2,000,000 Shares Plus an option to purchase up to 300,000 additional shares to cover over-allotments IntegraMed America, Inc. Common Stock PURCHASE AGREEMENT
2,000,000
Shares
Plus
an option to purchase up to 300,000 additional shares to cover
over-allotments
IntegraMed
America, Inc.
Common
Stock
February
11, 2010
▇▇▇▇▇
▇▇▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇▇▇
& COMPANY LLC
c/o ▇▇▇▇▇
▇▇▇▇▇▇▇ & Co.
U.S.
Bancorp Center
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
IntegraMed
America, Inc., a Delaware corporation (the “Company”),
proposes to sell to ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. and ▇▇▇▇▇▇▇▇▇ & Company LLC (the
“Underwriters”)
an aggregate of 2,000,000 shares (the “Firm
Shares”) of Common Stock, $0.01 par value per share (the “Common
Stock”), of the Company. The Firm Shares consist of 2,000,000
authorized but unissued shares of Common Stock to be issued and sold by the
Company. The Company has also granted to the several Underwriters an
option to purchase up to 300,000 additional shares of Common Stock on the terms
and for the purposes set forth in Section 3 hereof (the “Option
Shares”). The Firm Shares and any Option Shares purchased
pursuant to this Purchase Agreement are herein collectively called the “Securities.”
The
Company manages directly or indirectly the operations of fertility center
physician practices for which the Company is compensated in part based on a
share of the income of the physician practice and all of which are listed in
Schedule II hereto (the “Partner
FCs”). The Company also manages indirectly the operations of vein clinic
physician practices, the financial condition and results of operations of which
are consolidated with the Company for financial reporting purposes and all of
which are listed on Schedule III hereto (the “Vein
Clinics”). The Partner FCs and the Vein Clinics are
individually referred to herein as a “Physician
Practice” and collectively as the “Physician
Practices.” The Company contracts with the Physician Practices
directly and through its subsidiaries which are listed on Schedule IV hereto
(which, together with the Vein Clinics, are collectively referred to as the
“Subsidiaries”).
The
Company hereby confirms its agreement with respect to the sale of the Securities
to the several Underwriters.
1. Registration
Statement and Prospectus. The Company has prepared and filed
with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-1, including a preliminary form of
prospectus, (File No. 333-162276) under the Securities Act of 1933, as amended
(the “Securities
Act”) and the rules and regulations (the “Rules and
Regulations”) of the Commission thereunder, one or more amendments to
such registration statement have also been so prepared and have been, or will
be, so filed; and, if the Company has elected to rely upon Rule 462(b) of
the Rules and Regulations to increase the size of the offering registered under
the Securities Act, the Company will prepare and file with the Commission a
registration statement with respect to such increase pursuant to
Rule 462(b) (the “additional
registration statement”).
The
Company will prepare and file a prospectus pursuant to Rule 424(b) of the
Rules and Regulations that discloses the information previously omitted from the
prospectus in reliance upon Rule 430A of the Rules and Regulations (“Rule 430A
Information”). “Original
Registration Statement” as of any time means the initial registration
statement, in the form then filed with the Commission, including all amendments
to the initial registration statement as of such time, the exhibits and any
schedules thereto at such time, the documents that are exhibits thereto at such
time and incorporated by reference therein pursuant to the Rules and
Regulations, all information contained in the additional registration statement
(if any) and then deemed to be a part of the initial registration statement
pursuant to the General Instructions of Form S-1 and all information (if any)
included in a prospectus then deemed to be a part of the initial registration
statement pursuant to Rule 430A(b) or Rule 430C of the Rules and
Regulations. “Rule 462(b)
Registration Statement” as of any time means the additional registration
statement in the form then filed with the Commission, including the contents of
the Original Registration Statement incorporated by reference therein and
including all information (if any) included in a prospectus then deemed to be a
part of the additional registration statement pursuant to Rule 430A(b) or Rule
430C and the documents incorporated by reference therein. “Registration
Statement” as of any time means the Original Registration Statement and
any Rule 462(b) Registration Statement as of such time. For purposes
of the foregoing definitions, information contained in a form of prospectus that
is deemed retroactively to be a part of the Registration Statement pursuant to
Rule 430A(b) or Rule 430C shall be considered to be included in the Registration
Statement as of the time specified in Rule 430A(b) or Rule 430C, as
applicable.
For
purposes of this Agreement, “Effective
Time” with respect to the Original Registration Statement or the Rule
462(b) Registration Statement means the date and time as of which such
Registration Statement was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(b) of the Rules and
Regulations. “Registration
Statement” without reference to a time means the Registration Statement
as of its Effective Time. “Statutory
Prospectus” as of any time means the prospectus included in the
Registration Statement immediately prior to that time, including any information
in a prospectus deemed to be a part thereof pursuant to Rule 430A or
430C. For purposes of the preceding sentence, information contained
in a form of prospectus that is deemed retroactively to be a part of the
Registration Statement pursuant to Rule 430A shall be considered to be included
in the Statutory Prospectus as of the actual time that form of prospectus is
filed with the Commission pursuant to Rule 424(b) and not
retroactively. “Prospectus”
means the Statutory Prospectus that discloses the public offering price and
other final terms of the Securities and the offering and otherwise satisfies
Section 10(a) of the Securities Act. “Preliminary
Prospectus” as of any time means any Statutory Prospectus included in the
Registration Statement prior to the time it becomes or became effective under
the Securities Act and any prospectus that omits Rule 430A
Information. All references in this Agreement to the Registration
Statement, the Rule 462(b) Registration Statement, any Preliminary Prospectus,
the Prospectus or any amendment or supplement to any of the foregoing, shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval System (“▇▇▇▇▇”).
All
references in this Agreement to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed as of any time to include the
documents that are exhibits thereto and incorporated therein by reference in
accordance with the Rules and Regulations.
-2-
2. Representations
and Warranties of the Company.
(a) The
Company represents and warrants to, and agrees with, the several Underwriters as
follows:
(i) The
Registration Statement has been declared effective by the Commission, no stop
order suspending the effectiveness of the Registration Statement has been
issued, and no proceeding for that purpose has been initiated or, to the
Company’s knowledge, threatened by the Commission.
(ii) Each part
of the Registration Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto, at the time such part became effective, at all
other subsequent times until the expiration of the Prospectus Delivery Period
(as defined below), and at the First Closing Date and Second Closing Date (as
hereinafter defined), the most recent Statutory Prospectus distributed to
investors generally, and the Prospectus (or any amendment or supplement to the
Prospectus), in each case at the time of filing or the time of first use within
the meaning of the Rules and Regulations, at all subsequent times until
expiration of the Prospectus Delivery Period, and at the First Closing Date and
Second Closing Date complied and will comply in all material respects with the
applicable requirements and provisions of the Securities Act and the Rules and
Regulations and did not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. The Prospectus, as
amended or supplemented, as of its date, or the time of first use within the
meaning of the Rules and Regulations, at all subsequent times until the
expiration of the Prospectus Delivery Period, and at the First Closing Date and
Second Closing Date, did not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The representations and warranties set forth in
the two immediately preceding sentences do not apply to statements in or
omissions from the Registration Statement, any Rule 462(b) Registration
Statement, or any post-effective amendment thereto, or the Prospectus, or any
amendments or supplements thereto, made in reliance upon and in conformity with
written information relating to an Underwriter furnished to the Company by you,
specifically for use in the preparation thereof; it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in Section 6(f).
-3-
(iii) Neither
(A) the Issuer General Free Writing Prospectus(es) issued at or prior to the
Time of Sale and set forth on Schedule V, the information set forth on Schedule
VI, and the most recent Statutory Prospectus distributed to investors generally,
all considered together (collectively, the “Time of Sale
Disclosure Package”), nor (B) any individual Issuer Limited-Use Free
Writing Prospectus, when considered together with the Time of Sale Disclosure
Package, includes or included as of the Time of Sale any untrue statement of a
material fact or omits or omitted as of the Time of Sale to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from any
Statutory Prospectus or any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by you specifically
for use therein; it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
Section 6(f). As used in this paragraph and elsewhere in this
Agreement:
(1) “Time of
Sale” means 7:30 pm (Eastern time) on the date of this
Agreement.
(2) “Issuer Free
Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433 under the Securities Act, relating to the Securities that
(A) is required to be filed with the Commission by the Company, or (B) is exempt
from filing pursuant to Rule 433(d)(5)(i) under the Securities Act because it
contains a description of the Securities or of the offering that does not
reflect the final terms, or is a “bona fide electronic roadshow,” as defined in
Rule 433 of the Rules and Regulations, in each case in the form filed or
required to be filed with the Commission or, if not required to be filed, in the
form retained in the Company’s records pursuant to Rule 433(g) under the
Securities Act.
(3) “Issuer General
Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
intended for general distribution to prospective investors, as evidenced by its
being specified in Schedule V to this Agreement.
(4) “Issuer
Limited-Use Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is not an Issuer General Free Writing Prospectus.
(iv) (A) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the Prospectus Delivery Period or until any earlier date that the
Company notified or notifies the Underwriters as described in Section 4(c)(ii),
did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration
Statement, any Statutory Prospectus or the Prospectus. The foregoing
sentence does not apply to statements in or omissions from any Issuer Free
Writing Prospectus based upon and in conformity with written information
furnished to the Company by you specifically for use therein; it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section
6(f).
-4-
(B) (1) At
the time of filing of the Registration Statement, and (2) at the date hereof,
the Company was not and is not an “ineligible issuer,” as defined in Rule 405
under the Securities Act, including the Company or any Subsidiary in the
preceding three years not having been convicted of a felony or misdemeanor or
having been made the subject of a judicial or administrative decree or order as
described in Rule 405 (without taking account of any determination by the
Commission pursuant to Rule 405 that it is not necessary that the Company be
considered an ineligible issuer), nor an “excluded issuer” as defined in Rule
164 under the Securities Act.
(C) Each
Issuer Free Writing Prospectus satisfied, as of its issue date and at all
subsequent times through the Prospectus Delivery Period, all other conditions to
use thereof as set forth in Rules 164 and 433 under the Securities
Act.
(v) The
financial statements of the Company, together with the related notes, set forth
in the Registration Statement, the Time of Sale Disclosure Package and the
Prospectus comply in all material respects with the requirements of the
Securities Act and fairly present the financial condition of the Company and its
consolidated subsidiaries as of the dates indicated and the results of
operations and changes in cash flows for the periods therein specified in
conformity with generally accepted accounting principles in the United States
consistently applied throughout the periods involved; the supporting schedules
included in the Registration Statement present fairly the information required
to be stated therein; all non-GAAP financial information included in the
Registration Statement, the Time of Sale Disclosure Package and the Prospectus
complies with the requirements of Regulation G and Regulation S-K under the
Securities Act; and, except as disclosed in the Time of Sale Disclosure Package
and the Prospectus, there are no relationships with unconsolidated entities or
other persons, that may have a material current or, to the Company’s knowledge,
material future effect on the Company’s financial condition, results of
operations, liquidity, capital expenditures, capital resources or significant
components of revenue or expenses. To the Company’s knowledge, Amper,
Politziner & ▇▇▇▇▇▇, P.C., which has expressed its opinion with respect to
the financial statements and schedules filed as a part of the Registration
Statement and included in the Registration Statement, the Time of Sale
Disclosure Package and the Prospectus, is (x) an independent public accounting
firm within the meaning of the Securities Act and the Rules and Regulations,
(y) a registered public accounting firm (as defined in Section 2(a)(12) of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”)) and (z) not in violation of the auditor independence requirements
of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The financial information for the Partner
FCs set forth in the Registration Statement, the Time of Sale Disclosure Package
and the Prospectus is derived from financial statements which, to the knowledge
of the Company, present fairly the financial condition, results of operations
and changes in cash flows of the Partner FCs as of the date or for the period
indicated in conformity with generally accepted accounting principles in the
United States consistently applied throughout the periods involved. Patient data
for the Physician Practices set forth in the Registration Statement, the Time of
Sale Disclosure Package and the Prospectus is derived from medical management
systems under the control and supervision of the Company and, to the knowledge
of the Company, is accurate and complete in all material respects.
(vi) Each of
the Company and its Subsidiaries and, to the Company’s Knowledge, the Partner
FCs has been duly organized and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation. Each of the
Company and its Subsidiaries and, to the Company’s Knowledge, the Partner FCs
has full corporate power and authority to own its properties and conduct its
business as currently being carried on and as described in the Registration
Statement, the Time of Sale Disclosure Package and the Prospectus, and is duly
qualified to do business as a foreign corporation in good standing in each
jurisdiction in which it owns or leases real property or in which the conduct of
its business makes such qualification necessary and in which the failure to so
qualify would have a material adverse effect upon the business, prospects,
operations, condition (financial or otherwise) or results of operations of the
Company and its consolidated subsidiaries, taken as a whole (“Material Adverse
Effect”). “Knowledge,”
when capitalized and used herein, means the actual knowledge of the
principal executive officers of the Company who are named as such in the
Registration Statement, the Time of Sale Disclosure Package and the
Prospectus.
-5-
(vii) Except as
contemplated in the Time of Sale Disclosure Package and in the Prospectus,
subsequent to the respective dates as of which information is given in the Time
of Sale Disclosure Package, neither the Company nor any of its Subsidiaries has
incurred any material liabilities or obligations, direct or contingent, or
entered into any material transactions, or declared or paid any dividends or
made any distribution of any kind with respect to its capital stock; and there
has not been any change in the capital stock (other than a change in the number
of outstanding shares of Common Stock due to the issuance of shares upon the
exercise of outstanding options or warrants), or any material change in the
short-term or long-term debt, or any issuance of options, warrants, convertible
securities or other rights to purchase the capital stock, of the Company or any
of its Subsidiaries, or any material adverse change in the business, prospects,
operations, condition (financial or otherwise) or results of operations of the
Company and its consolidated subsidiaries, taken as a whole (“Material Adverse
Change”) or any development which could reasonably be expected to result
in any Material Adverse Change. To the Company’s Knowledge, except as
disclosed in the Time of Sale Disclosure Package and in the Prospectus,
subsequent to the respective dates as of which information is given in the Time
of Sale Disclosure Package, there has not been any material adverse change in
the business, prospects, operations, condition (financial or otherwise) or
results of operations of the Partner FCs, taken as a whole, or any development
which could reasonably be expected to result in any such material adverse
change.
(viii) Except as
disclosed in the Time of Sale Disclosure Package and in the Prospectus, there is
not pending or, to the knowledge of the Company, threatened or contemplated, any
action, suit or proceeding (a) to which the Company or any of its Subsidiaries
is a party or (b) which has as the subject thereof any property or assets owned
or leased by the Company or its Subsidiaries before or by any court or
Governmental Authority (as defined below), or any arbitrator, which,
individually or in the aggregate, could reasonably be expected to result in any
Material Adverse Change or could reasonably be expected to materially and
adversely affect the ability of the Company to perform its obligations under
this Agreement. Except as disclosed in the Time of Sale Disclosure
Package and in the Prospectus, to the Knowledge of the Company, there is not
pending, threatened or contemplated any action, suit or proceeding (x) to which
any Partner FC is a party or (y) which has as the subject thereof any officer or
director of a Partner FC, employee benefit plan sponsored by any Partner FC, or
any property or assets owned or leased by any Partner FC before or by any court
or Governmental Authority, or any arbitrator, which, individually or in the
aggregate, could reasonably be expected to result in any Material Adverse Change
or could reasonably be expected to materially and adversely affect the ability
of the Company to perform its obligations under this
Agreement. Except as disclosed in the Time of Sale Disclosure Package
and in the Prospectus, to the knowledge of the Company, there is not pending,
threatened or contemplated any action, suit or proceeding to which has as the
subject thereof any officer or director of the Company or any employee benefit
plan sponsored by the Company or its Subsidiaries before or by any court or
Governmental Authority, or any arbitrator, which, individually or in the
aggregate, could reasonably be expected to result in any Material Adverse Change
or could reasonably be expected to materially and adversely affect the ability
of the Company to perform its obligations under this Agreement. There
are no current or, to the knowledge of the Company, pending, legal, governmental
or regulatory actions, suits or proceedings (I) to which the Company or any of
its Subsidiaries is subject or (II) which has as the subject thereof any
property or assets owned or leased by the Company or its Subsidiaries that are
required to be described in the Registration Statement, Time of Sale Disclosure
Package and Prospectus by the Securities Act or by the Rules and Regulations and
that have not been so described. To the knowledge of the Company,
there are no current or pending legal, governmental or regulatory actions, suits
or proceedings which has as the subject thereof any officer or director of the
Company or any employee benefit plan sponsored by the Company or its
Subsidiaries that are required to be described in the Registration Statement,
Time of Sale Disclosure Package and Prospectus by the Securities Act or by the
Rules and Regulations and that have not been so described. To the
Knowledge of the Company, there are no current or pending legal, governmental or
regulatory actions, suits or proceedings (A) to which any Partner FC is subject
or (B) which have as the subject thereof any officer or director of a Partner
FC, employee benefit plan sponsored by any Partner FC, or any property or assets
owned or leased by any Partner FC that are required to be described in the
Registration Statement, Time of Sale Disclosure Package and Prospectus by the
Securities Act or by the Rules and Regulations and that have not been so
described.
(ix) There are
no statutes, regulations, contracts or documents that are required to be
described in the Registration Statement, in the Time of Sale Disclosure Package
and in the Prospectus or required to be filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations that have not
been so described or filed.
-6-
(x) This
Agreement has been duly authorized, executed and delivered by the Company, and,
assuming due authorization, execution and delivery by the Underwriters,
constitutes a valid, legal and binding obligation of the Company, enforceable in
accordance with its terms, except as rights to indemnity hereunder may be
limited by federal or state securities laws and except as such enforceability
may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general principles of
equity. The execution, delivery and performance of this Agreement and
the consummation of the transactions herein contemplated will not (A) conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or the
Subsidiaries or, to the Knowledge of the Company, of any Partner FC,
pursuant to any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or the Subsidiaries or a
Partner FC is a party or by which the Company or the Subsidiaries or a
Partner FC is bound or to which any of the property or assets of the
Company or the Subsidiaries or a Partner FC is subject, except for any such
conflict, breach, violation, default or imposition of a lien, charge or
encumbrance that could not reasonably be expected to result in a Material
Adverse Effect, (B) result in any violation of the provisions of the
Company’s charter or by-laws or (C) result in the violation of any law or
statute or any judgment, order, rule, regulation or decree of any court or
arbitrator or federal, state or local governmental agency or regulatory
authority having jurisdiction over the Company, its Subsidiaries or, to the
Knowledge of the Company, a Partner FC, or any of their properties or
assets (each, a “Governmental
Authority”), except for any such violation that could not reasonably be
expected to result in a Material Adverse Effect. No consent,
approval, authorization or order of, or registration or filing with any
Governmental Authority is required for the execution, delivery and performance
of this Agreement or for the consummation of the transactions contemplated
hereby, including the issuance or sale of the Securities by the Company, except
such as may be required under the Securities Act, the rules of the Financial
Industry Regulatory Authority (“FINRA”)
or state securities or blue sky laws, except for any consent, approval,
authorization, order or filing, the failure of which to make or obtain could not
reasonably be expected to result in a Material Adverse Effect; and the Company
has full power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby, including the authorization, issuance and sale
of the Securities as contemplated by this Agreement.
(xi) Neither
the Company nor any Subsidiary nor, to the Knowledge of the Company, any
Partner FC, has, or ever has had, any foreign operations.
(xii) All of
the issued and outstanding shares of capital stock of the Company, including the
outstanding shares of Common Stock, are duly authorized and validly issued,
fully paid and nonassessable, have been issued in compliance with all federal
and state securities laws, were not issued in violation of or subject to any
preemptive rights or other rights to subscribe for or purchase securities that
have not been waived in writing (a copy of which has been delivered to counsel
to the Underwriters); the Securities which may be sold hereunder by the Company
have been duly authorized and, when issued, delivered and paid for in accordance
with the terms of this Agreement, will have been validly issued and will be
fully paid and nonassessable; and the capital stock of the Company, including
the Common Stock, conforms to the description thereof in the Registration
Statement, in the Time of Sale Disclosure Package and in the
Prospectus. Except as otherwise disclosed in the Time of Sale
Disclosure Package, in the Registration Statement and in the Prospectus, there
are no preemptive rights or other rights to subscribe for or to purchase, or any
restriction upon the voting or transfer of, any shares of Common Stock pursuant
to the Company’s charter, by-laws or any agreement or other instrument to which
the Company or any of its Subsidiaries is a party or by which the Company or any
of its Subsidiaries is bound. Except as disclosed in the Time of Sale
Disclosure Package, in the Registration Statement and in the Prospectus, neither
the filing of the Registration Statement nor the offering or sale of the
Securities as contemplated by this Agreement gives rise to any rights for or
relating to the registration of any shares of Common Stock or other securities
of the Company for which waivers have not been obtained (collectively “Registration
Rights”), and any person to whom the Company has granted Registration
Rights has agreed not to exercise such rights until after expiration of the
Lock-Up Period (as defined below). All of the issued and outstanding
shares of capital stock of each of the Company’s Subsidiaries have been duly and
validly authorized and issued and are fully paid and nonassessable, and, except
as otherwise described in the Time of Sale Disclosure Package, in the
Registration Statement and in the Prospectus, the Company owns of record and
beneficially, free and clear of any security interests, claims, liens, proxies,
equities or other encumbrances, all of the issued and outstanding shares of such
stock. Except as described in the Time of Sale Disclosure Package, in
the Registration Statement and in the Prospectus, there are no options,
warrants, agreements, contracts or other rights in existence to purchase or
acquire from the Company or any consolidated subsidiary of the Company any
shares of the capital stock of the Company or any consolidated subsidiary of the
Company. The Company has an authorized and outstanding capitalization
as set forth in the Registration Statement, in the Time of Sale Disclosure
Package and in the Prospectus under the caption “Capitalization.” The
Common Stock (including the Securities) conforms in all material respects to the
description thereof contained in the Time of Sale Disclosure Package and the
Prospectus. The description of the Company’s stock option, stock
bonus and other stock plans or arrangements, and the options or other rights
granted thereunder, set forth in the Time of Sale Disclosure Package and the
Prospectus accurately and fairly presents the information required to be shown
with respect to such plans, arrangements, options and rights.
-7-
(xiii) Except as
disclosed in the Time of Sale Disclosure Package, in the Registration Statement
and in the Prospectus, the Company, each of the Subsidiaries and, to the
Knowledge of the Company, each Partner FC and each physician affiliated
with a Physician Practice, holds and is operating in compliance in all material
respects with, and, except as could not reasonably be expected to result in a
Material Adverse Effect, has held and operated in compliance with, all
franchises, grants, authorizations, licenses, permits, easements, consents,
certificates, accreditations and orders of any Governmental Authority or
self-regulatory body required for the conduct of its business and all such
franchises, grants, authorizations, licenses, permits, easements, consents,
certifications, accreditations and orders are valid and in full force and
effect; and neither the Company, any of its Subsidiaries nor, to the Knowledge
of the Company, any Partner FC has received notice of any revocation or
modification of any such franchise, grant, authorization, license, permit,
easement, consent, certification or order or has reason to believe that any such
franchise, grant, authorization, license, permit, easement, consent,
certification, accreditations or order will not be renewed in the ordinary
course; and the Company, each of its Subsidiaries and, to the Knowledge of the
Company, each of the Partner FCs is and, except as could not reasonably be
expected to result in a Material Adverse Effect, has been, in compliance in all
material respects with all applicable federal, state and local laws,
regulations, rules, orders and decrees.
(xiv) The
Company, the Subsidiaries and, to the Knowledge of the Company, the
Partner FCs have good and marketable title to all property (whether real or
personal) described in the Registration Statement, in the Time of Sale
Disclosure Package and in the Prospectus as being owned by them, in each case
free and clear of all liens, claims, security interests, other encumbrances or
defects except such as are described in the Registration Statement, in the Time
of Sale Disclosure Package and in the Prospectus and except for such liens,
claims, security interests, encumbrances or defects that could not reasonably be
expected to result in a Material Adverse Effect. The property held
under lease by the Company and its Subsidiaries is held by them under valid,
subsisting and enforceable leases with only such exceptions with respect to any
particular lease as do not interfere in any material respect with the conduct of
the business of the Company, its Subsidiaries and, to the Knowledge of the
Company, the Partner FCs.
-8-
(xv) The
Company and each of its Subsidiaries owns, possesses, or can acquire on
reasonable terms, all Intellectual Property necessary for the conduct of the
Company’s and its Subsidiaries’ and, to the Knowledge of the Company, the
Partner FCs’ business as now conducted or as described in the Time of Sale
Disclosure Package, in the Registration Statement and in the Prospectus to be
conducted, except as such failure to own, possess, or acquire such rights could
not reasonably be expected to result in a Material Adverse
Effect. Furthermore, (A) to the knowledge of the Company, there is no
infringement, misappropriation or violation by third parties of any such
Intellectual Property, except as such infringement, misappropriation or
violation could not reasonably be expected to result in a Material Adverse
Effect; (B) there is no pending or, to the knowledge of the Company, threatened,
action, suit, proceeding or claim by others challenging the Company’s or any of
its Subsidiaries’ rights in or to any such Intellectual Property, except as
could not reasonably be expected to result in a Material Adverse Effect; (C) the
Intellectual Property owned by the Company and its Subsidiaries, and to the
knowledge of the Company, the Intellectual Property licensed to the Company and
its Subsidiaries, has not been adjudged invalid or unenforceable, in whole or in
part, and there is no pending or, to the knowledge of the Company, threatened
action, suit, proceeding or claim by others challenging the validity or scope of
any such Intellectual Property, and the Company is unaware of any facts which
would form a reasonable basis for any such claim, except as could not reasonably
be expected to result in a Material Adverse Effect; (D) there is no pending or,
to the knowledge of the Company, threatened action, suit, proceeding or claim by
others that the Company, any of its Subsidiaries or, to the Knowledge of the
Company, the Partner FCs infringes, misappropriates or otherwise violates
any Intellectual Property or other proprietary rights of others, except as could
not reasonably be expected to result in a Material Adverse Effect; and (E) to
the Company’s knowledge, no employee of the Company or any of its Subsidiaries,
and, to the Company’s Knowledge, no employee of any Physician Practice, is in
violation of any term of any employment contract, patent disclosure agreement,
invention assignment agreement, non-competition agreement, non-solicitation
agreement, nondisclosure agreement or any restrictive covenant to or with a
former employer where the basis of such violation relates to such employee’s
employment with the Company or any of its Subsidiaries or any Partner FC or
actions undertaken by the employee while employed with the Company or any of its
Subsidiaries or the Partner FCs, except as such violation could not
reasonably be expected to result in a Material Adverse Effect. “Intellectual
Property” shall mean all patents, patent applications, trade and service
marks, trade and service ▇▇▇▇ registrations, trade names, copyrights, licenses,
inventions, trade secrets, domain names, technology, know-how and other
intellectual property.
(xvi) Neither
the Company nor any of its Subsidiaries nor, to the Knowledge of the Company,
any Partner FC is in violation of its respective charter or
by-laws. Neither the Company nor any of its Subsidiaries nor, to the
Knowledge of the Company, any Partner FC is in breach of or otherwise in
default, and no event has occurred which, with notice or lapse of time or both,
would constitute such a default in the performance of any obligation, agreement
or condition contained in any bond, debenture, note, indenture, loan agreement
or any other contract, lease or other instrument to which the Company, any of
its Subsidiaries or, to the Knowledge of the Company, any Partner FC is
subject or by which the Company, any of its Subsidiaries or, to the Knowledge of
the Company, any Partner FC is bound, or to which any of the property or
assets of the Company or any of its Subsidiaries or, to the Knowledge of the
Company, any Partner FC is subject, except as could not reasonably be
expected to result in a Material Adverse Effect.
-9-
(xvii) The
Company and its Subsidiaries and, to the Knowledge of the Company, the
Partner FCs have timely filed all federal, state and local income and
franchise tax returns required to be filed and are not in default in the payment
of any taxes which were payable pursuant to said returns or any assessments with
respect thereto, other than any which the Company or any of its Subsidiaries or
the Partner FCs is contesting in good faith or except as could not
reasonably be expected to result in a Material Adverse Effect. There
is no pending dispute with any taxing authority relating to any of such returns,
and the Company has no knowledge of any proposed liability for any tax to be
imposed upon the properties or assets of the Company and its Subsidiaries for
which there is not an adequate reserve reflected in the Company’s financial
statements included in the Registration Statement, the Time of Sale Disclosure
Package and the Prospectus.
(xviii) The
Company has not distributed and will not distribute any prospectus or other
offering material in connection with the offering and sale of the Securities
other than any Preliminary Prospectus, the Time of Sale Disclosure Package or
the Prospectus or other materials permitted by the Securities Act to be
distributed by the Company; provided, however, that,
except as set forth on Schedule V, the Company has not made and will not
make any offer relating to the Securities that would constitute a “free writing
prospectus” as defined in Rule 405 under the Securities Act, except in
accordance with the provisions of Section 4(n) of this Agreement.
-10-
(xix) The
Common Stock is registered pursuant to Section 12(b) of the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”) and is included or approved for listing on the Nasdaq Global Market
and the Company has taken no action designed to, or likely to have the effect
of, terminating the registration of the Common Stock under the Exchange Act or
delisting the Common Stock from the Nasdaq Global Market nor has the Company
received any notification that the Commission or the Nasdaq Global Market is
contemplating terminating such registration or listing. The Company has complied
in all material respects with the applicable requirements of the Nasdaq Global
Market for maintenance of inclusion of the Common Stock thereon. The Company has
filed an application to include the Securities on the Nasdaq Global
Market. Except as previously disclosed to counsel for the
Underwriters or as set forth in the Time of Sale Disclosure Package and the
Prospectus, to the knowledge of the Company, no beneficial owners of the
Company’s capital stock or subordinated debt who, together with their associated
persons and affiliates, hold in the aggregate 10% or more of such capital stock
or subordinated debt, have any direct or indirect association or affiliate with
a FINRA member.
(xx) Except as
disclosed in the Time of Sale Disclosure Package, in the Registration Statement
and in the Prospectus, other than the Subsidiaries of the Company listed on
Schedule IV, the Company, directly or indirectly, owns or holds no capital stock
or other equity, ownership, profits or proprietary interest in any corporation,
partnership, association, trust or other entity.
(xxi) 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 in the United States
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. Except as disclosed in the Time of
Sale Disclosure Package, in the Registration Statement and in the Prospectus,
the Company’s internal control over financial reporting is effective and none of
the Company, its board of directors and audit committee is aware of any
“significant deficiencies” or “material weaknesses” (each as defined by the
Public Company Accounting Oversight Board) in its internal control over
financial reporting, or any fraud, whether or not material, that involves
management or other employees of the Company who have a significant role in the
Company’s internal controls; and since the end of the latest audited fiscal
year, there has been no change in the Company’s internal control over financial
reporting (whether or not remediated) that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over
financial reporting. The Company’s board of directors has, subject to
the exceptions, cure periods and the phase in periods specified in the
applicable stock exchange rules (“Exchange
Rules”), validly appointed an audit committee to oversee internal
accounting controls whose composition satisfies the applicable requirements of
the Exchange Rules and the Company’s board of directors and/or the audit
committee has adopted a charter that satisfies the requirements of the Exchange
Rules.
-11-
(xxii) Other
than as contemplated by this Agreement, the Company has not incurred any
liability for any finder’s or broker’s fee or agent’s commission in connection
with the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby.
(xxiii) Except as
disclosed in the Time of Sale Disclosure Package, in the Registration Statement
and in the Prospectus, each of the Company, its Subsidiaries and, to the
Company’s knowledge, the Physician Practices carries, or is covered by,
insurance in such amounts and covering such risks as is adequate for the conduct
of its business; all policies of insurance and any fidelity or surety bonds
insuring the Company or any of its Subsidiaries or the Physician Practices or
the business, assets, employees, officers and directors of the Company or its
Subsidiaries or the Physician Practices are in full force and effect; the
Company, its Subsidiaries and, to the Knowledge of the Company, the
Partner FCs are in compliance with the terms of such policies and
instruments in all material respects; there are no claims by the Company or any
of its Subsidiaries or, to the Knowledge of the Company, the Partner FCs
under any such policy or instrument as to which any insurance company is denying
coverage or defending under a reservation of rights clause, except as could not
reasonably be expected to have a Material Adverse Effect; during the past 12
months, neither the Company nor any of its Subsidiaries has been refused any
insurance coverage sought or applied for; and neither the Company nor any of its
Subsidiaries nor, to the Knowledge of the Company, any Partner FC has
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that
would not have a Material Adverse Effect.
(xxiv) [Intentionally
omitted]
(xxv) The
Company is not and, after giving effect to the offering and sale of the
Securities, will not be an “investment company,” as such term is defined in the
Investment Company Act of 1940, as amended.
(xxvi) The
Company is in compliance in all material respects with all applicable provisions
of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations of the Commission
thereunder.
(xxvii) The
Company has established and maintains disclosure controls and procedures (as
defined in Rules 13a-14 and 15d-14 under the Exchange Act) and such controls and
procedures are effective in ensuring that material information relating to the
Company and its consolidated subsidiaries is made known to the principal
executive officer and the principal financial officer. The Company
has utilized such controls and procedures in preparing and evaluating the
disclosures in the Registration Statement, in the Time of Sale Disclosure
Package and in the Prospectus.
-12-
(xxviii) Except as
disclosed in the Time of Disclosure Package and the Prospectus, neither the
Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any
Partner FC is in violation of any statute, any rule, regulation, decision
or order of any Governmental Authority or any court relating to the use,
disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, “Environmental
Laws”), owns or operates any real property contaminated with any
substance that is subject to any Environmental Laws, is liable for any off-site
disposal or contamination pursuant to any Environmental Laws, or is subject to
any claim relating to any Environmental Laws, which violation, contamination,
liability or claim would individually or in the aggregate, have a Material
Adverse Effect; and the Company is not aware of any pending investigation which
might lead to such a claim.
(xxix) (i) To
the knowledge of the Company, no “prohibited transaction” as defined under
Section 406 of ERISA or Section 4975 of the Code and not exempt under ERISA
Section 408 and the regulations and published interpretations thereunder has
occurred with respect to any Employee Benefit Plan. At no time
beginning on or after January 1, 2004 has the Company or any ERISA
Affiliate maintained, sponsored, participated in, contributed to or had any
liability or obligation in respect of any Employee Benefit Plan subject to Part
3 of Subtitle B of Title I of ERISA, Title IV of ERISA, or Section 412 of the
Code or any “multiemployer plan” as defined in Section 3(37) of ERISA or any
multiple employer plan for which the Company or any ERISA Affiliate has incurred
or could incur liability under Section 4063 or 4064 of ERISA. No
Employee Benefit Plan provides or promises retiree health, life insurance, or
other retiree welfare benefits except as may be required by the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended, or similar state
law. Each Employee Benefit Plan is and, except as could not
reasonably be expected to result in a Material Adverse Effect, has been,
operated in material compliance with its terms and all applicable laws,
including but not limited to ERISA and the Code and, to the knowledge of the
Company, no event has occurred (including a “reportable event” as such term is
defined in Section 4043 of ERISA) and no condition exists that would subject the
Company or any ERISA Affiliate to any material tax, fine, lien, penalty or
liability imposed by ERISA, the Code or other applicable law. Each
Employee Benefit Plan intended to be qualified under Code Section 401(a) is so
qualified and has a favorable determination or opinion letter from the IRS upon
which it can rely, and any such determination or opinion letter remains in
effect and has not been revoked; to the knowledge of the Company, nothing has
occurred since the date of any such determination or opinion letter that is
reasonably likely to adversely affect such qualification; and (ii) the Company
does not have any obligations under any collective bargaining agreement with any
union and no organization efforts are underway with respect to Company
employees. The Company does not have, maintain or contribute to any
Foreign Benefit Plan. As used in this Agreement, “Code”
means the Internal Revenue Code of 1986, as amended; “Employee Benefit
Plan” means any “employee benefit plan” within the meaning of Section
3(3) of ERISA, including, without limitation, all stock purchase, stock option,
stock-based severance, employment, change-in-control, medical, disability,
fringe benefit, bonus, incentive, deferred compensation, employee loan and all
other employee benefit plans, agreements, programs, policies or other
arrangements, whether or not subject to ERISA, under which (A) any current or
former employee, director or independent contractor of the Company or its
consolidated subsidiaries has any present or future right to benefits and which
are contributed to, sponsored by or maintained by the Company or any of its
respective subsidiaries or (B) the Company or any of its consolidated
subsidiaries has had or has any present or future obligation or liability; “ERISA”
means the Employee Retirement Income Security Act of 1974, as amended; “ERISA
Affiliate” means any member of the company’s controlled group as defined
in Code Section 414(b), (c), (m) or (o); and “Foreign Benefit
Plan” means any Employee Benefit Plan established, maintained or
contributed to outside of the United States of America or which covers any
employee working or residing outside of the United States.
-13-
(xxx) No labor
problem or dispute with the employees of the Company or any of its Subsidiaries
or the Physician Practices exists or is threatened or imminent, and the Company
is not aware of any existing or imminent labor disturbance by the employees of
any of its, its Subsidiaries’ or the Physician Practices’ principal suppliers,
contractors or customers, that could reasonably be expected to result in a
Material Adverse Effect.
(xxxi) No
Subsidiary of the Company is currently prohibited from paying any dividends to
the Company or from making any other distribution on such Subsidiary’s capital
stock, except as described in or contemplated by the Time of Sale Disclosure
Package and the Prospectus. No Subsidiary or, to the Knowledge of the
Company, Partner FC is prohibited from repaying to the Company any loans or
advances to such Subsidiary or Partner FC from the Company or paying any
amount due to the Company or its Subsidiaries pursuant to agreements between
such person and the Company or its Subsidiaries, except for any prohibition that
could not reasonably be expected to result in Material Adverse
Effect.
(xxxii) The
Company has no reason to believe that any third-party statistical and
market-related data included in the Time of Sale Disclosure Package, the
Registration Statement and the Prospectus are not based on or derived from
sources that are reliable and accurate in all material respects.
(xxxiii) Except as disclosed in the
Registration Statement, the Time of Sale Disclosure Package and the Prospectus,
the Company, its Subsidiaries, the Company’s Attain IVF Refund Program
and Attain IVF Multi-Cycle Program (collectively, the “Attain IVF
Programs”)
and, to the Company’s Knowledge, the Partner FCs, have been and
are in
compliance in all material respects with the corporate practice of medicine laws
in each state in which the Physician Practices provide medical services or in
which any of the Attain IVF Programs is offered. In states in which
the corporate practice of medicine is prohibited, the Company performs only
non-medical administrative services, does not offer medical services and does
not exercise influence or control over the independent medical decisionmaking of
the physicians or their affiliated Physician Practice. Neither the Company, its
Subsidiaries nor, to the Knowledge of the Company, any Partner FC has
received any notification from any state regulatory authority asserting that
such person is not compliance with corporate practice of medicine
laws.
-14-
(xxxiv) Except as disclosed in the
Registration Statement, the Time of Sale Disclosure Package and the Prospectus,
the Company, its Subsidiaries, the Company’s Attain IVF Programs and, to the Company’s
Knowledge, the Partner FCs, have been and are in compliance in all
material respects with state laws prohibiting providers from dividing with
anyone, other than providers who are part of the same group practice, any fee,
commission, rebate or other form of compensation for any services not actually
and personally rendered. Neither the Company, its Subsidiaries nor,
to the Company’s Knowledge, any Partner FC,
has received any notification from any state regulatory or similar authority
asserting that such person is not compliant with such “fee-splitting”
laws.
(xxxv) Except as disclosed in the
Registration Statement, the Time of Sale Disclosure Package and the Prospectus,
neither the Company, its Subsidiaries, nor, to
the Company’s Knowledge, any Partner FC, has made any knowing and
willful offer or payment, or has solicited or received any form of remuneration
in return for, or with the purpose to induce, the referral of patients, or in
return for, or with the purpose to induce, the purchase, lease or order of items
or services, that are covered by Medicare, Medicaid or other federal or private
health care programs. The Company, its Subsidiaries and, to
the Company’s Knowledge, the Partner FCs, have been and are in
compliance in all material respects with state and federal physician
self-referral “▇▇▇▇▇” laws and regulations prohibiting physician’s referral of
health services to any entity with which that physician has a financial
relationship. Neither the Company, its Subsidiaries, nor, to the
Company’s Knowledge, any Partner FC has
received any notification from any state or federal regulatory authority
asserting that such person is not compliant any “anti-kickback” laws or laws
prohibiting self-referral.
(xxxvi) Except as disclosed in the
Registration Statement, the Time of Sale Disclosure Package and the Prospectus,
the Company, its Subsidiaries, and, to
the Company’s Knowledge, the Partner FCs, have been and are in
compliance in all material respects with the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”),
the Health Information Technology for Economic and Clinical Health Act (“HITECH”),
the regulations promulgated thereunder, any “business associate” agreements that
the Company or its Subsidiaries have executed pursuant to HIPAA, and state laws
governing the privacy or security of protected health
information. Neither the Company, its Subsidiaries, nor, to the
Company’s Knowledge, any Partner FC has
received any notification from any state or federal regulatory authority
asserting that such person is not compliant with HIPAA or HITECH.
(xxxvii) Except as
disclosed in the Registration Statement, the Time of Sale Disclosure Package and
the Prospectus, neither the Company, its
Subsidiaries, nor, to the Company’s Knowledge, the Partner FCs, have
engaged or presently engage in the business of insurance in violation of state
laws governing the licensing and business of insurance and the Company’s Attain IVF Programs are
not insurance. Neither the Company, its Subsidiaries, nor, to the
Company’s Knowledge, any Partner FC has received any
notification from any state regulatory or similar authority asserting that such
person is engaged in the business of insurance.
-15-
(xxxviii) Except as disclosed in the
Registration Statement, the Time of Sale Disclosure Package and the Prospectus,
the Company and its Subsidiaries have been and are in compliance in all
material respects with federal and state laws relating to
franchises. Neither the Company nor its Subsidiaries has received any
notification from any federal or state regulatory or similar authority asserting
that such person is not compliant with such franchise laws.
(b) Any
certificate signed by any officer of the Company and delivered to you or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
3. Purchase, Sale
and Delivery of Securities.
(a) On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell the Firm Shares to the several Underwriters, and each Underwriter
agrees, severally and not jointly, to purchase from the Company the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule I
hereto. The purchase price for each Firm Share shall be $6.99375 per
share. In making this Agreement, each Underwriter is contracting
severally and not jointly; except as provided in Section 8 hereof, the
agreement of each Underwriter is to purchase only the respective number of Firm
Shares specified in Schedule I.
The Firm
Shares will be delivered by the Company to you for the accounts of the several
Underwriters against payment of the purchase price therefor by wire transfer of
same day funds payable to the order of the Company at the offices of ▇▇▇▇▇
▇▇▇▇▇▇▇ & Co., U.S. Bancorp Center, 800 Nicollet Mall, Minneapolis,
Minnesota, or such other location as may be mutually acceptable, at
9:00 a.m. Central time on the third (or if the Securities are priced, as
contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30 p.m. Eastern
time, the fourth) full business day following the date hereof, or at such other
time and date as you and the Company determine pursuant to Rule 15c6-1(a) under
the Exchange Act, such time and date of delivery being herein referred to as the
“First
Closing Date.” If the Underwriters so elect, delivery of the
Firm Shares may be made by credit through full fast transfer to the accounts at
The Depository Trust Company designated by the
Underwriters. Certificates representing the Firm Shares, in
definitive form and in such denominations and registered in such names as you
may request upon at least two business days’ prior notice to the Company, will
be made available for checking at a reasonable time preceding the First Closing
Date at the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., U.S. Bancorp Center, 800
Nicollet Mall, Minneapolis, Minnesota, or such other location as may be mutually
acceptable.
-16-
(b) On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company hereby grants
to the several Underwriters an option to purchase all or any portion of the
Option Shares at the same purchase price as the Firm Shares, for use solely in
covering any over-allotments made by the Underwriters in the sale and
distribution of the Firm Shares. The option granted hereunder may be
exercised in whole or in part at any time (but not more than once) within 30
days after the effective date of this Agreement upon notice (confirmed in
writing) by the Underwriters to the Company setting forth the aggregate number
of Option Shares as to which the several Underwriters are exercising the option,
the names and denominations in which the certificates for the Option Shares are
to be registered and the date and time, as determined by you, when the Option
Shares are to be delivered, such time and date being herein referred to as the
“Second
Closing” and “Second Closing
Date”, respectively; provided, however, that the
Second Closing Date shall not be earlier than the First Closing Date nor earlier
than the second business day after the date on which the option shall have been
exercised, unless the Underwriters have exercised their option to purchase all
or a portion of the Option Shares within one business day after the date of this
Agreement, in which case the Company may, at its option, close the Second
Closing on the First Closing Date. The number of Option Shares to be
purchased by each Underwriter shall be the same percentage of the total number
of Option Shares to be purchased by the several Underwriters as the number of
Firm Shares to be purchased by such Underwriter is of the total number of Firm
Shares to be purchased by the several Underwriters, as adjusted by the
Underwriters in such manner as the Underwriters deem advisable to avoid
fractional shares. No Option Shares shall be sold and delivered
unless the Firm Shares previously have been, or simultaneously are, sold and
delivered.
The
Option Shares will be delivered by the Company to you for the accounts of the
several Underwriters against payment of the purchase price therefor by wire
transfer of same day funds payable to the order of the Company at the offices of
▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., U.S. Bancorp Center, 800 Nicollet Mall, Minneapolis,
Minnesota, or such other location as may be mutually acceptable at
9:00 a.m., Central time, on the Second Closing Date. If the
Underwriters so elect, delivery of the Option Shares may be made by credit
through full fast transfer to the accounts at The Depository Trust Company
designated by the Underwriters. Certificates representing the Option
Shares in definitive form and in such denominations and registered in such names
as you have set forth in your notice of option exercise, or evidence of their
issuance, will be made available for checking at a reasonable time preceding the
Second Closing Date at the office of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., U.S. Bancorp
Center, 800 Nicollet Mall, Minneapolis, Minnesota, or such other location as may
be mutually acceptable.
-17-
4. Covenants. The
Company covenants and agrees with the several Underwriters as
follows:
(a) The
Company will prepare and file a Prospectus containing the information omitted
therefrom pursuant to Rule 430A of the Rules and Regulations with the
Commission within the time period required by, and otherwise in accordance with
the provisions of, Rules 424(b) and 430A of the Rules and Regulations; if
the Company has elected to rely upon Rule 462(b) of the Rules and
Regulations to increase the size of the offering registered under the Securities
Act and the Rule 462(b) Registration Statement has not yet been filed and become
effective, the Company will prepare and file the Rule 462(b) Registration
Statement with the Commission within the time period required by, and otherwise
in accordance with the provisions of, Rule 462(b) and the Securities Act;
prior to the First Closing Date, the Company will prepare and file with the
Commission, promptly upon your reasonable request, any amendments or supplements
to the Registration Statement or Prospectus that, based on the advice of
counsel, are necessary in connection with the distribution of the Securities by
the Underwriters; and the Company will furnish the Underwriters and counsel for
the Underwriters a copy of any proposed amendment or supplement to the
Registration Statement or Prospectus and will not file any amendment or
supplement to the Registration Statement or Prospectus to which you shall
reasonably object by notice to the Company after having been furnished a copy a
reasonable time prior to the filing.
(b) After the
date of this Agreement, the Company shall promptly advise the Underwriters (A)
during the Prospectus Delivery Period, of the receipt of any comments of, or
requests for additional or supplemental information from, the Commission, (B) of
the time and date of any filing of any post-effective amendment to the
Registration Statement or any amendment or supplement to any Preliminary
Prospectus, the Time of Sale Disclosure Package or the Prospectus, (C) of the
time and date that any post-effective amendment to the Registration Statement
becomes effective, (D) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto or of any order preventing or suspending its use or the use of
any Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus
or any Issuer Free Writing Prospectus, or (E) during the Prospectus
Delivery Period, of any proceedings to remove, suspend or terminate from listing
or quotation the Common Stock from the Nasdaq Global Market, or of the
threatening or initiation of any proceedings for any of such
purposes. If the Commission shall enter any such stop order at any
time, the Company will use its reasonable best efforts to obtain the lifting of
such order as soon as possible. Additionally, the Company agrees that
it shall comply with the provisions of Rules 424(b) and 430A, as applicable,
under the Securities Act and will use its reasonable efforts to confirm that any
filings made by the Company under Rule 424(b), Rule 433 or Rule 462 were
received in a timely manner by the Commission (without reliance on Rule
424(b)(8) or Rule 164(b)).
(c) (i) During
the period beginning on the date hereof and ending on the later of the Second
Closing Date or such date, as in the opinion of counsel for the Underwriters,
the Prospectus is no longer required by law to be delivered (assuming the
absence of Rule 172 under the Securities Act), in connection with sales by an
Underwriter or dealer (the “Prospectus
Delivery Period”), the Company will use reasonable best efforts to comply
with all requirements imposed upon it by the Securities Act, as now and
hereafter amended, and by the Rules and Regulations, as from time to time in
force, and by the Exchange Act so far as necessary to permit the continuance of
sales of or dealings in the Securities as contemplated by the provisions hereof,
the Time of Sale Disclosure Package and the Prospectus. If during
such period any event occurs as a result of which the Prospectus (or if the
Prospectus is not yet available to prospective purchasers, the Time of Sale
Disclosure Package) would include an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances then existing, not misleading, or if during such period it
is necessary or appropriate in the opinion of the Company or its counsel or
counsel to the Underwriters to amend the Registration Statement or supplement
the Prospectus (or, if the Prospectus is not yet available to prospective
purchasers, the Time of Sale Disclosure Package) to comply with the Securities
Act, the Company will promptly notify you and will amend the Registration
Statement or supplement the Prospectus (or, if the Prospectus is not yet
available to prospective purchasers, the Time of Sale Disclosure Package) (at
the expense of the Company) so as to correct such statement or omission or
effect such compliance.
-18-
(ii) If at any
time following issuance of an Issuer Free Writing Prospectus there occurred, or
through the Prospectus Delivery Period occurs, an event or development as a
result of which such Issuer Free Writing Prospectus conflicted or during such
time would conflict with the information contained in the Registration
Statement, the Statutory Prospectus or the Prospectus or included or during such
time would include an untrue statement of a material fact or omitted or during
such time would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at that
subsequent time, not misleading, the Company has promptly notified or promptly
will notify the Underwriters and has promptly amended or will promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate
or correct such conflict, untrue statement or omission.
(d) The
Company shall take or cause to be taken all necessary action to qualify the
Securities for sale under the securities laws of such jurisdictions as you
reasonably designate and to continue such qualifications in effect so long as
required for the distribution of the Securities, except that the Company shall
not be required in connection therewith to qualify as a foreign corporation or
to execute a general consent to service of process in any state.
(e) The
Company will furnish, at its own expense, to the Underwriters and counsel for
the Underwriters copies of the Registration Statement (which will include three
complete manually signed copies of the Registration Statement and all consents
and exhibits filed therewith), and to the Underwriters and any dealer the Time
of Sale Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus,
and all amendments and supplements to such documents, in each case as soon as
available and in such quantities as you may from time to time reasonably
request.
(f) The
Company will make generally available to its security holders as soon as
practicable, but in no event later than 15 months after the end of the Company’s
current fiscal quarter, an earnings statement (which need not be audited)
covering a 12-month period that shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Rules and
Regulations.
-19-
(g) The
Company, whether or not the transactions contemplated hereunder are consummated
or this Agreement is terminated, will pay or cause to be paid (i) all expenses
(including transfer taxes allocated to the respective transferees) incurred in
connection with the delivery to the Underwriters of the Securities, (ii) all
expenses and fees (including, without limitation, fees and expenses of the
Company’s accountants and counsel) in connection with the preparation, printing,
filing, delivery, and shipping of the Registration Statement (including the
financial statements therein and all amendments, schedules, and exhibits
thereto), the Securities, each Preliminary Prospectus, the Time of Sale
Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any
amendment thereof or supplement thereto, and the printing, delivery, and
shipping of this Agreement and other underwriting documents, including Blue Sky
Memoranda (covering the states and other applicable jurisdictions), (iii) all
filing fees and fees and disbursements of the Underwriters’ counsel incurred in
connection with the qualification of the Securities for offering and sale by the
Underwriters or by dealers under the securities or blue sky laws of the states
and other jurisdictions which you shall designate, (iv) the fees and expenses of
any transfer agent or registrar, (v) the filing fees and fees and disbursements
of Underwriters’ counsel incident to any required review and approval by FINRA
of the terms of the sale of the Securities, (vi) listing fees, if any, (vii) the
cost and expenses of the Company relating to investor presentations or any
“roadshow” undertaken in connection with marketing of the Securities, and (viii)
all other costs and expenses of the Company incident to the performance of its
obligations hereunder that are not otherwise specifically provided for
herein. Notwithstanding the foregoing, if the transactions
contemplated hereunder are not consummated or this Agreement is terminated, the
Company shall only be obligated to pay to the Underwriters or any person
associated with the Underwriters those amounts set forth in clauses (i) through
(viii) that represent out-of-pocket accountable expenses actually incurred by
the Underwriters or any person associated with the Underwriters.
(h) The
Company will apply the net proceeds from the sale of the Securities to be sold
by it hereunder for the purposes set forth in the Time of Sale Disclosure
Package and in the Prospectus.
(i) The
Company will not, without the prior written consent of the Underwriters, from
the date of execution of this Agreement and continuing to and including the date
90 days after the date of the Prospectus (the “Lock-Up
Period”), (i) offer, pledge, announce the intention to sell, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
or (ii) enter into any swap or other agreement that transfers, in whole or in
part, any of the economic consequences of ownership of the Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise, except
(x) to the Underwriters pursuant to this Agreement, (y) the issuance of
Common Stock pursuant to outstanding options under the Company’s existing
long-term compensation plans or (z) to IAT Reinsurance Company Ltd., a
Bermuda limited liability company (“IAT”) on
the terms and subject to the conditions described in the Time of Sale Disclosure
Package, the Registration Statement and the Prospectus. The Company
agrees not to accelerate the vesting of any option or warrant or the lapse of
any repurchase right prior to the expiration of the Lock-Up Period.
-20-
If (1)
during the last 17 days of the Lock-Up Period, (a) the Company issues an
earnings release, (b) the Company publicly announces material news or (c) a
material event relating to the Company occurs; or (2) prior to the expiration of
the Lock-Up Period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the Lock-Up Period, then
the restrictions in this Agreement, unless otherwise waived by the Underwriters
in writing, shall continue to apply until the expiration of the date that is 18
calendar days after the date on which (x) the Company issues the earnings
release, (y) the Company publicly announces material news or (z) a material
event relating to the Company occurs. The Company will provide the
Underwriters and each shareholder subject to the Lock-Up Agreement (as defined
below) with prior notice of any such announcement that gives rise to the
extension of the Lock-Up Period.
(j) The
Company has caused to be delivered to you prior to the date of this Agreement a
letter, substantially in the form of Exhibit A hereto (the “Lock-Up
Agreement”), from each of the Company’s directors and officers and
IAT. The Company will issue stop-transfer instructions to the
transfer agent for the Common Stock with respect to any transaction or
contemplated transaction that would constitute a breach of or default under the
applicable Lock-Up Agreement.
(k) The
Company has not taken and will not take, directly or indirectly, any action
designed to or which might reasonably be expected to cause or result in, or
which has constituted, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(l) During
the Prospectus Delivery Period, the Company will file on a timely basis with the
Commission such periodic and special reports as required by the Rules and
Regulations.
(m) During
the Prospectus Delivery Period, the Company and its consolidated subsidiaries
will comply with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act.
-21-
(n) The
Company represents and agrees that, unless it obtains the prior written consent
of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., and each Underwriter severally represents and agrees
that, unless it obtains the prior written consent of the Company and ▇▇▇▇▇
▇▇▇▇▇▇▇ & Co., it has not made and will not make any offer relating to the
Securities that would constitute an “issuer free writing prospectus,” as defined
in Rule 433 under the Securities Act, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405 under the Securities Act, required
to be filed with the Commission; provided that the prior written consent of the
parties hereto shall be deemed to have been given in respect of the free writing
prospectuses included in Schedule V. Any such free writing
prospectus consented to by the Company and ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. is
hereinafter referred to as a “Permitted Free
Writing Prospectus.” The Company represents that it has
treated or agrees that it will treat each Permitted Free Writing Prospectus as
an “issuer free writing prospectus,” as defined in Rule 433, and has complied
and will comply with the requirements of Rule 433 applicable to any Permitted
Free Writing Prospectus, including timely Commission filing where required,
legending and record keeping.
5. Conditions of
Underwriters’ Obligations. The obligations of the several
Underwriters hereunder are subject to the accuracy, as of the date hereof and at
each of the First Closing Date and the Second Closing Date (as if made at such
Closing Date), of and compliance with all representations, warranties and
agreements of the Company contained herein, to the performance by the Company of
their respective obligations hereunder and to the following additional
conditions:
(a) If not
yet effective, the Registration Statement shall have become effective not later
than 5:00 p.m. Central time, on the date of this Agreement, or such later time
and date as you shall approve; if filing of the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, is required under the
Securities Act or the Rules and Regulations, the Company shall have filed the
Prospectus (or such amendment or supplement) or such Issuer Free Writing
Prospectus with the Commission in the manner and within the time period so
required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration
Statement shall remain effective; no stop order suspending the effectiveness of
the Registration Statement or any part thereof, any Rule 462(b) Registration
Statement, or any amendment thereof, nor suspending or preventing the use of the
Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing
Prospectus shall have been issued; no proceedings for the issuance of such an
order shall have been initiated or threatened; any request of the Commission for
additional information (to be included in the Registration Statement, the Time
of Sale Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus
or otherwise) shall have been complied with to your satisfaction.
-22-
(b) No
Underwriter shall have advised the Company that (i) the Registration Statement
or any amendment thereof or supplement thereto contains an untrue statement of a
material fact which, in your opinion taking into consideration the advice of
your counsel, is material or omits to state a material fact which, in your
opinion taking into consideration the advice of your counsel, is required to be
stated therein or necessary to make the statements therein not misleading, or
(ii) the Time of Sale Disclosure Package or the Prospectus, or any amendment
thereof or supplement thereto, or any Issuer Free Writing Prospectus contains an
untrue statement of fact which, in your opinion taking into consideration the
advice of your counsel, is material, or omits to state a fact which, in your
opinion taking into consideration the advice of your counsel, is material and is
required to be stated therein, or necessary to make the statements therein, in
light of the circumstances under which they are made, not
misleading.
(c) Except as
contemplated in the Time of Sale Disclosure Package and in the Prospectus,
subsequent to the respective dates as of which information is given in the Time
of Sale Disclosure Package, neither the Company nor any of its consolidated
subsidiaries shall have incurred any material liabilities or obligations, direct
or contingent, or entered into any material transactions, or declared or paid
any dividends or made any distribution of any kind with respect to its capital
stock; and there shall not have been any change in the capital stock (other than
a change in the number of outstanding shares of Common Stock due to the issuance
of shares upon the exercise of outstanding options or warrants), or any material
change in the short-term or long-term debt, or any issuance of options,
warrants, convertible securities or other rights to purchase the capital stock
of the Company or any of its consolidated subsidiaries, or any Material Adverse
Change or any development which could reasonably be expected to result in any
Material Adverse Change (whether or not arising in the ordinary course of
business) the effect of which, in any such case described above, in your
judgment, makes it impractical or inadvisable to offer or deliver the Securities
on the terms and in the manner contemplated in the Time of Sale Disclosure
Package and in the Prospectus.
(d) On or
after the Time of Sale (i) no downgrading shall have occurred in the rating
accorded any of the Company’s securities by any “nationally recognized
statistical organization,” as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company’s
securities.
(e) On each
Closing Date, there shall have been furnished to you, as the Underwriters, the
opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated such Closing
Date and addressed to you in substantially the form attached hereto as
Exhibit B.
(f) On each
Closing Date, there shall have been furnished to you, as the Underwriters, the
opinion of ▇▇▇▇▇▇ ▇▇▇▇▇, Vice President and General Counsel of the Company,
dated such Closing Date and addressed to you in substantially the form attached
hereto as Exhibit C.
-23-
(g) On each
Closing Date, there shall have been furnished to you, as the Underwriters, such
opinion or opinions from Faegre & ▇▇▇▇▇▇ LLP, counsel for the several
Underwriters, dated such Closing Date and addressed to you, with respect to the
formation of the Company, the validity of the Securities, the Registration
Statement, the Time of Sale Disclosure Package, the Prospectus and other related
matters as you reasonably may request, and such counsel shall have received such
papers and information as they request to enable them to pass upon such
matters.
(h) On each
Closing Date you, as the Underwriters, shall have received a letter of Amper,
Politziner & ▇▇▇▇▇▇, P.C., dated such Closing Date and addressed to you,
confirming that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualifications of accountants under Rule 2-01 of Regulation
S-X of the Commission, and stating, as of the date of such letter (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Time of Sale
Disclosure Package, as of a date not prior to the date hereof or more than five
days prior to the date of such letter), the conclusions and findings of said
firm with respect to the financial information and other matters covered by its
letter delivered to you concurrently with the execution of this Agreement, and
the effect of the letter so to be delivered on such Closing Date shall be to
confirm the conclusions and findings set forth in such prior
letter.
(i) On each
Closing Date, there shall have been furnished to you, as the Underwriter, a
certificate, dated such Closing Date and addressed to you, signed by the chief
executive officer and by the chief financial officer of the Company, to the
effect that:
(i) The
representations and warranties of the Company in this Agreement are true and
correct, in all material respects, as if made at and as of such Closing Date,
and the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to such Closing
Date; and
(ii) No stop
order or other order suspending the effectiveness of the Registration Statement
or any part thereof or any amendment thereof or the qualification of the
Securities for offering or sale nor suspending or preventing the use of the Time
of Sale Disclosure Package, the Prospectus or any Issuer Free Writing
Prospectus, has been issued, and no proceeding for that purpose has been
instituted or, to the best of their knowledge, is contemplated by the Commission
or any state or regulatory body.
(j) FINRA
shall have raised no objection to the fairness and reasonableness of the
underwriting terms and arrangements.
(k) The
Company shall have furnished to you and counsel for the Underwriters such
additional documents, certificates and evidence as you or they may have
reasonably requested.
(l) The
Company shall have received all of the Lock-Up Agreements referenced in Section
4.
-24-
(m) The
Securities to be delivered on such Closing Date will have been approved for
listing on the Nasdaq Global Market, subject to official notice of
issuance.
(n) Payment
for 500,000 shares of Common Stock offered and sold by the Company to IAT shall
have been received by the Company, and such shares shall have been registered
and sold on the terms and subject to the conditions described in the Time of
Sale Disclosure Package, the Registration Statement and the
Prospectus.
All such
opinions, certificates, letters and other documents will be in compliance with
the provisions hereof only if they are satisfactory in form and substance to you
and counsel for the Underwriters. The Company will furnish you with
such conformed copies of such opinions, certificates, letters and other
documents as you shall reasonably request.
6. Indemnification
and Contribution.
(a) The
Company agrees to indemnify and hold harmless each Underwriter from and against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Securities Act or otherwise (including
in settlement of any litigation if such settlement is effected with the written
consent of the Company), insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, including the 430A Information and any other information
deemed to be a part of the Registration Statement at the time of effectiveness
and at any subsequent time pursuant to the Rules and Regulations, if applicable,
any Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus,
or any amendment or supplement thereto, any Issuer Free Writing Prospectus 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, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending against such loss, claim, damage, liability or action
as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage, liability or action 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 Time of Sale
Disclosure Package, the Prospectus, or any such amendment or supplement, or any
Issuer Free Writing Prospectus, in reliance upon and in conformity with written
information furnished to the Company by you, or by any Underwriter through you,
specifically for use in the preparation thereof; it being understood and agreed
that the only information furnished by an Underwriter consists of the
information described as such in Section 6(f).
-25-
(b) Each
Underwriter, severally and not jointly, will indemnify and hold harmless the
Company from and against any losses, claims, damages or liabilities to which the
Company may become subject, under the Securities Act or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Underwriter), insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Time of Sale Disclosure
Package, the Prospectus, or any amendment or supplement thereto, or any Issuer
Free Writing Prospectus 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, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, any Preliminary Prospectus, the Time of Sale Disclosure Package, the
Prospectus, or any such amendment or supplement, or any Issuer Free Writing
Prospectus in reliance upon and in conformity with written information furnished
to the Company by you, or by such Underwriter through you, specifically for use
in the preparation thereof (it being understood and agreed that the only
information furnished by an Underwriter consists of the information described as
such in Section 6(f)), and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending against any such loss, claim, damage, liability or action as such
expenses are incurred.
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
the indemnifying party from any liability that it may have to any indemnified
party except to the extent such indemnifying party has been materially
prejudiced by such failure (through the forfeiture of substantive rights or
defenses). In case any such action shall be brought against any
indemnified party, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
in, and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of the indemnifying party’s election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that if,
in the sole judgment of the Underwriters, it is advisable for the Underwriters
to be represented as a group by separate counsel, the Underwriters shall have
the right to employ a single counsel (in addition to local counsel) to represent
the Underwriters and all Underwriters who may be subject to liability arising
from any claim in respect of which indemnity may be sought by the Underwriters
under subsection (a) of this Section 6, in which event the reasonable
fees and expenses of such separate counsel shall be borne by the indemnifying
party or parties and reimbursed to the Underwriters as incurred. An
indemnifying party shall not be obligated under any settlement agreement
relating to any action under this Section 6 to which it has not agreed in
writing. In addition, no indemnifying party shall, without the prior
written consent of the indemnified party (which consent shall not be
unreasonably withheld or delayed), effect any settlement of any pending or
threatened proceeding unless such settlement includes an unconditional release
of such indemnified party for all liability on claims that are the subject
matter of such proceeding and does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party.
-26-
(d) If the
indemnification provided for in this Section 6 is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from the offering of
the Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue 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
Underwriters and the parties’ relevant intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or
omission. The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this subsection (d) were to
be determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the first sentence
of this subsection (d). The amount paid by an indemnified party
as a result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending against any action or claim which is the subject
of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters’ obligations
in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
-27-
(e) The
obligations of the Company under this Section 6 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Securities Act; and the obligations of the
Underwriters under this Section 6 shall be in addition to any liability
that the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each director of the Company (including any person
who, with his consent, is named in the Registration Statement as about to become
a director of the Company), to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Securities Act.
(f) The
Underwriters severally confirm and the Company acknowledges that the statements
with respect to the public offering of the Securities by the Underwriters set
forth in the second and tenth through twenty-seventh paragraphs under the
caption “Underwriting” in the Time of Sale Disclosure Package and in the
Prospectus are correct and constitute the only information concerning such
Underwriters furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement, any
Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus or
any Issuer Free Writing Prospectus.
7. Representations
and Agreements to Survive Delivery. All representations,
warranties, and agreements of the Company herein or in certificates delivered
pursuant hereto, including but not limited to the agreements of the several
Underwriters, the Company contained in Section 6 hereof, shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of any Underwriter or any controlling person thereof, or the Company or
any of its officers, directors, or controlling persons, and shall survive
delivery of, and payment for, the Securities to and by the Underwriters
hereunder.
-28-
8. Substitution of
Underwriters.
If any
Underwriter or Underwriters shall fail to take up and pay for the amount of Firm
Shares agreed by such Underwriter or Underwriters to be purchased hereunder and
the aggregate number of Firm Shares that such defaulting Underwriter or
Underwriter agreed but failed to purchase does not exceed 10% of the total
number of Firm Shares that the Underwriters are obligated to purchase, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Firm Shares that such
defaulting Underwriters agreed but failed to purchase. If any
Underwriter or Underwriters shall fail to take up and pay for the amount of Firm
Shares agreed by such Underwriter or Underwriters to be purchased hereunder and
the aggregate number of Firm Shares that such defaulting Underwriter or
Underwriters agreed but failed to purchase exceeds 10% of the total number of
Firm Shares that the Underwriters are obligated to purchase, upon tender of such
Firm Shares in accordance with the terms hereof, and arrangements satisfactory
to you for the purchase of such Firm Shares by other persons are not made within
36 hours thereafter, this Agreement shall terminate. In the event of
any such termination, the Company shall not be under any liability to any
Underwriter (except to the extent provided in Section 6 hereof) nor shall
any Underwriter (other than an Underwriter who shall have failed, otherwise than
for some reason permitted under this Agreement, to purchase the amount of Firm
Shares agreed by such Underwriter to be purchased hereunder) be under any
liability to the Company (except to the extent provided in Section 6
hereof).
If Firm
Shares to which a default relates are to be purchased by the non-defaulting
Underwriters or by any other party or parties, the Underwriters or the Company
shall have the right to postpone the First Closing Date for not more than seven
business days in order that the necessary changes in the Registration Statement,
in the Time of Sale Disclosure Package, in the Prospectus or in any other
documents, as well as any other arrangements, may be effected. As
used herein, the term “Underwriter” includes any person substituted for an
Underwriter under this Section 8.
9. Termination of
this Agreement.
(a) You, as
Underwriters, shall have the right to terminate this Agreement by giving notice
to the Company as hereinafter specified at any time at or prior to the First
Closing Date, and the option referred to in Section 3(b), if exercised, may
be cancelled at any time prior to the Second Closing Date, if (i) the
Company shall have failed, refused or been unable, at or prior to such Closing
Date, to perform any agreement on its or their part to be performed hereunder,
(ii) any condition of the Underwriters’ obligations hereunder is not
fulfilled, (iii)trading in the Company’s Common Stock shall have been suspended
by the Commission or The Nasdaq Stock Market or trading in securities
generally on the NASDAQ Stock Market, New York Stock Exchange or the American
Stock Exchange shall have been suspended, (iv) minimum or maximum prices
for trading shall have been fixed, or maximum ranges for prices for securities
shall have been required, on the NASDAQ Stock Market, New York Stock Exchange or
the American Stock Exchange, by such Exchange or by order of the Commission or
any other Governmental Authority having jurisdiction, (v) a banking
moratorium shall have been declared by federal or state authorities, or
(vi) there shall have occurred any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any declaration by
the United States of a national emergency or war, any material adverse change in
financial markets, any substantial adverse change or development involving a
prospective substantial adverse change in United States or international
political, financial or economic conditions, or any other calamity or crisis
that, in your judgment, is material and adverse and makes it impractical or
inadvisable to proceed with the completion of the sale of and payment for the
Securities. Any such termination shall be without liability of any
party to any other party except that the provisions of Section 4(g) and Section 6
hereof shall at all times be effective and shall survive such
termination.
(b) If you
elect to terminate this Agreement as provided in this Section, the Company shall
be notified promptly by you by telephone, confirmed by letter.
-29-
10. Default by the
Company. If the Company shall fail at the First Closing Date
to sell and deliver the number of Securities which it is obligated to sell
hereunder, then this Agreement shall terminate without any liability on the part
of any Underwriter. No action taken pursuant to this Section shall
relieve the Company from liability, if any, in respect of such
default.
11. Notices. Except
as otherwise provided herein, all communications hereunder shall be in writing
and, if to the Underwriters, shall be mailed or delivered c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co., U.S. Bancorp Center, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel; if to the Company, shall be mailed or delivered to
it at Two ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇,
Chief Executive Officer; or in each case to such other address as the person to
be notified may have requested in writing. Any party to this
Agreement may change such address for notices by sending to the parties to this
Agreement written notice of a new address for such purpose.
12. Persons Entitled
to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns and the controlling persons, officers and directors
referred to in Section 6. Nothing in this Agreement is intended or
shall be construed to give to any other person, firm or corporation any legal or
equitable remedy or claim under or in respect of this Agreement or any provision
herein contained. The term “successors and assigns” as herein used
shall not include any purchaser, as such purchaser, of any of the Securities
from any of the several Underwriters.
-30-
13. Absence of
Fiduciary Relationship. The Company acknowledges and agrees
that: (a) the Underwriters have been retained solely to act as an underwriter in
connection with the sale of the Securities and that no fiduciary, advisory or
agency relationship between the Company and the Underwriters have been created
in respect of any of the transactions contemplated by this Agreement,
irrespective of whether the Underwriters have advised or are advising the
Company on other matters; (b) the price and other terms of the Securities set
forth in this Agreement were established by the Company following discussions
and arms-length negotiations with the Underwriters and the Company is capable of
evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated by this Agreement; (c) it has been
advised that the Underwriters and their affiliates are engaged in a broad range
of transactions which may involve interests that differ from those of the
Company and that the Underwriters have no obligation to disclose such interest
and transactions to the Company by virtue of any fiduciary, advisory or agency
relationship; (d) it has been advised that the Underwriters are acting, in
respect of the transactions contemplated by this Agreement, solely for the
benefit of the Underwriters and the other Underwriters, and not on behalf of the
Company; (e) it waives to the fullest extent permitted by law, any claims it may
have against the Underwriters for breach of fiduciary duty or alleged breach of
fiduciary duty in respect of any of the transactions contemplated by this
Agreement and agrees that the Underwriters shall have no liability (whether
direct or indirect) to the Company in respect of such a fiduciary duty claim on
behalf of or in right of the Company, including stockholders, employees or
creditors of the Company.
14. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
15. Counterparts. This
Agreement may be executed in one or more counterparts and, if executed in more
than one counterpart, the executed counterparts shall each be deemed to be an
original and all such counterparts shall together constitute one and the same
instrument.
16. General
Provisions. This Agreement constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. This Agreement may not be amended or
modified unless in writing by all of the parties hereto, and no condition herein
(express or implied) may be waived unless waived in writing by each party whom
the condition is meant to benefit. The Section headings herein are
for the convenience of the parties only and shall not affect the construction or
interpretation of this Agreement.
[Signature
Page Follows]
4824-3473-3828\2
-31-
Please
sign and return to the Company the enclosed duplicates of this letter whereupon
this letter will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
|
Very
truly yours,
|
|
|
INTEGRAMED
AMERICA, INC.
|
|
|
By:
|
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
Title
|
Vice
President, General Counsel and
Secretary
|
Confirmed
as of the date first
above
mentioned.
| ▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. | |
| By | /s/▇▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ |
| Managing Director | |
| ▇▇▇▇▇▇▇▇▇ & COMPANY LLC | |
| By: | /s/▇▇▇▇▇▇ ▇▇▇▇▇ |
| Managing Director |
4824-3473-3828\2
SCHEDULE
I
|
Underwriter
|
Number of Firm Shares
(1)
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇ & Co.
|
1,750,000
|
|
▇▇▇▇▇▇▇▇▇
& Company LLC
|
250,000
|
|
_______________
|
|
|
Total.
. . . . . . . . . . . . . . . . . . . . . . . . .
|
_____2,000,000___
|
_________________
|
(1)
|
The
Underwriters may purchase up to an additional 300,000 Option Shares, to
the extent the option described in Section 3(b) of the Agreement is
exercised, in the proportions and in the manner described in the
Agreement.
|
4824-3473-3828\2
SCHEDULE
II
Partner
Fertility Centers
|
1.
|
▇▇▇▇▇ &
▇▇▇▇▇▇▇ Nevada Center for Reproductive Medicine,
P.C.
|
|
2.
|
Idaho
Center for Reproductive Medicine,
P.C.
|
|
3.
|
Utah
Fertility Center, P.C.
|
|
4.
|
Arizona
Reproductive Medicine Specialists,
Ltd.
|
|
5.
|
Southeastern
Fertility Centers, P.A.
|
|
6.
|
Center
for Reproductive Medicine,
P.A.
|
|
7.
|
Reproductive
Partners Medical Group, Inc.
|
|
8.
|
Seattle
Reproductive Medicine, Inc.,
P.S.
|
|
9.
|
Reproductive
Endocrine Associates of
Charlotte, P.C.
|
|
10.
|
Northwest
Center for Infertility & Reproductive
Endocrinology
|
|
11.
|
Shady
Grove Fertility Reproductive Science
Center, P.C.
|
|
12.
|
Fertility
Centers of Illinois, S.C.
|
|
13.
|
Bay
Area Fertility & Gynecology Medical Group,
Inc.
|
|
14.
|
MPD
Medical Associates (MA), P.C. (doing business as RSC of New
England)
|
4824-3473-3828\2
SCHEDULE
III
Vein
Clinics
|
1.
|
Maryland
& Virginia Phlebology, P.C.
|
|
2.
|
Georgia
Phlebology, P.C.
|
|
3.
|
Illinois
Phlebology Associates, S.C.
|
|
4.
|
Indiana
Phlebology, P.C.
|
|
5.
|
Kansas
City Phlebology Medical Group, P.A.
|
|
6.
|
North
Carolina Phlebology, P.C.
|
|
7.
|
Tennessee
Phlebology, P.C.
|
|
8.
|
Wisconsin
Phlebology Medical Group, S.C.
|
|
9.
|
Ohio
Phlebology, Professional
Corporation
|
|
10.
|
Pennsylvania
Phlebology Group, P.C.
|
4824-3473-3828\2
SCHEDULE
IV
Subsidiaries
Florida
Phlebology, Inc.
Missouri
Phlebology, Inc.
Reproductive
Partners, Inc.
Vein
Clinics of America, Inc.
4824-3473-3828\2
SCHEDULE
V
Issuer
General Free Writing Prospectuses
None.
4824-3473-3828\2
SCHEDULE
VI
Pricing
Information
Price to
the public: $7.50 per share
Price to
the Underwriters: $6.99375 per share
4824-3473-3828\2
EXHIBIT
A
Form
of Lock-Up Agreement
[ Ÿ ],
2010
▇▇▇▇▇
▇▇▇▇▇▇▇ & Co.
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
As an
inducement to ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. (the “Underwriter”)
to execute a purchase agreement (the “Purchase
Agreement”) providing for a public offering (the “Offering”)
of common stock (the “Common
Stock”), of IntegraMed America, Inc. and any successor (by
merger or otherwise) thereto (the “Company”),
the undersigned hereby agrees that without, in each case, the prior written
consent of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. during the period
specified in the second succeeding paragraph (the “Lock-Up
Period”), the undersigned will not (1) offer, pledge, announce the
intention to sell, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, make any short sale or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into, exercisable or exchangeable for or that represent the right to receive
Common Stock (including without limitation, Common Stock which may be deemed to
be beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and securities which may
be issued upon exercise of a stock option or warrant) whether now owned or
hereafter acquired (the “Undersigned’s
Securities”) or (2) enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences of ownership of
the Undersigned’s Securities, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing restriction is
expressly agreed to preclude the undersigned from engaging in any hedging or
other transaction which is designed to or which reasonably could be expected to
lead to or result in a sale or disposition of the Undersigned’s Securities even
if such Securities would be disposed of by someone other than the
undersigned. Such prohibited hedging or other transactions would
include without limitation any short sale or any purchase, sale or grant of any
right (including without limitation any put or call option) with respect to any
of the Undersigned’s Securities or with respect to any security that includes,
relates to, or derives any significant part of its value from such
Securities.
In
addition, the undersigned agrees that, without the prior written consent of the
Underwriter, it
will not, during the Lock-Up Period, make any demand for or exercise any right
with respect to, the registration of any Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock.
A-1
The
initial Lock-Up Period will commence on the date of this Agreement and continue
and include the date 90 days after the date of the final prospectus used to sell
Common Stock in the Offering pursuant to the Purchase Agreement; provided, however, that if
(1) during the last 17 days of the initial Lock-Up Period, the Company releases
earnings results or material news or a material event relating to the Company
occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company
announces that it will release earnings results during the 16-day period
beginning on the last day of the initial Lock-Up Period, then in each case the
Lock-Up Period will be extended until the expiration of the 18-day period
beginning on the date of release of the earnings results or the occurrence of
the material news or material event, as applicable, unless the Underwriter, waives, in writing, such
extension.
The
undersigned hereby acknowledges that the Company will be requested to agree in
the Purchase Agreement to provide written notice to the undersigned of any event
that would result in an extension of the Lock-Up Period pursuant to the previous
paragraph and agrees that any such notice properly delivered will be deemed to
have been given to, and received by, the undersigned. The undersigned
further agrees that, prior to engaging in any transaction or taking any other
action that is subject to the terms of this Agreement during the period from the
date of this Agreement to and including the 34th day
following the expiration of the initial Lock-Up Period, it will give notice
thereof to the Company and will not consummate such transaction or take any such
action unless it has received written confirmation from the Company that the
Lock-Up Period (as may have been extended pursuant to the previous paragraph)
has expired.
Notwithstanding
the foregoing, the undersigned may transfer the Undersigned’s Securities (i) as
a bona fide gift or
gifts and (ii) to any trust for the direct or indirect benefit of the
undersigned or the immediate family of the undersigned; provided, in each case, that
(x) such transfer shall not involve a disposition for value, (y) the transferee
agrees in writing with the Underwriter to be bound by the terms of this Lock-Up
Agreement, and (z) no filing by any party under Section 16(a) of the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”), shall be required or shall be made voluntarily in connection with
such transfer. For purposes of this Agreement, “immediate family”
shall mean any relationship by blood, marriage or adoption, nor more remote than
first cousin.
In
addition, the foregoing restrictions shall not apply to (i) the exercise of
stock options granted pursuant to the Company’s equity incentive plans; provided that it shall apply
to any of the Undersigned’s Securities issued upon such exercise, or
(ii) the establishment of any contract, instruction or plan (a “Plan”)
that satisfies all of the requirements of Rule 10b5-1(c)(1)(i)(B) under the
Exchange Act; provided
that no sales of the Undersigned’s Securities shall be made pursuant to such a
Plan prior to the expiration of the Lock-Up Period (as such may have been
extended pursuant to the provisions hereof), and such a Plan may only be
established if no public announcement of the establishment or existence thereof
and no filing with the Securities and Exchange Commission or other regulatory
authority in respect thereof or transactions thereunder or contemplated thereby,
by the undersigned, the Company or any other person, shall be required, and no
such announcement or filing is made voluntarily, by the undersigned, the Company
or any other person, prior to the expiration of the Lock-Up Period (as such may
have been extended pursuant to the provisions hereof).
A-2
In
furtherance of the foregoing, the Company and its transfer agent and registrar
are hereby authorized to decline to make any transfer of shares of Common Stock
if such transfer would constitute a violation or breach of this
Agreement.
The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this Agreement. All authority herein conferred or
agreed to be conferred and any obligations of the undersigned shall be binding
upon the successors, assigns, heirs or personal representatives of the
undersigned.
The
undersigned understands that the undersigned shall be released from all
obligations under this Agreement if (i) the Company notifies the
Underwriter that it does not intend to proceed with the Offering, (ii) the
Purchase Agreement does not become effective, or if the Purchase Agreement
(other than the provisions thereof which survive termination) shall terminate or
be terminated prior to payment for and delivery of the Common Stock to be sold
thereunder, or (iii) the Offering is not completed by [ Ÿ ].
The
undersigned understands that the Underwriter is entering into the Purchase
Agreement and proceeding with the Offering in reliance upon this
Agreement.
This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York.
| Very truly yours, | |
| Printed Name of Holder | |
| By: | |
| Signature | |
|
Printed Name
of Person Signing
(and indicate capacity of person signing if signing as
custodian,
trustee, or on behalf of an entity)
|
4824-3473-3828\2
A-3
EXHIBIT
B
Form
of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP Opinion
(i) The
Company is a corporation validly existing as a corporation in good standing
under the laws of the State of Delaware, and is duly qualified to do business as
a foreign corporation and is in good standing in each jurisdiction listed in a
schedule to such counsel’s opinion.
(ii) The
capital stock of the Company conforms as to legal matters to the description
thereof contained in the Time of Sale Disclosure Package and in the Prospectus
under the caption “Description of Capital Stock.”
(iii) The
Securities to be issued and sold by the Company hereunder have been duly
authorized and, when issued, delivered and paid for in accordance with the terms
of the Agreement, will have been validly issued and will be fully paid and
nonassessable.
(iv) The
Registration Statement has become effective under the Securities Act and, to
such counsel’s knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of such counsel, threatened by the
Commission.
(v) The
descriptions in the Time of Sale Disclosure Package, in the Registration
Statement and in the Prospectus of legal matters, statutes, regulations, legal
and governmental proceedings, contracts and other documents are accurate and
fairly present such information;
(vi) The
Company has the corporate power and authority to enter into this Agreement, and
the Agreement has been duly authorized, executed and delivered by the
Company.
(vii) The
execution, delivery and performance of the Agreement and the consummation of the
transactions herein contemplated will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any statute, rule
or regulation, the Company’s charter or bylaws, or any order or decree known to
such counsel of any court or governmental agency having jurisdiction over the
Company or any of its respective properties.
(viii) No
consent, approval, authorization or order of, or filing with, any court or
governmental agency or body is required for the execution, delivery and
performance of the Agreement or for the consummation of the transactions
contemplated hereby, including the issuance or sale of the Securities by the
Company, except such as have been obtained or as may be required under the
Securities Act or state securities laws.
(ix) The
Registration Statement, the Statutory Prospectus included in the Time of Sale
Disclosure Package and the Prospectus, and any amendment thereof or supplement
thereto, comply, and as of their respective effective or issue dates (including
without limitation each deemed effective date with respect to the Underwriters
pursuant to the Rules and Regulations) complied, as to form in all material
respects with the requirements of the Securities Act and the Rules and
Regulations.
B-1
In
addition, such counsel shall include a statement to the effect that on the basis
of conferences with officers and other representatives of the Company,
representatives of the Underwriters and representatives of the independent
accountants for the Company, examination of documents referred to in the
Registration Statement, the Time of Sale Disclosure Package and the Prospectus
and such other procedures as such counsel deemed appropriate, but without
independent review or verification and without assuming responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Time of Sale Disclosure Package and the Prospectus
(except as set forth in paragraphs (ii) and (v) above), nothing has come to the
attention of such counsel that causes such counsel to believe that (a) the
Registration Statement at the time it became effective, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading, or
(b) that the Time of Sale Disclosure Package as of the Time of Sale and as of
such Closing Date, included or includes any untrue statement of material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; or (c) that the Prospectus (as of its issue date and as of such
Closing Date) included or includes any untrue statement of material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; it being understood that such counsel need express no belief as to
the financial statements and schedules or other financial data included in any
of the documents mentioned in this paragraph.
4824-3473-3828\2
B-2
EXHIBIT
C
Form
of ▇▇▇▇▇▇ ▇▇▇▇▇ Opinion
(i) Each
of the Subsidiaries and Vein Clinics is a corporation validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, and is duly qualified to do business as a foreign corporation and
is in good standing in each jurisdiction listed in a schedule to such counsel’s
opinion. Each of the Company and its Subsidiaries and Vein Clinics
has the corporate power and authority to own its properties and conduct its
business as currently being conducted and as described in the Time of Sale
Disclosure Package, in the Registration Statement and in the
Prospectus.
(ii) All
of the issued and outstanding shares of the capital stock of the Company has
been duly authorized and validly issued and is fully paid and
nonassessable.
(iii) Except
as otherwise stated in the Time of Sale Disclosure Package, in the Registration
Statement and in the Prospectus, there are no preemptive rights or other rights
to subscribe for or to purchase, or any restriction upon the voting or transfer
of, any shares of Common Stock pursuant to the Company’s charter, by-laws or any
agreement or other instrument known to such counsel to which the Company is a
party or by which the Company is bound. To such counsel’s knowledge,
neither the filing of the Registration Statement nor the offering or sale of the
Securities as contemplated by the Agreement gives rise to any rights for or
relating to the registration of any shares of Common Stock or other securities
of the Company for which waivers have not obtained.
(iv) Such
counsel does not know of any legal matters, statutes, regulations, legal or
governmental proceedings or contracts or other documents required to be
described in the Time of Sale Disclosure Package or included as exhibits to the
Registration Statement that are not described or included as
required.
(v) The
statements in the Registration Statement, Time of Sale Disclosure Package and
Prospectus under the captions “Risk Factors,” “Management’s Discussion and
Analysis of Financial Condition and Results of Operations” and “Business,”
insofar as such statements constitute descriptions of provisions of agreements
to which the Company or its Subsidiaries is a party, legal proceedings or legal
conclusions have been reviewed by such counsel and fairly present and summarize
in all material respects the matters referred to therein.
(vi) All
of the issued and outstanding shares of capital stock of each of the Company’s
consolidated subsidiaries has been duly and validly authorized and issued and is
fully paid and nonassessable, and, to such counsel’s knowledge, except as
otherwise described in the Time of Sale Disclosure Package, in the Registration
Statement and in the Prospectus, the Company owns of record and beneficially,
free and clear of any security interests, claims, liens, proxies, equities or
other encumbrances, all of the issued and outstanding shares of such
stock. To such counsel’s knowledge, except as described in the Time
of Sale Disclosure Package, in the Registration Statement and in the Prospectus,
there are no options, warrants, agreements, contracts or other rights in
existence to purchase or acquire from the Company or any consolidated subsidiary
of the Company any shares of the capital stock of the Company or any
consolidated subsidiary of the Company.
C-1
(vii) The
execution, delivery and performance of the Agreement and the consummation of the
transactions herein contemplated will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any statute, rule
or regulation, any agreement or instrument known to such counsel to which the
Company is a party.
In
addition, such counsel shall include a statement to the effect that on the basis
of conferences with officers and other representatives of the Company,
representatives of the Underwriters and representatives of the independent
accountants for the Company, examination of documents referred to in the
Registration Statement, the Time of Sale Disclosure Package and the Prospectus
and such other procedures as such counsel deemed appropriate, but without
independent review or verification and without assuming responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement (except as set forth in paragraph (v)), the Time of
Sale Disclosure Package and the Prospectus, nothing has come to the attention of
such counsel that causes such counsel to believe that (a) the Registration
Statement at the time it became effective, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or (b) that
the Time of Sale Disclosure Package as of the Time of Sale and as of such
Closing Date, included or includes any untrue statement of material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; or (c) that the Prospectus (as of its issue date and as of such
Closing Date) included or includes any untrue statement of material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; it being understood that such counsel need express no belief as to
the financial statements and schedules or other financial data included in any
of the documents mentioned in this paragraph.
4824-3473-3828\2
C-2