Exhibit 3.2
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (the "Agreement") is entered into
as of , 1998, by and among Sheridan Healthcare, Inc., a Delaware
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corporation (the "Company") with its principal office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the purchaser whose name and address is set forth
on the signature page hereto (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this Agreement,
the Company and the Purchaser agree as follows:
Section 1.
Authorization and Sale of Shares
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1.1 Authorization of Sale of Shares. The Company has authorized the
sale of up to shares (the "Shares") of the Company's common stock, par
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value $.01 per share (the "Common Stock"), pursuant to a Registration Statement
(such Registration Statement, together with the Prospectus comprising a part
thereof, referred to herein as the "Registration Statement") on Form S-3 (File
No. filed with, and declared effective by, the Securities and
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Exchange Commission (the "Commission") pursuant to the provisions of the
Securities Act of 1933, as amended (the "Act").
1.2 Sale of Shares. At the Closing (as defined in Section 2), the
Company will sell to the Purchaser, and the Purchaser will buy from the Company,
upon the terms and conditions hereinafter set forth, the number of shares of
Common Stock specified below at a price of $___ per share:
Number of Shares to be Purchased Aggregate Price
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----------------------------- $
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1.3 Sale of Remaining Shares. The Company proposes to enter into
purchase agreements with certain other investors with respect to the sale of the
balance of the Shares. There is no assurance that the Company will be successful
in selling any or all of the balance of the Shares and the Company has not fixed
a minimum number of the Shares to be sold.
Section 2.
Closing Date, Delivery
2.1 Closing Date. The closing (the "Closing") of the purchase and sale
of the shares of Common Stock hereunder shall occur at the offices of
on
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other time as the parties hereto may agree (the "Closing Date").
2.2 Delivery. At the Closing, the Company will deliver to the Purchaser
a certificate (or certificates), representing the shares to be purchased by the
Purchaser, registered in the Purchaser's name as shown on the signature page
hereof or, if different, in the name of the Purchaser's nominee as indicated on
the signature page. Such delivery shall be against payment of the purchase price
for and shares purchased determined pursuant to Section 1.2 above by wire
transfer to a bank account as specified in instructions provided to such
Purchaser by the Company. The location of delivery of and the form of payment
for such shares may be varied by agreement between the Company and the
Purchaser.
2.3 Subsequent Sales of Shares. At any time on or after the date
hereof, the Company may sell up to the balance of the Shares not sold at the
Closing of the Purchaser and upon such terms as may be approved by the Board of
Directors of the Company.
Section 3.
Representations and Warranties of the Company
The Company represents and warrants to the Purchaser as follows:
(a) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement; the Company is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction where the ownership
or leasing of its properties or the conduct of its business requires
such qualification, except where the failure to so qualify would not
have a material adverse effect on the Company.
(b) The Company has full power and authority (corporate and otherwise)
to enter into this Agreement and to perform the transactions
contemplated hereby. This Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement on
the part of the Company, enforceable against the Company in accordance
with its terms, except as rights may be limited by applicable laws of
equitable principles and except as enforcement hereof may be limited to
applicable bankruptcy, insolvency, reorganization or other similar laws
relating to or affecting creditors' rights generally or by general
equitable principles; the performance of this Agreement by the Company
and the consummation by the Company of the transactions contemplated
hereby, including without limitation, the sale of the Shares, will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, (i) any lease, contract or other
agreement or instrument to which the Company is a party or by which its
properties are bound, or (ii) the Certificate of Incorporation or
By-Laws of the Company or (iii) any law, order, rule, regulation, writ,
injunction or decree of any court or governmental agency or body
binding on the Company; and the Company is not required to obtain or
make (as the case may be) any consent, approval, authorization, order,
designation or filing by or with any court or regulatory,
administrative or other governmental agency or body is required for the
consummation by the Company of the transactions herein contemplated,
except such as may be required under the Act and state securities laws.
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(c) The authorized capital stock of the Company consists of 30,000,000
shares of Common Stock, 1,000,000 shares of Class A Common Stock and
5,000,000 shares of Preferred Stock, in each case with a par value of
$.01 per share. As of the date hereof, the Company has outstanding
[ ] shares of Common Stock, all of which are validly issued,
------ fully paid and non-assessable and which represents all
of the outstanding shares of capital stock of the Company.
(d) The shares of Commons Stock to be purchased from the Company
hereunder have been duly authorized for issuance and, when issued and
delivered to the Purchaser by the Company against payment therefor in
accordance with the terms of this Agreement, will be duly and validly
issued and fully paid and non-assessable.
(e) Subsequent to the respective dates as of which information is given
in the Registration Statement there has not been (i) any material
adverse change, or any development which, in the Company's reasonable
judgment, is likely to cause a material adverse change, in the
business, properties or assets described or referred to in the
Registration Statement, or the results of operations, conditions
(financial or otherwise), business or operations of the Company, (ii)
any transaction which is material to the Company, except transactions
in the ordinary course of business, (iii) any obligation, direct or
contingent, which is material to the Company, incurred by the Company,
except obligations incurred in the ordinary course of business, (iv)
any material change in the capital stock or outstanding indebtedness of
the Company or (v) any dividend or distribution of any kind declared,
paid or made on the capital stock of the Company.
(f) The Common Stock is registered pursuant to Section 12(g) of the
Exchange Act and is listed on the Nasdaq national Market.
(g) The Registration Statement has become effective and the Company has
not received, and has no notice of, any order of the Commission
preventing or suspending the use of the Registration Statement or the
Prospectus contained therein, or proceedings instituted for that
purpose.
(h) Each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any 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. The
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with
the requirements of the Act and the published rules and regulations of
the Commission. The Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
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Section 4.
Representations and Warranties of the Purchaser.
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The Purchaser hereby represents and warrants to the Company as follows:
This Agreement has been duly authorized, executed and delivered by the
Purchaser and constitutes a valid and legally binding obligation of the
Purchaser, enforceable in accordance with its terms, except as may be limited by
applicable laws or equitable principles and except as enforcement hereof may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles. The Purchaser is a "qualified institutional buyer" as such
term is defined in Rule 144A under the Act or affiliate thereof.
Section 5.
Conditions to Closing of Purchaser
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The Purchaser's obligation to purchase shares at the Closing is subject
to fulfillment or waiver as of the Closing Date of the following conditions:
(a) The representations and warranties made by the Company in Section 3
hereof shall be true and correct in all material respects when made,
and shall be true and correct in all material respects on the Closing
Date with the same force and effect as if they had been made on and as
of said date.
(b) All covenants, agreements and conditions contained in this
Agreement to be performed by the Company on or prior to the Closing
Date shall have been performed or complied with in all respects.
(c) The Purchaser shall have received a legal opinion of ▇▇▇▇▇▇▇,
Procter & ▇▇▇▇ LLP counsel to the Company, in substantially the form of
Exhibit A.
(d) The Registration Statement shall continue to be effective, and no
stop order suspending the effectiveness thereof shall have been issued
and no proceeding for that purpose shall have been initiated or, to the
knowledge of the Company, threatened, by the Commission.
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Section 6.
Conditions to Closing of Company
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The Company's obligation to sell and issue the Shares at the closing is
subject to the fulfillment or waiver as of the Closing Date of the following
conditions:
(a) The representations made by the Purchaser in Section 4 hereof shall
be true and correct when made, and shall be true and correct on the
Closing Date.
(b) All covenants, agreements and conditions contained in the Agreement
to be performed by the Purchaser on or prior to the Closing Date shall
have been performed or complied with in all material respects.
(c) The Registration Statement shall continue to be effective, and no
stop order suspending the effectiveness thereof shall have been issued
and no proceeding for that purpose shall have been initiated or, to the
knowledge of the Company, threatened, by the Commission.
Section 7.
Miscellaneous
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7.1 Waivers and Amendments. The terms of this Agreement may be waived
or amended only with the written consent of the Company and the Purchaser. The
failure by either party at any time to enforce or to require the performance of
any provision of this Agreement shall in no way be construed to be a waiver of
any such provision and shall not affect the rights of such party hereunder
thereafter to enforce or require the performance of such provision in accordance
with the terms of this Agreement.
7.2 Governing Law. This Agreement shall be governed in all respects by
the laws of the Commonwealth of Massachusetts, without regard to the conflict of
laws rules thereof.
7.3 Successors and Assigns. This Agreement may not be assigned by the
Purchaser without the written consent of the Company.
7.4 Entire Agreement. This Agreement, which includes the Exhibits
hereto, constitutes the full and entire understanding and agreement between the
parties with regard to the subjects thereof.
7.5 Notices, etc. Any notice or other communication required or
permitted under this Agreement shall be in writing and may be sent by personal
delivery, by telecopy, overnight delivery service or U.S. mail, in which event
it shall be mailed first-class, certified or registered, postage prepaid. All
such notices and communications must be addressed to the Company or the
Purchaser, as the case may be, at their respective addresses and telecopy number
set forth (i) at the beginning of this Agreement in the case of the Company's
address and to (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Chief Financial Officer, in the case
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of a telecopy sent to the Company, and (ii) on the signature page hereto in the
case of the Purchaser, or at such other address or telecopy number as the
Company or the Purchaser shall have furnished to the other party in writing. All
notices and other communications shall be effective upon the earlier of actual
receipt thereof and (A) in the case of notices and communications sent by
personal delivery or telecopy, three hours following the first time during
normal business following the time at which such notice or communication arrives
at the applicable address or was successfully sent to the applicable telecopy
number, (B) in the case of notices and communications sent by overnight delivery
service, at noon (local time) on the first business day following the day such
notice or communication was sent, and (C) in the case of notices and
communications sent by U.S. mail, five days after such notice or communication
shall have been deposited in the U.S. mail.
7.6 Titles and Subtitles. The titles and the paragraphs and
subparagraphs of this Agreement are for convenience or reference only and are
not to be considered in construing this Agreement.
7.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
7.8 Further Assurances. Each party to this Agreement shall do and
perform or cause to be done and performed all such further acts and things and
shall execute and deliver all such other agreements, certificates, instruments
and documents as the other party hereto may reasonably request in order to carry
out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
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7.9 Expenses. The Company and the Purchaser shall each bear its own
expense incurred on its behalf with respect to this Agreement and the
transactions contemplated hereby, including fees of legal counsel.
7.10 Survivability. The respective representations and covenants of the
parties hereto shall survive the Closing of the transactions contemplated
hereby.
The foregoing Agreement is hereby executed as of the date first above
written.
SHERIDAN HEALTHCARE, INC.
By:
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PURCHASER:
Name of Purchaser (Print):
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By:
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Name:
Title:
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Address
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Telephone
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Telecopy
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Nominee Name (if any)
