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EXHIBIT 1.01
2,000,000 Shares
United Dental Care, Inc.
Common Stock
($.10 Par Value)
UNDERWRITING AGREEMENT
____________, 1996
Alex. ▇▇▇▇▇ & Sons Incorporated
▇▇▇▇▇ & Company
▇▇▇▇▇, ▇▇▇▇▇ & Company
As Representatives of the
Several Underwriters
c/o Alex. ▇▇▇▇▇ & Sons Incorporated
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
United Dental Care, Inc., a Delaware corporation (the "COMPANY")
proposes to sell to the several underwriters (the "UNDERWRITERS") named in
Schedule I hereto for whom you are acting as representatives (the
"REPRESENTATIVES") an aggregate of 2,000,000 shares of the Company's Common
Stock, $.10 par value (the "FIRM SHARES"), all of which will be sold by the
Company. The respective amounts of the Firm Shares to be so purchased by the
several Underwriters are set forth opposite their names in Schedule I hereto.
The Company and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, a stockholder of the Company (the "SELLING
STOCKHOLDER") also propose to sell, at the Underwriters' option, up to 300,000
additional shares of the Company's Common Stock (the "OPTION SHARES") as set
forth below. The Company and the Selling Stockholder are sometimes referred to
herein collectively as the "SELLERS."
As the Representatives, you have advised the Company and the Selling
Stockholder (a) that you are authorized to enter into this Agreement on behalf
of the several Underwriters, and (b) that the several Underwriters are
willing, acting severally and not jointly, to purchase the numbers of Firm
Shares set forth opposite their respective names in Schedule I, plus their pro
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rata portion of the Option Shares if you elect to exercise the over-allotment
option in whole or in part for the accounts of the several Underwriters. The
Firm Shares and the Option Shares (to the extent the aforementioned option is
exercised) are herein collectively called the "SHARES."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDERS.
(a) The Company represents and warrants to each of the
Underwriters as follows:
(i) A registration statement on Form S-1 (File
No. 333-12425) with respect to the Shares has been carefully
prepared by the Company in conformity with the requirements of
the Securities Act of 1933, as amended (the "ACT"), and the
Rules and Regulations (the "RULES AND REGULATIONS") of the
Securities and Exchange Commission (the "COMMISSION")
thereunder and has been filed with the Commission under the
Act. The Company has complied with the conditions for the use
of Form S-1. Copies of such registration statement, including
any amendments thereto, the preliminary prospectuses (meeting
the requirements of the Rules and Regulations) contained
therein and the exhibits, financial statements and schedules,
as finally amended and revised, have heretofore been delivered
by the Company to you. Such registration statement, together
with any registration statement filed by the Company pursuant
to Rule 462(b) of the Act, herein referred to as the
"REGISTRATION STATEMENT," shall be deemed to include all
information omitted therefrom in reliance upon Rule 430A and
contained in the Prospectus referred to below, has been
declared effective by the Commission under the Act and no post
effective amendment to the Registration Statement has been
filed as of the date of this Agreement. "PROSPECTUS" means
(a) the form of prospectus first filed with the Commission
pursuant to Rule 424(b) or (b) the last preliminary prospectus
included in the Registration Statement filed prior to the time
it becomes effective or filed pursuant to Rule 424(a) under
the Act that is delivered by the Company to the Underwriters
for delivery to purchasers of the Shares, together with the
term sheet or abbreviated term sheet filed with the Commission
pursuant to Rule 424(b)(7) under the Act. Each preliminary
prospectus included in the Registration Statement prior to the
time it becomes effective is herein referred to as a
"PRELIMINARY PROSPECTUS." Any reference herein to the
Registration Statement, any Preliminary Prospectus or to the
Prospectus shall be deemed to refer to and include any
documents incorporated by reference therein, and, in the case
of any reference herein to any Prospectus, also shall be
deemed to include any documents incorporated by reference
therein, and any supplements or amendments thereto, filed with
the Commission after the date of filing of the Prospectus
under Rules 424(b) or 430A, and prior to the termination of
the offering of the Shares by the Underwriters.
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(ii) 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 corporate power and
authority to own or lease its properties and conduct its
business as described in the Registration Statement. Each of
the subsidiaries of the Company as listed in Exhibit A hereto
(collectively, the "SUBSIDIARIES") has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with
corporate power and authority to own or lease its properties
and conduct its business as described in the Registration
Statement. The Subsidiaries are the only subsidiaries, direct
or indirect, of the Company. The Company and each of the
Subsidiaries are duly qualified to transact business in all
jurisdictions in which the conduct of their business requires
such qualification, except where the failure to be so
qualified would not have a material adverse effect on the
condition (financial or otherwise), earnings, operations,
business or business prospects of the Company and the
Subsidiaries considered as one enterprise. The outstanding
shares of capital stock of each of the Subsidiaries have been
duly authorized and validly issued, are fully paid and
nonassessable and, except as set forth in the Prospectus, are
owned by the Company or another Subsidiary free and clear of
all liens, encumbrances and security interests; and no
options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any
obligations into shares of capital stock or ownership
interests in the Subsidiaries are outstanding. The Company
has full power and authority to enter into this Agreement and
to carry out all of the terms and provisions hereof to be
carried out by it.
(iii) The outstanding shares of Common Stock of the
Company, including all shares to be sold by the Selling
Stockholder, have been duly authorized and validly issued and
are fully paid and nonassessable; the portion of the Shares to
be issued and sold by the Company have been duly authorized
and when issued and paid for as contemplated herein will be
validly issued, fully paid and nonassessable; and no
preemptive rights of stockholders exist with respect to any of
the Shares or the issue and sale thereof. Neither the filing
of the Registration Statement nor the offering or sale of the
Shares as contemplated by this Agreement gives rise to any
rights, other than those which have been waived or satisfied,
for or relating to the registration of any shares of the
Company's Common Stock.
(iv) The information set forth under the caption
"Capitalization" in the Prospectus is true and correct. All
of the Shares conform to the description thereof contained in
the Registration Statement. The form of certificates for the
Shares conforms to the corporate law of the jurisdiction of
the Company's incorporation.
(v) The Commission has not issued an order
preventing or suspending the use of any Prospectus relating to
the proposed offering of the Shares nor instituted proceedings
for that purpose.
The Registration Statement contains and the Prospectus and
any amendments or supplements thereto will contain all
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statements which are required to be stated therein by, and in
all respects conform or will conform, as the case may be, to
the requirements of, the Act and the Rules and Regulations.
The Registration Statement and any amendment thereto, does not
contain and will not contain, as the case may be, any untrue
statement of a material fact and does not omit and will not
omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and
the Prospectus and any amendments and supplements thereto do
not contain and will not contain, as the case may be, any
untrue statement of material fact and do not omit and will not
omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations
or warranties as to information contained in or omitted from
the Registration Statement or the Prospectus, or any such
amendment or supplement, in reliance upon, and in conformity
with, written information furnished to the Company by or on
behalf of any Underwriter through the Representatives,
specifically for use in the preparation thereof.
(vi) The consolidated financial statements of the
Company and the Subsidiaries, together with related notes and
schedules as set forth in the Registration Statement, present
fairly the financial position and the results of operations
and cash flows of the Company and Subsidiaries consolidated,
at the indicated dates and for the indicated periods. Such
financial statements have been prepared in accordance with
generally accepted principles of accounting, consistently
applied throughout the periods involved, and all adjustments
necessary for a fair presentation of results for such periods
have been made. The summary financial and statistical data
included in the Registration Statement present fairly the
information shown therein and have been compiled on a basis
consistent with the financial statements presented therein.
The pro forma financial statements and other pro forma
financial information included in the Registration Statement
and the Prospectus present fairly the information shown
therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma
financial statements, have been properly compiled on the pro
forma bases described therein, and, in the opinion of the
Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to
give effect to the transactions or circumstances referred to
therein. The statutory financial statements of each insurance
Subsidiary for each period in which financial information is
presented in the Registration Statement have for each relevant
period been prepared in accordance with accounting practices
prescribed or permitted by the Insurance Department of the
state of domicile of such Subsidiary and such accounting
practices have been applied on a consistent basis throughout
the periods involved, except as disclosed therein.
(vii) Price Waterhouse LLP, who have certified
certain of the financial statements filed with the Commission
as part of the Registration Statement, are independent public
accountants as required by the Act and the Rules and
Regulations.
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(viii) There is no action, suit, claim or proceeding
pending or, to the knowledge of the Company, threatened
against the Company or any of the Subsidiaries before any
court or administrative agency or otherwise which if
determined adversely to the Company or any of its Subsidiaries
might result in any material adverse change in the business,
management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company and of
the Subsidiaries taken as a whole or to prevent the
consummation of the transactions contemplated hereby. No
injunction, writ, restraining order or other order of any
nature adverse to the Company or any Subsidiary thereof or the
conduct of the Company's business has been issued by any
governmental authority. Neither the Company nor any
Subsidiary thereof is in default in any material respect under
any applicable statute, rule, order, decree or regulation of
any court, arbitrator or governmental body or agency having
jurisdiction over the Company or any Subsidiary.
(ix) The Company and the Subsidiaries have good
and marketable title to all of the properties and assets
reflected in the financial statements (or as described in the
Registration Statement) hereinabove described, subject to no
lien, mortgage, pledge, charge or encumbrance of any kind
except those reflected in such financial statements (or as
described in the Registration Statement) or which are not
material in amount. The Company and the Subsidiaries occupy
their leased properties under valid and binding leases
conforming in all material respects to the description thereof
set forth in the Registration Statement.
(x) The Company and the Subsidiaries have filed
all Federal, State, local and foreign income tax returns which
have been required to be filed and have paid all taxes
indicated by said returns and all assessments received by them
or any of them to the extent that such taxes have become due.
All tax liabilities are adequately provided for in the
financial statements of the Company.
(xi) Since the respective dates as of which
information is given in the Registration Statement, as it may
be amended or supplemented, there has not been any material
adverse change or any development involving a prospective
material adverse change in or affecting the business,
management, properties, assets, rights, operations, condition
(financial or otherwise), or prospects of the Company and its
Subsidiaries taken as a whole, whether or not occurring in the
ordinary course of business, and there has not been any
material transaction entered into or any material transaction
that is probable of being entered into by the Company or the
Subsidiaries, other than transactions in the ordinary course
of business and changes and transactions described in the
Registration Statement, as it may be amended or supplemented.
The Company and the Subsidiaries have no material contingent
obligations which are not disclosed in the Company's financial
statements which are included in the Registration Statement,
as it may be amended or supplemented.
(xii) Neither the Company nor any of the
Subsidiaries is or with the giving of notice or lapse of time
or both, will be, in violation of or in default
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under its Charter or Bylaws or under any agreement, lease,
contract, indenture or other instrument or obligation to which
it is a party or by which it, or any of its properties, is
bound and which default is of material significance in respect
of the condition, financial or otherwise, of the Company and
its Subsidiaries taken as a whole or the business, management,
properties, assets, rights, operations, condition (financial
or otherwise) or prospects of the Company and the Subsidiaries
taken as a whole. The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust or other agreement or instrument to
which the Company or any Subsidiary is a party, or of the
Charter or Bylaws of the Company or any order, rule or
regulation applicable to the Company or any Subsidiary of any
court or of any regulatory body or administrative agency or
other governmental body having jurisdiction.
(xiii) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body necessary in
connection with the execution and delivery by the Company of
this Agreement and the consummation of the transactions herein
contemplated (except such additional steps as may be required
by the Commission, the National Association of Securities
Dealers, Inc. (the "NASD") or may be necessary to qualify the
Shares for public offering by the Underwriters under State
securities or Blue Sky laws) has been obtained or made and is
in full force and effect.
(xiv) The Company and each of the Subsidiaries
holds all material licenses, certificates and permits from
governmental authorities (including, without limitation,
insurance licenses from the Insurance Departments of the
various states where the Subsidiaries write insurance business
(the "INSURANCE LICENSES")) which are necessary to the conduct
of their businesses; the Subsidiaries have fulfilled and
performed all material obligations necessary to maintain their
respective Insurance Licenses, and no event or events have
occurred which may be reasonably expected to result in the
impairment, modification, termination or revocation of such
Insurance Licenses. Neither the Company nor any of the
Subsidiaries has infringed any patents, patent rights, trade
names, trademarks or copyrights, which infringement is
material to the business of the Company and the Subsidiaries
taken as a whole. The Company knows of no material
infringement by others of patents, patent rights, trade names,
trademarks or copyrights owned by or licensed to the Company.
(xv) Neither the Company, nor to the Company's
best knowledge, any of its affiliates, has taken or may take,
directly or indirectly, any action designed to cause or result
in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of
the price of the shares of Common Stock to facilitate the sale
or resale of the Shares. The Company acknowledges that the
Underwriters may engage in passive market making
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transactions in the Shares on the Nasdaq National Market in
accordance with Rule 10b-6A under the Exchange Act.
(xvi) Neither the Company nor any Subsidiary is an
"investment company" within the meaning of such term under the
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder (the "1940 ACT").
(xvii) The Company maintains a system of internal
accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance
with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(xviii) The Company and each of its Subsidiaries
carry, or are covered by, insurance in such amounts and
covering such risks as is adequate for the conduct of their
respective businesses and the value of their respective
properties and as is customary for companies engaged in
similar industries.
(xix) The Company is in compliance in all material
respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as
defined in ERISA) for which the Company would have any
liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published
interpretations thereunder (the "CODE"); and each "pension
plan" for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is
so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would
cause the loss of such qualification.
(xx) The Company and each of its Subsidiaries own
or possess adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names,
trademark registrations, service ▇▇▇▇ registrations,
copyrights and licenses necessary for the conduct of their
respective businesses and have no reason to believe that the
conduct of their respective businesses will conflict with,
and have not received any notice of any claim of conflict
with, any such right of others.
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(xxi) The Company confirms as of the date hereof
that it is in compliance with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida) An
Act Relating to Disclosure of doing Business with Cuba, and
the Company further agrees that if it commences engaging in
business with the government of Cuba or with any person or
affiliate located in Cuba after the date the Registration
Statement becomes or has become effective with the Commission
or with the Florida Department of Banking and Finance (the
"DEPARTMENT"), whichever date is later, or if the information
reported or incorporated by reference in the Prospectus, if
any, concerning the Company's business with Cuba or with any
person or affiliate located in Cuba changes in any material
way, the Company will provide the Department notice of such
business or change, as appropriate, in a form acceptable to
the Department.
(xxii) Neither the Company nor any of its
Subsidiaries is involved in any material labor dispute nor, to
the best knowledge of the Company, is any such dispute
threatened.
(xxiii) The Company has no actual knowledge of (a)
the presence of any hazardous substances, hazardous materials,
toxic substances or waste materials (collectively, "HAZARDOUS
MATERIALS"), the existence of which is in violation of any
environmental law or regulation, on any of the properties
owned or leased by it (the "PROPERTIES"), or (b) any spills,
releases, discharges or disposal of Hazardous Materials by the
Company that have occurred or are presently occurring on
adjoining properties as a result of any construction on or
operation and use of such Properties except, with respect to
(a) and (b), as may otherwise be set forth in environmental
reports obtained by the Company. With respect to the
construction on or operation and use of the Properties the
Company represents that it has no actual knowledge of any
material failure to comply with all applicable local, state
and federal environmental laws, regulations, ordinances and
administrative and judicial orders relating to the generation,
recycling, reuse, sale, storage, handling, transport and
disposal of any Hazardous Materials.
(xxiv) The Company has obtained the agreement of the
Selling Stockholder and each of its directors and officers not
to offer, sell, contract to sell, or otherwise dispose of any
shares of Common Stock or any securities convertible into or
exchangeable or exercisable for Common Stock for a period of
90 days after the date of the Prospectus without the prior
written consent of the Representatives.
(b) Each of the Selling Stockholders severally represents
and warrants as follows:
(i) This Agreement has been duly authorized,
executed and delivered by or on behalf of such Selling
Stockholder and constitutes a valid and legally binding
agreement of such Selling Stockholder enforceable in
accordance with its terms except as (a) the enforceability
thereof may be limited by bankruptcy, insolvency or similar
laws affecting equitable creditors' rights generally and (b)
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the availability of equitable remedies may be limited by
equitable principles of general applicability.
(ii) The execution and delivery by such Selling
Stockholder of, and the performance by such Selling
Stockholder of its obligations under, this Agreement, the
Custody Agreement signed by such Selling Stockholder and the
Company, as Custodian, relating to the deposit of the Shares
to be sold by such Selling Stockholder (the "CUSTODY
AGREEMENT") and the Power of Attorney appointing certain
individuals as such Selling Stockholder's attorneys-in-fact to
the extent set forth therein, relating to the transactions
contemplated hereby and by the Registration Statement (the
"POWER OF ATTORNEY") will not contravene any provision of
applicable law, or the certificate of incorporation of bylaws
of such Selling Stockholder (if such Selling Stockholder is a
corporation), or any agreement or other instrument (including,
without limitation, partnership agreements) binding upon such
Selling Stockholder or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
such Selling Stockholder, and no consent, approval,
authorization or order of or qualification with any
governmental body or agency is required for the performance by
such Selling Stockholder of its obligations under this
Agreement or the Custody Agreement or Power of Attorney of
such Selling Stockholder, except such as may be required by
the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares or the
securities laws of any jurisdiction outside the United States.
(iii) Such Selling Stockholder has, and on the
Closing Date (as defined herein) will have, valid marketable
title to the Shares to be sold by such Selling Stockholder and
the legal right and power, and all authorization and approval
required by law, to enter into this Agreement, the Custody
Agreement and the Power of Attorney and to sell, transfer and
deliver the Shares to be sold by such Selling Stockholder.
(iv) The Shares to be sold by such Selling
Stockholder pursuant to this Agreement have been duly
authorized and are validly issued, fully paid and
nonassessable.
(v) The Custody Agreement and the Power of
Attorney have been duly authorized, executed and delivered by
such Selling Stockholder and are valid, legal and binding
agreements of such Selling Stockholder enforceable in
accordance with their terms except as (a) the enforceability
thereof may be limited by bankruptcy, insolvency or similar
laws affecting equitable creditors' rights generally and (b)
the availability of equitable remedies may be limited by
equitable principles of general applicability.
(vi) Delivery of the Shares to be sold by such
Selling Stockholder pursuant to this Agreement will pass
marketable title to such Shares free and clear of any security
interests, claims, liens, equities and other encumbrances.
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(vii) All information furnished by or on behalf of
such Selling Stockholder in writing expressly for use in the
Registration Statement and the Prospectuses is, and on the
Closing Date will be, true, correct and complete and does not,
and on the Closing Date will not, contain any untrue statement
of a material fact or omit to state any material fact
necessary to make such information not misleading.
(viii) Such Selling Stockholder 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 the stabilization or
manipulation of the price of the Common Stock of the Company.
(ix) Without having undertaken to determine
independently the accuracy or completeness of either the
representations and warranties of the Company contained herein
or the information contained in the Registration Statement,
such Selling Stockholder has no actual knowledge that the
representations and warranties of the Company contained in
this Section 1 are not true and correct, is familiar with the
Registration Statement and has no actual knowledge of any
material fact, condition or information not disclosed in the
Registration Statement which has adversely affected or may
adversely affect the business of the Company or any of the
Subsidiaries; and the sale of the Shares by such Selling
Stockholder pursuant hereto is not prompted by any information
concerning the Company or any of the Subsidiaries which is not
set forth in the Registration Statement or the documents
incorporated by reference therein. The information pertaining
to such Selling Stockholder under the caption "Principal and
Selling Stockholders" in the Prospectus is complete and
accurate in all material respects.
2. PURCHASE, SALE AND DELIVERY OF THE FIRM SHARES.
(a) On the basis of the representations, warranties and
covenants herein contained, and subject to the conditions herein set
forth, the Company, severally and not jointly, agree to sell to the
Underwriters and each Underwriter agrees, severally and not jointly,
to purchase, at a price of $_____ per share, the number of Firm
Shares set forth opposite the name of each Underwriter in Schedule I
hereof, subject to adjustments in accordance with Section 9 hereof.
The number of Firm Shares to be purchased by each Underwriter from the
Company shall be as nearly as practicable in the same proportion to
the total number of Firm Shares being sold by the Company as the
number of Firm Shares being purchased by each Underwriter bears to the
total number of Firm Shares to be sold hereunder.
(b) Payment for the Firm Shares to be sold hereunder is
to be made in New York Clearing House funds by certified or bank
cashier's checks drawn to the order of the Company for the Shares to
be sold by it and for the Shares to be sold by the Selling
Stockholders, in each case against delivery of certificates therefor
to the Representatives for the several accounts of the Underwriters.
Such payment and delivery are to be made at the offices of Alex. ▇▇▇▇▇
& Sons Incorporated, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
at 10:00 a.m., Baltimore time, on the third business day after the
date of this
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Agreement or at such other time and date not later than three business
days thereafter as you and the Company shall agree upon, such time and
date being herein referred to as the "Closing Date." (As used herein,
"BUSINESS DAY" means a day on which the New York Stock Exchange is
open for trading and on which banks in New York are open for business
and not permitted by law or executive order to be closed.) The
certificates for the Firm Shares will be delivered in such
denominations and in such registrations as the Representatives request
in writing not later than the third full business day prior to the
Closing Date, and will be made available for inspection by the
Representatives at least one business day prior to the Closing Date.
(c) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions
herein set forth, the Company and the Selling Stockholder hereby grant
an option to the several Underwriters to purchase the Option Shares at
the price per share as set forth in the first paragraph of this
Section 2. The option granted hereby may be exercised in whole or in
part by giving written notice (i) at any time before the Closing Date
and (ii) only once thereafter within 30 days after the date of this
Agreement, by you, as Representatives of the several Underwriters, to
the Company, setting forth the number of Option Shares as to which the
several Underwriters are exercising the option, the names and
denominations in which the Option Shares are to be registered and the
time and date at which such certificates are to be delivered. The
time and date at which certificates for Option Shares are to be
delivered shall be determined by the Representatives but shall not be
earlier than three nor later than ten full business days after the
exercise of such option, nor in any event prior to the Closing Date
(such time and date being herein referred to as the "OPTION CLOSING
DATE"). If the date of exercise of the option is three or more days
before the Closing Date, the notice of exercise shall set the Closing
Date as the Option Closing Date. The number of Option Shares to be
purchased by each Underwriter shall be in the same proportion to the
total number of Option Shares being purchased as the number of Firm
Shares being purchased by such Underwriter bears to 2,000,000,
adjusted by you in such manner as to avoid fractional shares. The
option with respect to the Option Shares granted hereunder may be
exercised only to cover over-allotments in the sale of the Firm Shares
by the Underwriters. You, as Representatives of the several
Underwriters, may cancel such option at any time prior to its
expiration by giving written notice of such cancellation to the
Company. To the extent, if any, that the option is exercised, payment
for the Option Shares shall be made on the Option Closing Date in New
York Clearing House funds by certified or bank cashier's check drawn
to the order of the Company against delivery of certificates for the
Option Shares at the offices of Alex. ▇▇▇▇▇ & Sons Incorporated, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
(d) Certificates in negotiable form for the total number
of the Shares to be sold hereunder by the Selling Stockholder have
been placed in custody with the Company as custodian (the "CUSTODIAN")
pursuant to the Custody Agreement executed by the Selling Stockholder
for delivery of all Option Shares to be sold hereunder by the Selling
Stockholder. The Selling Stockholder specifically agrees that the
Option Shares represented by the certificates held in custody for the
Selling Stockholder under the Custody Agreement are subject to the
interests of the Underwriters hereunder, that the arrangements made by
the Selling Stockholder for such custody are to that extent
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irrevocable, and that the obligations of the Selling Stockholder
hereunder shall not be terminable by any act or deed of the Selling
Stockholder (or by any other person, firm or corporation including the
Company, the Custodian or the Underwriters) or by operation of law
(including the death of the Selling Stockholder or by the occurrence
of any other event or events, except as set forth in the Custody
Agreement. If any such event should occur prior to the delivery to
the Underwriters of the Option Shares hereunder, certificates for the
Option Shares shall be delivered by the Custodian in accordance with
the terms and conditions of this Agreement as if such event has not
occurred. The Custodian is authorized to receive and acknowledge
receipt of the proceeds of sale of the Shares held by it against
delivery of such Shares.
3. OFFERING BY THE UNDERWRITERS. It is understood that the
several Underwriters are to make a public offering of the Firm Shares as soon
as the Representatives deem it advisable to do so. The Firm Shares are to be
initially offered to the public at the offering price set forth in the
Prospectus. The Representatives may from time to time after the offering
change the public offering price and other selling terms. To the extent, if at
all, that any Option Shares are purchased pursuant to Section 2 hereof, the
Underwriters will offer them to the public on the foregoing terms.
It is further understood that you will act as the Representatives for
the Underwriters in the offering and sale of the Shares in accordance with a
Master Agreement Among Underwriters entered into by you and the several other
Underwriters.
4. COVENANTS OF THE COMPANY AND THE SELLING STOCKHOLDER.
(a) The Company covenants and agrees with the several
Underwriters that:
(i) The Company will (A) use its best efforts to
cause the Registration Statement to become effective or, if
the procedure in Rule 430A of the Rules and Regulations is
followed, to prepare and timely file with the Commission under
Rule 424(b) of the Rules and Regulations a Prospectus in a
form approved by the Representatives containing information
previously omitted at the time of effectiveness of the
Registration Statement in reliance on Rule 430A of the Rules
and Regulations, and (B) not file any amendment to the
Registration Statement or supplement to the Prospectus of
which the Representatives shall not previously have been
advised and furnished with a copy or to which the
Representatives shall have reasonably objected in writing or
which is not in compliance with the Rules and Regulations and
(C) file on a timely basis all reports and any definitive
proxy or information statements required to be filed by the
Company with the Commission subsequent to the date of the
Prospectus and prior to the termination of the offering of the
Shares by the Underwriters.
(ii) The Company will advise the Representatives
promptly (A) when the Registration Statement or any post
effective amendment thereto shall have become effective, (B)
of receipt of any comments from the Commission, (C) of any
request of the Commission for amendment of the Registration
Statement or for supplement to the Prospectus or for any
additional information, and (D) of the
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issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the use of the
Prospectus or of the institution of any proceedings for that
purpose. The Company will use its best efforts to prevent the
issuance of any such stop order preventing or suspending the
use of the Prospectus and to obtain as soon as possible the
lifting thereof, if issued.
(iii) The Company will cooperate with the
Representatives in endeavoring to qualify the Shares for sale
under the securities laws of such jurisdictions as the
Representatives may reasonably have designated in writing and
will make such applications, file such documents, and furnish
such information as may be reasonably required for that
purpose, provided the Company shall not be required to qualify
as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not now so
qualified or required to file such a consent. The Company
will, from time to time, prepare and file such statements,
reports, and other documents, as are or may be required to
continue such qualifications in effect for so long a period as
the Representatives may reasonably request for distribution of
the Shares.
(iv) The Company will deliver to, or upon the
order of, the Representatives, from time to time, as many
copies of any Preliminary Prospectus as the Representatives
may reasonably request. The Company will deliver to, or upon
the order of, the Representatives during the period when
delivery of a Prospectus is required under the Act, as many
copies of the Prospectus in final form, or as thereafter
amended or supplemented, as the Representatives may reasonably
request. The Company will deliver to the Representatives at
or before the Closing Date, four signed copies of the
Registration Statement and all amendments thereto including
all exhibits filed therewith, and will deliver to the
Representatives such number of copies of the Registration
Statement (including such number of copies of the exhibits
filed therewith that may reasonably be requested), and of all
amendments thereto, as the Representatives may reasonably
request.
(v) The Company will comply to the best of its
ability with the Act and the Rules and Regulations, and the
Exchange Act, and the rules and regulations of the Commission
thereunder, so as to permit the completion of the distribution
of the Shares as contemplated in this Agreement and the
Prospectus. If during the period in which a prospectus is
required by law to be delivered by an Underwriter or dealer
any event shall occur as a result of which, in the judgment of
the Company or in the reasonable opinion of the Underwriters,
it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the
circumstances existing at the time the Prospectus is delivered
to a purchaser, not misleading, or, if it is necessary at any
time to amend or supplement the Prospectus to comply with any
law, the Company promptly will prepare and file with the
Commission an appropriate amendment to the Registration
Statement or supplement to the Prospectus so that the
Prospectus as so amended or supplemented will not, in the
light of the
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circumstances when it is so delivered, be misleading, or so
that the Prospectus will comply with the law.
(vi) The Company will make generally available to
its security holders, as soon as it is practicable to do so,
but in any event not later than 15 months after the effective
date of the Registration Statement, an earnings statement
(which need not be audited) in reasonable detail, covering a
period of at least 12 consecutive months beginning after the
effective date of the Registration Statement, which earnings
statement shall satisfy the requirements of Section 11(a) of
the Act and Rule 158 of the Rules and Regulations and will
advise you in writing when such statement has been so made
available.
(vii) The Company will, for a period of five years
from the Closing Date, deliver to the Representatives copies
of annual reports and copies of all other documents, reports
and information furnished by the Company to its stockholders
or filed with any securities exchange pursuant to the
requirements of such exchange or with the Commission pursuant
to the Act or the Exchange Act. The Company will deliver to
the Representatives similar reports with respect to
significant subsidiaries, as that term is defined in the Rules
and Regulations, which are not consolidated in the Company's
financial statements.
(viii) Except for (a) the sale of the Shares
pursuant to this Agreement, (b) the issuances of options for
Common Stock under, and shares issuable upon the exercise of
options granted pursuant to, the stock option plans of the
Company described in the Prospectus and (c) the issuances of
shares in a private transaction in connection with an
acquisition where the holders of such shares agree in writing
to restrict transferability and registration of, such shares,
for a period ending 90 days after the date of this Agreement,
no offering, sale, short sale or other disposition of any
Common Stock of the Company or other securities convertible
into or exchangeable or exercisable for Common Stock or
derivative of Common Stock (or agreement for such) will be
made for a period ending 90 days after the date of this
Agreement, directly or indirectly, by the Company otherwise
than hereunder or with the prior written consent of Alex.
▇▇▇▇▇ & Sons Incorporated.
(ix) The Company will use its best efforts to
maintain the listing of the Shares on the Nasdaq National
Market.
(x) The Company shall cause each Company officer
and director and each stockholder holding more than 500,000
shares of Common Stock prior to the offering to furnish to
you, on or prior to the Closing Date, a letter or letters, in
form and substance satisfactory to the Underwriters, pursuant
to which each such person shall agree not to offer, sell, sell
short or otherwise dispose of any shares of Common Stock of
the Company or other capital stock of the Company, or any
other securities convertible, exchangeable or exercisable for
Common Stock or derivative of Common Stock owned by such
person or request the registration for the offer or sale of
any of the foregoing (or as to which such person has the
right
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to direct the disposition of) for a period of 90 days after
the date of this Agreement, directly or indirectly, except
with the prior written consent of Alex. ▇▇▇▇▇ & Sons
Incorporated.
(xi) The Company shall apply the net proceeds of
the sale of the Shares as set forth in the Prospectus and
shall file such reports with the Commission with respect to
the sale of the Shares and the application of the proceeds
therefrom as may be required in accordance with Rule 463 under
the Act.
(xii) The Company shall not invest, or otherwise
use the proceeds received by the Company from the sale of the
shares to the Underwriters in such a manner as would require
the Company or any of the subsidiaries to register as an
investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent
and, if necessary under the jurisdiction of incorporation of
the Company, a registrant for its Common Stock.
(xiv) The Company will not take, directly or
indirectly, any action designed to cause or result in, or that
has constituted or might reasonably be expected to constitute,
the stabilization or manipulation of the price of any
securities of the Company to facilitate the sale or resale of
the Shares.
(b) The Selling Stockholder covenants and agrees with the
several Underwriters that:
(i) no offering, sale, short sale or other
disposition of any Common Stock of the Company or other
capital stock of the Company or other securities convertible,
exchangeable or exercisable for Common Stock or derivative of
Common Stock owned by the Selling Stockholder or request for
the registration for the offer or sale of any of the foregoing
(or as to which the Selling Stockholder has the right to
direct the disposition of) will be made for a period of 90
days after the date of this Agreement, directly or indirectly,
by the Selling Stockholder otherwise than hereunder or with
the prior written consent of Alex. ▇▇▇▇▇ & Sons Incorporated;
(ii) in order to document the Underwriters'
compliance with the reporting and withholding provisions of
the Tax Equity and Fiscal Responsibility Act of 1982 and the
Interest and Dividend Tax Compliance Act of 1983 with respect
to the transactions herein contemplated, the Selling
Stockholder agrees to deliver to you prior to or at the
Closing Date a properly completed and executed United States
Treasury Department Form W-9 (or other applicable form or
statement specified by Treasury Department regulations in lieu
thereof);
(iii) such Selling Stockholder will not take,
directly or indirectly, any action designed to cause or result
in, or that has constituted or might reasonably
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be expected to constitute, the stabilization or manipulation
of the price of any securities of the Company to facilitate
the sale or resale of the Shares.
5. COSTS AND EXPENSES. The Company will pay all costs, expenses
and fees incident to the performance of the obligations of the Sellers under
this Agreement, including, without limiting the generality of the foregoing,
the following: accounting fees of the Company; the fees and disbursements of
counsel for the Company and the Selling Stockholder; the cost of printing and
delivering to, or as requested by, the Underwriters copies of the Registration
Statement, Preliminary Prospectuses, the Prospectus, this Agreement, the
Underwriters' Selling Memorandum, the Invitation Letter, the Listing
Application, the Blue Sky Survey and any supplements or amendments thereto; the
filing fees of the Commission; the filing fees and expenses (including legal
fees and disbursements) incident to securing any required review by the NASD of
the terms of the sale of the Shares; the Listing Fee of the Nasdaq National
Market; and the expenses, including the fees and disbursements of counsel for
the Underwriters, incurred in connection with the qualification of the Shares
under State securities or Blue Sky laws. To the extent, if at all, that the
Selling Stockholder engages special legal counsel to represent him in
connection with this offering, the fees and expenses of such counsel shall be
borne by the Selling Stockholder. Any transfer taxes imposed on the sale of
the Shares to the several Underwriters will be paid by the Sellers pro rata.
The Company agrees to pay all costs and expenses of the Underwriters, including
the fees and disbursements of counsel for the Underwriters, incident to the
offer and sale of directed shares of the Common Stock by the Underwriters to
employees and persons having business relationships with the Company and its
Subsidiaries if such persons have NASD affiliations or such sales are subject
to NASD filings or consents. The Company shall not, however, be required to
pay for any of the Underwriters expenses (other than those related to
qualification under State securities or Blue Sky laws) except that, if this
Agreement shall not be consummated because the conditions in Section 6 hereof
are not satisfied, or because this Agreement is terminated by the
Representatives pursuant to Section 11(b) hereof, or by reason of any failure,
refusal or inability on the part of the Company or the Selling Stockholder to
perform any undertaking or satisfy any condition of this Agreement or to comply
with any of the terms hereof on their part to be performed, unless such failure
to satisfy said condition or to comply with said terms is due to the default or
omission of any Underwriter, then the Company shall reimburse the several
Underwriters for reasonable out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred in connection with investigating,
marketing and proposing to market the Shares or in contemplation of performing
their obligations hereunder; but the Company and the Selling Stockholder shall
not in any event be liable to any of the several Underwriters for damages on
account of loss of anticipated profits from the sale by them of the Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS. The several
obligations of the Underwriters to purchase the Firm Shares on the Closing Date
and the Option Shares, if any, on the Option Closing Date are subject to the
accuracy, as of the Closing Date or the Option Closing Date, as the case may
be, of the representations and warranties of the Company and the Selling
Stockholder contained herein, and to the performance by the Company and the
Selling Stockholder of their respective covenants and obligations hereunder and
to the following additional conditions:
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(a) The Registration Statement and all post effective
amendments thereto shall have become effective and any and all filings
required by Rule 424 and Rule 430A of the Rules and Regulations shall
have been made, and any request of the Commission for additional
information (to be included in the Registration Statement or
otherwise) shall have been disclosed to the Representatives and
complied with to their reasonable satisfaction. No stop order
suspending the effectiveness of the Registration Statement, as amended
from time to time, shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company or
the Selling Stockholder, shall be contemplated by the Commission.
(b) The Representatives shall have received on the
Closing Date or the Option Closing Date, as the case may be, the
opinions of ▇▇▇▇▇▇▇▇▇▇▇ & Price, L.L.P., counsel for the Company and
the Selling Stockholder, dated the Closing Date or the Option Closing
Date, as the case may be, addressed to the Underwriters to the effect
that:
(i) 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 corporate power and
authority to own or lease its properties and conduct its
business as described in the Registration Statement; each of
the Subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with corporate power
and authority to own or lease its properties and conduct its
business as described in the Registration Statement; the
Company and each of the Subsidiaries are duly qualified to
transact business in all jurisdictions in which the conduct of
their business requires such qualification, except where the
failure to qualify would not have a materially adverse effect
upon the business of the Company and the Subsidiaries taken as
a whole; and the outstanding shares of capital stock of each
of the Subsidiaries have been duly authorized and validly
issued and are fully paid and nonassessable and are owned by
the Company or a Subsidiary; and, to such counsel's knowledge,
except as set forth in the Prospectus, the outstanding shares
of capital stock of each of the Subsidiaries is owned free and
clear of all liens, encumbrances and security interests, and
no options, warrants or other rights to purchase, agreements
or other obligations to issue or other rights to convert any
obligations into any shares of capital stock or of ownership
interests in the Subsidiaries are outstanding;
(ii) the Company has authorized and outstanding
capital stock as set forth in the Prospectus; the authorized
shares of the Company's Common Stock have been duly
authorized; the outstanding shares of the Company's Common
Stock, including the Shares to be sold by the Selling
Stockholder, have been duly authorized and validly issued and
are fully paid and nonassessable; all of the Shares conform to
the description thereof under the caption "Description of
Capital Stock" contained in the Prospectus; the certificates
for the Shares, assuming they are in the form filed with the
Commission, are in due and proper form; the Shares to be sold
by the Company pursuant to this Agreement have been duly
authorized and will be validly issued, fully paid and
nonassessable when issued and paid for as contemplated by this
Agreement; and, to such
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counsel's knowledge, no preemptive rights of stockholders
exist with respect to any of the Shares or the issue or sale
thereof;
(iii) except as described in or contemplated by the
Prospectus, to the knowledge of such counsel, there are no
outstanding securities of the Company convertible or
exchangeable into or evidencing the right to purchase or
subscribe for any shares of capital stock of the Company and
there are no outstanding or authorized options, warrants or
rights of any character obligating the Company to issue any
shares of its capital stock or any securities convertible or
exchangeable into or evidencing the right to purchase or
subscribe for any shares of such stock; and except as
described in the Prospectus, to the knowledge of such counsel,
there is no holder of any securities of the Company or any
other person who has the right, contractual or otherwise,
which has not been satisfied or effectively waived, to cause
the Company to sell or otherwise issue to them, or to permit
them to underwrite the sale of, any of the Shares or the right
to have any Common Stock or other securities of the Company
included in the Registration Statement or the right, as a
result of the filing of the Registration Statement, to require
registration under the Act of any Common Stock or other
securities of the Company;
(iv) the Registration Statement has become
effective under the Act and, to the knowledge of such counsel,
no stop order proceedings with respect thereto have been
instituted or are pending or threatened under the Act;
(v) the Registration Statement, the Prospectus
and each amendment or supplement thereto comply as to form in
all material respects with the requirements of the Act and the
applicable rules and regulations thereunder (except that such
counsel need express no opinion as to the financial
statements, including notes and related schedules therein and
other financial and statistical information derived
therefrom);
(vi) the statements under the captions
"Business--Government Regulation," "Pending and Recent
Acquisitions," "Certain Transactions," and "Description of
Capital Stock" in the Prospectus and Items 14 and 15 of the
Registration Statement, insofar as such statements constitute
a summary of documents referred to therein or matters of law,
fairly summarize in all material respects the information
called for with respect to such documents and matters;
(vii) such counsel does not know of any contracts
or documents required to be filed as exhibits to the
Registration Statement or described in the Registration
Statement or the Prospectus which are not so filed or
described as required, and such contracts and documents as are
summarized in the Registration Statement or the Prospectus are
fairly summarized in all material respects;
(viii) such counsel knows of no material legal or
governmental proceedings pending or threatened against the
Company or any of the Subsidiaries except as set forth in the
Prospectus;
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(ix) the execution and delivery of this Agreement
and the consummation of the transactions herein contemplated
do not and will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under,
the Charter or Bylaws of the Company, or any agreement or
instrument known to such counsel to which the Company or any
of the Subsidiaries is a party or by which the Company or any
of the Subsidiaries may be bound;
(x) this Agreement has been duly authorized,
executed and delivered by the Company. The Company has full
power and authority to enter into this Agreement;
(xi) no approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body is necessary in
connection with the execution and delivery of this Agreement
and the consummation of the transactions herein contemplated
(other than as may be required by the NASD or as required by
State securities and Blue Sky laws as to which such counsel
need express no opinion) except such as have been obtained or
made, specifying the same;
(xii) the Company is not, and will not become as a
result of the consummation of the transactions contemplated by
this Agreement and application of the net proceeds therefrom
as described in the Prospectus, required to register as an
investment company under the 1940 Act;
(xiii) this Agreement has been duly executed and
delivered by the Selling Stockholder and, assuming due
authorization, execution and delivery by you, constitutes a
valid and legally binding agreement of the Selling Stockholder
enforceable in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting equitable creditors'
rights generally and (b) the availability of equitable
remedies may be limited by equitable principles of general
applicability;
(xiv) the execution and delivery by the Selling
Stockholder of, and the performance by the Selling Stockholder
of his obligations under, this Agreement, the Custody
Agreement and Power of Attorney of the Selling Stockholder
(other than performance of indemnification or contribution
obligations concerning which no opinion need be expressed)
will not contravene any agreement or other instrument
(including, without limitation, partnership agreements)
binding upon the Selling Stockholder or, to the knowledge of
such counsel, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Selling Stockholder or any applicable law, and, to the
knowledge of such counsel, no consent, approval, authorization
or order of or qualification with any governmental body or
agency is required for the performance by the Selling
Stockholder of his obligations under this Agreement or the
Custody Agreement or Power of Attorney of the Selling
Stockholder, except such as may be required by the securities
or Blue Sky laws of the various states or the securities laws
of
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and jurisdiction outside the United States in connection with
the offer and sale of the Shares;
(xv) to the best knowledge of such counsel, based
upon representations set forth in a certificate delivered by
the Selling Stockholder, the Selling Stockholder has valid
marketable title to the Shares to be sold by the Selling
Stockholder. The Selling Stockholder has the legal right and
power, and all authorization and approval required by law, to
enter into this Agreement and the Custody Agreement and Power
of Attorney of the Selling Stockholder and to sell, transfer
and deliver the Shares to be sold by the Selling Stockholder;
(xvi) each of the Custody Agreement and Power of
Attorney of the Selling Stockholder has been duly executed and
delivered by the Selling Stockholder and is a valid and
binding agreement of the Selling Stockholder and constitutes a
valid and legally binding agreement of the Selling Stockholder
enforceable in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting equitable creditors'
rights generally and (b) the availability of equitable
remedies may be limited by equitable principles of general
applicability;
(xvii) the Underwriters (assuming that they are bona
fide purchasers within the meaning of the Uniform Commercial
Code), upon delivery of and payment for the Shares as
contemplated by this Agreement, will acquire good and
marketable title to the Shares being sold by the Selling
Stockholder on the Closing Date, free and clear of all liens,
encumbrances, equities and claims;
(xviii) to the knowledge of such counsel, the Company
and each of the Subsidiaries hold all material licenses,
certificates and permits from governmental authorities which
are necessary to the conduct of their businesses, including
all insurance Licenses and such counsel knows of no threatened
or pending proceedings to revoke or deny the renewal of any
Insurance Licenses.
In rendering such opinion ▇▇▇▇▇▇▇▇▇▇▇ & Price, L.L.P. may rely
as to matters governed by the laws of states other than Delaware,
Texas or Federal laws on local counsel in such jurisdictions and as to
the matters set forth in subparagraphs (xiii), (xiv) and (xv) on
opinions of other counsel representing the Selling Stockholder,
provided that in each case ▇▇▇▇▇▇▇▇▇▇▇ & Price, L.L.P. shall state
that they believe that they and the Underwriters are justified in
relying on such other counsel. In addition to the matters set forth
above, such opinion shall also include a statement to the effect that
nothing has come to the attention of such counsel which leads them to
believe that (i) the Registration Statement, as of the time it became
effective under the Act (but after giving effect to any modifications
incorporated therein pursuant to Rule 430A under the Act), as of the
Closing Date or the Option Closing Date, as the case may be, 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, and (ii) the Prospectus, or any supplement
thereto, on the date it was filed pursuant to the Rules and
Regulations and as of the Closing Date or the Option Closing Date, as
the case may be,
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contained, an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements, in the light
of the circumstances under which they are made, not misleading (except
that such counsel need express no view as to financial statements,
schedules and statistical information therein). With respect to such
statement, ▇▇▇▇▇▇▇▇▇▇▇ & Price, L.L.P. may state that their belief is
based upon the procedures set forth therein, but is without
independent check and verification.
(c) The Representatives shall have received from Akin,
Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., counsel for the Underwriters, an
opinion dated the Closing Date or the Option Closing Date, as the case
may be, with respect to the Registration Statement, the Prospectus and
such other related matters as the Representatives shall reasonably
request and such counsel shall have received such papers, opinions and
information as they may reasonably request to enable them to pass upon
such matters. Such opinion shall also include a statement to the
effect that nothing has come to the attention of such counsel which
leads them to believe that (i) the Registration Statement, or any
amendment thereto, as of the time it became effective under the Act,
(but after giving effect to any modifications incorporated therein
pursuant to Rule 430A under the Act) as of the Closing Date or the
Option Closing Date, as the case may be, contained 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 (ii) the Prospectus, or any supplement thereto, on the
date it was filed pursuant to the Rules and Regulations and as of the
Closing Date or the Option Closing Date, as the case may be, contained
an untrue statement of a material fact or omits to state a material
fact, necessary in order to make the statements, in the light of the
circumstances under which they are made, not misleading (except that
such counsel need express no view as to financial statements,
schedules and other financial information included therein). With
respect to such statement, Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
may state that their belief is based upon the procedures set forth
therein, but is without independent check and verification.
(d) The Representatives shall have received at or prior
to the Closing Date from Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., a
memorandum or summary, in form and substance satisfactory to the
Representatives, with respect to the qualification for offering and
sale by the Underwriters of the Shares under the State securities or
Blue Sky laws of such jurisdictions as the Representatives may
reasonably have designated to the Company.
(e) You shall have received, on each of the dates hereof
and the Closing Date or the Option Closing Date, as the case may be, a
letter dated the date of delivery thereof or the Closing Date or the
Option Closing Date, as the case may be, in form and substance
satisfactory to you, of Price Waterhouse LLP confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating that
in their opinion the financial statements and schedules examined by
them and included in the Registration Statement comply in form in all
material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations; and containing
such other statements and information as is ordinarily included in
accountants' "comfort letters" to
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Underwriters with respect to the financial statements and certain
financial and statistical information contained in the Registration
Statement and Prospectus.
(f) The Representatives shall have received on the
Closing Date or the Option Closing Date, as the case may be, a
certificate or certificates of the Chief Executive Officer and the
Chief Financial Officer of the Company to the effect that, as of the
Closing Date or the Option Closing Date, as the case may be, each of
them severally represents as follows:
(i) the Registration Statement has become
effective under the Act and no stop order suspending the
effectiveness of the Registrations Statement has been issued,
and no proceedings for such purpose have been taken or are, to
his knowledge, contemplated by the Commission;
(ii) the representations and warranties of the
Company contained in Section 1 hereof are true and correct as
of the Closing Date or the Option Closing Date, as the case
may be;
(iii) all filings required to have been made
pursuant to Rules 424 or 430A under the Act have been made;
(iv) he has carefully examined the Registration
Statement and the Prospectus and, in his opinion, as of the
effective date of the Registration Statement, the statements
contained in the Registration Statement were true and correct,
and such Registration Statement and Prospectus did not omit to
state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading and since the effective date of the Registration
Statement, no event has occurred which should have been set
forth in a supplement to or an amendment of the Prospectus
which has not been so set forth in such supplement or
amendment; and
(v) since the respective dates as of which
information is given in the Registration Statement and
Prospectus, there has not been any material adverse change or
any development involving a prospective material adverse
change in or affecting the condition, financial or otherwise,
of the Company and its Subsidiaries taken as a whole or the
business, management, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company
and the Subsidiaries taken as a whole, whether or not
occurring in the ordinary course of business.
(g) The Company and the Selling Stockholder shall have
furnished to the Representatives such further certificates, opinions
and documents confirming the representations and warranties, covenants
and conditions contained herein and related matters as the
Representatives may reasonably have requested.
(h) The Firm Shares and Option Shares, if any, have been
approved for designation upon notice of issuance on the Nasdaq
National Market.
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(i) The Company shall have delivered to you written
agreements (the "LOCKUP AGREEMENTS") described in Section 4 (a)(x) and
4 (b)(i).
The opinions and certificates mentioned in this Agreement
shall be deemed to be in compliance with the provisions hereof only if
they are in all material respects satisfactory to the Representatives
and to Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., counsel for the
Underwriters.
If any of the conditions hereinabove provided for in this
Section 6 shall not have been fulfilled when and as required by this
Agreement to be fulfilled, the obligations of the Underwriters
hereunder may be terminated by the Representatives by notifying the
Company and the Selling Stockholder of such termination in writing or
by telegram at or prior to the Closing Date or the Option Closing
Date, as the case may be.
In such event, the Selling Stockholder, the Company and the
Underwriters shall not be under any obligation to each other (except
to the extent provided in Sections 5 and 8 hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE SELLERS. The obligations
of the Sellers to sell and deliver the portion of the Shares required to be
delivered as and when specified in this Agreement are subject to the conditions
that at the Closing Date or the Option Closing Date, as the case may be, no
stop order suspending the effectiveness of the Registration Statement shall
have been issued and in effect or proceedings therefor initiated or threatened.
8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Act against any losses, claims, damages or
liabilities to which such Underwriter or such controlling person may
become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto, or in Section 1 hereto, or (ii)
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter and each
such controlling person upon demand for any legal or other expenses
reasonably incurred by such Underwriter or such controlling person in
connection with investigating or defending any such loss, claim,
damage or liability, action or proceeding or in responding to a
subpoena or governmental inquiry whether or not such Underwriter or
controlling person is a party to any action or proceeding; provided,
however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement, or
omission or alleged omission made in the Registration Statement, any
Preliminary Prospectus, the Prospectus, or such amendment or
supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Representatives
specifically for use in the preparation
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thereof and, provided further, that the indemnity agreement provided
in this Section 8(a) with respect to any Preliminary Prospectus shall
not inure to the benefit of any Underwriter from whom the person
asserting any losses, claims, damages, liabilities or actions based
upon any untrue statement or alleged untrue statement of material fact
or omission or alleged omission to state therein a material fact
purchased Shares, if a copy of the Prospectus in which such untrue
statement or alleged untrue statement or omission or alleged omission
was corrected had not been sent or given to such person within the
time required by the Act and the Rules and Regulations thereunder,
unless such failure is the result of noncompliance by the Company with
Section 4(a)(iv) hereof. This indemnity agreement in this Section
8(a) shall extend upon the same terms and conditions to, and shall
inure to the benefit of each person, if any, who controls any
Underwriter within the meaning of the Act. This indemnity agreement
will be in addition to any liability which the Company may otherwise
have.
(b) The Selling Stockholder agrees to indemnify and hold
harmless each Underwriter against any losses claims, damages or
liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, specifically including, but not
limited to, losses, claims, damages or liabilities, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any breach of any representation,
warranty, agreement or covenant of the Selling Stockholder herein
contained, (ii) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement; or any
amendment or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, not
misleading, or (iii) any untrue statement or alleged untrue statement
of a material fact contained in the Preliminary Prospectus or the
Prospectus, of any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statement therein, in the light of the circumstances under which they
were made, not misleading, in the case of subparagraphs (ii) and (iii)
of this Section 8(b) to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company or such Underwriter by the
Selling Stockholder, directly or through the Selling Stockholder's
representatives, specifically for use in preparation thereof, and
agrees to reimburse each Underwriter for any legal or other expenses
reasonably incurred by it in connection with investigating and
defending any such loss, claim, damage, liability or action; provided,
however, that (A) the indemnity agreement provided in this Section
8(b) with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any losses,
claims, charges, liabilities or litigation based upon any untrue
statement or alleged untrue statement of a material fact or omission
or alleged omission to state therein a material fact purchased Shares,
if a copy of the Prospectus in which such untrue statement or alleged
untrue statement or omission or alleged omission was corrected has not
been sent or given to such person within the time required by the Act
and the Rules and Regulations thereunder, unless such failure is the
result of noncompliance by the Company with Section 4(a)(iv) hereof,
and (B) in no event shall the Selling Stockholder be liable under this
Section 8(b) for any amount in excess of the
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aggregate net proceeds the Selling Stockholder received from the sale
of Option Shares pursuant to this Agreement. The indemnity agreement
in this Section 8(b) shall extend upon the same terms and conditions
to, and shall inure to the benefit of each person, if any, who
controls any Underwriter within the meaning of the Act. This
indemnity agreement shall be in addition to any liabilities which the
Selling Stockholder may otherwise have.
(c) Each Underwriter severally and not jointly will
indemnify and hold harmless the Company, each of its directors, each
of its officers who have signed the Registration Statement, the
Selling Stockholder, and each person, if any, who controls the Company
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Company or any such director, officer, the
Selling Stockholder or controlling person may become subject under the
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out
of or are based upon (i) any breach of any representation, warranty,
agreement or covenant of such Underwriter herein contained, (ii) any
untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus,
the Prospectus or any amendment or supplement thereto, or (iii) the
omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made; and will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer, the
Selling Stockholder or controlling person in connection with
investigating or defending any such loss, claim, damage, liability,
action or proceeding; provided, however, that each Underwriter will be
liable in the case of subparagraph (ii) and (iii) of this Section 8(c)
to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission has been made
in the Registration Statement, any Preliminary Prospectus, the
Prospectus or such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by or
through the Representatives specifically for use in the preparation
thereof. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to this Section 8, such person
(the "INDEMNIFIED PARTY") shall promptly notify the person against
whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing. No indemnification provided for in Sections 8(a), (b) or (c)
shall be available to any party who shall fail to give notice as
provided in this Section 8(d) if the party to whom notice was not
given was unaware of the proceeding to which such notice would have
related and was materially prejudiced by the failure to give such
notice, but the failure to give such notice shall not relieve the
indemnifying party or parties from any liability which it or they may
have to the indemnified party for contribution or otherwise than on
account of the provisions of Sections 8(a), (b) or (c). In case any
such proceeding shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying
party similarly
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notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party and shall pay as incurred (on a monthly basis)
the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to
retain its own counsel at its own expense. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and
expenses of the counsel retained by the indemnified party in the event
(i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more
than one separate firm for all such indemnified parties. Such firm
shall be designated in writing by you in the case of parties
indemnified pursuant to Sections 8(a) and 8(b) and by the Company and
the Selling Stockholder in the case of parties indemnified pursuant to
Section 8(c). The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but
if settled with such consent or if there be a final judgement for the
plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such
settlement or judgment. In addition, the indemnifying party will not,
without the prior written consent of the indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or
threatened claim, action or proceeding of which indemnification may be
sought hereunder (whether or not any indemnified party is an actual or
potential party to such claim, action or proceeding) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action or proceeding.
(e) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified
party under Sections 8(a), (b) or (c) above in respect of any losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as
a result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the indemnifying party or
parties on the one hand and the indemnified party or parties on the
other from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault of the indemnifying party or parties on the one hand
and the indemnified party or parties on the other in connection with
the statements or omissions which resulted in such losses, claims,
damages or liabilities, (or actions or proceedings in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Stockholder
on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company and the Selling
Stockholder bear to the total underwriting discounts and commissions
received by the Underwriters, in
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each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Selling Stockholder on the one hand or the Underwriters on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholder and the Underwriters
agree that it would not be just and equitable if contributions
pursuant to this Section 8(e) were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose)
or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 8(e).
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to above in this Section 8(e) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (e), (i) no Underwriter shall be required to contribute any
amount in excess of the underwriting discounts and commissions
applicable to the Shares purchased by such Underwriter, (ii) no person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation, and (iii) the
Selling Stockholder shall not be required to contribute any amount in
excess of the lesser of (A) that proportion of the total of such
losses, claims, damages or liabilities indemnified or contributed
against equal to the proportion of the total Shares sold hereunder
which is being sold by the Selling Stockholder, or (B) the proceeds
received by the Selling Stockholder from the Underwriters in the
offering. The Underwriters' obligations in this Section 8(e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) In any proceeding relating to the Registration
Statement, any Preliminary Prospectus, the Prospectus or any
supplement or amendment thereto, each party against whom contribution
may be sought under this Section 8 hereby consents to the jurisdiction
of any court having jurisdiction over any other contributing party,
agrees that process issuing from such court may be served upon him or
it by any other contributing party and consents to the service of such
process and agrees that any other contributing party may join him or
it as an additional defendant in any such proceeding in which such
other contributing party is a party.
(g) Any losses, claims, damages, liabilities or expenses
for which an indemnified party is entitled to indemnification or
contribution under this Section 8 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages,
liabilities or expenses are incurred. The indemnify and contribution
agreements contained in this Section 8 and the representations and
warranties of the Company set forth in this Agreement shall remain
operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Company, its directors or officers or
any persons controlling the Company, (ii) acceptance of any Shares and
payment therefor hereunder,
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and (iii) any termination of this Agreement. A successor to any
Underwriter, or to the Company, its directors or officers, or any
person controlling the Company or any Underwriter, shall be entitled
to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 8.
9. DEFAULT BY UNDERWRITERS. If on the Closing Date or the Option
Closing Date, as the case may be, any Underwriter shall fail to purchase and
pay for the portion of the Shares which such Underwriter has agreed to purchase
and pay for on such date (otherwise than by reason of any default on the part
of the Company or the Selling Stockholder), you, as Representatives of the
Underwriters, shall use your reasonable efforts to procure within 36 hours
thereafter one or more of the other Underwriters, or any others, to purchase
from the Company and the Selling Stockholder such amounts as may be agreed upon
and upon the terms set forth herein, the Firm Shares or Option Shares, as the
case may be, which the defaulting Underwriter or Underwriters failed to
purchase. If during such 36 hours you, as such Representatives, shall not have
procured such other Underwriters, or any others, to purchase the Firm Shares or
Option Shares, as the case may be, agreed to be purchased by the defaulting
Underwriter or Underwriters, then (a) if the aggregate number of shares with
respect to which such default shall occur does not exceed 10% of the Firm
Shares or Option Shares, as the case may be, covered hereby, the other
Underwriters shall be obligated, severally, in proportion to the respective
numbers of Firm Shares or Option Shares, as the case may be, which they are
obligated to purchase hereunder, to purchase the Firm Shares or Option Shares,
as the case may be, which such defaulting Underwriter or Underwriters failed to
purchase, or (b) if the aggregate number of shares of Firm Shares or Option
Shares, as the case may be, with respect to which such default shall occur
exceeds 10% of the Firm Shares or Option Shares, as the case may be, covered
hereby, the Company and the Selling Stockholder or you as the Representatives
of the Underwriters will have the right, by written notice given within the
next 36-hour period to the parties to this Agreement, to terminate this
Agreement without liability on the part of the nondefaulting Underwriters or of
the Company or of the Selling Stockholder except to the extent provided in
Section 8 hereof. In the event of a default by any Underwriter or
Underwriters, as set forth in this Section 9, the Closing Date or Option
Closing Date, as the case may be, may be postponed for such period, not
exceeding seven days, as you, as Representatives, may determine in order that
the required changes in the Registration Statement or in the Prospectus or in
any other documents or arrangements may be effected. The term "Underwriter"
includes any person substituted for a defaulting Underwriter. Any action taken
under this Section 9 shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
10. NOTICES. All communications hereunder shall be in writing
and, except as otherwise provided herein, will be mailed, delivered, telecopied
or telegraphed and confirmed as follows: if to the Underwriters, to Alex.
▇▇▇▇▇ & Sons Incorporated, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇; with a copy to Alex. ▇▇▇▇▇ & Sons
Incorporated, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Attention:
General Counsel; if to the Company or the Selling Stockholder, to United Dental
Care, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇ ▇. ▇▇▇▇; with a copy to ▇▇▇▇▇▇▇▇▇▇▇ & Price, L.L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
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11. TERMINATION. This Agreement may be terminated by you by
notice to the Sellers as follows:
(a) at any time prior to the earlier of (i) the time the
Shares are released by you for sale by notice to the Underwriters, or
(ii) 10:30 a.m., New York Time, on the first business day following
the date of this Agreement;
(b) at any time prior to the Closing Date if any of the
following has occurred: (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
any material adverse change or any development involving a prospective
material adverse change in or affecting the condition, financial or
otherwise, of the Company and its Subsidiaries taken as a whole or the
earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the
Company and its Subsidiaries taken as a whole, whether or not arising
in the ordinary course of business, (ii) any outbreak or escalation of
hostilities or declaration of war or national emergency or other
national or international calamity or crisis or change in economic or
political conditions involving either the United States if the effect
of such outbreak, escalation, declaration, emergency, calamity, crisis
or change on the financial markets of the United States would, in your
reasonable judgment, make the offering or delivery of the Shares
impracticable or inadvisable, (iii) suspension of trading in
securities generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market or limitation on prices
(other than limitations on hours or numbers of days of trading) for
securities on any such Exchange, (iv) the enactment, publication,
decree or other promulgation of any statute, regulation, rule or order
of any court or other governmental authority which in your opinion
materially and adversely affects or may materially and adversely
affect the business or operations of the Company, (v) declaration of a
banking moratorium by United States or New York State authorities,
(vi) any downgrading in the rating of the Company's, its Subsidiaries'
or its affiliates' debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Exchange Act); (vii) the suspension of trading of the
Company's common stock by the Nasdaq National Market or (viii) the
taking of any action by any governmental body or agency in respect of
its monetary or fiscal affairs which in your reasonable opinion has a
material adverse effect on the securities markets in the United
States; or
(c) as provided in Sections 6 and 9 of this Agreement.
12. SUCCESSORS. This Agreement has been and is made solely for
the benefit of the Underwriters, the Company and the Selling Stockholder and
their respective successors, executors, administrators, heirs and assigns, and
the officers, directors and controlling persons referred to herein, and no
other person will have any right or obligation hereunder. No purchaser of any
of the Shares from any Underwriter shall be deemed a successor or assign merely
because of such purchase.
13. INFORMATION PROVIDED BY UNDERWRITERS. The Company, the
Selling Stockholder and the Underwriters acknowledge and agree that the only
information furnished or to be furnished by any Underwriter to the Company for
inclusion in any Prospectus or the
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Registration Statement consists of the information set forth in the last
paragraph on the front cover page (insofar as such information relates to the
Underwriters), legends required by Item 502(d) of Regulation S-K under the Act
and the information under the caption "Underwriting" in the Prospectus.
14. MISCELLANEOUS. The reimbursement, indemnification and
contribution agreements contained in this Agreement and the representations,
warranties and covenants in this Agreement shall remain in full force and
effect regardless of (a) any termination of this Agreement, (b) any
investigation made by or on behalf of any Underwriter or controlling person
thereof, or by or on behalf of the Company or its directors or officers and
(c) delivery of and payment for the Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Maryland.
If the foregoing letter is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Selling Stockholder, the
Company and the several Underwriters in accordance with its terms.
Any person executing and delivering this Agreement as Attorney-in-Fact
for the Selling Stockholder represents by so doing that he has been duly
appointed as Attorney-in-Fact by the Selling Stockholder pursuant to a validly
existing and binding Power of Attorney which authorizes such Attorney-in-Fact
to take such action.
Very truly yours,
UNITED DENTAL CARE, INC.
By:
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
President and Chief Executive
Officer
SELLING STOCKHOLDER
By:
------------------------------------
Name:
-----------------------
Title: Attorney-in-Fact
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The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
ALEX. ▇▇▇▇▇ & SONS INCORPORATED
▇▇▇▇▇ & COMPANY
▇▇▇▇▇, ▇▇▇▇▇ & COMPANY
As Representatives of the several
Underwriters listed on Schedule I
By: Alex. ▇▇▇▇▇ & Sons Incorporated
By:
--------------------------------------------
Authorized Officer
By: ▇▇▇▇▇ & Company
By:
--------------------------------------------
Authorized Officer
By: ▇▇▇▇▇, ▇▇▇▇▇ & Company
By:
--------------------------------------------
Authorized Officer
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SCHEDULE I
SCHEDULE OF UNDERWRITERS
Number of Firm Shares
Underwriter to be Purchased
----------- ---------------------
Alex. ▇▇▇▇▇ & Sons Incorporated
▇▇▇▇▇ & Company
▇▇▇▇▇, ▇▇▇▇▇ & Company
Total 2,000,000
=========
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SCHEDULE II
SCHEDULE OF OPTION SHARES
MAXIMUM NUMBER PERCENTAGE OF
OF OPTION SHARES TOTAL NUMBER
NAME OF SELLER TO BE SOLD OF OPTION SHARES
-------------- -------------------- ----------------
United Dental Care, Inc. 225,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 75,000
TOTAL
------- ---
300,000 100%
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