and other
legal documents therein described present fairly the information required to be
shown; each agreement described in the Registration Statement and the Prospectus
or listed in the exhibits to the Registration Statement or incorporated by
reference is in full force and effect and is valid and enforceable by and
against the Company or the Subsidiary party thereto in accordance with its
terms;
(m) there are no actions, suits, proceedings, inquiries or
investigations pending or, to the knowledge of the Company, threatened against
the Company or any of its Subsidiaries or any of their respective officers and
directors or to which the properties, assets or rights of any such entity are
subject, at law or in equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority, arbitral panel or
agency which, individually or in the aggregate, could result in a judgment,
decree, award or order having a material adverse effect on the assets, business,
operations, earnings, prospects, properties or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole, affect the
consummation of this Agreement or which is required to be disclosed in the
Registration Statement and the Prospectus that is not so disclosed;
(n) the financial statements, including the notes and
schedules thereto, included in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the entities to which such
financial statements relate (the "Covered Entities") as of the dates indicated
and the consolidated results of operations and changes in financial position and
cash flows of the Covered Entities for the periods specified; such financial
statements and related notes and schedules have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis during
the periods involved and in accordance with Regulation S-X promulgated by the
Commission and all adjustments necessary for a fair presentation of the results
for such periods have been made; the amounts in the Prospectus under the
captions "Prospectus Summary -
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Summary Financial Information" and "Selected Consolidated Financial Information"
fairly present the information shown therein and have been compiled on a basis
consistent with the financial statements included in the Registration Statement
and the Prospectus; the unaudited pro forma financial information (including the
related notes) included in the Prospectus or any Preliminary Prospectus complies
as to form in all material respects to the applicable accounting requirements of
the Securities Act and the Securities Act Regulations, and management of the
Company believes that the assumptions underlying the pro forma adjustments are
reasonable; such pro forma adjustments have been properly applied to the
historical amounts in the compilation of the information and such information
fairly presents with respect to the Company and the Subsidiaries, the financial
position, results of operations and other information purported to be shown
therein at the respective dates and for the respective periods specified;
(o) PricewaterhouseCoopers LLP, whose reports on the
consolidated financial statements and related schedules of the Company and its
Subsidiaries are filed with the Commission as part of the Registration Statement
and Prospectus, are and were during the periods covered by their reports
independent public accountants as required by the Securities Act and the
Securities Act Regulations;
(p) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, and except as may be
otherwise stated in the Registration Statement or Prospectus, there has not been
(A) any material adverse change in the assets, business, operations, earnings,
prospects, properties or condition (financial or otherwise), present or
prospective, of the Company and its Subsidiaries taken as a whole, whether or
not arising in the ordinary course of business, (B) any transaction, which is
material to the Company and its Subsidiaries taken as a whole, contemplated or
entered into by the Company or any of its Subsidiaries, (C) any obligation,
contingent or otherwise, directly or indirectly incurred by the Company or any
of its Subsidiaries, which is material to the Company and its Subsidiaries taken
as a whole, (D) any dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock, or any redemption, purchase or
other acquisition by the Company (or agreement to do any of the foregoing) of
any shares of its capital stock, (E) any issuance of any securities of the
Company or (F) any loss or interference with the Company or any Subsidiary's
assets, business or properties (whether owned or leased) from fire, explosion,
earthquake, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or any court or legislative or other governmental action,
order or decree which is material to the Company and its Subsidiaries taken as a
whole;
(q) the Common Stock and the Shares conform in all
material respects to all statements in relation thereto contained in the
Registration Statement and the Prospectus;
(r) there are no persons with registration or other similar
rights to have any equity securities, including securities which are convertible
into or exchangeable for
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equity securities, registered pursuant to the Registration Statement or
otherwise registered by the Company under the Securities Act, (i) except for
certain of the Selling Stockholders, to the extent of the equity securities to
be offered and sold by such Selling Stockholders as contemplated by this
Agreement, and (ii) except for those registration or similar rights which have
been waived with respect to the offering contemplated by this Agreement, all of
which registration or similar rights described in clauses (i) and (ii) are
fairly summarized in the Prospectus;
(s) the Shares to be sold by the Company have been duly
authorized and, when issued and duly delivered against payment therefor as
contemplated by this Agreement, will be validly issued, fully paid and
nonassessable, free and clear of any pledge, lien, encumbrance, security
interest or other claim, and the issuance and sale of the Shares by the Company
is not subject to preemptive or other similar rights arising by operation of
law, under the certificate of incorporation or by-laws of the Company, under any
agreement to which the Company or any of its Subsidiaries is a party or
otherwise;
(t) the Company has not taken, and will not take, directly or
indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Shares;
(u) neither the Company nor any of its officers, directors,
stockholders or affiliates (i) is required to register as a "broker" or "dealer"
in accordance with the provisions of the Exchange Act or the rules and
regulations thereunder, or (ii) directly, or indirectly through one or more
intermediaries, controls or has any other association with (within the meaning
of Article I of the By-laws of the National Association of Securities Dealers,
Inc. (the "NASD")) any member firm of the NASD, except as set forth in the
Registration Statement or otherwise disclosed in writing to the Representative;
(v) the Company has not relied upon the Representative
or legal counsel for the Representative for any legal, tax or accounting advice
in connection with the offering and sale of the Shares;
(w) any certificate signed by any officer of the Company or
any Subsidiary delivered to the Representative or to counsel for the
Underwriters pursuant to or in connection with this Agreement shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby;
(x) the form of certificate used to evidence the Common Stock
and the Shares complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the certificate of
incorporation and by-laws of the Company and the requirements of the Nasdaq
National Market;
(y) each of the Company and each Subsidiary has good and
marketable title in fee simple to all real property, if any, and good title to
all personal property owned
-11-
by it, in each case free and clear of all liens, security interests, pledges,
charges, encumbrances, mortgages and defects, except such as are disclosed in
the Prospectus or such as do not materially and adversely affect the value of
such property and do not interfere with the use made or proposed to be made of
such property by the Company and the Subsidiaries; and any real property and
buildings held under lease by the Company or any Subsidiary are held under
valid, existing and enforceable leases, free and clear of all liens, security
interests, pledges, charges, encumbrances, mortgages and defects, with such
exceptions as are disclosed in the Prospectus or are not material and do not
interfere with the use made or proposed to be made of such property and
buildings by the Company or such Subsidiary;
(z) each of the Company and each Subsidiary owns or possesses
adequate and enforceable license or other rights to use all patents, trademarks,
service marks, trade names, copyrights, software and design licenses, trade
secrets, manufacturing processes, other intangible property rights (including
applications for any of the foregoing) and know-how (collectively,
"Intangibles") necessary to entitle the Company and each Subsidiary to conduct
its business as described in the Prospectus, and neither the Company, nor any
Subsidiary, has received notice of infringement of or conflict with (and the
Company knows of no such infringement of or conflict with) asserted rights of
others with respect to any Intangibles;
(aa) the books, records and accounts of the Company and its
Subsidiaries accurately and fairly reflect, in reasonable detail, the
transactions in and dispositions of the assets and the results of operations of
the Company and the Subsidiaries; the Company and each of its Subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that: (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability;
(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 the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences;
(bb) each of the Company and the Subsidiaries has filed on a
timely basis all necessary federal, state, local and foreign tax returns
required to be filed through the date hereof and have paid all taxes shown as
due thereon; no tax deficiency or proposed additional tax assessment has been
asserted against any such entity, nor does any such entity know of any tax
deficiency or assessment which is likely to be asserted against any such entity
which, if determined adversely to any such entity, could materially adversely
affect the business, prospects, properties, assets, results of operations or
condition (financial or otherwise) of any such entity, respectively; all tax
liabilities are adequately provided for on the respective books of such
entities; and there are no tax audits or investigations pending with respect to
the Company or any Subsidiary;
-12-
(cc) each of the Company and its Subsidiaries maintain
insurance (issued by insurers of recognized financial responsibility) of the
types and in the amounts generally deemed adequate for their respective
businesses and consistent with insurance coverage maintained by similar
companies in similar businesses, including, but not limited to, insurance
covering real and personal property owned or leased by the Company and its
Subsidiaries against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against, all of which insurance is in full force and
effect; the Company and its Subsidiaries are in compliance with the terms of
such insurance policies and instruments in all material respects; neither the
Company nor any Subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue
its business without a material increase in cost; neither the Company nor any
Subsidiary has been denied any insurance coverage which it has sought or for
which it has applied;
(dd) neither the Company nor any of its Subsidiaries has
violated, or received notice of any violation or asserted claim with respect to,
any applicable environmental, health, safety or similar law, regulation,
decision or order of any governmental agency or body or court, domestic or
foreign, applicable to the business of the Company or any of its Subsidiaries,
nor any federal or state law relating to discrimination in the hiring, promotion
or pay of employees, nor any applicable federal or state wages and hours law,
nor any provisions of the Employee Retirement Income Security Act or the rules
and regulations promulgated thereunder, nor any state law precluding the denial
of credit due to the neighborhood in which a property is situated, the violation
of any of which could have a material adverse effect on the business,
operations, earnings, prospects, properties or condition (financial or
otherwise) of the Company and its Subsidiaries, taken as a whole; each of the
Company and its Subsidiaries have received all permits, licenses or other
approvals required of them under applicable environmental laws to conduct their
respective business, and are in compliance with all terms and conditions
thereof; to the Company's knowledge, no facts currently exist that will require
the Company or any Subsidiary to make future material capital expenditures to
comply with environmental laws; no property which is or has been owned, leased
or occupied by the Company or any Subsidiary has been designated as a Superfund
site pursuant to the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA") or otherwise designated as a
contaminated site under applicable state or local law and neither the Company
nor any Subsidiary has been named as a "potentially responsible party" under the
CERCLA;
(ee) neither the Company nor any of its Subsidiaries nor any
officer, director, agent or employee purporting to act on behalf of he Company
or any of its Subsidiaries has at any time, directly or indirectly, (i) made any
contributions to any candidate for political office, or failed to disclose fully
any such contributions, in violation of law, (ii) made any payment to any state,
federal or foreign governmental officer or official, or other person charged
with similar public or quasi-public duties, other than payments required or
allowed by applicable law, (iii) made any payment
-13-
outside the ordinary course of business to any investment officer or loan broker
or person charged with similar duties of any entity to which the Company or any
of its Subsidiaries sells or from which the Company or any of its Subsidiaries
buys loans or servicing arrangements for the purpose of influencing such agent,
officer, broker or person to buy loans or servicing arrangements from or sell
loans to the Company or any of its Subsidiaries, (iv) engaged in any
transactions, maintained any bank account or used any corporate funds except for
transactions, bank accounts and funds which have been and are reflected in the
normally maintained books and records of the Company and its Subsidiaries, (v)
violated any provision of the Foreign Corrupt Practices Act of 1977, as amended,
or (vi) made any other unlawful payment;
(ff) except as otherwise disclosed in the Prospectus, there
are no material outstanding loans or advances or material guarantees of
indebtedness by the Company or any of its Subsidiaries to or for the benefit of
any of the officers or directors of the Company or any of its Subsidiaries or
any of the members of the families of any of them;
(gg) neither the Company nor any of its Subsidiaries nor, to
the knowledge of the Company, any employee or agent of the Company or any of its
Subsidiaries, has received or retained any funds in violation of any law, rule
or regulation or of a character required to be disclosed in the Prospectus;
(hh) in connection with this offering, the Company has not
offered and will not offer its Common Stock or any other securities convertible
into or exchangeable or exercisable for Common stock in a manner in violation of
the Securities Act; and the Company has not distributed and will not distribute
any Prospectus or other offering material in connection with the offer and sale
of the Shares, except as specifically contemplated herein;
(ii) the Company has complied and will comply with all the
provisions of Florida Statutes, Section 517.075 (Chapter 92-198, Laws of
Florida); neither the Company nor any of its Subsidiaries or affiliates does
business with the government of Cuba or with any person or affiliate located in
Cuba;
(jj) the Company has not incurred any liability for any
finder's fees or similar payments in connection with the transactions herein
contemplated;
(kk) no relationship, direct or indirect, exists between or
among the Company or any of its Subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of its
Subsidiaries on the other hand, which is required by the Securities Act and the
Securities Act Regulations to be described in the Registration Statement and the
Prospectus and which is not so described;
-14-
(ll) neither the Company nor any of the Subsidiaries is and,
after giving effect to the offering and sale of the Shares by the Company and
the application of the net proceeds therefrom as described in the Prospectus,
will be an "investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act");
(mm) there is no existing or, to the knowledge of the Company,
threatened labor dispute with the employees of the Company or any of its
Subsidiaries, nor is the Company aware of any existing or imminent labor
disturbance by the employees of any of the Company's or its Subsidiaries'
principal suppliers or contractors or any threatened or pending litigation
between the Company or any Subsidiary and any of its respective executive
officers, in each case which are likely to have individually or in the aggregate
a material adverse effect on assets, business, operations, earnings, prospects,
properties or condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole; and
(nn) the one-for-five reverse stock split of the Common Stock
of the Company (the "Reverse Stock Split") was duly authorized and approved by
the Company and its stockholders and has been effected by the filing of an
amendment to the Company's certificate of incorporation with the Secretary of
State of the State of Delaware, which filing has been accepted by such Secretary
of State; any consents or approvals necessary to effect the Reverse Stock Split
were duly obtained.
II. Each Selling Stockholder represents and warrants to each
Underwriter that:
(a) such Selling Stockholder has full power and authority to
enter into and perform this Agreement and, if applicable, the Agreement and
Power of Attorney to which it is a party; all authorizations, consents and
approvals necessary for the execution and delivery by such Selling Stockholder,
if applicable, of the Agreement and Power of Attorney, for the execution and
delivery of this Agreement by or on behalf of such Selling Stockholder, and for
the performance of the obligations of such Selling Stockholder thereunder and
hereunder (including the sale, transfer and delivery of the Shares to be sold by
such Selling Stockholder) have been given; each of the Agreement and Power of
Attorney, if applicable, and this Agreement has been duly authorized, executed
and delivered by or on behalf of such Selling Stockholder and constitutes a
valid and binding agreement of such Selling Stockholder and is enforceable
against such Selling Stockholder in accordance with the terms thereof and
hereof, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally, and by general
principles of equity, and except to the extent that the indemnification and
contribution provisions of Section 9 hereof may be limited by federal or state
securities laws and public policy considerations in respect thereof;
(b) such Selling Stockholder now (i) owns and, at the Closing
Time, will own the Shares to be sold by such Selling Stockholder hereunder, free
and clear of all
-15-
liens, security interests, encumbrances and adverse claims whatsoever (other
than those created pursuant to the Agreement and Power of Attorney, if
applicable), and (ii) has, and at the Closing Time, will have good and
marketable title to such Shares and full legal right and power, and all
authorizations and approvals required by law, to sell, assign, transfer and
deliver such Shares to the Underwriters hereunder and to make the
representations, warranties and agreements made by such Selling Stockholder
herein; upon the delivery of and payment for such Shares hereunder, such Selling
Stockholder will deliver and transfer such Shares, with good and marketable
title thereto, free and clear of any pledge, lien, encumbrance, security
interest or other adverse claim;
(c) at the Closing Time, all stock transfer or other taxes
(other than income taxes) that are required to be paid in connection with the
sale and transfer of the Shares to be sold by such Selling Stockholder to the
Underwriters hereunder will have been fully paid or provided for by such Selling
Stockholder and all laws imposing such taxes will have been fully complied with;
(d) the execution and delivery by the Selling Stockholder of
this Agreement and, if applicable, the Agreement and Power of Attorney and the
performance by the Selling Stockholder of its obligations under this Agreement
and, if applicable, the Agreement and Power of Attorney and the consummation of
the transactions contemplated hereby and thereby (including the sale of the
Shares to be sold by the Selling Stockholder) will not conflict with, or result
in any breach of, or constitute a default under (nor constitute any event which
with notice, lapse of time or both would constitute a breach of or default
under), (i) any provision of the certificate or articles of incorporation, other
charter or similar constitutive documents, or the by-laws of the Selling
Stockholder, or (ii) any provision of any license, indenture, mortgage, deed of
trust, loan or credit agreement or other agreement or instrument to which the
Selling Stockholder is a party or by which it or its properties may be bound or
affected, or under any federal, state, local or foreign law, regulation or rule
or any decree, judgment, injunction or order applicable to the Selling
Stockholder; or result in the creation or imposition of any lien, charge, claim
or encumbrance upon any property or asset of the Selling Stockholder;
(e) no approval, authorization, consent or order of or filing
or registration with any federal, state or local governmental or regulatory
commission, board, body, authority or agency is required in connection with the
Selling Stockholder's execution, delivery and performance of this Agreement and,
if applicable, the Agreement and Power of Attorney, its consummation of the
transactions contemplated hereby and thereby, and its sale and delivery of the
Shares to be sold by it, other than (i) such as have been obtained, or will have
been obtained at the Closing Time under the Securities Act, (ii) such approvals
as have been obtained in connection with the approval of the quotation of the
Shares on the Nasdaq National Market and (iii) any necessary qualification under
the securities or blue sky laws of the various jurisdictions in which the Shares
are being offered by the Underwriters;
-16-
(f) such Selling Stockholder has reviewed and is familiar with
the Registration Statement and the Prospectus and is not prompted to sell shares
of Common Stock by any information concerning the Company which is not set forth
in the Registration Statement or the Prospectus; provided that nothing in this
Section 3.II(f) shall impose any responsibility on any Selling Stockholder for
the contents of the Registration Statement or the Prospectus, except as
contemplated by Section 9(a)(2) hereof;
(g) all information with respect to such Selling Stockholder
contained in the Registration Statement and the Prospectus (as amended or
supplemented, if the Company shall have filed with the Commission any amendment
or supplement thereto) complied and will comply at the Closing Time and each
relevant Date of Delivery in all material respects with all applicable
provisions of the Securities Act and the Securities Act Regulations, contains
and will contain at the Closing Time and each relevant Date of Delivery all
statements of material fact required to be stated therein in accordance with the
Securities Act and the Securities Act Regulations, and does not and will not at
the Closing Time and each relevant Date of Delivery contain an untrue statement
of a material fact relating to such Selling Stockholder or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein relating to such Selling Stockholder not misleading; all
information furnished in writing to the Company or the Underwriters by such
Selling Stockholder specifically for use in the preparation of the Registration
Statement and the Prospectus and other documents to be filed with the National
Association of Securities Dealers, Inc. or state securities or blue sky
authorities is true and correct and does not contain an untrue statement of a
material fact nor does it omit to state any material fact required to be stated
therein or necessary to make such information not misleading;
(h) other than as permitted by the Securities Act and the
Securities Act Regulations, such Selling Stockholder has not distributed and
will not distribute any Preliminary Prospectus, the Prospectus or any other
offering material in connection with the offering and sale of the Shares; such
Selling Stockholder has not taken and will not take, directly or indirectly, any
action intended, or which might reasonably be expected, to cause or result in,
under the Securities Act, the Securities Act Regulations or otherwise, or which
has constituted, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares;
(i) with respect to the Selling Stockholders listed on
Schedule IV hereto, certificates in negotiable form for the Shares to be sold
hereunder by such Selling Stockholder have been placed in custody, for the
purpose of making delivery of such Shares under this Agreement and under the
Agreement and Power of Attorney which appoints ___________________, as custodian
(the "Custodian"), for such Selling Stockholder; such Selling Stockholder agrees
that the Shares represented by the certificates held in custody for it under the
Agreement and Power of Attorney are for the benefit of and coupled with and
subject to the interest hereunder of the Custodian, the Attorney-in-Fact, the
Underwriters, each other Selling Stockholder and the Company, that
-17-
the arrangements made by such Selling Stockholder for such custody and the
appointment of the Custodian and the Attorney-in-Fact by such Selling
Stockholder are irrevocable, and that the obligations of such Selling
Stockholder hereunder shall not be terminated by operation of law, whether by
the death, disability, incapacity or liquidation of any Selling Stockholder or
the occurrence of any other event; if any Selling Stockholder should die, become
disabled or incapacitated or be liquidated or if any other such event should
occur before the delivery of the Shares hereunder, certificates for the Shares
shall be delivered by the Custodian in accordance with the terms and conditions
of this Agreement and actions taken by the Attorney-in-Fact and the Custodian
pursuant to the Agreement and Power of Attorney shall be as valid as if such
death, liquidation, incapacity or other event had not occurred, regardless of
whether or not the Custodian or the Attorney-in-Fact, or either of them, shall
have received notice thereof; and the representations and warranties of such
Selling Stockholder in the Agreement and Power of Attorney are, and at the
Closing Time and each relevant Date of Delivery will be, true and correct;
(j) such Selling Stockholder has not relied upon the
Representative or legal counsel for the Representative for any legal, tax or
accounting advice in connection with the offering and sale of the Shares; and
(k) with respect to each Selling Stockholder not listed on
Schedule IV hereto, (A) if such Selling Stockholder is acting as a fiduciary,
officer, partner or agent, such Selling Stockholder has delivered to the
Representative certified copies of the appropriate instruments pursuant to which
such Selling Stockholder is authorized to act hereunder and (B) if such Selling
Stockholder is an individual and is married, such Selling Stockholder has
delivered to the Representative a duly completed and executed consent of spouse,
in the form attached to the Agreement and Power of Attorney as Annex A.
4. Certain Covenants:
I. The Company hereby agrees with each Underwriter:
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as the Representative may designate
and to maintain such qualifications in effect as long as required for the
distribution of the Shares, provided that the Company shall not be required to
qualify as a foreign corporation or to execute a general consent to the service
of process under the laws of any such state (except service of process with
respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the
Underwriters and file such Prospectus with the Commission pursuant to Rule
424(b) not later than 10:00 a.m. (New York City time), on the day following the
execution and delivery of this Agreement or, if applicable, such earlier time as
may be required by Rule 430A(a)(3) under the Securities Act, and to furnish
promptly (and with respect to the initial delivery
-18-
of such Prospectus, not later than 10:00 a.m. (New York City time) on the day
following the execution and delivery of this Agreement) to the Underwriters as
many copies of the Prospectus (or of the Prospectus as amended or supplemented
if the Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriters may reasonably
request for the purposes contemplated by the Securities Act Regulations, which
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the version created to be transmitted to the
Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation
S-T;
(c) to use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this Agreement, and any
amendments thereto, to become effective as promptly as possible, and to advise
the Representative promptly and (if requested by the Representative) to confirm
such advice in writing, when the Registration Statement has become effective and
when any post-effective amendment thereto becomes effective under the Securities
Act Regulations;
(d) to advise the Representative immediately, confirming such
advice in writing, of (i) the receipt of any comments from, or any request by,
the Commission for amendments or supplements to the Registration Statement or
Prospectus or for additional information with respect thereto, or (ii) the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, or of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes and, if
the Commission or any other government agency or authority should issue any such
order, to make every reasonable effort to obtain the lifting or removal of such
order as soon as possible; to advise the Representative promptly, and to furnish
the Representative with a copy for its review prior to filing, of any proposal
to amend or supplement the Registration Statement or Prospectus and to file no
such amendment or supplement to which the Representative shall reasonably object
in writing;
(e) to furnish to the Underwriters for a period of five years
from the date of this Agreement (i) as soon as available, copies of all annual,
quarterly and current reports or other communications supplied to holders of
shares of Common Stock, (ii) as soon as practicable after the filing thereof,
copies of all reports filed by the Company with the Commission, the NASD, the
Nasdaq National Market or any securities exchange and (iii) such other
information as the Underwriters may reasonably request regarding the Company and
its Subsidiaries;
(f) to advise the Underwriters promptly of the happening of
any event known to the Company within the time during which a Prospectus
relating to the Shares is required to be delivered under the Securities Act
Regulations which, in the judgment of the Company, would require the making of
any change in the Prospectus then being used so that the Prospectus would not
include an untrue statement of a material fact or omit to
-19-
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, and, during such time, to prepare and furnish, at the
Company's expense, to the Underwriters promptly such amendments or supplements
to such Prospectus as may be necessary to reflect any such change and to furnish
to the Underwriters a copy of such proposed amendment or supplement before
filing any such amendment or supplement with the Commission and to file no such
amendment or supplement to which the Representative shall reasonably object in
writing;
(g) to furnish promptly to the Representative and counsel for
the Underwriters, without charge, a signed copy of the Registration Statement,
as initially filed with the Commission, and of all amendments or supplements
thereto (including all exhibits filed therewith or incorporated by reference
therein) and such number of conformed copies of the foregoing as the
Representative may reasonably request, and, so long as delivery of a prospectus
by an Underwriter or dealer may be required by the Securities Act or the
Securities Act Regulations, as many copies of any Preliminary Prospectus and the
Prospectus and any amendments thereof or supplements thereto as the
Representative reasonably requests;
(h) to furnish to the Representative, not less than two
business days before filing with the Commission subsequent to the effective date
of the Prospectus and during the period referred to in paragraph (f) above, a
copy of any document proposed to be filed with the Commission pursuant to
Section 13, 14, or 15(d) of the Exchange Act;
(i) to apply the net proceeds of the sale of the Shares
by the Company in accordance with its statements under the caption "Use of
Proceeds" in the Prospectus;
(j) to make generally available to its security holders and to
the Representative as soon as practicable, but in any event not later than the
end of the fiscal quarter first occurring after the first anniversary of the
effective date of the Registration Statement an earnings statement complying
with the provisions of Section 11(a) of the Securities Act (in form, at the
option of the Company, complying with the provisions of Rule 158 of the
Securities Act Regulations,) covering a period of 12 months beginning after the
effective date of the Registration Statement;
(k) to use its best efforts to effect and maintain the
quotation of the Shares on the Nasdaq National Market and to make all filings
required under applicable securities laws (including any required registration
under the Exchange Act) and with the Nasdaq National Market of companies that
have securities that are traded in the over-the-counter market and quotations
for which are reported by the Nasdaq National Market;
(l) to engage and maintain, at its expense, a registrar
and transfer agent for the Shares;
-20-
(m) to refrain during a period of 180 days from the date of
the Prospectus, without the prior written consent of the Representative, from
(i) offering, pledging, selling, contracting to sell, selling any option or
contract to purchase, purchasing any option or contract to sell, granting any
option for the sale of, or otherwise disposing of or transferring, directly or
indirectly, any equity security of the Company or any securities convertible
into or exercisable or exchangeable for equity securities of the Company, or
filing any registration statement under the Securities Act with respect to any
of the foregoing, or (ii) entering into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of equity securities of the Company, whether
any such swap or transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold
by the Company hereunder, (B) the issuance and repurchase of up to 330,000
shares of Common Stock to be issued to the Company's senior lenders upon
consummation of this offering, as described in the Prospectus, (C) the
redemption of all of the outstanding shares of the Company's Series C
convertible preferred stock, par value $0.01 per share, (D) the redemption of
the 162,345 shares of Common Stock from HealthPlan Holdings, Inc.for $5.0
million, and the redemption of up to 20,000 additional shares of Common Stock
from HealthPlan Hodings, Inc. to the extent proceeds to the Company from any
exercise of the underwriters' option to purchase Option Shares are sufficient
therefor, each as described in the Prospectus, (E) any shares of Common Stock
issued by the Company upon the exercise of an option or warrant, or the
conversion of a convertible note, outstanding on the date hereof and referred to
in the Prospectus, or (F) the filing of a registration statement registering the
resale on a delayed or continuous basis of shares of Common Stock held by
certain stockholders, as described in the Prospectus;
(n) to not itself and to use its best efforts to cause its
officers, directors and affiliates not to, (i) take, directly or indirectly
prior to termination of the underwriting syndicate contemplated by this
Agreement, any action designed to stabilize or manipulate the price of any
security of the Company, or which may cause or result in, or which might in the
future reasonably be expected to cause or result in, the stabilization or
manipulation of the price of any security of the Company, to facilitate the sale
or resale of any of the Shares, (ii) sell, bid for, purchase or pay anyone any
compensation for soliciting purchases of the Shares or (iii) pay or agree to pay
to any person any compensation for soliciting any order to purchase any other
securities of the Company;
(o) to file timely and accurate reports in accordance with the
provisions of Florida Statutes Section 517.075, or any successor provision, and
any regulation promulgated thereunder, if at any time after the effective date
of the Registration Statement, the Company or any of its affiliates is engaging
in business with the government of Cuba or any person or affiliate located in
Cuba;
(p) upon request of any Underwriter, to furnish, or cause to
be furnished, to such Underwriter an electronic version of the Company's
trademarks,
-21-
service marks and corporate logo for use on the website, if any,
operated by such Underwriter for the purpose of facilitating the on-line
offering of the Shares (the "License"); provided that the License shall be used
solely for the purpose described above, is granted without any fee and may not
be assigned or transferred;
(q) that the provisions of the letter agreement dated
April 8, 2002 between the Company and the Representative (the "Engagement
Letter") shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby; and
(r) if at any time during the 30-day period after the
Registration Statement becomes effective, any rumor, publication or event
relating to or affecting the Company shall occur as a result of which in the
reasonable opinion of the Representative the market price of the Common Stock
has been or is likely to be materially affected (regardless of whether such
rumor, publication or event necessitates a supplement to or amendment of the
Prospectus) and after written notice from the Representative advising the
Company to the effect set forth above, to forthwith prepare, consult with the
Representative concerning the substance of, and disseminate a press release or
other public statement, reasonably satisfactory to the Representative,
responding to or commenting on such rumor, publication or event.
II. Each Selling Stockholder hereby agrees with each Underwriter to
deliver to the Representative prior to the Closing Time a properly completed and
executed United States Treasury Department Form W-8 (if the Selling Stockholder
is a non-United States person, within the meaning of the Internal Revenue Code
of 1986, as amended) or Form W-9 (f the Selling Stockholder is a United States
person, within the meaning of the Internal Revenue Code of 1986, as amended).
5. Payment of Expenses:
(a) The Company agrees to pay all costs and expenses incident
to the performance of its obligations under this Agreement, whether or not the
transactions contemplated hereunder are consummated or this Agreement is
terminated, including expenses, fees and taxes in connection with (i) the
preparation and filing of the Registration Statement, all exhibits thereto, each
Preliminary Prospectus, the Prospectus, and any amendments or supplements
thereto, and the printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and shipment) as may be
reasonably requested, (ii) the preparation, issuance and delivery of the
certificates for the Shares to the Underwriters, including any stock or other
transfer taxes or duties payable upon the sale and delivery of the Shares to the
Underwriters, (iii) the printing of this Agreement and any dealer agreements and
furnishing of copies of each to the Underwriters and to dealers (including costs
of mailing and shipment), (iv) the registration or qualification of the Shares
for offering and sale under state laws that the Company and the Representative
have mutually agreed are appropriate and the determination of their eligibility
for investment under state law as aforesaid (including the
-22-
legal fees and filing fees and other disbursements of counsel for the
Underwriters) and the preparation, printing and furnishing of copies of any blue
sky surveys or legal investment surveys to the Underwriters and to dealers, (v)
filing for review of the public offering of the Shares by the NASD (including
the legal fees and filing fees and other disbursements of counsel for the
Underwriters relating thereto), (vi) the fees and expenses of any transfer agent
or registrar for the Shares and miscellaneous expenses referred to in the
Registration Statement, (vii) the fees and expenses incurred in connection with
the inclusion of the Shares on the Nasdaq National Market and the delisting of
the Common Stock from the New York Stock Exchange, (viii) making road show
presentations with respect to the offering of the Shares, (ix) preparing and
distributing bound volumes of transaction documents for the Representative and
its legal counsel and (x) the performance of the Company's other obligations
hereunder. Upon the request of the Representative, the Company will provide
funds in advance for filing fees.
(b) In accordance with the Engagement Letter, the Company
agrees to reimburse the Representative for its reasonable out-of-pocket expenses
incurred in connection with the performance of its activities under this
Agreement, including, but not limited to, costs such as printing, facsimile,
courier service, direct computer expenses, accommodations and travel, and the
fees and expenses of the Underwriters' outside legal counsel and any other
advisors, accountants, appraisers, etc. (other than the fees and expenses of
counsel with respect to state securities or blue sky laws and obtaining the
filing for review of the public offering of the Shares by the NASD, all of which
shall be reimbursed by the Company pursuant to the provisions of subsection (a)
above).
(c) [The Selling Stockholders/The Company/The Selling
Stockholders and the Company, jointly and severally,] agree with each
Underwriter to pay (directly or by reimbursement) all fees and expenses incident
to the performance of their obligations under this Agreement which are not
otherwise specifically provided for herein, including, but not limited to, (i)
fees and expenses of counsel and other advisors for such Selling Stockholders,
(ii) fees and expenses of the Custodian and (iii) expenses and taxes incident to
the sale and delivery of the Shares to be sold by such Selling Stockholder to
the Underwriters hereunder (which taxes, if any, may be deducted by the
Custodian).
6. Conditions of the Underwriters' Obligations: The obligations of the
Underwriters hereunder to purchase Shares at the Closing Time or on any Date of
Delivery, as applicable, are several and not joint, and are subject to the
accuracy of the representations and warranties on the part of the Company and
the Selling Stockholders on the date hereof and at the Closing Time and on each
Date of Delivery, as applicable, the performance by the Company and the Selling
Stockholders of their respective obligations hereunder in all material respects
and to the satisfaction of the following further conditions at the Closing Time
or on the Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters at the
Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇ White ▇▇▇▇▇
Banker P.A., counsel for the Company and its Subsidiaries, addressed to the
Underwriters and dated
-23-
the Closing Time and each Date of Delivery and in form and substance
satisfactory to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters,
stating that:
(i) each subsidiary of the Company is named in Exhibit
21.1 to the Registration Statement; the Company and its Subsidiaries each has
been duly incorporated and is validly existing as a corporation in good standing
under the laws of its respective jurisdiction of incorporation with full
corporate power and authority to own, lease, license and operate its respective
assets and properties and to conduct its respective business as described in the
Registration Statement and Prospectus and, in the case of the Company, to
execute and deliver this Agreement and to consummate the transactions described
in this Agreement;
(ii) each of the Company and its Subsidiaries are duly
qualified or licensed to do business as a foreign corporation by each
jurisdiction in which the nature of the business conducted by it or the location
of the assets or properties owned, leased, licensed or operated by it requires
such qualification or license and in which the failure, individually or in the
aggregate, to be so licensed could have a material adverse effect on the assets,
business, operations, earnings, prospects, properties or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole, and each of the
Company and its Subsidiaries are duly qualified, and are in good standing, in
each jurisdiction in which they own or lease real property or maintain an office
and in which such qualification is necessary except where the failure to be so
qualified and in good standing would not have a material adverse effect on the
assets, business, operations, earnings, prospects, properties or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a whole;
except as disclosed in the Prospectus, no Subsidiary is prohibited or
restricted, directly or indirectly, from paying dividends to the Company, or
from making any other distribution with respect to such Subsidiary's capital
stock or from repaying to the Company or any other Subsidiary, any amounts which
may from time to time become due under any loans or advances to such Subsidiary
from the Company or such other Subsidiary, or from transferring any such
Subsidiary's property or assets to the Company or to any other Subsidiary; other
than as disclosed in the Prospectus, the Company does not control or own,
directly or indirectly, any capital stock or other equity securities of any
other corporation or any ownership interest in any partnership, joint venture or
other association;
(iii) the Company and its Subsidiaries are in compliance
in all material respects with all applicable laws, orders, rules, regulations
and orders, including those relating to transactions with affiliates;
(iv) neither the Company nor any of its Subsidiaries is in
breach or violation of, or in default under (nor has any event occurred which
with notice, lapse of time, or both would constitute a breach of, or default
under), (A) its respective certificate of incorporation or charter or by-laws,
(B) any license, indenture, mortgage, deed of trust, loan or credit agreement or
any other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them or their respective properties
-24-
may be bound or affected or (C) under any law, regulation or rule or any decree,
judgment or order applicable to the Company or any of its Subsidiaries, except
in the case of clauses (B) and (C) such breaches or defaults which would not
have a material adverse effect on the assets, business, operations, earnings,
prospects, properties or condition (financial or otherwise) of the Company and
its Subsidiaries taken as a whole;
(v) the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated by this Agreement (including the issuance of the Shares to be sold
by the Company) do not and will not (A) give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict with, or result in
any breach or violation of, or constitute a default under (nor constitute any
event which with notice, lapse of time, or both would constitute a breach of or
default under), or require any consent or waiver under, (i) any provisions of
the certificate of incorporation, charter or by-laws of the Company or any
Subsidiary, (ii) any provision of any franchise, permit, license, indenture,
mortgage, deed of trust, loan, credit or other agreement or instrument to which
the Company or any Subsidiary is a party or by which any of them or their
respective properties or assets may be bound or affected, (iii) any law or
regulation binding upon or applicable to the Company or any Subsidiary or any of
their respective properties or assets, or (iv) any decree, judgment or order
applicable to the Company or any Subsidiary; or (B) result in the creation or
imposition of any lien, charge, claim or encumbrance upon any property or assets
of the Company or its Subsidiaries, except for such consents or waivers which
have been obtained and are in full force and effect;
(vi) all necessary corporate action has been duly and
validly taken by the Company to authorize the execution, delivery and
performance of this Agreement and the issuance and sale of the Shares by the
Company; this Agreement has been duly and validly authorized, executed and
delivered by the Company and is the legal, valid and binding agreement of the
Company enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and by general principles of equity, and except
that enforceability of the indemnification and contribution provisions set forth
in Section 9 of this Agreement may be limited by the federal or state securities
laws of the United States or public policy underlying such laws;
(vii) no approval, authorization, consent, license,
permit, certificate or order of or filing by or with any federal or state
governmental or regulatory commission, board, body, authority or agency is
required in connection with the execution, delivery and performance of this
Agreement, the consummation of the transaction contemplated hereby, and the sale
and delivery of the Shares by the Company as contemplated hereby and thereby,
other than such as have been obtained or made and are in full force and effect
under the Securities Act and the Securities Act Regulations and such approvals
as have been obtained and are in full force and effect in connection with the
approval of the quotation of the Shares on the Nasdaq National Market, and
except that such counsel need express no opinion as to any necessary
qualification under the state securities or blue
-25-
sky laws of the various jurisdictions in which the Shares are being offered by
the Underwriters or any approval of the underwriting terms and arrangements by
the NASD;
(viii) each of the Company and its Subsidiaries has all
necessary material licenses, authorizations, consents, permits, certificates and
approvals and has made all necessary filings required under any federal, state
or local law, regulation or rule, and has obtained all necessary licenses,
authorizations, consents, permits, certificates and approvals from other
persons, required to own, lease and license their respective assets and
properties and conduct their respective businesses, as described in the
Prospectus, all of which are valid and in full force and effect; to such
counsel's knowledge, neither the Company nor any Subsidiaries is in violation
of, in default under, or has received any notice regarding a possible violation,
default or revocation of any such material license, authorization, consent,
permit, certificate or approval or any federal, state, local or foreign law,
regulation or decree, order or judgment applicable to the Company or any of its
Subsidiaries;
(ix) the Company has an authorized capitalization as set
forth in the Prospectus under the caption "Capitalization"; the outstanding
shares of capital stock of the Company and its Subsidiaries have been duly and
validly authorized and issued and are fully paid and non-assessable and , to the
knowledge of such counsel, none of them was issued in violation of any
preemptive or other similar right; all of the outstanding shares of capital
stock of the Subsidiaries are directly or indirectly owned of record and
beneficially by the Company; except as disclosed in the Prospectus, to the
knowledge of such counsel, there are no outstanding (i) securities or
obligations of the Company or any of its Subsidiaries convertible into or
exchangeable for any capital stock of the Company or any such Subsidiary, (ii)
warrants, rights or options to subscribe for or purchase from the Company or any
such Subsidiary any such capital stock or any such convertible or exchangeable
securities or obligations, or (iii) obligations, commitments, plans or
arrangements of the Company or any such Subsidiary to issue any shares of
capital stock, any such convertible or exchangeable securities or obligation, or
any such warrants, rights or options; there are no statutory preemptive or other
similar rights to subscribe for or to purchase or acquire any shares of capital
stock of the Company or any such rights pursuant to its certificate of
incorporation or by-laws or any agreement or instrument to or by which the
Company or any of its Subsidiaries is a party or bound or, to such counsel's
knowledge, otherwise;
(x) the Shares to be issued and sold by the Company have
been duly authorized and when the Shares have been issued and duly delivered
against payment therefor as contemplated by this Agreement, such Shares will be
validly issued, fully paid and nonassessable, and the Underwriters will acquire
good and marketable title to such Shares, respectively, free and clear of any
pledge, lien, encumbrance, security interest or other claim;
(xi) the issuance and sale of the Shares by the Company is
not subject to preemptive or other similar rights arising by operation of law,
under the certificate of
-26-
incorporation, charter or by-laws of the Company, or under any agreement to
which the Company or any of its Subsidiaries is a party or, to such counsel's
knowledge, otherwise;
(xii) there are no persons with registration or other
similar rights to have any equity securities, including securities which are
convertible into or exchangeable for equity securities, registered pursuant to
the Registration Statement or otherwise registered by the Company under the
Securities Act, (i) except for certain of the Selling Stockholders, to the
extent of the equity securities to be offered and sold by such Selling
Stockholders as contemplated by this Agreement, and (ii) except for those
registration or similar rights which have been waived with respect to the
offering contemplated by this Agreement, all of which registration or similar
rights are fairly summarized in the Prospectus;
(xiii) the Common Stock and the Shares conform in all
material respects to the descriptions thereof contained in the Registration
Statement and Prospectus; the capital stock of the Company conforms in all
material respects to the description thereof contained in the Prospectus under
the caption "Description of Capital Stock";
(xiv) the form of certificate used to evidence the Common
Stock and the Shares complies in all material respects with all applicable
statutory requirements, with any applicable requirements of the certificate of
incorporation and by-laws of the Company and the requirements of the Nasdaq
National Market;
(xv) the Registration Statement has become effective under
the Securities Act and no stop order preventing or suspending the effectiveness
of the Registration Statement or the use of the Prospectus has been issued and,
to such counsel's knowledge, no proceedings with respect thereto have been
commenced or threatened; any required filing of the Prospectus and any
supplement thereto pursuant to Rule 424(b) under the Securities Act has been
made in the manner and within the time period required by such Rule 424(b);
(xvi) the Registration Statement, all Preliminary
Prospectuses and the Prospectus and each amendment or supplement thereto (except
as to the financial statements and other financial data contained therein, as to
which such counsel need express no opinion) complied as to form in all material
respects with the requirements of the Securities Act and the Securities Act
Regulations;
(xvii) the statements under the captions "Recent Events
Affecting the Offering," "Capitalization," "Management's Discussion and Analysis
of Financial Condition and Results of Operations - Liquidity and Capital
Resources," "Business - Regulatory Matters," "Business - Legal Proceedings,"
"Description of Capital Stock," "Certain Relationships and Related
Transactions," "Management - Stock Option Plans," "Management - Employment
Agreements," and "Shares Eligible for Future Sale," in the Registration
Statement and the Prospectus, insofar as such statements constitute a
-27-
summary of the documents or legal matters referred to therein, constitute fair
summaries thereof in all material respects and accurately present the
information called for with respect to such documents or matters;
(xviii) to such counsel's knowledge, there are no actions,
suits or proceedings, inquiries, or investigations pending or threatened against
the Company or any of its Subsidiaries or any of their respective officers and
directors or to which the properties, assets or rights of any such entity are
subject, at law or in equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority, arbitral panel or
agency which are required to be described in the Prospectus but are not so
described;
(xix) there are no contracts, leases or documents of a
character which are required to be filed as exhibits to the Registration
Statement or required to be described or summarized in the Prospectus which have
not been so filed, summarized or described, and all such summaries and
descriptions fairly and accurately set forth the material provisions of such
contracts and documents required to be shown;
(xx) the Company and each Subsidiary owns or possesses
adequate and enforceable license or other rights to use all patents, trademarks,
service marks, trade names, copyrights, software and design licenses, trade
secrets, manufacturing processes, other intangible property rights (including
applications for any of the foregoing) and know-how (collectively,
"Intangibles") necessary to entitle the Company and each Subsidiary to conduct
its business as described in the Prospectus, and neither the Company, nor any
Subsidiary, has received notice of infringement of or conflict with (and knows
of no such infringement of or conflict with) asserted rights of others with
respect to any Intangibles;
(xxi) each of the Company and the Subsidiaries has filed
on a timely basis all necessary federal, state, local and foreign tax returns
required to be filed through the date hereof and has paid all taxes shown as due
thereon; no tax deficiency or assessment has been asserted against any such
entity, nor does any such entity know of any tax deficiency which is likely to
be asserted against any such entity which if determined adversely to any such
entity, could materially adversely affect the business, prospects, properties,
assets, results of operations or condition (financial or otherwise) of any such
entity, respectively; and to such counsel's knowledge, there are no tax audits
or investigations pending with respect to the Company or any Subsidiary;
(xxii) neither the Company nor any of the Subsidiaries is
and, after giving effect to the offering and sale of the Shares by the Company
and the application of the net proceeds therefrom as described in the
Prospectus, will be an "investment company" or an entity "controlled by" an
"investment company", as such terms are defined in the Investment Company Act;
-28-
(xxiii) each of the Company and each Subsidiary has good
and marketable title in fee simple to all real property, if any, and good title
to all personal property owned, or described in the Registration Statement or
Prospectus as owned, by them, in each case free and clear of all liens, security
interests, pledges, charges, encumbrances, mortgages and defects, except such as
are disclosed in the Prospectus or such as do not materially and adversely
affect the value of such property and do not interfere with the use made or
proposed to be made of such property by the Company and the Subsidiaries; and
any real property and buildings held under lease by the Company or any
Subsidiary are held under valid, existing and enforceable leases, free and clear
of all liens, security interests, pledges, charges, encumbrances, mortgages and
defects, with such exceptions as are disclosed in the Prospectus or are not
material and do not interfere with the use made or proposed to be made of such
property and buildings by the Company or such Subsidiary;
(xxiv) the Shares have been approved for listing on the
Nasdaq National Market and the Common Stock has been duly delisted from the New
York Stock Exchange;
(xxv) the Reverse Stock Split was duly authorized and
approved by the Company and its stockholders and has been effected by the filing
of an amendment to the Company's certificate of incorporation with the Secretary
of State of the State of Delaware, which filing has been accepted by such
Secretary of State; any consents or approvals necessary to effect the Reverse
Stock Split were duly obtained; and
(xxvi) each of the lock-up agreements executed by the
Company's stockholders, executive officers and directors pursuant to Section
6(k) hereof has been duly and validly delivered by such persons and constitutes
the legal, valid and binding obligation of each such person enforceable against
such person in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and by general principles of equity.
In addition, such counsel shall state that they have
participated in conferences with officers and other representatives of the
Company, independent public accountants of the Company and representatives of
the Representative, at which the contents of the Registration Statement and
Prospectus and related matters were discussed and, although such counsel is not
passing upon and does not assume responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or
Prospectus (except as and to the extent stated in subparagraphs (xii), (xiii),
(xvii) and (xix) above), on the basis of the foregoing, no facts have come to
the attention of such counsel that lead them to believe that the Registration
Statement at the time it 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 statements therein not misleading, or that any
Preliminary Prospectus or the Prospectus, as amended or supplemented, as of
their respective effective or issue date, and as of the date of such counsel's
opinion, contained or contains an untrue statement of a material fact or omitted
-29-
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 (it being understood that, in each case, such counsel
need express no view with respect to the financial statements and other
financial data included in the Registration Statement, Preliminary Prospectus or
Prospectus).
(b) Each Selling Stockholder shall furnish to the Underwriters
at the Closing Time and on each Date of Delivery an opinion of its respective
counsel (as set forth on Schedule V hereto), addressed to the Underwriters and
dated the Closing Time and in form and substance satisfactory to ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, stating that:
(i) such Selling Stockholder, if a corporation,
partnership, trust or similar entity, has been duly organized and is validly
existing in good standing under the laws of its respective jurisdiction of
organization with full power and authority to execute and deliver this Agreement
and, if applicable, the Agreement and Power of Attorney, and to consummate the
transactions described in this Agreement and, if applicable, the Agreement and
Power of Attorney;
(ii) the execution, delivery and performance of this
Agreement and, if applicable, the Agreement and Power of Attorney by such
Selling Stockholder, and the consummation by such Selling Stockholder of the
transactions contemplated by this Agreement and, if applicable, by the Agreement
and Power of Attorney, do not and will not give rise to a right to terminate or
accelerate the due date of any payment due under, conflict with, or result in
any breach or violation of, or constitute a default under (nor constitute any
event which with notice, lapse of time, or both would constitute a breach of or
default under) or require any consent or waiver under, (i) any provisions of the
certificate or articles of incorporation, charter, partnership agreement, trust
document, by-laws or other similar governing documents, as applicable, of such
Selling Stockholder, (ii) any provision of any franchise, permit, license,
indenture, mortgage, deed of trust, loan, credit or other agreement or
instrument to which such Selling Stockholder is a party or by which its
properties may be bound or affected, and which is known to such counsel, (iii)
any law or regulation binding upon or applicable to such Selling Stockholder or
any of its properties or assets, or (iv) any decree, judgment or order known to
such counsel and applicable to such Selling Stockholder, except for such
consents or waivers which have been obtained and are in full force and effect;
(iii) each of this Agreement and, if applicable, the
Agreement and Power of Attorney has been duly authorized, executed and delivered
by or on behalf of such Selling Stockholder and each is a legal, valid and
binding agreement of such Selling Stockholder enforceable in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally, and by general
principles of equity, and except that enforceability of the indemnification and
contribution provisions set forth in Section 9 of this Agreement may
-30-
be limited by the federal or state securities laws of the United States or
public policy underlying such laws;
(iv) upon the sale and delivery of the Shares by such
Selling Stockholder against receipt of payment therefor, in each case in
accordance with the terms of this Agreement and, if applicable, the Agreement
and Power of Attorney, the Underwriters will acquire good and marketable title
to such Shares, free and clear of any pledge, lien, encumbrance, security
interest or other claim; and
(v) no approval, authorization, consent, license, permit,
certificate or order of or filing by or with any federal, state or local
governmental or regulatory commission, board, body, authority or agency is
required in connection with the execution, delivery and performance of this
Agreement and, if applicable, the Agreement and Power of Attorney, the
consummation of the transaction contemplated hereby and thereby, and the sale
and delivery of the Shares by such Selling Stockholder as contemplated hereby
and thereby, other than such as have been obtained or made and are in full force
and effect under the Securities Act and the Securities Act Regulations, such
approvals as have been obtained and are in full force and effect in connection
with the approval of the quotation of the Shares on the Nasdaq National Market
and except that such counsel need express no opinion as to any necessary
qualification under the state securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the Underwriters or any
approval of the underwriting terms and arrangements by the NASD.
(c) The Representative shall have received from
PricewaterhouseCoopers LLP, letters dated, respectively, as of the date of this
Agreement, the Closing Time and each Date of Delivery, as the case may be,
addressed to the Representative, in form and substance satisfactory to the
Representative, relating to the financial statements, including any pro forma
financial statements, of the Company and its Subsidiaries, and such other
matters customarily covered by comfort letters issued in connection with
registered public offerings.
(d) The Representative shall have received at the Closing Time
and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP, dated the Closing Time or such Date of Delivery, addressed to the
Representative and in form and substance satisfactory to the Representative.
(e) No amendment or supplement to the Registration Statement
or Prospectus shall have been filed to which the Underwriters shall have
objected in writing.
(f) Notification that the Registration Statement has become
effective shall have been received by the Representative and the Prospectus
shall have been timely filed with the Commission in accordance with Section 4(b)
of this Agreement.
-31-
(g) Prior to the Closing Time and each Date of Delivery (i) no
stop order suspending the effectiveness of the Registration Statement or any
order preventing or suspending the use of any Preliminary Prospectus or
Prospectus shall have been issued, and no proceedings for such purpose shall
have been initiated or threatened, by the Commission, and no suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes, shall
have occurred; (ii) the Registration Statement and the Prospectus shall not
contain an untrue statement of material fact or omit 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; and
(iii) any requests for additional information on the part of the Commission (to
be included in the Registration Statement or the Prospectus or otherwise) shall
have been complied with to the satisfaction of the Commission and the
Representative.
(h) Between the time of execution of this Agreement and the
Closing Time or the relevant Date of Delivery (i) no material and unfavorable
change in the assets, business, operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its Subsidiaries taken as
a whole shall occur or become known (whether or not arising in the ordinary
course of business), and (ii) no transaction which is material and unfavorable
to the Company shall have been entered into by the Company or any of its
Subsidiaries.
(i) The Shares shall have been approved for inclusion in the
Nasdaq National Market and the Common Stock shall have been delisted from the
New York Stock Exchange.
(j) The NASD shall not have raised any objection with respect
to the fairness and reasonableness of the underwriting terms and arrangements.
(k) The Representative shall have received lock-up agreements
from each director, executive officer and stockholder of the Company listed on
Schedule III hereto, in the form of Exhibit B attached hereto, and such letter
agreements shall be in full force and effect.
(l) The Company will, at the Closing Time and on each Date of
Delivery, deliver to the Underwriters a certificate of its Chairman of the Board
and Chief Executive Officer, its President and Chief Operating Officer, and its
Vice President and Chief Financial Officer, to the effect that the signers of
such certificate have carefully examined the Registration Statement, the
Prospectus and this Agreement and (i) the representations and warranties of the
Company set forth in this Agreement are true and correct on and as of such date
with the same effect as if made on such date, (ii) the Company has performed all
covenants and agreements and satisfied all conditions contained in this
Agreement required to be performed or satisfied by it at or prior to such date
and (iii) the conditions set forth in paragraphs (g), (h) and (i) have been
satisfied, in each case as of such date.
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(m) Each Selling Stockholder will, at the Closing Time and on
each Date of Delivery, deliver to the Underwriters a certificate, to the effect
that such Selling Stockholder has carefully examined the information in the
Registration Statement and the Prospectus pertaining to such Selling Stockholder
and this Agreement and (i) the representations and warranties of such Selling
Stockholder set forth in this Agreement are true and correct on and as of such
date with the same effect as if made on such date and (ii) such Selling
Stockholder has performed all covenants and agreements and satisfied all
conditions contained in this Agreement required to be performed or satisfied by
it at or prior to such date.
(n) The Company and the Selling Stockholders, as applicable,
shall have furnished to the Underwriters such other documents and certificates
as to the accuracy and completeness of any statement in the Registration
Statement and the Prospectus, the representations, warranties and statements
contained herein and, if applicable, in the Agreement and Power of Attorney, and
the performance by the Company and the Selling Stockholders of their respective
covenants contained herein and therein, and the fulfillment of any conditions
contained herein or therein, as of the Closing Time or any Date of Delivery as
the Underwriters may reasonably request.
(o) The Company and each Selling Stockholder, as applicable,
shall have performed such of their respective obligations under this Agreement
and, if applicable, the Agreement and Power of Attorney as are to be performed
by the terms hereof and thereof at or before the Closing Time or the relevant
Date of Delivery.
(p) If the Shares have been qualified for sale in Florida, the
Representative shall have received at the Closing Time or the relevant Date of
Delivery certificates, addressed to the Representative and dated such date, of
an executive officer of the Company, to the effect that the signer of such
certificate has reviewed and understands the provisions of Section 517.075 of
the Florida Statutes, and represents that the Company and its Subsidiaries have
complied, and at all times will comply, with all provisions of Section 517.075
and further, that as of such date, neither the Company, any Subsidiary, nor any
of their respective affiliates does business with the government of Cuba or with
any person or affiliate located in Cuba.
7. Termination: The obligations of the several Underwriters hereunder
shall be subject to termination in the absolute discretion of the
Representative, at any time prior to the Closing Time or any Date of Delivery,
(i) if any of the conditions specified in Section 6 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, or (ii) if
there has been since the respective dates as of which information is given in
the Registration Statement, in the judgment of the Representative, any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the assets, business, operations, earnings, prospects,
properties, condition (financial or otherwise) or management of the Company or
any Subsidiary, whether or not arising in the ordinary course of business, or
(iii) if there has occurred outbreak or
-33-
escalation of hostilities or other national or international calamity or crisis
or change in economic, political or other conditions the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representative, impracticable to market the Shares or enforce contracts for
the sale of the Shares, or (iv) if trading in any securities of the Company has
been suspended by the Commission or by the Nasdaq National Market or the New
York Stock Exchange, or if trading generally on the New York Stock Exchange or
in the Nasdaq over-the-counter market has been suspended or limited (including
automatic halt in trading pursuant to market-decline triggers other than those
in which solely program trading is temporarily halted), or limitations on prices
for trading (other than limitations on hours or numbers of days of trading) have
been fixed, or maximum ranges for prices for securities have been required, by
such exchange or the NASD or Nasdaq or by order of the Commission or any other
governmental authority, or (v) if any federal or state statute, regulation, rule
or order of any court or other governmental authority has been enacted,
published, decreed or otherwise promulgated which in the reasonable opinion of
the Representative materially adversely affects or will materially adversely
affect the business or operations of the Company, or (vi) if any action has been
taken by any federal, state or local government or agency in respect of its
monetary or fiscal affairs which in the reasonable opinion of the Representative
has a material adverse effect on the securities markets in the United States, or
(vii) if any domestic or international event or act or occurrence has materially
disrupted, or in the opinion of the Representative will in the future materially
disrupt, the securities markets, or (viii) if a banking moratorium has been
declared by any state or federal authority.
If the Representative elects to terminate this Agreement as
provided in this Section 7, the Company, the Selling Stockholders and the
Underwriters shall be notified promptly by telephone, promptly confirmed by
facsimile.
If the sale to the Underwriters of the Shares, as contemplated
by this Agreement, is not carried out by the Underwriters for any reason
permitted under this Agreement or if such sale is not carried out because the
Company or the Selling Stockholders shall be unable to comply in all material
respects with any of the terms of this Agreement, the Company and the Selling
Stockholders shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 5 and 9 hereof) and the Underwriters
shall be under no obligation or liability to the Company or the Selling
Stockholders under this Agreement (except to the extent provided in Section 9
hereof) or to one another hereunder.
8. Increase in Underwriters' Commitments: If any Underwriter shall default
at the Closing Time or on a Date of Delivery in its obligation to take up and
pay for the Shares to be purchased by it under this Agreement on such date the
Representative shall have the right, within 36 hours after such default, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Shares which such
Underwriter shall have agreed but failed to take up and pay for (the "Defaulted
Shares"). Absent the completion of such arrangements within such 36 hour period,
(i) if the total number of Defaulted Shares does not exceed 10% of
-34-
the total number of Shares to be purchased on such date, each non-defaulting
Underwriter shall take up and pay for (in addition to the number of Shares which
it is otherwise obligated to purchase on such date pursuant to this Agreement)
the portion of the total number of Shares agreed to be purchased by the
defaulting Underwriter on such date in the proportion that its underwriting
obligations hereunder bears to the underwriting obligations of all
non-defaulting Underwriters; and (ii) if the total number of Defaulted Shares
exceeds 10% of such total, the Representative may terminate this Agreement by
notice to the Company, without liability to any non-defaulting Underwriter.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Company agrees with the non-defaulting Underwriters
that it will not sell any Shares hereunder on such date unless all of the Shares
to be purchased on such date are purchased on such date by the Underwriters (or
by substituted Underwriters selected by the Representative with the approval of
the Company or selected by the Company with the approval of the Representative).
If a new Underwriter or Underwriters are substituted for a
defaulting Underwriter in accordance with the foregoing provision, the Company
or the non-defaulting Underwriters shall have the right to postpone the Closing
Time or the relevant Date of Delivery for a period not exceeding five business
days in order that any necessary changes in the Registration Statement and
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to
and include any Underwriter substituted under this Section 8 with the like
effect as if such substituted Underwriter had originally been named in this
Agreement.
9. Indemnity and Contribution by the Company, the Selling
Stockholders and the Underwriters:
-35-
(a) (i) The Company agrees to indemnify, defend and hold harmless each
Underwriter and any person who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any loss, expense, liability, damage or claim (or action in respect
thereof) (including the reasonable cost of investigation) which, jointly or
severally, any such Underwriter or controlling person may incur under the
Securities Act, the Exchange Act or otherwise, insofar as such loss, expense,
liability, damage or claim (or action in respect thereof) arises out of or is
based upon (A) any breach or alleged breach of any representation, warranty or
covenant of the Company contained herein, (B) any failure on the part of the
Company to comply with any applicable law, rule or regulation relating to the
offering of securities being made pursuant to the Prospectus, or (C) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or in a Prospectus (the term
Prospectus for the purpose of this Section 9 being deemed to include any
Preliminary Prospectus, the Prospectus and the Prospectus as amended or
supplemented by the Company) or in any audio or visual materials prepared,
approved or used by the Company in connection with the marketing of the Shares,
including without limitation, slides, videos, films and tape recordings, or
arises out of or is based upon any omission or alleged omission to state a
material fact required to be stated in either such Registration Statement or
Prospectus or necessary to make the statements made therein not misleading, and
will promptly reimburse any Underwriter for all reasonable expenses (including
reasonable counsel fees and expenses) as they are incurred in connection with
the investigation of, preparation for or defense arising from any threatened or
pending claim, except insofar as any such loss, expense, liability, damage or
claim (or action in respect thereof) arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in and made in reliance upon and in conformity with
information furnished in writing by the Underwriters through the Representative
to the Company expressly for use in such Registration Statement or such
Prospectus.
(ii) Each Selling Stockholder, severally not jointly, agrees
to indemnify, defend and hold harmless each Underwriter and any person who
controls any Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any loss, expense,
liability, damage or claim (or action in respect thereof) (including the
reasonable cost of investigation) which, jointly or severally, any such
Underwriter or controlling person may incur under the Securities Act, the
Exchange Act or otherwise, insofar as such loss, expense, liability, damage or
claim (or action in respect thereof) arises out of or is based upon (A) any
breach or alleged breach of any representation, warranty or covenant of such
Selling Stockholder contained herein or in the Agreement and Power of Attorney,
if applicable, (B) any failure on the part of such Selling Stockholder to comply
with any applicable law, rule or regulation relating to the offering of
securities being made pursuant to the Prospectus, or (C) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company) or in a Prospectus (the term Prospectus for
the
-36-
purpose of this Section 9 being deemed to include any Preliminary Prospectus,
the Prospectus and the Prospectus as amended or supplemented by the Company), or
arises out of or is based upon any omission or alleged omission to state a
material fact required to be stated in either such Registration Statement or
Prospectus or necessary to make the statements made therein not misleading, and
will promptly reimburse any Underwriter for all reasonable expenses (including
reasonable counsel fees and expenses) as they are incurred in connection with
the investigation of, preparation for or defense arising from any threatened or
pending claim, but only insofar as any such loss, expense, liability, damage or
claim (or action in respect thereof) arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in and made in reliance upon and in conformity with
information furnished in writing by such Selling Stockholder to the Company
expressly for use in such Registration Statement or such Prospectus; provided,
however, that the indemnity agreement contained in this subsection (b) shall not
require any such Selling Stockholder to reimburse the Underwriters for in excess
of the gross sale price of the Shares sold by such Selling Stockholder pursuant
to this Agreement.
(b) If any action is brought against an Underwriter or controlling
person in respect of which indemnity may be sought against the Company or any
Selling Stockholder pursuant to subsection (a) above, such Underwriter shall
promptly notify the Company or such Selling Stockholder, as applicable, in
writing of the institution of such action, and the Company or such Selling
Stockholder, as applicable, shall assume the defense of such action, including
the employment of counsel and payment of expenses, provided, however, that any
failure or delay to so notify the Company or such Selling Stockholder, as
applicable, will not relieve the Company or such Selling Stockholder, as
applicable, of any obligation hereunder, except to the extent that its ability
to defend is actually impaired by such failure or delay. Such Underwriter or
controlling person shall have the right to employ its or their own counsel in
any such case, but the fees and expenses of such counsel shall be at the expense
of such Underwriter or such controlling person unless the employment of such
counsel shall have been authorized in writing by the Company or such Selling
Stockholder, as applicable, in connection with the defense of such action, or
the Company or such Selling Stockholder, as applicable, shall not have employed
counsel to have charge of the defense of such action within a reasonable time or
such indemnified party or parties shall have reasonably concluded (based on the
advice of counsel) that there may be defenses available to it or them which are
different from or additional to those available to the Company or such Selling
Stockholder, as applicable, (in which case neither the Company nor such Selling
Stockholder shall have the right to direct the defense of such action on behalf
of the indemnified party or parties), in any of which events such fees and
expenses shall be borne by the Company or the Selling Stockholder, as
applicable, and paid as incurred (it being understood, however, that neither the
Company nor any Selling Stockholder shall be liable for the expenses of more
than one separate firm of attorneys for the Underwriters or controlling persons
in any one action or series of related actions in the same jurisdiction (other
than local counsel in any such jurisdiction) representing the indemnified
parties who are parties to such action). Anything in this paragraph to the
contrary notwithstanding, neither the Company nor any
-37-
Selling Stockholder shall be liable for any settlement of any such claim or
action effected without its written consent.
(c) Each Underwriter agrees, severally and not jointly, to indemnify,
defend and hold harmless the Company and each Selling Stockholder, the Company's
directors, the Company's officers that signed the Registration Statement, and
any person who controls the Company or any Selling Stockholder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any loss, expense, liability, damage or claim (or action in
respect thereof) (including the reasonable cost of investigation) which, jointly
or severally, the Company, the Selling Stockholder or any such person may incur
under the Securities Act, the Exchange Act or otherwise, but only insofar as
such loss, expense, liability, damage or claim (or action in respect thereof)
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in and made in reliance upon and in conformity with
information furnished in writing by such Underwriter through the Representative
to the Company expressly for use in the Registration Statement (or in the
Registration Statement as amended by any posteffective amendment thereof by the
Company) or in a Prospectus, or arises out of or is based upon any omission or
alleged omission to state a material fact in connection with such information
required to be stated either in such Registration Statement or Prospectus or
necessary to make such information not misleading, and will promptly reimburse
the Company and any Selling Stockholder for all reasonable expenses (including
reasonable counsel fees and expenses) as they are incurred in connection with
the investigation of, preparation for or defense arising from any threatened or
pending claim. The statements set forth in the fourth, eigth and ninth
paragraphs under the caption "Underwriting" in the Preliminary Prospectus and
the Prospectus (to the extent such statements relate to the Underwriters)
constitute the only information furnished by or on behalf of any Underwriter
through the Representative to the Company for purposes of Section 3.I.(j) and
this Section 9.
If any action is brought against the Company, any Selling Stockholder
or any such person in respect of which indemnity may be sought against any
Underwriter pursuant to the foregoing paragraph, the Company, the Selling
Stockholder or such person shall promptly notify the Representative in writing
of the institution of such action and the Representative, on behalf of the
Underwriters, shall assume the defense of such action, including the employment
of counsel and payment of expenses. The Company, the Selling Stockholder or such
person shall have the right to employ its own counsel in any such case, but the
fees and expenses of such counsel shall be at the expense of the Company, the
Selling Stockholder or such person unless the employment of such counsel shall
have been authorized in writing by the Representative in connection with the
defense of such action or the Representative shall not have employed counsel to
have charge of the defense of such action within a reasonable time or such
indemnified party or parties shall have reasonably concluded (based on the
advice of counsel) that there may be defenses available to it or them which are
different from or additional to those available to the Underwriters (in which
case the Representative shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of
-38-
which events such fees and expenses shall be borne by such Underwriter and paid
as incurred (it being understood, however, that the Underwriters shall not be
liable for the expenses of more than one separate firm of attorneys in any one
action or series of related actions in the same jurisdiction (other than local
counsel in any such jurisdiction) representing the indemnified parties who are
parties to such action). Anything in this paragraph to the contrary
notwithstanding, no Underwriter shall be liable for any settlement of any such
claim or action effected without the written consent of the Representative.
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsections (a), (b) or (c) of this Section 9 in respect of any losses,
expenses, liabilities, damages or claims (or actions in respect thereof)
referred to therein, then each applicable 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, expenses,
liabilities, damages or claims (or actions in respect thereof) (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, the Selling Stockholders and the Underwriters from the offering of the
Shares or (ii) if (but only 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, of the Selling Stockholders and of the
Underwriters in connection with the statements or omissions which resulted in
such losses, expenses, liabilities, damages or claims (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company, the Selling Stockholders and the Underwriters
shall be deemed to be in the same proportion as the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company or the Selling Stockholders, as applicable,
bear to the underwriting discounts and commissions received by the Underwriters.
The relative fault of the Company, of the Selling Stockholders and of the
Underwriters shall be determined by reference to, among other things, whether
the untrue statement or alleged untrue statement of a material fact or omission
or alleged omission relates to information supplied by the Company, by the
Selling Stockholders or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages and liabilities (or actions in respect thereof) referred
to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any claim or action.
(e) The Company, the Selling Stockholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
9 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 in subsection
(d)(i) and, if applicable (ii), above. Notwithstanding the provisions of this
Section 9, no Underwriter shall be required to contribute any amount in excess
of the underwriting discounts and commissions
-39-
applicable to the Shares purchased by such Underwriter and no Selling
Stockholder shall be required to contribute any amount in excess of the gross
sale price of the Shares sold by such Selling Stockholder pursuant to this
Agreement. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities 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 9 are several
in proportion to their respective underwriting commitments and not joint.
10. Survival: The indemnity and contribution agreements contained in
Section 9 and the covenants, warranties and representations of the Company and
the Selling Stockholders contained in this Agreement, including the agreements
in Sections 3, 4 and 5, and the provisions of Section 7 of this Agreement shall
remain in full force and effect regardless of any investigation made by or on
behalf of any Underwriter, or any person who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
or by or on behalf of the Company, its directors and officers, the Selling
Stockholders or any person who controls the Company or any Selling Stockholder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, and shall survive any termination or cancellation of this
Agreement or the sale and delivery of the Shares. The Company, each Selling
Stockholder and each Underwriter agree promptly to notify the others of the
commencement of any litigation or proceeding against it and, in the case of the
Company, against any of the Company's officers and directors, in connection with
the sale and delivery of the Shares, or in connection with the Registration
Statement or Prospectus.
11. Notices: Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered to Friedman,
Billings, ▇▇▇▇▇▇ & Co., Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Syndicate Department; if to the Company, shall be sufficient in all
respects if delivered to the Company at the offices of the Company at ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; if to a Selling Stockholder listed
on Schedule IV, c/o _______________________; or if to any other Selling
Stockholder, to the address set forth beneath the signature of such Selling
Stockholder on the signature page hereto.
12. Governing Law; Headings: THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES. The section headings in this Agreement
have been inserted as a matter of convenience of reference and are not a part of
this Agreement.
13. Parties at Interest: The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company, the Selling
Stockholders and the controlling persons, directors and officers referred to in
Sections 9 and 10 hereof, and their respective successors, assigns, executors
and administrators. No other person,
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partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
14. Counterparts and Facsimile Signatures: This Agreement may be signed by
the parties in counterparts, which together shall constitute one and the same
agreement among the parties. A facsimile signature shall constitute an original
signature for all purposes.
-41-
If the foregoing correctly sets forth the understanding among the
Company, the Selling Stockholders and the Underwriters, please so indicate in
the space provided below for the purpose, whereupon this Agreement shall
constitute a binding agreement among the Company, the Selling Stockholders and
the Underwriters.
Very truly yours,
PLANVISTA CORPORATION
By:______________________________________
By:
Title:
HEALTHPLAN HOLDINGS, INC.
By:______________________________________
By:
Title:
NEW ENGLAND FINANCIAL
DISTRIBUTORS, LLC
By:______________________________________
By:
Title:
SELLING STOCKHOLDERS LISTED ON
SCHEDULE IV ATTACHED HERETO
By: [Insert Name of Attorney-in-Fact]
_________________________________________
Attorney-in-Fact
-42-
Accepted and agreed to as
of the date first above written:
FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ & CO., INC.
By:_______________________________
Title:
For itself and as Representative of the other Underwriters named on Schedule II
hereto.
-43-
Schedule I
Number of Initial Number of Option
Name of Party Selling Shares Shares to be Sold Shares to be Sold
------------------------------ ---------------------- ---------------------
Plan Vista Corporation [ ] [ ]
HealthPlan Holdings Inc. 190,655
New England Financial
Distributors, LLC 54,874
AmSouth Bank 1,714
Bank of America, N.A. 4,286
Cooperative Centrale
Raiffeisen-Boerenleenbank
B.A. "Rabobank" Nederland
New York Branch 3,000
Credit Lyonnais,
New York Branch 3,000
Fifth Third Bank,
Central Ohio 1,714
Fleet National Bank 3,429
Hibernia National Bank 1,714
South Trust Bank 3,000
SunTrust Bank 3,429
Wachovia Bank, National
Association 4,714
S-1
Schedule II
Number of Initial
Underwriter Shares to be Purchased
----------------------------------------------------------------------------
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. [ ]
--------------
[INSERT NAMES OF OTHER UNDERWRITERS] [ ]
--------------
Total X,XXX,XXX
============
S-2
Schedule III
Persons delivering lock-ups
[To be provided]
Schedule IV
Selling Stockholders executing Custody Agreement and Power of Attorney
AmSouth Bank
Bank of America, N.A.
Cooperative Centrale
Raiffeisen-Boerenleenbank
B.A. "Rabobank" Nederland,
New York Branch
Credit Lyonnais, New York Branch
Fifth Third Bank, Central Ohio
Fleet National Bank
Hibernia National Bank
South Trust Bank
SunTrust Bank
Wachovia Bank, National Association
S-4
Schedule V
Selling Stockholders' Counsel
HealthPlan Holdings, Inc.
New England Financial
Distributors, LLC
Each Selling Stockholders Listed
on Schedule IV
O'Melveny & ▇▇▇▇▇
S-5
Exhibit A
FORM OF CUSTODY AGREEMENT AND POWER OF ATTORNEY
FOR SALE OF COMMON STOCK OF
PLANVISTA CORPORATION
-----------------------------
(Name of Selling Stockholder)
----------------------------
As Attorney-in-Fact
c/o
----------------------------
As Custodian
Attn:
Ladies and Gentlemen:
The undersigned (the "Selling Stockholder") proposes to sell certain shares of
common stock, par value $0.01 per share (the "Common Stock"), of PlanVista
Corporation, a Delaware corporation (the "Company"), to certain underwriters
(the "Underwriters") for whom Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. will act as
representative (the "Representative") for distribution under a Registration
Statement, Registration No. 333-66540 (the "Registration Statement") to the
public at a price and on terms to be hereafter determined, but solely to cover
over-allotments in the distribution of other shares of Common Stock to the
public at the option of the Underwriters. It is understood that at this time
there is no commitment on the part of the Underwriters to purchase any shares of
Common Stock and no assurance that an offering of Common Stock will take place,
and if an offering does take place, there is no assurance that the Underwriters
will exercise the over-allotment option in part or in full. The shares of Common
Stock which the undersigned proposes to sell to the Underwriters, as set forth
on Schedule I hereto, pursuant to the Underwriting Agreement (as hereinafter
defined) are referred to herein as the "Shares." This Custody Agreement and
Power of Attorney is referred to herein as this "Agreement." Capitalized terms
not otherwise defined herein have the meanings set forth in the Underwriting
Agreement.
1. Appointment and Powers of Attorney-in-Fact.
(a) The undersigned hereby irrevocably constitutes and
appoints __________________ (the "Attorney-in-Fact"), who may act, as his or her
agent and attorney-in-fact, with full power of substitution, with respect to all
matters arising in connection with the public offering and sale of the Shares,
including, but not limited to, the power and authority on behalf of the
undersigned to do or cause to be done any of the following things:
(i) negotiate, determine and agree upon the
price at which the Shares will be sold to the Underwriters by the
Selling Stockholder pursuant to the Underwriting Agreement;
(ii) prepare, execute and deliver an Underwriting
Agreement (the "Underwriting Agreement"), substantially in the form of
the draft delivered to the undersigned herewith, receipt of which is
acknowledged, but with such insertions, changes, additions or deletions
as the Attorney-in-Fact shall approve as not materially adverse to the
undersigned (which may include a decrease, but not an increase, in the
number of shares of Common Stock to be sold by the undersigned), such
approval to be conclusively evidenced by the execution and delivery of
the Underwriting Agreement by the Attorney-in-Fact, including the
making of all representations and agreements provided in the
Underwriting Agreement to be made by, and the exercise of all authority
thereunder vested in, the undersigned, it being specifically understood
that the Underwriting Agreement will provide that the undersigned,
together with the Company and certain other Selling Stockholders will
indemnify the Underwriters against certain liabilities, including
liabilities under the Securities Act of 1933, as amended (the
"Securities Act" ), to the extent set forth herein;
(iii) sell, assign, transfer and deliver the Shares
to the Underwriters pursuant to the Underwriting Agreement and deliver
to the Underwriters certificates for the Shares so sold;
(iv) take any and all steps deemed necessary or
desirable by the Attorney-in-Fact in connection with the registration
of the Shares under the Securities Act, the Securities Exchange Act of
1934, as amended, and under the securities or "blue sky" laws of
various states and jurisdictions, including, without limitation, the
giving or making of such undertakings, representations and agreements
and the taking of such other steps as the Attorney-in-Fact may deem
necessary or advisable, including but not limited to approving any
amendments to the Registration Statement or the Prospectus;
(v) instruct the Company and the Custodian, as
hereinafter defined, on all matters pertaining to the sale of the
Shares and delivery of certificates therefor;
(vi) provide, in accordance with the Underwriting
Agreement, for the payment of underwriting discounts and commissions,
transfer taxes and other expenses, if any, in connection with the
offering and sale of the undersigned's Shares covered by the
Registration Statement;
2
(vii) retain such legal counsel as the
Attorney-in-Fact in its sole discretion deems appropriate (which may be
the same as the Company's counsel), to act as counsel for the
undersigned in connection with the sale of the Shares, such counsel
being hereby authorized to rely upon the representations and warranties
of the undersigned contained in Section 3 of the Underwriting Agreement
and Section 4 of this Agreement in acting in such capacity;
(viii) incur any necessary or appropriate expense
in connection with the sale of the Shares; and
(ix) otherwise take all actions and do all things
necessary or proper, required, contemplated or deemed advisable or
desirable by the Attorney-in-Fact in its discretion, including the
execution and delivery of any documents, and generally act for and in
the name of the undersigned with respect to the sale of the Shares to
the Underwriters and the reoffering of the Shares by the Underwriters
as fully as could the undersigned if then personally present and
acting.
(b) The Attorney-in-Fact may exercise the rights and powers
conferred on the Attorney-in-Fact by this Custody Agreement and Power of
Attorney. The Attorney-in-Fact is hereby empowered to determine, in its sole and
absolute discretion, the time or times when, the purposes for which, and the
manner in which, any power herein conferred upon the Attorney-in-Fact shall be
exercised.
(c) The Custodian, the Underwriters, the Company and all
other persons dealing with the Attorney-in-Fact as such may rely and act upon
any writing believed in good faith to be signed by the Attorney-in-Fact.
(d) The Attorney-in-Fact shall not receive any compensation
for its services rendered hereunder, except that it shall be entitled to cause
the Custodian to pay, from the proceeds payable to the undersigned, the
undersigned's proportionate share of any out-of-pocket expenses incurred under
this Agreement.
(e) The Attorney-in-Fact shall have the full power to make
and substitute any attorney-in-fact in its place and stead, and the Selling
Stockholder hereby ratifies and confirms all that the Attorney-in-Fact or its
substitute or substitutes may do by virtue of these presents. All actions
hereunder may be taken by the Attorney-in-Fact or its substitute or substitutes.
In the event of the death or incapacity of the Attorney-in-Fact hereunder, any
remaining attorney-in-fact hereunder shall appoint a substitute therefor.
References herein to the Attorney-in-Fact of the undersigned shall include any
substitute attorney-in-fact appointed in accordance herewith.
2. Appointment of Custodian; Deposit of Shares.
(a) In connection with and to facilitate the sale of the
Shares to the Underwriters, the undersigned hereby appoints __________________
as custodian (the "Custodian") and herewith deposits with the Custodian one or
more certificates for Common Stock. The certificate(s) for Shares so deposited
hereunder represent currently owned Shares at least equal in number in the
aggregate to the total number of Shares to be
3
sold by the undersigned to the Underwriters, which number is set forth in the
Underwriting Agreement and on Schedule I hereto. Each such certificate for
Shares so deposited hereunder is in negotiable and proper deliverable form
endorsed in blank with the signature of the undersigned thereon guaranteed by a
participant in the Medallion Signature Guarantee Program, which may be obtained
from most commercial banks or trust companies in the United States or from a
member firm of the New York Stock Exchange, or is accompanied by a duly executed
stock power or powers in blank, a form of which is attached hereto, bearing the
signature of the undersigned so guaranteed by a participant in the Medallion
Signature Guarantee Program. The Custodian is hereby authorized and directed,
subject to the instructions of the Attorney-in-Fact, (a) to hold in custody any
certificates for Shares deposited herewith, (b) to deliver or to authorize the
Company's Transfer Agent to deliver the certificates representing Shares
equivalent to the number of Shares being sold by the undersigned to the
Underwriters for their several accounts to or at the direction of the
Attorney-in-Fact in accordance with the terms of the Underwriting Agreement and
(c) to return or cause the Company's Transfer Agent to return to the undersigned
new certificate(s) for the shares of Common Stock represented by any certificate
for Common Stock deposited hereunder which are not sold pursuant to the
Underwriting Agreement.
(b) Until the Shares have been delivered to the Underwriters
against payment therefor in accordance with the Underwriting Agreement, the
undersigned shall retain all rights of ownership with respect to the Shares
deposited hereunder, including, if applicable, the right to vote and to receive
all dividends and payment thereon, except the right to retain custody of or
dispose of such Shares, which right is subject to this Agreement and the
Underwriting Agreement.
3. Sale of Shares; Remitting Net Proceeds.
(a) The Attorney-in-Fact is hereby authorized and directed to
deliver or cause the Custodian or the Company's Transfer Agent to deliver
certificates for the Shares to the Underwriters, as provided in the Underwriting
Agreement, against delivery to the Attorney-in-Fact for the account of the
undersigned of the purchase price of the Shares, at the time and in the funds
specified in the Underwriting Agreement. The Attorney-in-Fact is authorized, on
behalf of the undersigned, to accept and acknowledge receipt of the payment of
the purchase price for the Shares and to execute and deliver a receipt for such
payment to the Representative and shall promptly deposit such proceeds with the
Custodian. After reserving an amount of such proceeds for expenses as provided
below, the Custodian shall promptly remit to the undersigned his proportionate
share of the proceeds.
(b) Before any proceeds of the sale of the Shares are remitted
to the undersigned, the Attorney-in-Fact is authorized and empowered to direct
the Custodian to reserve from the proceeds an amount determined by the
Attorney-in-Fact to be sufficient to pay the undersigned's proportionate share
of all expenses to be paid by the Selling Stockholders. The Selling
Stockholder's expenses shall include those items of expense of the offering and
sale of the Common Stock to be borne by it as provided in the Underwriting
Agreement, and the Custodian is authorized to pay such expenses from the amount
reserved for that purpose pursuant to the direction of the Attorney-in-Fact.
After payment of expenses, the Custodian will remit to the undersigned his
proportionate share of
4
any balance. To the extent expenses exceed the amount reserved, the Selling
Stockholder shall remain liable for his proportionate share of such expenses.
4. Representations, Warranties and Agreements. The undersigned
represents and warrants to, and agrees with the Company, the Attorney-in-Fact,
the Custodian and the Underwriters as follows:
(a) The undersigned (i) now owns and, on any applicable Date
of Delivery, will own the Shares proposed to be sold by the undersigned
hereunder, free and clear of all pledges, liens, encumbrances, equities, claims,
restrictions, security interests or other adverse claims, voting trusts or
other defects of title whatsoever (other than those created by this Agreement
and the Underwriting Agreement), and (ii) has, and, on any applicable Date of
Delivery, will have full legal right, power and authority to enter into and
perform this Agreement and the Underwriting Agreement and good and marketable
title to and all authorizations and approvals required by law to sell, transfer
and deliver the Shares to the Underwriters and to make the representations,
warranties and agreements made by the undersigned herein and in the
Underwriting Agreement; and that upon delivery of and payment for the Shares
under the Underwriting Agreement in the manner set forth therein, the
undersigned will deliver and transfer the Shares, with good and marketable
title thereto, free and clear of all pledges, liens, encumbrances, equities,
claims, restrictions, security interests or other adverse claims, voting trusts
or other defects of title whatsoever. If the undersigned is acting as a
fiduciary, officer, partner, or agent, the undersigned is enclosing with this
Agreement certified copies of the appropriate instruments pursuant to which the
undersigned is authorized to act hereunder. If the undersigned is an individual
and is married, the undersigned is enclosing with this Agreement a duly
completed and executed consent of his spouse, in the form attached to this
Agreement as Annex A.
(b) The undersigned has reviewed a draft of the Underwriting
Agreement, including, without limitation, the agreements and representations and
warranties to be made by the undersigned as a Selling Stockholder and the
indemnification and contribution provisions contained therein insofar as such
provisions relate to the undersigned. In addition, the undersigned has reviewed
a draft of the Registration Statement, including, without limitation, all
information pertaining to the undersigned. The undersigned hereby represents,
warrants and covenants that each of the representations and warranties of the
Selling Stockholder contained in the Underwriting Agreement, and that all
information pertaining to the undersigned in the Registration Statement, is true
and correct as of the date hereof and, except as the undersigned shall have
notified the Attorney-in-Fact pursuant to paragraph F of the attached
instructions, will be true and correct at all times from the date hereof through
and including the Closing Time and any Date of Delivery. The undersigned will
promptly notify the Attorney-in-Fact of any development that would make any such
representation, warranty or other information untrue.
(c) Upon execution and delivery of the Underwriting
Agreement by the Attorney-in-Fact on behalf of the undersigned, the undersigned
agrees to be bound by and to perform each of the covenants and agreements
(including those relating to indemnification and contribution) of the
undersigned as a Selling Stockholder in the Underwriting Agreement.
5
(d) The undersigned agrees to deliver to the Attorney-in-Fact
such documentation as the Attorney-in-Fact, the Company or the Underwriters or
any of their respective counsel may reasonably request in order to effectuate
any of the provisions hereof or of the Underwriting Agreement, all of the
foregoing to be in form and substance satisfactory in all respects to the
Attorney-in-Fact.
(e) No approval, authorization, order or consent of or filing
with any federal, state or local court, regulatory body, administrative agency
or other governmental body is required for the execution and delivery of this
Agreement and the Underwriting Agreement, or the consummation by the undersigned
of the transactions contemplated by this Agreement and the Underwriting
Agreement, except as have been obtained (and are in full force and effect) or
will have been obtained at the relevant Date of Delivery, and such as may be
required under the rules of the National Association of Securities Dealers, Inc.
and applicable "blue sky" laws.
(f) The execution, delivery and performance of this Agreement
and the Underwriting Agreement and consummation of the transactions contemplated
hereby and thereby by the undersigned (including the sale of the Shares) will
not conflict with, or result in any breach of, or constitute a default under
(nor constitute any event which with notice, lapse of time, or both would
constitute a breach of, or default under), (i) any provision of the certificate
or articles of incorporation, other charter or similar constitutive documents,
or the bylaws, as applicable, of the undersigned, or (ii) any provision of any
license, indenture, mortgage, deed of trust, loan or credit agreement or other
agreement or instrument to which the undersigned is a party or by which it or
its properties may be bound or affected, or under any federal, state, local or
foreign law, regulation or rule or any decree, judgment or order applicable to
the undersigned; or result in the creation or imposition of any lien, charge,
claim or encumbrance upon any property or asset of the undersigned.
(g) The undersigned has not taken and will not take, directly
or indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Shares.
The foregoing representations, warranties and agreements are made for the
benefit of, and may be relied upon by, the Attorney-in-Fact, the Company, the
Custodian, the Underwriters and their respective representatives, agents and
counsel and are in addition to, and not in limitation of, the representations,
warranties and agreements of the Selling Stockholder in the Underwriting
Agreement.
5. Irrevocability of Instruments; Termination of this Agreement.
(a) This Agreement, the deposit of certificates pursuant
hereto and all authority hereby conferred, is granted, made and conferred
subject to and in consideration of (i) the interests of the Attorney-in-Fact,
the Underwriters and the Company in and for the purpose of completing the
transactions contemplated hereunder and by the Underwriting Agreement and (ii)
the completion of the registration of Common Stock pursuant to the Registration
Statement and the other acts of the above-mentioned parties from the date
hereof to and including the execution and delivery of the Underwriting
Agreement in anticipation of the sale of Common Stock, including the Shares, to
the Underwriters; and
6
the Attorney-in-Fact and the Custodian are hereby further vested with an estate,
right, title and interest in and to the certificates deposited herewith for the
purpose of irrevocably empowering and securing to them authority sufficient to
consummate said transactions. Accordingly, this Agreement shall be irrevocable
prior to __________, _____, or, if the Underwriters shall have purchased the
Initial Shares by such date, the day after the last day on which the
Underwriters can exercise their option under the Underwriting Agreement to
purchase the Option Shares (such later date being referred to herein as the
"Termination Date"); this Agreement shall remain in full force and effect until
the Termination Date, unless prior to such date the Underwriting Agreement has
been terminated by the Underwriters due to the failure of a condition precedent
to the closing of the transactions contemplated thereby, in which case this
Agreement shall at such time become null and void and, thereafter, shall have no
further force or effect. The undersigned further agrees that this Agreement
shall not be terminated by operation of law or upon the occurrence of any event
whatsoever, including the death, disability or incompetence of the undersigned
or, if the undersigned is not a natural person, upon any dissolution, winding
up, distribution of assets or other event affecting the legal existence of the
undersigned. If any event referred to in the preceding sentence shall occur,
whether with or without notice thereof to the Attorney-in-Fact, any of the
Underwriters or any other person, the Attorney-in-Fact shall nevertheless be
authorized and empowered to deliver and dispose of the certificates deposited
under this Agreement by the undersigned in accordance with the terms and
provisions of the Underwriting Agreement and this Agreement as if such event had
not occurred.
(b) If the sale of the Shares contemplated by this Agreement
is not completed by the Termination Date, this Agreement shall terminate
(without affecting any lawful action of the Attorney-in-Fact or the Custodian
prior to such termination), and the Attorney-in-Fact shall cause the Custodian
to return to the undersigned all certificates deposited hereunder representing
Shares on or prior to such date, but only after having received payment of the
undersigned's proportionate part of any expenses to be paid or borne by the
Selling Stockholder. The undersigned hereby covenants with the Attorney-in-Fact
that if for any reason the sale of the Shares contemplated hereby shall not be
consummated, the undersigned shall pay the undersigned's proportionate share of
all expenses payable by the Selling Stockholder hereunder or under the
Underwriting Agreement.
6. Liability and Indemnification of the Attorney-in-Fact and Custodian. The
Attorney-in-Fact and the Custodian assume no responsibility or liability to the
undersigned or to any other person, other than to hold and dispose of the
certificates representing the Shares, the other documents deposited hereunder,
the proceeds from the sale of the Shares and any other shares of Common Stock
deposited with the Custodian pursuant to the terms of this Agreement in
accordance with the provisions hereof. The undersigned hereby agrees to
indemnify and hold harmless the Attorney-in-Fact and the Custodian, and
their respective partners, employees, agents, successors, assigns and personal
representatives with respect to any act or omission of or by any of them in good
faith in connection with any and all matters contemplated by this Agreement or
the Underwriting Agreement.
7
7. Interpretation.
(a) The representations, warranties and agreements of the
undersigned contained herein and in the Underwriting Agreement shall survive the
sale and delivery of the Shares and the termination of this Agreement and may be
relied upon by the Company and its counsel, the Custodian and the Underwriters
and their representatives, agents and counsel.
(b) The validity, enforceability, interpretation and
construction of this Agreement shall be determined in accordance with the laws
of the Commonwealth of Virginia applicable to contracts made and to be performed
within the Commonwealth of Virginia, and this Agreement shall inure to the
benefit of, and be binding upon, the undersigned and the undersigned's heirs,
executors, administrators, successors and assigns, as the case may be.
(c) Wherever possible each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any such provision shall be prohibited by or invalid under applicable
law, it shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
8. Notices. Any notice or communication shall be in writing and shall be
delivered (i) if to the Company, to PlanVista Corporation, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; (ii) if to the
Underwriters, care of Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate Department; (iii) if to
the Attorney-in-Fact, care of ____________________; (iv) if to the Custodian,
____________________; and (v) if to the undersigned, at the address set forth
on the signature page.
8
IN WITNESS WHEREOF, the undersigned has executed this Custody Agreement and
Power of Attorney this day of , 2002.
------------------------------
Signature of Selling Stockholder (Please sign exactly as your name
Guaranteed* by: appears on your stock certificate(s)).
-----------------------------------
Name and address to which notices
and funds shall be sent (please print):
------------------------------
(NAME)
------------------------------
(STREET)
------------------------------
(CITY) (STATE) (ZIP)
*NOTE: The signature must be guaranteed by a participant in the Medallion
Signature Guarantee Program, which may be obtained from most commercial banks or
trust companies in the United States or from a member firm of the New York Stock
Exchange.
ACCEPTED by the Attorney-in-Fact ACCEPTED by the Custodian
as of the date above set forth: as of the date above set forth:
-----------------------------------
Attorney-in-Fact
By:___________________________
SEE THE ATTACHED INSTRUCTIONS
9
INSTRUCTIONS
(For completing the Custody Agreement and Power of Attorney)
A. You have been sent a copy of the Custody Agreement and
Power of Attorney (the "Agreement"), including four (4) blank signature pages of
the Agreement for you to sign, and a copy of a Stock Power. Please complete
them, being sure to sign each of the four (4) attached signature pages of the
Agreement, and return them along with your stock certificate(s) as set forth in
paragraph D below. A fully executed copy of the Agreement will be returned to
you; a fully executed copy of the Agreement and your stock certificate(s) will
be retained by the Custodian; and a fully executed copy of the Agreement will be
delivered to the Attorney-in-Fact and to the Representative.
B. Complete Schedule I attached hereto and fax a copy
immediately to ________________ at (___) ________. The original should accompany
the originally executed copy of the Agreement and the Stock Power as provided in
Instruction D, below.
C. Each of the four (4) signature pages of the Agreement and
the Stock Power deposited hereunder must be executed by you with your signature
on the Agreement and the Stock Power guaranteed by a participant in the
Medallion Signature Guarantee Program, which may be obtained from most
commercial banks or trust companies in the United States or from a member firm
of the New York Stock Exchange. Public Notaries cannot execute acceptable
guarantees of signatures. Please sign the Stock Power and the Agreement exactly
as your name appears on your stock certificate(s). You need not endorse the
stock certificate(s) itself (themselves) if you properly execute the Stock
Power.
D. Stock certificate(s) attached along with the executed copy
of the completed Agreement and the Stock Power should be promptly returned by
hand delivery or by overnight courier appropriately insured to:
If sent by overnight courier, it is recommended that the certificate(s) be sent
under separate cover from the Stock Power. Your completed and executed Agreement
and stock certificate(s) must be received at the above address no later than
__________, 2002 to ensure that your Shares will be included in the offering.
Any Agreement or Shares received after __________, 2002 may be removed from the
offering, at the discretion of the Company.
E. If any certificate for shares of Common Stock that you
submit represents a greater number of shares than the aggregate number of Shares
which you agree to sell pursuant to the Underwriting Agreement, the Custodian
will cause to be delivered to you in due course, but not earlier than ten (10)
days after the Termination Date, a certificate for the excess number of shares.
F. Please contact __________ at (___) _________ or
____________ at (___) _______, if any information or representation included in
the foregoing Agreement, the Underwriting Agreement or the Registration
Statement should change, or if you become aware of any new information, at any
time prior to termination of a thirty-one (31) day period commencing on the date
of the final Prospectus for the offering.
10
------------------------------
(Name of Selling Stockholder)
SCHEDULE I
Certificate(s) for Shares of Common Stock of
PlanVista Corporation
deposited under
Custody Agreement and Power of Attorney
Number of Shares of
Number of Shares of Common Stock from
Certificate Common Stock Repre- this Certificate to
Number sented by Certificate Be Sold
------------------------------------------------------------------------------
----------- --------------------- -------------------
----------- --------------------- -------------------
----------- --------------------- -------------------
----------- --------------------- -------------------
----------- --------------------- -------------------
-------------------
Total:
ANNEX A
Instruction: See Section 4, paragraph (a) on page 5 of the CUSTODY AGREEMENT AND
POWER OF ATTORNEY.
CONSENT OF SPOUSE
I am the spouse of _________________________. On behalf of myself, my heirs,
legatees, and assigns, I hereby join in and consent to the terms of the
foregoing Custody Agreement and Power of Attorney and agree to the sale of the
shares of Common Stock of PlanVista Corporation, registered in the name of my
spouse or otherwise registered, which my spouse proposes to sell, or to agree to
sell, pursuant to the Underwriting Agreement referred to in the Custody
Agreement and Power of Attorney.
Dated: ______________, 2002
----------------------------------
(Signature of Spouse)
STOCK POWER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_________________________________________ shares of Common Stock of PlanVista
Corporation and does hereby irrevocably constitute and appoint _________________
as its Attorney to transfer said shares on the books of said corporation with
full power of substitution in the premises.
Dated: ______ ___, _____
Signature:
--------------------------
*Signature guaranteed by:
----------------------------------
By:
-------------------------------
--------
* The signature must be guaranteed by a participant in the Medallion Signature
Guarantee Program, which may be obtained from most commercial banks or trust
companies in the United States or from a member firm of the New York Stock
Exchange.
A-1
Exhibit B
Form of Lock-up Agreement
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc.
as Representative of the several Underwriters
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned understands and agrees as follows:
1. Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. ("FBR") proposes to
enter into an Underwriting Agreement (the "Underwriting Agreement")
with PlanVista Corporation, a Delaware corporation (the "Company"), and
certain of its stockholders providing for the public offering (the
"Public Offering") by the several Underwriters, including FBR (the
"Underwriters"), of _________ shares (the "Shares") of the Common
Stock, $0.01 par value, of the Company (the "Common Stock"), and in
connection therewith, the Company has filed a registration statement,
File No. 333-66540 (as amended, the "Registration Statement") with the
Securities and Exchange Commission.
2. After consultation, the Company and FBR, acting as
representative of the Underwriters for the Public Offering, have agreed
that sales by certain officers, directors, stockholders and affiliates
of the Company within the 180-day period after the date of
effectiveness of the Registration Statement could have an adverse
effect on the market price for the Common Stock and that the public to
whom the Common Stock is being offered should be protected for a
reasonable time from the impact of such sales.
3. It is in the best interest of the Company and its officers,
directors and stockholders to have a successful public offering and
stable and orderly public market thereafter.
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of FBR on
behalf of the Underwriters, it will not, during the period commencing on the
effective date of the Registration Statement and ending 180 days after the date
of the final prospectus relating to the Public Offering, (1) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any equity
securities of the Company or any securities convertible into or exercisable or
exchangeable for equity securities of the Company or (2) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of equity securities of
B-1
the Company, whether any such transaction described in clause (1) or (2) above
is to be settled by delivery of Common Stock or other securities, in cash or
otherwise[, ].
This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Virginia without regard to principles of
conflict of laws.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to the Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
-------------------------
(Name)
-------------------------
-------------------------
(Address)
B-2
