<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 22, 1998
REGISTRATION NO. 333-49695
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
------------------------------------
MEDICAL MANAGER CORPORATION
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C>
DELAWARE 59-3396629
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
</TABLE>
3001 NORTH ROCKY POINT DRIVE EAST, SUITE 100
TAMPA, FLORIDA 33607
(813) 287-2990
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
FREDERICK B. KARL, JR., ESQ.
3001 NORTH ROCKY POINT DRIVE EAST, SUITE 100
TAMPA, FLORIDA 33607
(813) 287-2990
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
------------------------------------
COPIES TO:
<TABLE>
<S> <C>
BRADLEY D. HOUSER, ESQ. PETER J. ROMEO, ESQ.
AKERMAN, SENTERFITT & EIDSON, P.A. HOGAN & HARTSON L.L.P.
SUNTRUST INTERNATIONAL CENTER COLUMBIA SQUARE
ONE S.E. 3RD AVENUE, 28TH FLOOR 555 THIRTEENTH STREET, N.W.
MIAMI, FLORIDA 33131-1704 WASHINGTON, D.C. 20004-1109
(305) 374-5600 (202) 637-5600
</TABLE>
------------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of the Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
==========================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS AMOUNT TO OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
OF SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE PRICE (1) REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per
share............................... 2,875,000 $28.625(1) $82,296,375 $24,278(2)
==========================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act.
(2) Previously paid.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
EXPLANATORY NOTE
The sole purpose of this Amendment No. 1 to Registration Statement on Form
S-3 is to file the form of Underwriting Agreement, as set forth in Item 16
hereto.
<PAGE> 3
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <C> <S>
1 -- Form of Underwriting Agreement
2.1 -- Agreement and Plan of Reorganization, dated as of September
30, 1996, by and among the Company, Personalized
Programming, Inc., PPI Acquisition I Corp. and the
Stockholder named therein (Incorporated by reference to
Exhibit 2.1 to the Registrant's Registration Statement on
Form S-1 (Registration No. 333-13101))
2.2 -- Agreement and Plan of Reorganization, dated as of September
30, 1996, by and among the Company, Systems Plus, Inc.,
Systems Plus Distribution, Inc., SPI Acquisition I Corp.,
SPDI Acquisition I Corp. and the Stockholder named therein
(Incorporated by reference to Exhibit 2.2 to the
Registrant's Registration Statement on Form S-1
(Registration No. 333-13101))
2.3 -- Agreement and Plan of Reorganization, dated as of September
30, 1996, by and among the Company, National Medical
Systems, Inc., NMS Acquisition I Corp. and the Stockholders
named therein (Incorporated by reference to Exhibit 2.3 to
the Registration Statement on Form S-1 (File No. 333-13101))
2.4 -- Agreement and Plan of Reorganization, dated as of September
30, 1996, by and among the Company, RTI Business Systems,
Inc., RTI Acquisition I Corp. and the Stockholders named
therein (Incorporated by reference to Exhibit 2.4 to the
Registration Statement on Form S-1 (File No. 333-13101))
2.5 -- Agreement and Plan of Reorganization, dated as of September
30, 1996, by and among the Company, Systems Management,
Inc., SMI Acquisition I Corp. and the Stockholders named
therein (Incorporated by reference to Exhibit 2.5 to the
Registration Statement on Form S-1 (File No. 333-13101))
2.6 -- Stock for Asset Purchase Agreement dated July 17, 1997, by
and among Medical Manager Northeast, Inc., a New York
corporation; The Computer Clinic, Inc., a New York
corporation; MedPlus of New York, Inc., a New York
corporation; Command Solutions, Inc. d/b/a Great Lakes
Medical Systems, an Ohio corporation; and Michael G.
Sherman, a resident of the state of New York (Incorporated
by reference to Exhibit 2.1 to the Company's Current Report
on Form 8-K dated August 7, 1997)
2.7 -- Asset Purchase Agreement dated as of September 10, 1997, by
and among Medical Manager Midwest, Inc., Professional
Management Systems, Inc. and the Stockholders named herein
(Incorporated by reference to Exhibit 2.1 to the Company's
Current Report on Form 8-K dated September 25, 1997)
2.8 -- Purchase Agreement dated as of September 11, 1997, by and
among Medical Manager Southeast, Inc., National Data
Corporation, CIS Technologies, Inc., AMSC, Inc. and AMSC
Midwest, Inc. (Incorporated by reference to Exhibit 2.2 to
the Company's Current Report on Form 8-K dated September 25,
1997)
2.9 -- Asset Purchase Agreement dated as of December 31, 1997, by
and among Medical Manager Corporation, Blue Cross And Blue
Shield of South Carolina, Companion Technologies
Corporation, and Companion Technologies of Florida, Inc.
(Incorporated by reference to Exhibit 2.1 to the Company's
Current Report on Form 8-K dated January 15, 1998)
2.10 -- Stock Purchase Agreement dated as of December 31, 1997 by
and among Medical Manager Corporation, Blue Cross And Blue
Shield of South Carolina, Companion Technologies
Corporation, and Companion Technologies Corporation of
Texas. (Incorporated by reference to Exhibit 2.2 to the
Company's Current Report on Form 8-K dated January 15, 1998)
3.1 -- Certificate of Incorporation of the Company (Incorporated by
reference to Exhibit 3.1 to the Registration Statement on
Form S-1 (File No. 333-13101))
</TABLE>
II-2
<PAGE> 4
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <C> <S>
3.2 -- Amended and Restated Bylaws of the Company (incorporated by
reference to Exhibit 3.2 to the Company's Annual Report on
Form 10-K filed March 12, 1998)
4.1 -- Form of Certificate evidencing ownership of Common Stock of
the Company (Incorporated by reference to Exhibit 4.1 to
Amendment No. 2 to the Registration Statement on Form S-1
(File No. 333-13101))
4.2 -- Credit Agreement, dated as of January 14, 1998 by and
between Medical Corporation, a Delaware corporation as
Borrower, and Barnett Bank, N.A., a national banking
association, and its successors and assigns as Lender
(Incorporated by reference to Exhibit 4.2 to the Company's
Annual Report on Form 10-K filed March 12, 1998)
5 -- Opinion of Akerman, Senterfitt & Eidson, P.A.*
10.1 -- 1996 Long-Term Incentive Plan of the Company (Incorporated
by reference to Exhibit 10.1 to Amendment No. 3 to the
Registration Statement on Form S-1 (File No. 333-13101))
10.2 -- Amended and Restated 1996 Non-Employee Directors' Stock Plan
of the Company (incorporated by reference to Exhibit 10.2 to
the Company's Annual Report on Form 10-K filed March 12,
1998)
10.3 -- Employment Agreement between the Company and Michael A.
Singer (Incorporated by reference to Exhibit 10.3 to the
Company's Annual Report on Form 10-K filed April 10, 1997)
10.4 -- Employment Agreement between the Company and Richard W.
Mehrlich (Incorporated by reference to Exhibit 10.4 to the
Company's Annual Report on Form 10-K filed April 10, 1997)
10.5 -- Employment Agreement between the Company and John H. Kang
(Incorporated by reference to Exhibit 10.5 to the Company's
Annual Report on Form 10-K filed April 10, 1997)
10.6 -- Employment Agreement between the Company and Frederick B.
Karl, Jr. (Incorporated by reference to Exhibit 10.6 to the
Company's Annual Report on Form 10-K filed April 10, 1997.)
10.7 -- Employment Agreement, dated as of November 25, 1996, between
the Company and Lee A. Robbins (Incorporated by reference to
Exhibit 10.7 to Amendment No. 2 to the Registration
Statement on Form S-1 (File No. 333-13101))
10.8 -- Employment Agreement between the Company and Henry W.
Holbrook (Incorporated by reference to Exhibit 10.8 to the
Company's Annual Report on Form 10-K filed April 10, 1997)
10.9 -- Employment Agreement between the Company and Thomas P.
Liddell (Incorporated by reference to Exhibit 10.9 to the
Company's Annual Report on Form 10-K filed April 10, 1997)
10.10 -- Lease between PPI Holding Company, Inc. and Personalized
Programming, Inc., dated March 12, 1996, as amended,
(Incorporated by reference to Exhibit 10.10 to the
Registration Statement on Form S-1 (File No. 333-13101))
10.11 -- Lease between Liddell, L.L.C. and Systems Management, Inc.
(Incorporated by reference to Exhibit 10.11 to the Company's
Annual Report on Form 10-K filed April 10, 1997)
10.12 -- Master License Agreement between Personalized Programming,
Inc. and Systems Plus, Inc. dated November 15, 1982,
together with eight addenda thereto (Incorporated by
reference to Exhibit 10.12 to the Registration Statement on
Form S-1 (File No. 333-13101))
10.13 -- Management Services Agreement and Option Agreement, dated as
of September 1, 1996, between Medix, Inc. and National
Medical Systems, Inc. (Incorporated by reference to Exhibit
10.13 to Amendment No. 1 to the Registration Statement on
Form S-1 (File No. 333-13101))
10.14 -- Stock Purchase Agreement, dated as of December 26, 1996, by
and among the Company, National Medical Systems, Inc. and
Electronic Data Systems Corporation (Incorporated by
reference to Exhibit 10.14 to Amendment No. 2 to the
Registration Statement on Form S-1 (File No. 333-13101))
21 -- List of subsidiaries of the Company (incorporated by
reference to Exhibit 10.2 to the Company's Annual Report on
Form 10-K filed March 12, 1998)
</TABLE>
II-3
<PAGE> 5
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <C> <S>
23.1 -- Consent of Coopers & Lybrand L.L.P.*
23.2 -- Consent of Coopers & Lybrand L.L.P.*
23.3 -- Consent of Coopers & Lybrand L.L.P.*
23.4 -- Consent of Akerman, Senterfitt & Eidson, P.A. (included in
its opinion filed as Exhibit 5)*
</TABLE>
- ---------------
* Previously filed.
(b) Financial Statement Schedules
None
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes as follows:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance on Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it is declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and this Offering of such securities at that time shall be
the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant,
Medical Manager Corporation, certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused
this Amendment No. 1 to Registration Statement on Form S-3 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Tampa,
State of Florida, on the 22st day of April, 1998.
MEDICAL MANAGER CORPORATION
By: *
------------------------------------
John H. Kang
President
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement on Form S-3 has been signed below by the
following persons in their capacities on April 22, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
* Chairman of the Board and Chief Executive Officer
- --------------------------------------------- (Principal Executive Officer)
Michael A. Singer
* Vice President and Chief Financial Officer (Principal
- --------------------------------------------- Financial and Accounting Officer)
Lee A. Robbins
* President and Director
- ---------------------------------------------
John H. Kang
/s/ FREDERICK B. KARL, JR. Vice President, General Counsel and Director
- ---------------------------------------------
Frederick B. Karl, Jr.
* Director
- ---------------------------------------------
Courtney F. Jones
* Director
- ---------------------------------------------
Raymond Kurzweil
* Director
- ---------------------------------------------
Richard W. Mehrlich
* Director
- ---------------------------------------------
Chris A. Peifer
By: /s/ FREDERICK B. KARL, JR.
- ---------------------------------------------
Frederick B. Karl, Jr.
Attorney-in-fact
</TABLE>
II-5
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <C> <S>
1 -- Form of Underwriting Agreement
2.1 -- Agreement and Plan of Reorganization, dated as of September
30, 1996, by and among the Company, Personalized
Programming, Inc., PPI Acquisition I Corp. and the
Stockholder named therein (Incorporated by reference to
Exhibit 2.1 to the Registrant's Registration Statement on
Form S-1 (Registration No. 333-13101))
2.2 -- Agreement and Plan of Reorganization, dated as of September
30, 1996, by and among the Company, Systems Plus, Inc.,
Systems Plus Distribution, Inc., SPI Acquisition I Corp.,
SPDI Acquisition I Corp. and the Stockholder named therein
(Incorporated by reference to Exhibit 2.2 to the
Registrant's Registration Statement on Form S-1
(Registration No. 333-13101))
2.3 -- Agreement and Plan of Reorganization, dated as of September
30, 1996, by and among the Company, National Medical
Systems, Inc., NMS Acquisition I Corp. and the Stockholders
named therein (Incorporated by reference to Exhibit 2.3 to
the Registration Statement on Form S-1 (File No. 333-13101))
2.4 -- Agreement and Plan of Reorganization, dated as of September
30, 1996, by and among the Company, RTI Business Systems,
Inc., RTI Acquisition I Corp. and the Stockholders named
therein (Incorporated by reference to Exhibit 2.4 to the
Registration Statement on Form S-1 (File No. 333-13101))
2.5 -- Agreement and Plan of Reorganization, dated as of September
30, 1996, by and among the Company, Systems Management,
Inc., SMI Acquisition I Corp. and the Stockholders named
therein (Incorporated by reference to Exhibit 2.5 to the
Registration Statement on Form S-1 (File No. 333-13101))
2.6 -- Stock for Asset Purchase Agreement dated July 17, 1997, by
and among Medical Manager Northeast, Inc., a New York
corporation; The Computer Clinic, Inc., a New York
corporation; MedPlus of New York, Inc., a New York
corporation; Command Solutions, Inc. d/b/a Great Lakes
Medical Systems, an Ohio corporation; and Michael G.
Sherman, a resident of the state of New York (Incorporated
by reference to Exhibit 2.1 to the Company's Current Report
on Form 8-K dated August 7, 1997)
2.7 -- Asset Purchase Agreement dated as of September 10, 1997, by
and among Medical Manager Midwest, Inc., Professional
Management Systems, Inc. and the Stockholders named herein
(Incorporated by reference to Exhibit 2.1 to the Company's
Current Report on Form 8-K dated September 25, 1997)
2.8 -- Purchase Agreement dated as of September 11, 1997, by and
among Medical Manager Southeast, Inc., National Data
Corporation, CIS Technologies, Inc., AMSC, Inc. and AMSC
Midwest, Inc. (Incorporated by reference to Exhibit 2.2 to
the Company's Current Report on Form 8-K dated September 25,
1997)
2.9 -- Asset Purchase Agreement dated as of December 31, 1997, by
and among Medical Manager Corporation, Blue Cross And Blue
Shield of South Carolina, Companion Technologies
Corporation, and Companion Technologies of Florida, Inc.
(Incorporated by reference to Exhibit 2.1 to the Company's
Current Report on Form 8-K dated January 15, 1998)
2.10 -- Stock Purchase Agreement dated as of December 31, 1997 by
and among Medical Manager Corporation, Blue Cross And Blue
Shield of South Carolina, Companion Technologies
Corporation, and Companion Technologies Corporation of
Texas. (Incorporated by reference to Exhibit 2.2 to the
Company's Current Report on Form 8-K dated January 15, 1998)
3.1 -- Certificate of Incorporation of the Company (Incorporated by
reference to Exhibit 3.1 to the Registration Statement on
Form S-1 (File No. 333-13101))
</TABLE>
<PAGE> 8
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <C> <S>
3.2 -- Amended and Restated Bylaws of the Company (incorporated by
reference to Exhibit 3.2 to the Company's Annual Report on
Form 10-K filed March 12, 1998)
4.1 -- Form of Certificate evidencing ownership of Common Stock of
the Company (Incorporated by reference to Exhibit 4.1 to
Amendment No. 2 to the Registration Statement on Form S-1
(File No. 333-13101))
4.2 -- Credit Agreement, dated as of January 14, 1998 by
and-between Medical Corporation, a Delaware corporation as
Borrower, and Barnett Bank, N.A.,a national banking
association, and its successors and assigns as Lender
(Incorporated by reference to Exhibit 4.2 to the Company's
Annual Report on Form 10-K filed March 12, 1998)
5 -- Opinion of Akerman, Senterfitt & Eidson, P.A.*
10.1 -- 1996 Long-Term Incentive Plan of the Company (Incorporated
by reference to Exhibit 10.1 to Amendment No. 3 to the
Registration Statement on Form S-1 (File No. 333-13101))
10.2 -- Amended and Restated 1996 Non-Employee Directors' Stock Plan
of the Company (incorporated by reference to Exhibit 10.2 to
the Company's Annual Report on Form 10-K filed March 12,
1998)
10.3 -- Employment Agreement between the Company and Michael A.
Singer (Incorporated by reference to Exhibit 10.3 to the
Company's Annual Report on Form 10-K filed April 10, 1997)
10.4 -- Employment Agreement between the Company and Richard W.
Mehrlich (Incorporated by reference to Exhibit 10.4 to the
Company's Annual Report on Form 10-K filed April 10, 1997)
10.5 -- Employment Agreement between the Company and John H. Kang
(Incorporated by reference to Exhibit 10.5 to the Company's
Annual Report on Form 10-K filed April 10, 1997)
10.6 -- Employment Agreement between the Company and Frederick B.
Karl, Jr. (Incorporated by reference to Exhibit 10.6 to the
Company's Annual Report on Form 10-K filed April 10, 1997.)
10.7 -- Employment Agreement, dated as of November 25, 1996, between
the Company and Lee A. Robbins (Incorporated by reference to
Exhibit 10.7 to Amendment No. 2 to the Registration
Statement on Form S-1 (File No. 333-13101))
10.8 -- Employment Agreement between the Company and Henry W.
Holbrook (Incorporated by reference to Exhibit 10.8 to the
Company's Annual Report on Form 10-K filed April 10, 1997)
10.9 -- Employment Agreement between the Company and Thomas P.
Liddell (Incorporated by reference to Exhibit 10.9 to the
Company's Annual Report on Form 10-K filed April 10, 1997)
10.10 -- Lease between PPI Holding Company, Inc. and Personalized
Programming, Inc., dated March 12, 1996, as amended,
(Incorporated by reference to Exhibit 10.10 to the
Registration Statement on Form S-1 (File No. 333-13101))
10.11 -- Lease between Liddell, L.L.C. and Systems Management, Inc.
(Incorporated by reference to Exhibit 10.11 to the Company's
Annual Report on Form 10-K filed April 10, 1997)
10.12 -- Master License Agreement between Personalized Programming,
Inc. and Systems Plus, Inc. dated November 15, 1982,
together with eight addenda thereto (Incorporated by
reference to Exhibit 10.12 to the Registration Statement on
Form S-1 (File No. 333-13101))
10.13 -- Management Services Agreement and Option Agreement, dated as
of September 1, 1996, between Medix, Inc. and National
Medical Systems, Inc. (Incorporated by reference to Exhibit
10.13 to Amendment No. 1 to the Registration Statement on
Form S-1 (File No. 333-13101))
10.14 -- Stock Purchase Agreement, dated as of December 26, 1996, by
and among the Company, National Medical Systems, Inc. and
Electronic Data Systems Corporation (Incorporated by
reference to Exhibit 10.14 to Amendment No. 2 to the
Registration Statement on Form S-1 (File No. 333-13101))
21 -- List of subsidiaries of the Company (incorporated by
reference to Exhibit 10.2 to the Company's Annual Report on
Form 10-K filed March 12, 1998)
</TABLE>
<PAGE> 9
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <C> <S>
23.1 -- Consent of Coopers & Lybrand L.L.P.*
23.2 -- Consent of Coopers & Lybrand L.L.P.*
23.3 -- Consent of Coopers & Lybrand L.L.P.*
23.4 -- Consent of Akerman, Senterfitt & Eidson, P.A. (included in
its opinion filed as Exhibit 5)*
</TABLE>
- ---------------
* Previously filed.
<PAGE> 1
Exhibit 1
2,500,000 Shares
MEDICAL MANAGER CORPORATION
Common Stock
FORM OF UNDERWRITING AGREEMENT
April __, 1998
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
MORGAN STANLEY & CO. INCORPORATED
SMITH BARNEY INC.
RAYMOND JAMES & ASSOCIATES, INC.
As representatives of the several Underwriters
named in Schedule I hereto
c/o Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
Medical Manager Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the several underwriters named in Schedule I
hereto (the "UNDERWRITERS"), and certain stockholders of the Company named in
Schedule II hereto (the "SELLING STOCKHOLDERS") severally propose to sell to the
several Underwriters, an aggregate of 2,500,000 shares of the common stock, par
value $.01 per share, of the Company (the "FIRM SHARES"), of which 1,500,000
shares are to be issued and sold by the Company and 1,000,000 shares are to be
sold by the Selling Stockholders, each Selling Stockholder selling the amount
set forth opposite such Selling Stockholder's name in Schedule II hereto. The
Company also proposes to issue and sell and the Selling Stockholders propose to
sell to the several Underwriters not more than an additional 375,000 shares of
the common stock, par value $.01 per share, of the Company (the "ADDITIONAL
SHARES") if requested by the Underwriters as provided in Section 2 hereof. The
Firm Shares and the Additional Shares are hereinafter referred to collectively
as the "SHARES". The shares of common stock of the Company to be outstanding
after giving effect to the sales contemplated hereby are hereinafter referred to
as the "COMMON STOCK". The Company and the Selling Stockholders are hereinafter
sometimes referred to collectively as the "SELLERS."
SECTION 1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"COMMISSION") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the
<PAGE> 2
Commission thereunder (collectively, the "ACT"), a registration statement on
Form S-3, including a prospectus, relating to the Shares. The registration
statement, as amended at the time it became effective, including the information
(if any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A under the Act, is hereinafter referred to as
the "REGISTRATION STATEMENT"; and the prospectus in the form first used to
confirm sales of Shares is hereinafter referred to as the "PROSPECTUS"
(including, in the case of all references to the Registration Statement or the
Prospectus, documents incorporated therein by reference). If the Company has
filed or is required pursuant to the terms hereof to file a registration
statement pursuant to Rule 462(b) under the Act registering additional shares of
Common Stock (a "RULE 462(B) REGISTRATION STATEMENT"), then, unless otherwise
specified, any reference herein to the term "Registration Statement" shall be
deemed to include such Rule 462(b) Registration Statement. The terms
"SUPPLEMENT" and "AMENDMENT" or "AMEND" as used in this Agreement with respect
to the Registration Statement or the Prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "EXCHANGE ACT") that are deemed to be
incorporated by reference in the Prospectus.
SECTION 2. Agreements to Sell and Purchase and Lock-Up Agreements. On the basis
of the representations and warranties contained in this Agreement, and subject
to its terms and conditions, (i) the Company agrees to issue and sell 1,500,000
Firm Shares, (ii) each Selling Stockholder agrees, severally and not jointly, to
sell the number of Firm Shares set forth opposite such Selling Stockholder's
name in Schedule II hereto and (iii) each Underwriter agrees, severally and not
jointly, to purchase from each Seller at a price per Share of $______ (the
"PURCHASE PRICE") the number of Firm Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the same proportion
to the total number of Firm Shares to be sold by such Seller as the number of
Firm Shares set forth opposite the name of such Underwriter in Schedules I
hereto bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell and the Selling Stockholders agree to sell the Additional Shares and
the Underwriters shall have the right to purchase, severally and not jointly, up
to 375,000 Additional Shares from the Company and the Selling Stockholders at
the Purchase Price. Of the 375,000 Additional Shares, 225,000 shall be issued
and sold to the Underwriter by the Company and 75,000 shares each will be sold
to the Underwriters by the two Selling Stockholders. Additional Shares may be
purchased solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. The Underwriters may exercise their right
to purchase Additional Shares in whole or in part from time to time by giving
written notice thereof to the Company within 30 days after the date of this
Agreement. Donaldson, Lufkin & Jenrette Securities Corporation shall give any
such notice on behalf of the Underwriters and such notice shall specify the
aggregate number of Additional Shares to be purchased pursuant to such exercise
and the date for payment and delivery thereof, which date shall be a business
day (i) no earlier than two business days after such notice has been given (and,
in any event, no earlier than the Closing Date (as hereinafter defined)) and
(ii) no later than ten business days after such notice has been given. If any
2
<PAGE> 3
Additional Shares are to be purchased, each Underwriter, severally and not
jointly, agrees to purchase from the Company the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as you may
determine) which bears the same proportion to the total number of Additional
Shares to be purchased from the Company as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I bears to the total number of
Firm Shares.
Each Seller hereby agrees not to (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, 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 arrangement that transfers all or a portion of
the economic consequences associated with the ownership of any Common Stock
(regardless of whether any of the transactions described in clause (i) or (ii)
is to be settled by the delivery of Common Stock, or such other securities, in
cash or otherwise), except to the Underwriters pursuant to this Agreement, for a
period of 90 days after the date of the Prospectus without the prior written
consent of Donaldson, Lufkin & Jenrette Securities Corporation. Notwithstanding
the foregoing, during such period, (i) the Company may issue shares of Common
Stock (or other securities convertible into or exchangeable or exercisable for
Common Stock or derivatives therefrom) in connection with the acquisition of
another business (whether in an asset purchase, stock purchase, merger, joint
venture or other type of transaction), (ii) the Company may grant stock options
pursuant to the Company's existing stock option plans, and (iii) the Company may
issue shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof. The Company also agrees
not to file any registration statement with respect to any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock for a period of 90 days after the date of the Prospectus without
the prior written consent of Donaldson, Lufkin & Jenrette Securities
Corporation, except to the extent that the Company may become obligated to do so
pursuant to an existing contractual obligation. In addition, each Selling
Stockholder agrees that, for a period of 90 days after the date of the
Prospectus without the prior written consent of Donaldson, Lufkin & Jenrette
Securities Corporation, it will not make any demand for, or exercise any right
with respect to, the registration of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock. The
Company shall, prior to or concurrently with the execution of this Agreement,
deliver an agreement executed by (i) each Selling Stockholder, (ii) each of the
directors and officers of the Company who is not a Selling Stockholder and (iii)
each stockholder listed on Annex I hereto to the effect that such person will
not, during the period commencing on the date such person signs such agreement
and ending 90 days after the date of the Prospectus, without the prior written
consent of Donaldson, Lufkin & Jenrette Corporation, (A) engage in any of the
transactions described in this paragraph or (B) make any demand for, or exercise
any right with respect to, the registration of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock.
Notwithstanding the foregoing, no currently existing pledge pursuant to a loan
facility or margin arrangement with a financial institution or brokerage firm
shall be prohibited or otherwise restricted.
3
<PAGE> 4
SECTION 3. Terms of Public Offering. The Sellers are advised by you
that the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the execution and delivery of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. The Shares shall be represented by
definitive certificates and shall be issued in such authorized denominations and
registered in such names as Donaldson, Lufkin & Jenrette Securities Corporation
shall request no later than two business days prior to the Closing Date or the
applicable Option Closing Date (as defined below), as the case may be. The
Shares shall be delivered by or on behalf of the Sellers, with any transfer
taxes thereon duly paid by the respective Sellers, to Donaldson, Lufkin &
Jenrette Securities Corporation through the facilities of The Depository Trust
Company ("DTC"), for the respective accounts of the several Underwriters,
against payment to the Sellers of the Purchase Price therefore by wire transfer
of Federal or other funds immediately available in New York City. The
certificates representing the Shares shall be made available for inspection not
later than 9:30 A.M., New York City time, on the business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be, at the
office of DTC or its designated custodian (the "DESIGNATED OFFICE"). The time
and date of delivery and payment for the Firm Shares shall be 9:00 A.M., New
York City time, on April __, 1998 or such other time on the same or such other
date as Donaldson, Lufkin & Jenrette Securities Corporation and the Company
shall agree in writing. The time and date of delivery and payment for the Firm
Shares are hereinafter referred to as the "CLOSING DATE". The time and date of
delivery and payment for any Additional Shares to be purchased by the
Underwriters shall be 9:00 A.M., New York City time, on the date specified in
the applicable exercise notice given by you pursuant to Section 2 or such other
time on the same or such other date as Donaldson, Lufkin & Jenrette Securities
Corporation and the Company shall agree in writing. The time and date of
delivery and payment for any Additional Shares are hereinafter referred to as
the "OPTION CLOSING DATE".
SECTION 5. Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, (iii) when any amendment to the
Registration Statement becomes effective, (iv) if the Company is required to
file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, when the Rule 462(b) Registration Statement has become effective and
(v) of the happening of any event during the period referred to in Section 5(d)
below which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires any additions to or changes
in the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will use
its best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
4
<PAGE> 5
(b) To furnish you five signed copies of the Registration Statement as
first filed with the Commission and of each amendment to it, including all
exhibits and documents incorporated therein by reference, and to furnish to you
and each Underwriter designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without exhibits
but including documents incorporated therein by reference, as you may reasonably
request.
(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to you, and to file the Prospectus in such form with the Commission
within the applicable period specified in Rule 424(b) under the Act; during the
period specified in Section 5(d) below, not to file any further amendment to the
Registration Statement and not to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to which you
shall reasonably object after being so advised; and, during such period, to
prepare and file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or amendment or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Shares by you, and to use its best efforts to cause any such
amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
and any documents incorporated therein by reference as such Underwriter or
dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall
occur or condition shall exist as a result of which, in the opinion of counsel
for the Underwriters, it becomes necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend or supplement
the Prospectus to comply with applicable law, forthwith to prepare and file with
the Commission an appropriate amendment or supplement to the Prospectus so that
the statements in the Prospectus, as so amended or supplemented, will not in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with applicable law, and to furnish to each
Underwriter and to any dealer as many copies thereof as such Underwriter or
dealer may reasonably request.
(f) Prior to any public offering of the Shares, to cooperate with you
and counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the state securities or Blue Sky laws of such jurisdictions as
you may request, to continue such registration or qualification in effect so
long as required for distribution of the Shares and to file such consents to
service of process or other documents as may be necessary in order to effect
such registration or qualification; provided, however, that the Company shall
not be required in connection therewith to qualify as a foreign
5
<PAGE> 6
corporation in any jurisdiction in which it is not now so qualified or to take
any action that would subject it to general consent to service of process or
taxation other than as to matters and transactions relating to the Prospectus,
the Registration Statement, any preliminary prospectus or the offering or sale
of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as
practicable an earnings statement covering the twelve-month period ending June
30, 1999 that shall satisfy the provisions of Section 11(a) of the Act, and to
advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement,
to furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of Common Stock or furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed and such other publicly available
information concerning the Company and its subsidiaries as you may reasonably
request.
(i) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of the Sellers' obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the Company's
counsel, the Company's accountants and any Selling Stockholder's counsel (in
addition to the Company's counsel) in connection with the registration and
delivery of the Shares under the Act and all other fees and expenses in
connection with the preparation, printing, filing and distribution of the
Registration Statement (including financial statements and exhibits), any
preliminary prospectus, the Prospectus and all amendments and supplements to any
of the foregoing, including the mailing and delivering of copies thereof to the
Underwriters and dealers in the quantities specified herein, (ii) all costs and
expenses related to the transfer and delivery of the Shares to the Underwriters,
including any transfer or other taxes payable thereon, (iii) all costs of
printing or producing this Agreement and any other agreements or documents in
connection with the offering, purchase, sale or delivery of the Shares, (iv) all
expenses in connection with the registration or qualification of the Shares for
offer and sale under the securities or Blue Sky laws of the several states and
all costs of printing or producing any Preliminary and Supplemental Blue Sky
Memoranda in connection therewith (including the filing fees and fees and
disbursements of counsel for the Underwriters in connection with such
registration or qualification and memoranda relating thereto), (v) the filing
fees and disbursements of counsel for the Underwriters in connection with the
review and clearance of the offering of the Shares by the National Association
of Securities Dealers, Inc., (vi) all costs and expenses incident to the listing
of the Shares on the Nasdaq National Market, (vii) the cost of printing
certificates representing the Shares, (viii) the costs and charges of any
transfer agent, registrar and/or depositary, and (ix) all other costs and
expenses incident to the performance of the obligations of the Company and the
Selling Stockholders hereunder for which provision is not otherwise made in this
Section. The provisions of this Section shall not supersede or otherwise affect
any agreement that the Company and the Selling Stockholders may otherwise have
for allocation of such expenses among themselves.
6
<PAGE> 7
(j) To use its best efforts to list for quotation the Shares on the
Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq
National Market, or a national securities exchange, for a period of three years
after the date of this Agreement.
(k) During the period of three years after the date of this Agreement,
to mail and make generally available as soon as practicable after the end of
each fiscal year to the record holders of its Common Stock a financial report of
the Company and its subsidiaries on a consolidated basis (and a similar
financial report of all unconsolidated subsidiaries, if any), all such financial
reports to include a consolidated balance sheet, a consolidated statement of
operations, a consolidated statement of cash flows and a consolidated statement
of shareholders' equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year, certified by
independent public accountants, and to mail and make generally available as soon
as practicable after the end of each quarterly period (except for the last
quarterly period of each fiscal year) to such holders, a consolidated balance
sheet, a consolidated statement of operations and a consolidated statement of
cash flows (and similar financial reports of all unconsolidated subsidiaries, if
any) as of the end of and for such period, and for the period from the beginning
of such year to the close of such quarterly period, together with comparable
information for the corresponding periods of the preceding year.
(l) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company prior to
the Closing Date or any Option Closing Date, as the case may be, and to satisfy
all conditions precedent to the delivery of the Shares.
(m) If the Registration Statement at the time of the effectiveness of
this Agreement does not cover all of the Shares, to file a Rule 462(b)
Registration Statement with the Commission registering the Shares not so covered
in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of
this Agreement and to pay to the Commission the filing fee for such Rule 462(b)
Registration Statement at the time of the filing thereof or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
7
<PAGE> 8
SECTION 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective (other than any
Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement); any Rule 462(b) Registration Statement filed
after the effectiveness of this Agreement will become effective no later than
10:00 P.M., New York City time, on the date of this Agreement; and no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act, (ii) the
Registration Statement (other than any Rule 462(b) Registration Statement to be
filed by the Company after the effectiveness of this Agreement), when it became
effective, did not contain and, as amended, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement (other than any Rule 462(b) Registration
Statement to be filed by the Company after the effectiveness of this Agreement)
and the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Act, (iv) if the Company is required to
file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, such Rule 462(b) Registration Statement and any amendments thereto,
when they become effective (A) 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 and (B) will comply in
all material respects with the Act and (v) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this paragraph do not apply to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in any
preliminary prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
(d) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and
8
<PAGE> 9
has the corporate power and authority to carry on its business as described in
the Prospectus and to own, lease and operate its properties, and each is duly
qualified and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole.
(e) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens granted or issued by
the Company or any of its subsidiaries relating to or entitling any person to
purchase or otherwise to acquire any shares of the capital stock of the Company
or any of its subsidiaries, except as otherwise disclosed in the Registration
Statement.
(f) All the outstanding shares of capital stock of the Company
(including the Shares to be sold by the Selling Stockholders) have been duly
authorized and validly issued and are fully paid, non-assessable and not subject
to any preemptive or similar rights; and the Shares to be issued and sold by the
Company have been duly authorized and, when issued and delivered to the
Underwriters against payment therefor as provided by this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such Shares
will not be subject to any preemptive or similar rights.
(g) All of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature.
(h) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(i) Neither the Company nor any of its subsidiaries is in violation of
its respective charter or by-laws or in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
the Company and its subsidiaries, taken as a whole, to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound.
(j) The execution, delivery and performance of this Agreement by the
Company, the compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not (i) require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states), (ii) conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the charter or by-laws of the Company or any of its subsidiaries or any
indenture, loan agreement, mortgage, lease or other agreement or instrument that
is material to the Company and its subsidiaries, taken as a whole, to which the
Company or any of its subsidiaries is a party or by which the Company or
9
<PAGE> 10
any of its subsidiaries or their respective property is bound, (iii) violate or
conflict with any applicable law or any rule, regulation, judgment, order or
decree of any court or any governmental body or agency having jurisdiction over
the Company, any of its subsidiaries or their respective property or (iv) result
in the suspension, termination or revocation of any Authorization (as defined
below) of the Company or any of its subsidiaries or any other impairment of the
rights of the holder of any such Authorization.
(k) There are no legal or governmental proceedings pending or, to the
best of the Company's knowledge, threatened to which the Company or any of its
subsidiaries is or could be a party or to which any of their respective property
is or could be subject that are required to be described in the Registration
Statement or the Prospectus and are not so described; nor are there any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not so described or filed as
required.
(l) Neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), any provisions of the
Employee Retirement Income Security Act of 1974, as amended, or any provisions
of the Foreign Corrupt Practices Act or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the aggregate, would
not have a material adverse effect on the business, prospects, financial
condition or results of operation of the Company and its subsidiaries, taken as
a whole.
(m) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "AUTHORIZATION") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole. Each such Authorization is valid and in full
force and effect and each of the Company and its subsidiaries is in compliance
with all the terms and conditions thereof and with the rules and regulations of
the authorities and governing bodies having jurisdiction with respect thereto;
and no event has occurred (including, without limitation, the receipt of any
notice from any authority or governing body) which allows or, after notice or
lapse of time or both, would allow, revocation, suspension or termination of any
such Authorization or results or, after notice or lapse of time or both, would
result in any other impairment of the rights of the holder of any such
Authorization; and such Authorizations contain no restrictions that are
burdensome to the Company or any of its subsidiaries; except where such failure
to be valid and in full force and effect or to be in compliance, the occurrence
of any such event or the presence of any such restriction would not, singly or
in the aggregate, have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
10
<PAGE> 11
(n) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental
Laws or any Authorization, any related constraints on operating activities and
any potential liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole.
(o) The Company owns or possesses enforceable licenses or other rights
to use all patents, patent applications, trademarks, trademark registrations,
service marks, service mark registrations, trade names, copyrights, trade
secrets and know-how (including without limitation, rights in and to computer
software) (collectively, the "Intellectual Property") which are described in the
Prospectus as owned or used by it or which are necessary for the conduct of its
business as now conducted or proposed to be conducted in the Prospectus, and the
Company is not aware of any claim by a third party to the contrary. To the best
of the Company's knowledge, none of the Company's products, services or
Intellectual Property infringes or conflicts with the rights or claims of
others. The Company knows of no infringement by others of the Company's
Intellectual Property which might result in a material adverse effect or change
in the business, prospects, financial condition or results of operation of the
Company and its subsidiaries taken as a whole.
(p) Except as otherwise set forth in the Prospectus or such as are not
material to the business, prospects, financial condition or results of operation
of the Company and its subsidiaries, taken as a whole, the Company and each of
its subsidiaries has good and marketable title, free and clear of all liens,
claims, encumbrances and restrictions except liens for taxes not yet due and
payable, to all property and assets described in the Registration Statement as
being owned by it. All leases to which the Company or any of its subsidiaries is
a party are valid and binding and no default has occurred or is continuing
thereunder, which might result in any material adverse change in the business,
prospects, financial condition or results of operation of the Company and its
subsidiaries taken as a whole, and the Company and its subsidiaries enjoy
peaceful and undisturbed possession under all such leases to which any of them
is a party as lessee with such exceptions as do not materially interfere with
the use made by the Company or such subsidiary.
(q) The Company and each of its subsidiaries maintain reasonably
adequate insurance and, to their best knowledge, believe that they will be able
to renew such insurance when it expires.
(r) This Agreement has been duly authorized, executed and delivered by
the Company.
(s) Coopers & Lybrand L.L.P. are independent public accountants with
respect to the Company and its subsidiaries as required by the Act.
(t) The consolidated financial statements included in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), together
with related schedules and
11
<PAGE> 12
notes, present fairly the consolidated financial position, results of operations
and changes in financial position of the Company and its subsidiaries on the
basis stated therein at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; the supporting schedules, if any, included in the Registration
Statement present fairly in accordance with generally accepted accounting
principles the information required to be stated therein; and the other
financial and statistical information and data set forth in the Registration
Statement and the Prospectus (and any amendment or supplement thereto) are, in
all material respects, accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the Company.
(u) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described in
the Prospectus, will not be, an "investment company" as such term is defined in
the Investment Company Act of 1940, as amended.
(v) The Company has registered the Common Stock pursuant to Section
12(g) of the Exchange Act, has filed an application to list the Shares on the
Nasdaq National Market, and has received notification that the listing has been
approved, subject to notice of issuance of the Shares.
(w) Except as disclosed in the Prospectus, there are no business
relationships or related party transactions required to be disclosed therein by
Item 404 of Regulation S-K of the Commission.
(x) There is (i) no significant unfair labor practice complaint pending
against the Company or any of its subsidiaries or, to the best of the Company's
knowledge, threatened against any of them, before the National Labor Relations
Board or any state or local labor relations board, and no significant grievance
or more significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Company or any of its
subsidiaries or, to the best of the Company's knowledge, threatened against any
of them, and (ii) no significant strike, labor dispute, slowdown or stoppage
pending against the Company or any of its subsidiaries or, to the best of the
Company's knowledge, threatened against it or any of its subsidiaries except for
such actions specified in clause (i) or (ii) above, which, singly or in the
aggregate could not reasonably be expected to have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(y) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit the
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded
12
<PAGE> 13
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(z) All material tax returns required to be filed by the Company and
each of its subsidiaries in any jurisdiction have been filed, other than those
filings being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other charges
due pursuant to such returns or pursuant to any assessment received by the
Company or any of its subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have been provided.
(aa) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement and the consummation of the transactions contemplated
herein (except (i) such additional steps as may be required by the NASD or may
be necessary to qualify the Shares for public offering by the Underwriters under
state securities or Blue Sky laws and (ii) such approvals, consents, orders,
authorizations, designations, declarations and filings the absence of which does
not and will not have a material adverse effect on the business or financial
condition of the Company and each of its subsidiaries taken as a whole) has been
obtained or made as of the Closing Date, or the Option Closing Date, as the case
may be, and is in full force and effect as of the Closing Date, or Option
Closing Date, as the case may be. All consents and waivers from all other
persons required in connection with the execution and delivery by the Company of
this Agreement and the consummation of the transactions contemplated herein have
been obtained or made and are in full force and effect as of the Closing Date
(except such consents and waivers the absence of which do not and will not have
a material adverse effect on the business or financial condition of the Company
and each of its subsidiaries taken as a whole).
(bb) Neither the Company nor, to the Company's knowledge, any of its
affiliates or subsidiaries, has taken or may take, directly or indirectly, any
action designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of stock to facilitate the sale or resale of the Shares.
(cc) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from transferring
any of such subsidiary's property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated by the
Prospectus.
(dd) The Company has obtained from each of the persons listed on Annex
I hereto their agreement that for a period of 90 days from the date of this
Agreement they will not, without the prior consent of Donaldson, Lufkin Jenrette
Securities Corporation, offer, sell or dispose of any shares of Common Stock of
the Company, or any securities convertible into, exercisable for, or
exchangeable for any shares of Common Stock or derivative therefrom owned by
them.
13
<PAGE> 14
(ee) Except as described in the Registration Statement, the Company and
its subsidiaries are not subject to any costs or liabilities, whether current,
future or contingent, arising out of or relating to the acquisitions of each of
the Purchased Companies and the Acquired Companies by the Company or its
subsidiaries, as the case may be, which, singly or in the aggregate, would have
a material adverse effect on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries taken as a whole.
(ff) The Company has complied in all material respects with all of its
obligations relating to the registration rights of certain of its executive
officers and directors and certain other stockholders of the Company with
respect to shares of Common Stock owned by such individuals or entities.
(gg) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there has not occurred any material adverse change or any development involving
a prospective material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not been any material adverse
change or any development involving a prospective material adverse change in the
capital stock or in the long-term debt of the Company or any of its subsidiaries
and (iii) neither the Company nor any of its subsidiaries has incurred any
material liability or obligation, direct or contingent.
SECTION 7. Representations and Warranties of the Selling Stockholders.
Each Selling Stockholder represents and warrants to each Underwriter that:
(a) Such Selling Stockholder is the lawful owner of the Shares to be
sold by such Selling Stockholder pursuant to this Agreement and has, and on the
Closing Date will have, good and clear title to such Shares, free of all
restrictions on transfer, liens, encumbrances, security interests, equities and
claims whatsoever.
(b) The Shares to be sold by such Selling Stockholder have been duly
authorized and are validly issued, fully paid and non-assessable.
(c) Such Selling Stockholder has, and on the Closing Date will have,
full legal right, power and authority, and all authorization and approval
required by law, to enter into this Agreement, the Custody Agreement signed by
such Selling Stockholder and American Stock Transfer and Trust Company, as
Custodian, relating to the deposit of the Shares to be sold by such Selling
Stockholder (the "CUSTODY AGREEMENT") and the Power of Attorney of such Selling
Stockholder appointing certain individuals as such Selling Stockholder's
attorneys-in-fact (the "ATTORNEYS") to the extent set forth therein, relating to
the transactions contemplated hereby and by the Registration Statement and the
Custody Agreement (the "POWER OF ATTORNEY") and to sell, assign, transfer and
deliver the Shares to be sold by such Selling Stockholder in the manner provided
herein and therein.
14
<PAGE> 15
(d) This Agreement has been duly authorized, executed and delivered by
or on behalf of such Selling Stockholder.
(e) The Custody Agreement of such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder and is a valid
and binding agreement of such Selling Stockholder, enforceable in accordance
with its terms.
(f) The Power of Attorney of such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder and is a valid
and binding instrument of such Selling Stockholder, enforceable in accordance
with its terms, and, pursuant to such Power of Attorney, such Selling
Stockholder has, among other things, authorized the Attorneys, or any one of
them, to execute and deliver on such Selling Stockholder's behalf this Agreement
and any other document that they, or any one of them, may deem necessary or
desirable in connection with the transactions contemplated hereby and thereby
and to deliver the Shares to be sold by such Selling Stockholder pursuant to
this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by such
Selling Stockholder pursuant to this Agreement, good and clear title to such
Shares will pass to the Underwriters, free of all restrictions on transfer,
liens, encumbrances, security interests, equities and claims whatsoever.
(h) The execution, delivery and performance of this Agreement and the
Custody Agreement and Power of Attorney of such Selling Stockholder by or on
behalf of such Selling Stockholder, the compliance by such Selling Stockholder
with all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not (i) require any consent,
approval, authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of the various states), (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the
organizational documents of such Selling Stockholder, if such Selling
Stockholder is not an individual, or any indenture, loan agreement, mortgage,
lease or other agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder or any property of such Selling
Stockholder is bound or (iii) violate or conflict with any applicable law or any
rule, regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over such Selling Stockholder or any property
of such Selling Stockholder.
(i) The information in the Registration Statement under the caption
"Principal and Selling Stockholders" which specifically relates to such Selling
Stockholder does not, and will not on the Closing Date, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(j) At any time during the period described in Section 5(d), if there
is any change in the information referred to in Section 7(i), such Selling
Stockholder will immediately notify you of such change.
15
<PAGE> 16
(k) Each certificate signed by or on behalf of such Selling Stockholder
and delivered to the Underwriters or counsel for the Underwriters shall be
deemed to be a representation and warranty by such Selling Stockholder to the
Underwriters as to the matters covered thereby.
SECTION 8. Indemnification. (a) The Sellers, jointly and severally,
agree to indemnify and hold harmless each Underwriter, its directors, its
officers and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and judgments
(including, without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter, including any action,
that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Underwriter furnished in writing to the Company by such Underwriter
through you expressly for use therein provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter who failed to deliver a Prospectus, as then
amended or supplemented, (so long as the Prospectus and any amendment or
supplement thereto was provided by the Company to the several Underwriters in
the requisite quantity and on a timely basis to permit proper delivery on or
prior to the Closing Date) to the person asserting any losses, claims, damages,
liabilities or judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in such preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, if
such material misstatement or omission or alleged material misstatement or
omission was cured in the Prospectus, as so amended or supplemented, and such
Prospectus was required by law to be delivered at or prior to the written
confirmation of sale to such person. Notwithstanding the foregoing, the
aggregate liability of any Selling Stockholder pursuant to this Section 8(a)
shall be limited to an amount equal to the total proceeds (before deducting
underwriting discounts and commissions and expenses) received by such Selling
Stockholder from the Underwriters for the sale of the Shares sold by such
Selling Stockholder hereunder.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement, each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, each Selling
Stockholder and each person, if any, who controls such Selling Stockholder
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Sellers to such Underwriter
but only with reference to information relating to such Underwriter furnished in
writing to the Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment
16
<PAGE> 17
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), the Underwriter shall not be required to assume
the defense of such action pursuant to this Section 8(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
such Underwriter). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for (i) the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for all Underwriters, their officers and
directors and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act, (ii)
the fees and expenses of more than one separate firm of attorneys (in addition
to any local counsel) for the Company, its directors, its officers who sign the
Registration Statement and all persons, if any, who control the Company within
the meaning of either such Section and (iii) the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all
Selling Stockholders and all persons, if any, who control any Selling
Stockholder within the meaning of either such Section, and all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters, their officers and directors and such
control persons of any Underwriters, such firm shall be designated in writing by
Donaldson, Lufkin & Jenrette Securities Corporation. In the case of any such
separate firm for the Company and such directors, officers and control persons
of the Company, such firm shall be designated in writing by the Company. In the
case of any such separate firm for the Selling Stockholders and such control
persons of any Selling Stockholders, such firm shall be designated in writing by
the Attorneys. The indemnifying party shall indemnify and hold harmless the
indemnified party from and against any and all losses, claims, damages,
liabilities and judgments by reason of any settlement of any action (i) effected
with its written consent or (ii) effected without its written consent if the
settlement is entered into more than twenty business days after
17
<PAGE> 18
the indemnifying party shall have received a request from the indemnified party
for reimbursement for the fees and expenses of counsel (in any case where such
fees and expenses are at the expense of the indemnifying party) and, prior to
the date of such settlement, the indemnifying party shall have failed to comply
with such reimbursement request. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 8 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Sellers on the one hand and the Underwriters on the other hand from the offering
of the Shares or (ii) if the allocation provided by clause 8(d)(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 8(d)(i) above but also the
relative fault of the Sellers on the one hand and the Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Sellers on the
one hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (after deducting
underwriting discounts and commissions, but before deducting expenses) received
by the Sellers, and the total underwriting discounts and commissions received by
the Underwriters, bear to the total price to the public of the Shares, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault of the Sellers on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Selling Stockholders on the one hand or the Underwriters on the other hand and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Sellers and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any
18
<PAGE> 19
matter, including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which 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 to
contribute pursuant to this Section 8(d) are several in proportion to the
respective number of Shares purchased by each of the Underwriters hereunder and
not joint.
(e) The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) Each Selling Stockholder hereby designates ____________,
________________, as its authorized agent, upon which process may be served in
any action which may be instituted in any state or federal court in the State of
New York by any Underwriter, any director or officer of any Underwriter or any
person controlling any Underwriter asserting a claim for indemnification or
contribution under or pursuant to this Section 8, and each Selling Stockholder
will accept the jurisdiction of such court in such action, and waives, to the
fullest extent permitted by applicable law, any defense based upon lack of
personal jurisdiction or venue. A copy of any such process shall be sent or
given to such Selling Stockholder, at the address for notices specified in
Section 12 hereof.
SECTION 9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same force
and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., New York City
time, on the date of this Agreement; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission.
(c) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by the President and the Chief Financial Officer of the
Company, confirming the matters set forth in Sections, 9(a), 9(b) and 9(d) and
that the Company has complied with all of the agreements and satisfied all of
the conditions herein contained and required to be complied with or satisfied by
the Company on or prior to the Closing Date.
19
<PAGE> 20
(d) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries, taken as
a whole, (ii) there shall not have been any change or any development involving
a prospective change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 9(d)(i),
9(d)(ii) or 9(d)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(e) All the representations and warranties of each Selling Stockholder
contained in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date and you shall
have received on the Closing Date a certificate dated the Closing Date from each
Selling Stockholder to such effect and to the effect that such Selling
Stockholder has complied with all of the agreements and satisfied all of the
conditions herein contained and required to be complied with or satisfied by
such Selling Stockholder on or prior to the Closing Date.
(f) You shall have received on the Closing Date an opinion (reasonably
satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Akerman, Senterfitt & Eidson, P.A., counsel for the Company and the Selling
Stockholders, to the effect that:
(i) each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as described in
the Prospectus and to own, lease and operate its properties;
(ii) each of the Company and its subsidiaries is duly qualified and
is in good standing as a foreign corporation authorized to do business
in each jurisdiction listed on Schedule III hereto;
(iii) all the outstanding shares of capital stock of the Company
(including the Shares to be sold by the Selling Stockholders) have been
duly authorized and validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar rights;
(iv) the Shares to be issued and sold by the Company hereunder have
been duly authorized and, when issued and delivered to the Underwriters
against payment therefor as provided by this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares
will not be subject to any preemptive or similar rights;
20
<PAGE> 21
(v) all of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued and
are fully paid and non-assessable, and are owned by the Company,
directly or indirectly through one or more subsidiaries, to the best of
such counsel's knowledge, free and clear of any security interest,
claim, lien, encumbrance or adverse interest of any nature;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company and by or on behalf of each Selling
Stockholder;
(vii) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus;
(viii) the Registration Statement has become effective under the Act,
no stop order suspending its effectiveness has been issued and no
proceedings for that purpose are, to the best of such counsel's
knowledge, pending before or contemplated by the Commission;
(ix) the statements under the captions "Description of Capital
Stock" and "Underwriting" in the Prospectus and Item 15 of Part II of
the Registration Statement, insofar as such statements constitute a
summary of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such
legal matters, documents and proceedings;
(x) neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws and, to the best of such
counsel's knowledge, neither the Company nor any of its subsidiaries is
in default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage, lease
or other agreement or instrument that is material to the Company and
its subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound;
(xi) the execution, delivery and performance of this Agreement by
the Company, the compliance by the Company with all the provisions
hereof and the consummation of the transactions contemplated hereby
will not (A) require any consent, approval, authorization or other
order of, or qualification with, any court or governmental body or
agency (except such as may be required under the securities or Blue Sky
laws of the various states), (B) conflict with or constitute a breach
of any of the terms or provisions of, or a default under, the charter
or by-laws of the Company or any of its subsidiaries or any indenture,
loan agreement, mortgage, lease or other agreement or instrument that
is material to the Company and its subsidiaries, taken as a whole, to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or their respective property is
bound, (C) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over the Company, any of its
subsidiaries or their respective
21
<PAGE> 22
property or (D) result in the suspension, termination or revocation of
any Authorization of the Company or any of its subsidiaries or any
other impairment of the rights of the holder of any such Authorization;
(xii) such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is or could be a party or to which any of their respective
property is or could be subject that are required to be described in
the Registration Statement or the Prospectus and are not so described,
or of any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not so described or filed as required;
(xiii) to the best of such counsel's knowledge, neither the Company
nor any of its subsidiaries has violated any Environmental Law, any
provisions of the Employee Retirement Income Security Act of 1974, as
amended, or any provisions of the Foreign Corrupt Practices Act or the
rules and regulations promulgated thereunder, except for such
violations which, singly or in the aggregate, would not have a material
adverse effect on the business, prospects, financial condition or
results of operation of the Company and its subsidiaries, taken as a
whole;
(xiv) to the best of such counsel's knowledge, each of the Company
and its subsidiaries has such Authorizations of, and has made all
filings with and notices to, all governmental or regulatory authorities
and self-regulatory organizations and all courts and other tribunals,
including, without limitation, under any applicable Environmental Laws,
as are necessary to own, lease, license and operate its respective
properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would
not, singly or in the aggregate, have a material adverse effect on the
business, prospects, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole; each such
Authorization is valid and in full force and effect and each of the
Company and its subsidiaries is in compliance with all the terms and
conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect
thereto; and no event has occurred (including, without limitation, the
receipt of any notice from any authority or governing body) which
allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in any
other impairment of the rights of the holder of any such Authorization;
and such Authorizations contain no restrictions that are burdensome to
the Company or any of its subsidiaries; except where such failure to be
valid and in full force and effect or to be in compliance, the
occurrence of any such event or the presence of any such restriction
would not, singly or in the aggregate, have a material adverse effect
on the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole;
(xv) the Company is not and, after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be, an
22
<PAGE> 23
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended;
(xvi) (A) each document, if any, filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus (except for financial
statements and other financial data included therein as to which no
opinion need be expressed) complied when so filed as to form with the
Exchange Act, (B) the Registration Statement and the Prospectus and any
supplement or amendment thereto (except for the financial statements
and other financial data included therein as to which no opinion need
be expressed) comply as to form with the Act, (C) such counsel has no
reason to believe that at the time the Registration Statement became
effective or on the date of this Agreement, the Registration Statement
and the prospectus included therein (except for the financial
statements and other financial data as to which such counsel need not
express any belief) contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (D) such
counsel has no reason to believe that the Prospectus, as amended or
supplemented, if applicable (except for the financial statements and
other financial data, as aforesaid) contains any untrue statement of a
material fact or omits 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;
(xvii) to best of such counsel's knowledge, each Selling Stockholder
is the lawful owner of the Shares to be sold by such Selling
Stockholder pursuant to this Agreement and has good and clear title to
such Shares, free of all restrictions on transfer, liens, encumbrances,
security interests, equities and claims whatsoever;
(xviii) each Selling Stockholder has full legal right, power and
authority, and all authorization and approval required by law, to enter
into this Agreement and the Custody Agreement and the Power of Attorney
of such Selling Stockholder and to sell, assign, transfer and deliver
the Shares to be sold by such Selling Stockholder in the manner
provided herein and therein;
(xix) the Custody Agreement of each Selling Stockholder has been
duly authorized, executed and delivered by such Selling Stockholder and
is a valid and binding agreement of such Selling Stockholder,
enforceable in accordance with its terms;
(xx) the Power of Attorney of each Selling Stockholder has been
duly authorized, executed and delivered by such Selling Stockholder and
is a valid and binding instrument of such Selling Stockholder,
enforceable in accordance with its terms, and, pursuant to such Power
of Attorney, such Selling Stockholder has, among other things,
authorized the Attorneys, or any one of them, to execute and deliver on
such Selling Stockholder's behalf this Agreement and any other document
they, or any one of them, may deem necessary or desirable in connection
with the transactions contemplated hereby and thereby and to deliver
the Shares to be sold by such Selling Stockholder pursuant to this
Agreement;
23
<PAGE> 24
(xxi) to the best of such counsel's knowledge after due inquiry, the
Company has complied in all material respects with all of its
obligations relating to the registration rights of certain of its
executive officers and directors and certain other stockholders of the
Company with respect to shares of Common Stock owned by such
individuals or entities.
(xxii) to the best of such counsel's knowledge, upon delivery of and
payment for the Shares to be sold by each Selling Stockholder pursuant
to this Agreement, good and clear title to such Shares will pass to the
Underwriters, free of all restrictions on transfer, liens,
encumbrances, security interests, equities and claims whatsoever; and
(xxiii) the execution, delivery and performance of this Agreement and
the Custody Agreement and Power of Attorney of each Selling Stockholder
by such Selling Stockholder, the compliance by such Selling Stockholder
with all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not (A) require any
consent, approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such as may be
required under the securities or Blue Sky laws of the various states),
(B) conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the organizational documents of such
Selling Stockholder, if such Selling Stockholder is not an individual,
or any indenture, loan agreement, mortgage, lease or other agreement or
instrument to which such Selling Stockholder is a party or by which any
property of such Selling Stockholder is bound or (C) violate or
conflict with any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or agency having
jurisdiction over such Selling Stockholder or any property of such
Selling Stockholder.
In giving such opinions, such counsel may rely, as to matters of fact,
on certificates of officers of the Company and public officials.
The opinion of Akerman, Senterfitt & Eidson, P.A. described in Section
9(f) above shall be rendered to you at the request of the Company and the
Selling Stockholders and shall so state therein.
(g) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Hogan & Hartson, L.L.P., counsel for the Underwriters, as to
the matters referred to in Sections 9(f)(iv), (but only with respect to the
Company), 9(f)(ix) (but only with respect to the statements under the caption
"Description of Capital Stock" and "Underwriting") and clauses 9(f)(xvi)(B),
9(f)(xvi)(C) and 9(f)(xvi)(D).
In giving such opinions with respect to the matters covered by Section
9(f)(xvi), Akerman, Senterfitt & Eidson, P.A. may state that their opinion and
belief are based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and documents
incorporated therein by reference and review and discussion of the contents
thereof, but is without independent check or verification except as
24
<PAGE> 25
specified. In giving such opinions with respect to the matters covered by
clauses 9(f)(xvi)(B), 9(f)(xvi)(C) and 9(f)(xvi)(D) above, Hogan & Hartson
L.L.P. may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto (other than the documents incorporated
therein by reference) and review and discussion of the contents thereof
(including the documents incorporated therein by reference), but are without
independent check or verification except as specified.
(h) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from Coopers & Lybrand L.L.P.,
independent public accountants, containing the information and statements of the
type ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(i) The Company shall have delivered to you the agreements specified in
Section 2 hereof which agreements shall be in full force and effect on the
Closing Date.
(j) The Shares shall have been duly listed, subject to official notice
of issuance, for quotation on the Nasdaq National Market.
(k) The Company and the Selling Stockholders shall not have failed on
or prior to the Closing Date to perform or comply with any of the agreements
herein contained and required to be performed or complied with by the Company or
the Selling Stockholders, as the case may be, on or prior to the Closing Date.
(l) You shall have received on the Closing Date, a certificate of each
Selling Stockholder who is not a U.S. Person (as defined under applicable U.S.
federal tax legislation) to the effect that such Selling Stockholder is not a
U.S. Person, which certificate may be in the form of a properly completed and
executed United States Treasury Department Form W-8 (or other applicable form or
statement specified by Treasury Department regulations in lieu thereof).
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
SECTION 10. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Sellers if any of the following has
occurred: (i) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Shares on the
25
<PAGE> 26
terms and in the manner contemplated in the Prospectus, (ii) the suspension or
material limitation of trading in securities or other instruments on the New
York Stock Exchange, the American Stock Exchange, the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade or the
Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Shares or Additional Shares, as the case may be, which it has or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the total number of Firm Shares or Additional Shares, as the
case may be, to be purchased on such date by all Underwriters, each
non-defaulting Underwriter shall be obligated severally, in the proportion which
the number of Firm Shares set forth opposite its name in Schedule I bears to the
total number of Firm Shares which all the non-defaulting Underwriters have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Firm Shares or Additional
Shares, as the case may be, which any Underwriter has agreed to purchase
pursuant to Section 2 hereof be increased pursuant to this Section 10 by an
amount in excess of one-ninth of such number of Firm Shares or Additional
Shares, as the case may be, without the written consent of such Underwriter. If
on the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased by all Underwriters and arrangements satisfactory to you,
the Company and the Selling Stockholders for purchase of such Firm Shares are
not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter, the Company or
the Selling Stockholders. In any such case which does not result in termination
of this Agreement, either you or the Sellers shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. If, on an Option Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Additional Shares and the aggregate number of Additional Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased on such date, the non-defaulting Underwriters
shall have the option to (i) terminate their obligation hereunder to purchase
such
26
<PAGE> 27
Additional Shares or (ii) purchase not less than the number of Additional Shares
that such non-defaulting Underwriters would have been obligated to purchase on
such date in the absence of such default. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of any such Underwriter under this Agreement.
SECTION 11. Agreements of the Selling Stockholders Each Selling
Stockholder agrees with you and the Company:
(a) To pay or to cause to be paid all transfer taxes payable in
connection with the transfer of the Shares to be sold by such Selling
Stockholder to the Underwriters.
(b) To do and perform all things to be done and performed by such
Selling Stockholder under this Agreement prior to the Closing Date and to
satisfy all conditions precedent to the delivery of the Shares to be sold by
such Selling Stockholder pursuant to this Agreement.
SECTION 12. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company or the
Selling Stockholder, to Medical Manager Corporation, 3001 North Rock Point Drive
East, Suite 100, Tampa, Florida 33607, and (ii) if to any Underwriter or to you,
to you c/o Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park Avenue,
New York, New York 10172, Attention: Syndicate Department, or in any case to
such other address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and the
several Underwriters set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Shares, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, the officers or
directors of any Underwriter, any person controlling any Underwriter, the
Company, the officers or directors of the Company, any person controlling the
Company, any Selling Stockholder or any person controlling such Selling
Stockholder, (ii) acceptance of the Shares and payment for them hereunder and
(iii) termination of this Agreement.
If for any reason the Shares are not delivered by or on behalf of any
Seller as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 10), the Sellers agree, jointly and severally, to
reimburse the several Underwriters for all out-of-pocket expenses (including the
fees and disbursements of counsel) incurred by them. Notwithstanding any
termination of this Agreement, the Company shall be liable for all expenses
which it has agreed to pay pursuant to Section 5(i) hereof. The Sellers also
agree, jointly and severally, to reimburse the several Underwriters, their
directors and officers and any persons controlling any of the Underwriters for
any and all fees and expenses (including, without limitation, the fees
disbursements of counsel) incurred by them in connection with enforcing their
rights hereunder (including, without limitation, pursuant to Section 8 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Selling
Stockholders, the Underwriters, the Underwriters' directors and officers, any
controlling persons referred to herein, the Company's
27
<PAGE> 28
directors and the Company's officers who sign the Registration Statement and
their respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include a
purchaser of any of the Shares from any of the several Underwriters merely
because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
28
<PAGE> 29
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
MEDICAL MANAGER CORPORATION
By:
----------------------------------------
Name:
Title:
THE SELLING STOCKHOLDERS NAMED IN
SCHEDULE II HERETO, ACTING
SEVERALLY
By
----------------------------------------
Attorney-in-fact
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
MORGAN STANLEY & CO. INCORPORATED
SMITH BARNEY INC.
RAYMOND JAMES & ASSOCIATES, INC.
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By
------------------------------
29
<PAGE> 30
SCHEDULE I
<TABLE>
<CAPTION>
Underwriters Number of Firm Shares
- ------------ to be Purchased
---------------------
<S> <C>
Donaldson, Lufkin & Jenrette Securities
Corporation
Morgan Stanley & Co. Incorporated
Smith Barney Inc.
Raymond James & Associates, Inc.
================
Total
</TABLE>
<PAGE> 31
SCHEDULE II
<TABLE>
<CAPTION>
Selling Stockholders
- --------------------
Name Number of Firm
- ---- Shares Being Sold
-----------------
<S> <C>
MAS 1997 Family Limited Partnership 500,000
Richard W. Mehrlich 500,000
---------
=========
Total 1,000,000
</TABLE>
<PAGE> 32
SCHEDULE III
Foreign Jurisdiction Qualifications
-----------------------------------
<PAGE> 33
Annex I
Michael A. Singer
John H. Kang
Richard W. Mehrlich
Lee A. Robbins
John P. Sessions
Frederick B. Karl
Franklyn M. Krieger
Courtney F. Jones
Raymond Kurzweil
Chris A. Peifer
[Electronic Data System Corporation]
COMMENTARY TO UNDERWRITING AGREEMENTS WITH SECONDARY COMPONENTS
1. TRANSFER TAXES. The state of New York imposes a transfer tax on
secondary sales of stock which tax is subsequently reimbursed to the payor. Such
tax is generally payable if the underwriting agreement is signed in New York or
the offering is closed in New York. As a result of the relationship between
Donaldson, Lufkin & Jenrette Securities Corporation and Pershing, a clearing
house, Selling Stockholders participating in the offering need not pay such
transfer tax prior to delivering their Shares. Instead, at the end of each
quarter, Pershing will remit to the state of New York the total amount of the
transfer tax due on all secondary offerings underwritten by Donaldson, Lufkin &
Jenrette Securities Corporation and will simultaneously be reimbursed for the
full amount of the transfer tax. Steve Tyrell at Pershing (201-413-2130 (phone)
and 201-413-5265 (fax)) is in charge of this reimbursement procedure and should
be contacted early in the transaction with an estimate of the taxes.
The tax rate is:
<TABLE>
<CAPTION>
Sale Price Per Share Tax Rate Per Share
-------------------- ------------------
<S> <C>
$20.00 and over $ 0.05
$10.00 - $19.99 $0.0375
$5.00 - $9.99 $ 0.025
Under $5.00 $0.0125
</TABLE>
Although there is a $350 maximum tax on a single taxable sale, a sale by a
selling stockholder to a group of underwriters each of whom is severally liable
for its purchase is treated as a number of
<PAGE> 34
separate sales. (For example, the sale of shares by a single stockholder to a
syndicate consisting of 20 underwriters would have a maximum tax of $350 x 20 =
$7,000.) If there is more than one selling stockholder, the sale of shares by
each selling stockholder to each underwriter is treated as a separate
transaction. (For example, the sale of shares by 20 stockholders to a syndicate
consisting of 20 underwriters would have a maximum tax of $350 x 20 x 20 =
$140,000.)
2. SELLING STOCKHOLDERS. This form assumes that the Selling
Stockholders (i) are not officers or directors of the Company and (ii) do not
control or otherwise exert significant influence over the Company, whether by
ownership of securities of the Company, by contract or otherwise. If the Selling
Stockholders are officers or directors of the Company or control or otherwise
exert significant influence over the Company, then the following changes to this
form should be considered and discussed with Maureen Block in the legal
department of Donaldson, Lufkin & Jenrette Securities Corporation
(415-249-2188).
(a) REPRESENTATIONS AND WARRANTIES AND COVENANTS OF THE COMPANY. If any
Selling Stockholder controls the Company, it may be appropriate for such Selling
Stockholder to make all of the representations and warranties that the Company
makes, jointly and severally, with the Company, and to agree to pay all costs
and expenses in connection with the offering that the Company agrees to pay,
jointly and severally, with the Company.
(b) REPRESENTATIONS AND WARRANTIES OF SELLING STOCKHOLDERS - DISCLOSURE
REPRESENTATION. Each Selling Stockholder's representation regarding the adequacy
and completeness of the offering document is limited to the information provided
by such Stockholder on the theory that such information is the only information
with which such Stockholder is intimately familiar. If the Selling Stockholders
are officers, directors or control persons of the Company or otherwise exert
significant influence over the Company then, in light of their familiarity with
the Company, it may be appropriate for their disclosure representation to track
that of the Company-- that is, to cover the entire offering document.
(c) INDEMNIFICATION AND CONTRIBUTION. Even though the Selling
Stockholders' disclosure representation is limited to information provided by
the Selling Stockholders, this form requires the Selling Stockholders to
indemnify the Underwriters against misstatements or omissions in the entire
offering document with the Selling Stockholders liability limited to the
benefits it receives from the offering--that is the net proceeds received by
such Stockholders for the sale of their Shares. The theory for this position is
that each Selling Stockholder (vis-a-vis the Underwriters) should bear the risk
that the entire offering document is correct but that such Stockholder (unlike
the Company) should not have unlimited liability for information that such
Stockholder has not provided. In certain situations (i.e., where the Selling
Stockholders are individual investors who are not venture capitalists) it may be
appropriate to limit the scope of the Selling Stockholders' indemnity to
information that they provide. If the Selling Stockholders are officers,
directors or control persons of the Company or otherwise exert significant
influence over the Company then, in light of their ability to verify the
information in the disclosure document, it may be appropriate to remove the
monetary limitation on their indemnity.
<PAGE> 35
In contrast to the Selling Stockholders' indemnity, the Company's
indemnity is not limited, monetarily or otherwise. The Company's ability to
indemnify the Underwriters with respect to information provided by the Selling
Stockholders, however, depends on the laws of its state of incorporation. If the
Company is contractually obligated to register the Selling Stockholders' shares
or in some other way benefits from the secondary portion of the offering, then
the Company should generally be permitted by law to provide a complete
indemnity.
3.OPINIONS. This form assumes that the opinion of the Company's counsel
will address all matters relating to the Selling Stockholders and, if such
counsel deems it necessary, it will require one or more Selling Stockholders to
provide opinions from their counsel upon which it will rely. (In the event of
such reliance, the opinions upon which the Company's counsel will rely should be
in form and substance satisfactory to Underwriters' counsel and the opinion of
Company's counsel should state that they are justified in relying on each such
opinion and both these conditions should be included in the Underwriting
Agreement.) Requiring the Company's counsel to give all such opinions alleviates
the need for Underwriters' counsel to deal directly with counsel for each
Selling Stockholder which can be both time consuming and costly. Whether or not
the Company's counsel is prepared to render all Selling Stockholder-related
opinions, any opinions that will be required from any Selling Stockholder's
counsel should be identified early in the transaction to ensure timely delivery
of such an opinion.
4. POWERS OF ATTORNEY AND CUSTODY AGREEMENT. A Power of Attorney and a
Custody Agreement should be secured from each Selling Stockholder early in the
transaction and, in any event, no later than the commencement of the roadshow.
The purpose of the Power of Attorney and the Custody Agreement is to facilitate
the pricing of the offering and the delivery of the Shares to be sold by the
Selling Stockholders and to streamline the mechanics of the offering process
when there are a large number of Selling Stockholders. Failure to secure a Power
of Attorney from each Selling Stockholder could delay the pricing of the
offering and the signing of the Underwriting Agreement. Similarly, failure to
secure a Custody Agreement from each Selling Stockholder could delay the closing
of the transaction if a Selling Stockholder were to refuse to deliver the Shares
it was selling and would complicate payment for the Shares by the Underwriters.
In the event that any Selling Stockholder objects to signing either of such
documents Maureen Block in the legal department of Donaldson, Lufkin & Jenrette
Securities Corporation should be contacted.
