EXHIBIT
99.1
CROSS COUNTRY HEALTHCARE, INC.
(a Delaware corporation)
4,000,000 Shares of Common
Stock
UNDERWRITING AGREEMENT
Dated: November 13, 2006
CROSS COUNTRY HEALTHCARE, INC.
(a Delaware corporation)
4,000,000 Shares of Common
Stock
(Par Value $.0001 Per Share)
UNDERWRITING AGREEMENT
November 13, 2006
Citigroup Global Markets, Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Cross Country Healthcare, Inc., a
Delaware corporation (the “Company”), and the persons
listed in Schedule A hereto under the heading “Name of
Selling Shareholder” (the “Selling
Shareholders”), confirm their respective agreements with
Citigroup Global Markets Inc. (the “Underwriter”) with
respect to the sale by the Selling Shareholders, acting severally
and not jointly, and the purchase by the Underwriter, of the
respective numbers of shares of Common Stock, par value $.0001 per
share, of the Company (“Common Stock”) set forth in
said Schedule A hereto. and with respect to the grant by the
Selling Shareholders to the Underwriter of the option described in
Section 2(b) hereof to purchase all or any part of 600,000
additional shares of Common Stock to cover over-allotments, if any.
The aforesaid 4,000,000 shares of Common Stock (the “Initial
Securities”) to be purchased by the Underwriter and all or
any part of the 600,000 shares of Common Stock subject to the
option described in Section 2(b) hereof (the “Option
Securities”) are hereinafter called, collectively, the
“Securities”.
The Company and the Selling Shareholders
understand that the Underwriter proposes to make a public offering
of the Securities as soon as the Underwriter deems advisable after
this Agreement has been executed and delivered.
The Company and the Selling Shareholders
acknowledge and agree that (i) the purchase and sale of the
Securities pursuant to this Agreement is an arm’s-length
commercial transaction between the Company and the Selling
Shareholders, on the one hand, and the Underwriter, on the other,
(ii) in connection therewith and with the process leading to such
transaction the Underwriter is not acting as the agent or fiduciary
of the
Company or the Selling Shareholders,
(iii) the Underwriter has not assumed an advisory or fiduciary
responsibility in favor of the Company or the Selling Shareholder
with respect to the offering contemplated hereby or the process
leading thereto (irrespective of whether the Underwriter has
advised or is currently advising the Company or the Selling
Shareholders on other matters) or any other obligation to the
Company or the Selling Shareholders except the obligations
expressly set forth in this Agreement and (iv) each of the Company
and the Selling Shareholders have consulted its own legal and
financial advisors to the extent it deemed appropriate. Each of the
Company and the Selling Shareholders agrees that it will not claim
that the Underwriter has rendered advisory services of any nature
or respect, or owes a fiduciary or similar duty to the Company or
the Selling Shareholders, in connection with such transaction or
the process leading thereto.
The Company has filed with the Securities
and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (No. 333-120189) including the
Basic Prospectus (as defined below), covering the registration of
the Securities under the Securities Act of 1933, as amended (the
“1933 Act”), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the
Commission under the 1933 Act (the “1933 Act
Regulations”). Such registration statement has been declared
effective by the Commission, and the Company has filed such
post-effective amendments thereto as may be required prior to the
execution of this Agreement and each such post-effective amendment
has been declared effective by the Commission. Promptly after the
execution and delivery of this Agreement, the Company will prepare
and file a prospectus supplement relating to the Securities (the
“Prospectus Supplement”) together with the Basic
Prospectus (as defined below) in accordance with the provisions of
paragraph (b) of Rule 424 (“Rule 424(b)”) of the 1933
Act Regulations. Such registration statement referred to above,
including the exhibits thereto, schedules thereto, if any, the
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act and any prospectus supplement relating
to the Securities filed with the Commission pursuant to Rule 430B
under the 1933 Act Regulations, at the time it became effective is
herein referred to together as, the “Registration
Statement.” The basic prospectus contained in the
Registration Statement at the time it was declared effective is
herein referred to as the “Basic Prospectus.” The
Basic Prospectus and the Prospectus Supplement, including the
documents specifically incorporated by reference therein or
incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, in the form first furnished to the Underwriter
for use in connection with the offering of the Securities, are
herein collectively called the “Prospectus”; provided,
further, that if the Company files a registration statement with
the Commission pursuant to Rule 462(b) of the 1933 Act Regulations
(the “Rule 462(b) Registration Statement”), then all
references to “Registration Statement” shall also be
deemed to include the Rule 462 (b) Registration
Statement.
For purposes of this Agreement, all
references to the Registration Statement, the Disclosure Package or
the Prospectus or any amendment or supplement to
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any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system
(“EDGAR”).
As used herein, the following terms shall
have the meanings indicated:
“Disclosure Package” means
(i) the Basic Prospectus, as amended and supplemented to the
Execution Time, (ii) the Issuer Free Writing Prospectus, if any,
identified in Schedule D hereto and (iii) any other Free Writing
Prospectuses that the parties hereto shall hereafter expressly
agree in writing to treat as part of the Disclosure
Package.
“Execution Time” means the
date and time that this Agreement is executed and delivered by the
parties hereto, which shall be deemed to be 4:30 p.m. (NYC time) on
the date of this Agreement.
“Free Writing Prospectus”
means a free writing prospectus, as defined in Rule 405 of the 1933
Act Regulations.
“Issuer Free Writing
Prospectus” means an issuer free writing prospectus, as
defined in Rule 433 of the 1933 Act Regulations.
“Pricing Information” means
the information listed in Schedule E hereto.
All references in this Agreement to
financial statements and schedules and other information which is
“contained,” “included” or
“stated” (or other references of like import) in the
Registration Statement, the Disclosure Package or the Prospectus
shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by
reference in the Registration Statement, the Disclosure Package or
the Prospectus, as the case may be, prior to the execution of this
Agreement; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall
be deemed to include the filing of any document under the
Securities Exchange Act of 1934, as amended (the “1934
Act”) which is incorporated by reference in the Registration
Statement or the Prospectus, as the case may be, after the
execution of this Agreement.
Section 1.
Representations and Warranties .
(a)
Representations and Warranties by the Company. The Company
represents and warrants to the Underwriter as of the date hereof
and as of the Closing Time referred to in Section 2(b) hereof, and
if any Option Securities are purchased, as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with the
Underwriter, as follows:
(i) Compliance with
Registration Requirements; Incorporated Documents . The Company
meets the requirements for use of Form S-3 under the 1933
Act.
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Each of the Registration Statement and
any Rule 462(b) Registration Statement has become effective under
the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement
has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of
the Company, are contemplated by the Commission, and any request on
the part of the Commission for additional information has been
complied with. The Registration Statement meets, and the offering
and sale of Securities as contemplated hereby complies with, the
requirements of Rule 415 of the 1933 Act Regulations (including,
without limitation, Rule 415(a)(5) of the 1933 Act
Regulations).
At the respective times the Registration
Statement, any Rule 462(b) Registration Statement and any
post-effective amendments thereto (including the filing of the
Company’s most recent Annual Report on Form 10-K with the
Commission (the “Annual Report on Form 10-K”) became
effective, at the Execution Time and at the Closing Time (and, if
any Option Securities are purchased, at the Date of Delivery), the
Registration Statement, the Rule 462(b) Registration Statement and
any amendments and supplements thereto complied and will comply in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and did not and will 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 not misleading. Neither the Prospectus nor any amendments
or supplements thereto (including any prospectus wrapper), at the
time the Prospectus or any amendments or supplements thereto were
issued and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), included or will include an
untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. If the Company elects to rely upon Rule 434
of the 1933 Act Regulations (“Rule 434”), the Company
will comply with the requirements of Rule 434. The representations
and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement or the Prospectus made
in reliance upon and in conformity with information furnished to
the Company in writing by the Underwriter expressly for use in the
Registration Statement or the Prospectus.
The Prospectus, each preliminary
prospectus and the prospectuses 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 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and
the Prospectus delivered to the Underwriter for use in connection
with this offering will, at the time of such delivery, be identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
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The documents incorporated or deemed to
be incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus, when they became effective,
at the Execution Time and at the time they were or hereafter are
filed with the Commission, respectively, complied and will comply
in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder (the
“1934 Act Regulations”) and, when read together with
the other information in the Disclosure Package, at the time the
Registration Statement became effective, at the date of the
Prospectus, at the Execution Time and at the Closing Time, did not
and will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
The Disclosure Package and the Pricing
Information, when taken together as a whole, do not contain any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. The preceding sentence shall not apply to statements in
or omissions from the Disclosure Package made in reliance upon and
in conformity with information furnished to the Company in writing
by the Underwriter expressly for use therein .
At (i) the earliest time after the filing
of the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule
164(h)(2) of the 1933 Act Regulations) of the Securities and (ii)
the Execution Time (with such date and time being used as the
determination date for purposes of this clause (ii)), the Company
was not and is not an Ineligible Issuer (as defined in Rule 405 of
the 1933 Act Regulations), without taking account of any
determination by the Commission pursuant to Rule 405 of the 1933
Act Regulations that it is not necessary that the Company be
considered an Ineligible Issuer.
Each Issuer Free Writing Prospectus, if
any, does not include any information that conflicts with the
information contained in the Registration Statement, including any
document incorporated by reference therein and any prospectus
supplement deemed to be a part thereof that has not been superseded
or modified. The foregoing sentence shall not apply to statements
in or omissions from the Disclosure Package made in reliance upon
and in conformity with information furnished to the Company in
writing by the Underwriter expressly for use therein. Prior to the
Execution Time, the Company has not, directly or indirectly,
prepared, used or referred to any Issuer Free Writing
Prospectus.
(ii) Independent
Accountants . The accountants who certified the financial
statements and supporting schedules included in the Registration
Statement are
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independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statements
. The consolidated financial statements of the Company in the
Registration Statement, the Disclosure Package and the Prospectus,
together with the related schedules and notes, present fairly the
financial position of the Company and its consolidated Subsidiaries
at the dates indicated and the statement of operations,
stockholders’ equity and cash flows of the Company and its
consolidated Subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles (“GAAP”) applied on a consistent
basis throughout the periods involved. The supporting schedules
included in the Registration Statement present fairly in accordance
with GAAP the information required to be stated therein. The
selected consolidated financial and other data and the summary
consolidated financial and other information of the Company
included in the Disclosure Package and the Prospectus present
fairly the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements
included in the Registration Statement. The pro forma financial
information and the related notes thereto included in the
Registration Statement, the Disclosure Package and the Prospectus
present fairly the information shown therein, have been prepared in
accordance with the Commission’s rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the basis described therein, and the assumptions used
in the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(iv) No Material Adverse Change
in Business . Since the respective dates as of which
information is given in the Registration Statement, the Disclosure
Package and the Prospectus, except as otherwise stated therein,
(A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its Subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business (a “Material Adverse
Effect”), (B) there have been no transactions entered
into by the Company or any of its Subsidiaries, other than those in
the ordinary course of business, which are material with respect to
the Company and its Subsidiaries considered as one enterprise, and
(C) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(v) Good Standing of the
Company . The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration
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Statement, Disclosure Package and
Prospectus and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(vi) Good Standing of
Subsidiaries . (A) Each Subsidiary of the Company set
forth on Schedule C hereto (which lists all subsidiaries of the
Company) (each a “Subsidiary” and, collectively, the
“Subsidiaries”) has been duly organized and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement, Disclosure
Package and Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, the Disclosure
Package and the Prospectus, all of the issued and outstanding
capital stock of each such Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, except as
otherwise disclosed in the Registration Statement, the Disclosure
Package and the Prospectus, is owned by the Company, directly or
through Subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder
of such Subsidiary.
(B)
Except as disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, there are no
encumbrances or restrictions on the ability of any Subsidiary (i)
to pay any dividends or make any distributions on such
Subsidiary’s capital stock, (ii) to make any loans or
advances to, or investments in the Company or any other Subsidiary,
or (iii) to transfer any of its property or assets to the Company
or any other Subsidiary.
(vii) Capitalization . The
authorized, issued and outstanding capital stock of the Company is
as set forth in the Registration Statement, the Disclosure Package
and the Prospectus (except for subsequent issuances, if any,
pursuant to this Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Registration Statement,
the Disclosure Package and the Prospectus or pursuant to the
exercise of convertible securities or options referred to in the
Registration Statement, the Disclosure Package and the Prospectus).
The shares of issued and outstanding capital stock of the Company,
including, without limitation, the Securities to be sold by the
Selling Shareholders, have been duly
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authorized and validly issued and are
fully paid and non-assessable; none of the outstanding shares of
capital stock of the Company was issued in violation of the
preemptive or other similar rights of any securityholder of the
Company. The shares of issued and outstanding capital stock of the
Company have been issued in compliance, in all material respects,
with all federal and state securities laws. Except as disclosed in
the Registration Statement, the Disclosure Package and the
Prospectus and except for subsequent issuances pursuant to existing
employee benefit plans referred to in the Registration Statement,
the Disclosure Package and the Prospectus, there are no outstanding
options or warrants to purchase, or any preemptive rights or other
rights to subscribe for or to purchase, any securities or
obligations convertible into, or any contracts or commitments to
issue or sell, shares of the Company’s capital stock or any
such options, warrants, rights, convertible securities or
obligations. The description of the Company’s stock option
and purchase plans and the options or other rights granted and
exercised thereunder set forth in the Registration Statement, the
Disclosure Package and the Prospectus accurately and fairly
describe, in all material respects, the information required to be
shown with respect to such plans, arrangements, options and
rights.
(viii) Authorization of
Agreement . This Agreement has been duly authorized, executed
and delivered by the Company.
(ix) Authorization and
Description of Securities . The Common Stock conforms to all
statements relating thereto contained in the Registration
Statement, the Disclosure Package and the Prospectus and such
description conforms to the rights set forth in the instruments
defining the same; no holder of the Securities will be subject to
personal liability by reason of being such a holder; and the
issuance of the Securities is not subject to the preemptive or
other similar rights of any securityholder of the
Company.
(x) Absence of Defaults and
Conflicts . Neither the Company nor any of its Subsidiaries is
in violation of its charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its Subsidiaries is a
party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any Subsidiary is
subject (collectively, “Agreements and Instruments”)
except for such defaults under Agreements and Instruments that
would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation of
the transactions contemplated in this Agreement and in the
Registration Statement, the Disclosure Package and the Prospectus
and compliance by the Company with its obligations under this
Agreement have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or
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constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any Subsidiary pursuant to, the
Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in
a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the
Company or any Subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of their
assets, properties or operations. As used herein, a
“Repayment Event” means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Company or any
Subsidiary.
(xi) Absence of Labor
Dispute . Except as disclosed in the Registration Statement,
the Disclosure Package and the Prospectus, no labor dispute with
the employees of the Company or any Subsidiary exists or, to the
knowledge of the Company, is imminent, and the Company is not aware
of any existing or imminent labor disturbance by the employees of
any of its or any Subsidiary’s principal suppliers,
manufacturers, customers or contractors, which, in either case,
would reasonably be expected to result in a Material Adverse
Effect.
(xii) Absence of
Proceedings . There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any
Subsidiary, which is required to be disclosed in the Registration
Statement, the Disclosure Package or the Prospectus (other than as
disclosed therein), or which would reasonably be expected to result
in a Material Adverse Effect, or which would reasonably be expected
to materially and adversely affect the properties or assets thereof
or the consummation of the transactions contemplated in this
Agreement or the performance by the Company of its obligations
hereunder or thereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any Subsidiary is
a party or of which any of their respective property or assets is
the subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business,
would not reasonably be expected to result in a Material Adverse
Effect.
(xiii) Accuracy of Exhibits
. There are no contracts or documents which are required to be
described in the Registration Statement, the Disclosure Package or
the Prospectus or to be filed as exhibits thereto which have not
been so described and filed as required.
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(xiv) Possession of
Intellectual Property . The Company and its Subsidiaries own or
possess, or can acquire on reasonable terms, adequate patents,
patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual
property (collectively, “Intellectual Property”)
necessary to carry on the business now operated by them, and
neither the Company nor any of its Subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest
of the Company or any of its Subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or
in the aggregate, would reasonably be expected to result in a
Material Adverse Effect.
(xv) Absence of Further
Requirements . No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of,
any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations
hereunder, in connection with the offering, issuance or sale of the
Securities under this Agreement or the consummation of the
transactions contemplated by this Agreement, except such as have
been already obtained or as may be required under the 1933 Act or
the 1933 Act Regulations and foreign or state securities or blue
sky laws.
(xvi) Possession of Licenses
and Permits . The Company and its Subsidiaries possess required
permits, licenses (including, without limitation, any state nursing
pool licenses), provider numbers, certificates, approvals,
accreditations (including, without limitation, accreditation or
certifications as applicable required by the Joint Commission on
Accreditation of Healthcare Organizations), consents and other
authorizations (collectively, “Governmental Licenses”)
issued by, and have made all required declarations and filings
with, the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now operated
by them (including, without limitation, the Governmental Licenses)
as are required under such federal and state healthcare laws as are
applicable to the Company and its Subsidiaries, except where the
failure to possess such Governmental Licenses or to make such
declarations and filings could not reasonably be expected to have a
Material Adverse Effect; to the best knowledge of the Company, the
individual nurses and other personnel that the Company and its
subsidiaries have placed or intend to place with clients have
obtained all necessary Governmental Licenses to be legally
qualified to serve at the facilities and in the positions in which
they are staffed and the Company takes reasonable measures to
ensure that all such nurses and other personnel possess such
Governmental Licenses; the Company and its Subsidiaries are in
compliance
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with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the
Company nor any of its Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result
in a Material Adverse Effect.
(xvii) No Fees from Third-Party
Payors . None of the Company or any of its Subsidiaries
receives fees, compensation or reimbursement of any kind for any of
its services from any governmental or other third-party payor,
including, without limitation, from third-party payors such as
Medicare, Medicaid, Medi-Cal, private insurance companies, health
maintenance organizations, preferred provider organizations,
managed care systems and other similar third party payors
(including, without limitation, Blue Cross plans).
(xviii) Licensure of Nurses and
other Healthcare Professionals . The Company has established
and shall administer, except to the extent that a failure to do so
would not reasonably be expected to result in a Material Adverse
Effect, a compliance program applicable to the Company and its
Subsidiaries, to assist the Company, its Subsidiaries and the
directors, officers and employees of the Company and its
Subsidiaries, in complying with applicable federal and state
guidelines (including, without limitation, guidelines imposed by
OSHA and JCAHO) for the due qualification and licensure of
registered nurses and other healthcare professionals that the
Company and its Subsidiaries place through their staffing
businesses.
(xix) Title to Property .
Except to the extent specifically disclosed in the Registration
Statement, Disclosure Package and the Prospectus, the Company and
its Subsidiaries have good and marketable title to all real
property owned by the Company and its Subsidiaries and good title
to all other properties owned by them, in each case, free and clear
of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are
described in the Registration Statement, the Disclosure Package and
Prospectus or (b) do not, singly or in the aggregate, materially
affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company or any
of its Subsidiaries; and all of the leases and subleases material
to the business of the Company and its Subsidiaries, considered as
one enterprise, and under which the Company or any of its
Subsidiaries holds properties described in the Registration
Statement, the Disclosure Package and the Prospectus, are in full
force and effect, and neither the Company or any of its
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Subsidiaries has any notice of any claim
of any sort that has been asserted by anyone adverse to the rights
of the Company or any of its Subsidiaries under any of the leases
or subleases mentioned above, or affecting or questioning the
rights of the Company or of its Subsidiaries to the continued
possession of the leased or subleased premises under any such lease
or sublease.
(xx) Investment Company Act
. None of the Company or any of its Subsidiaries is, and upon the
sale of the Securities as herein contemplated none of them will be,
an “investment company” or an entity
“controlled” by an “investment company” as
such terms are defined in the Investment Company Act of 1940, as
amended (the “1940 Act”).
(xxi) Environmental Laws .
Except as described in the Registration Statement, the Disclosure
Package and the Prospectus and except as would not, singly or in
the aggregate, reasonably be expected to result in a Material
Adverse Effect, (A) neither the Company nor any of its Subsidiaries
is in violation of any federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances
(including, without limitation, asbestos, polychlorinated
biphenyls, urea-formaldehyde, insulation, petroleum or petroleum
products) (collectively, “Hazardous Materials”) or to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials
(collectively, “Environmental Laws”), (B) the Company
and its Subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending or
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its Subsidiaries
(including, without limitation, any claims relating to the
purchases and other corporate transactions involving the current
Subsidiaries and predecessor entities which currently are
integrated with the Company and its Subsidiaries) and (D) there are
no events or circumstances that would reasonably be expected to
form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental
body or agency, against or affecting the Company or any of its
Subsidiaries relating to Hazardous Materials or any Environmental
Laws.
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(xxii) Registration Rights
. Except as disclosed in the Registration Statement, the Disclosure
Package and the Prospectus, there are no persons with registration
rights or other similar rights to have any securities of the
Company or any of its Subsidiaries registered pursuant to the
Registration Statement or otherwise registered by the Company or
any other person under the 1933 Act.
(xxiii) Insurance . The
Company and each of its Subsidiaries is insured by insurers of
recognized financial responsibility against such loses and risks
and in such amounts as are prudent and customary in the industries
in which the Company and its Subsidiaries operate; none of the
Company or any of its Subsidiaries has been refused any material
insurance coverage sought or applied for; and the Company has no
reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to
continue its operations except where the failure to renew or
maintain such coverage would not reasonably be expected to result
in a Material Adverse Effect. The officers and directors of the
Company are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
the Company believes are prudent and customary for officers’
and directors’ liability insurance of a public company and as
the Company believes would cover claims which would reasonably be
expected to be made in connection with the issuance of the
Securities; and the Company has no reason to believe that it will
not be able to renew its existing directors’ and
officers’ liability insurance coverage as and when such
coverage expires or to obtain similar coverage from similar
insurers as may be necessary to cover its officers and
directors.
(xxiv) Tax Returns and Payment
of Taxes . The Company and its Subsidiaries have timely filed
all federal, state, local and foreign tax returns that are required
to be filed or has duly requested extensions thereof and all such
tax returns are true, correct and complete, except to the extent
that any failure to file or request an extension, or any
incorrectness would not reasonably be expected to result in a
Material Adverse Effect. The Company and its Subsidiaries have
timely paid all taxes shown as due on such filed tax returns
(including any related assessments, fines or penalties), except to
the extent that any such taxes are being contested in good faith
and by appropriate proceedings, or to the extent that any failure
to pay would not reasonably be expected to result in a Material
Adverse Effect; and adequate charges, accruals and reserves have
been provided for in the financial statements referred to in
Section 1(a)(iii) above in accordance with GAAP in respect of all
Federal, state, local and foreign taxes for all periods as to which
the tax liability of the Company and its Subsidiaries has not been
finally determined or remains open to examination by applicable
taxing authorities except (A) for taxes incurred after the date of
the financial statements referred to in Section 1(a)(iii) or (B)
where the failure to provide for such charges, accruals and
reserves would not reasonably be expected to result in a Material
Adverse
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Effect. None of the Company or its
Subsidiaries is a “United States real property holding
corporation” within the meaning of Section 897(c)(2) of the
Internal Revenue Code of 1986, as amended (the
“Code”).
(xxv) No Stabilization or
Manipulation . Neither the Company nor any of its Subsidiaries
or, to the best of their knowledge, any of their directors,
officers or affiliates has taken or will take, directly or
indirectly, any action designed to, or that could be reasonably
expected to, cause or result in stabilization or manipulation of
the price of the Securities in violation of Regulation M under the
1934 Act.
(xxvi) Certain Transactions
. Except as disclosed in the Registration Statement, the Disclosure
Package and the Prospectus, there are no outstanding loans,
advances, or guarantees of indebtedness by the Company or any of
its Subsidiaries to or for the benefit of any of the executive
officers or directors of the Company or any of the members of the
families of any of them that would be required to be so disclosed
under the 1933 Act, the 1933 Act Regulations or Form
S-3.
(xxvii) Statistical and Market
Data . The statistical and market-related data included in the
Registration Statement, the Disclosure Package and the Prospectus
are derived from sources which the Company reasonably and in good
faith believes to be accurate, reasonable and reliable in all
material respects and the statistical and market-related data
included in each of the Registration Statement, the Disclosure
Package and the Prospectus agrees with the sources from which it
was derived in all material respects.
(xxviii) Accounting and other
Controls . The Company makes and keeps books, records and
accounts which, in reasonable detail, accurately and fairly reflect
the transactions and dispositions of the assets of the Company. The
Company has established a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions
were, are and will be executed in accordance with
management’s general or specific authorization; (ii)
transactions were, are and will be recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (iii) access to assets was, is
and will be permitted only in accordance with a management’s
general or specific authorizations; and (iv) the recorded
accountability for assets was, is and will be compared with
existing assets at reasonable intervals and appropriate action was,
is and will be taken with respect to any differences.
(xxix) Sarbanes-Oxley
Compliance . The Company and the Company’s directors or
officers, in their capacities as such, are in compliance in all
material respects with all applicable provisions of the
Sarbanes-Oxley Act of 2002 and the
14
rules and regulations promulgated in
connection therewith (collectively, the “Sarbanes-Oxley
Act”), including Section 402 related to loans and Sections
302 and 906 related to certifications.
(xxx) Changes in Internal
Controls . Since the date of the latest audited financial
statements included in the Disclosure Package, there has been no
change in the Company’s internal control over financial
reporting that has materially adversely affected, or is likely to
affect, the Company’s internal control over financial
reporting;
(xxxi) Disclosure Controls and
Procedures . The Company maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the
1934 Act) that comply with the requirements of the 1934 Act; such
disclosure controls and procedures have been designed to ensure
that material information relating to the Company and its
subsidiaries is made known to the Company’s principal
executive officer and principal financial officer by others within
those entities; and such disclosure controls and procedures are
effective.
(b)
Representations and Warranties by each of the Selling
Shareholders. Each Selling Shareholder severally and not
jointly represents and warrants to the Underwriter as of the date
hereof and as of the Closing Time, and, if the Selling Shareholder
is selling Option Securities on a Date of Delivery, as of each such
Date of Delivery, and agrees with the Underwriter, as
follows:
(i) Accurate Disclosure .
The information furnished in writing by or on behalf of such
Selling Shareholder expressly for use in the Registration Statement
and any amendment or supplement thereto does 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 not misleading and the information furnished in writing by
or on behalf of such Selling Shareholder expressly for use in the
Prospectus or the Disclosure Package does not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under
