COMMON STOCK, $0.0001 PAR VALUE
PER SHARE
Morgan Stanley
& Co. Incorporated
Wachovia Capital Markets, LLC
Thomas Weisel Partners LLC
William Blair & Company, L.L.C.
c/o Morgan Stanley & Co. Incorporated
1585
Broadway
New York, New York
10036
Visicu, Inc., a
Delaware corporation (the “ Company ”), proposes
to issue and sell to the several Underwriters named in
Schedule I hereto (the “ Underwriters ”)
shares of its common stock, $0.0001 par value per share (the
“ Firm Shares ”). The Company also proposes to
issue and sell to the several Underwriters not more than an
additional
shares of its common stock, $0.0001 par value per share (the
“ Additional Shares ”), if and to the extent
that you, as managers of the offering, shall have determined to
exercise, on behalf of the Underwriters, the right to purchase such
shares of common stock granted to the Underwriters in
Section 2 hereof. The Firm Shares and the Additional Shares
are hereinafter collectively referred to as the “
Shares .” The shares of common stock, $0.0001 par
value per share, of the Company to be outstanding after giving
effect to the sales contemplated hereby are hereinafter referred to
as the “ Common Stock .”
The Company has
filed with the Securities and Exchange Commission (the “
Commission ”) a registration statement on Form S-1
(File No. 333-129989), including a prospectus, relating to the
Shares. The registration statement as amended at the time it
becomes 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 Securities Act of 1933, as
amended (the “ Securities Act ”), is hereinafter
referred to as the “ Registration Statement ;”
the prospectus in the form first used to confirm sales of Shares
(or in the form first made available to the Underwriters by the
Company to meet requests of purchasers pursuant to Rule 173
under the Securities Act) is hereinafter referred to as the “
Prospectus .” If the Company has filed an abbreviated
registration statement to register additional shares of Common
Stock pursuant to Rule 462(b) under the Securities Act (the “
Rule 462 Registration Statement ”), then any
reference herein to the term “Registration Statement”
shall be deemed to include such Rule 462 Registration
Statement.
For purposes of
this Agreement, “ free writing prospectus ” has
the meaning set forth in Rule 405 under the Securities Act and
“ Time of Sale Prospectus ” means the
preliminary prospectus together with the free writing prospectuses,
if any, each identified in Schedule II hereto. As used herein,
the terms “Registration Statement,” “preliminary
prospectus,” “Time of Sale Prospectus” and
“Prospectus” shall include the documents, if any,
incorporated by reference therein. The terms
“supplement,” “amendment,” and
“amend” as used herein with respect to the Time of Sale
Prospectus or any free writing prospectus shall include all
documents subsequently filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”), that are incorporated by
reference therein.
Morgan Stanley
& Co. Incorporated (“ Morgan Stanley ”) has
agreed to reserve a portion of the Shares to be purchased by it
under this Agreement for sale to the Company’s directors,
officers, employees and business associates and other parties
associated with the Company (collectively, “
Participants ”), as set forth in the Prospectus under
the heading “Underwriters” (the “ Directed
Share Program ”). The Shares to be sold by Morgan Stanley
and its affiliates pursuant to the Directed Share Program are
referred to hereinafter as the “ Directed Shares
.” Any Directed Shares not orally confirmed for purchase by
any Participant by the end of the business day on which this
Agreement is executed will be offered to the public by the
Underwriters as set forth in the Prospectus.
1.
Representations and Warranties . The Company
represents and warrants to and agrees with each of the Underwriters
that:
(a) The
Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or,
to the knowledge of the Company, threatened by the
Commission.
(b) (i) The
Registration Statement, when it became effective, did 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 required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration
Statement and the Prospectus comply in all material respects and,
as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder, (iii) the Time
of Sale Prospectus does not, and at the time of each sale of the
Shares in connection with the offering and at the Closing Date (as
defined in Section 4), the Time of Sale Prospectus, as then
amended or supplemented by the Company, 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 and
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(iv) 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, the Time of Sale
Prospectus 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) The
Company is not an “ineligible issuer” in connection
with the offering pursuant to Rules 164, 405 and 433 under the
Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act
has been, or will be, filed with the Commission in accordance with
the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act or that was
prepared by or on behalf of or used or referred to by the Company
complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free
writing prospectuses, if any, identified in Schedule II
hereto, and electronic road shows, if any, furnished to you before
first use, the Company has not prepared, used or referred to, and
will not, without your prior consent, prepare, use or refer to, any
free writing prospectus.
(d) The
Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Time of
Sale Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not, singly or in the
aggregate, have a material adverse effect on the
Company.
(e) The
Company has no subsidiaries.
(f) This
Agreement has been duly authorized, executed and delivered by the
Company.
(g) The
authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in each of the Time of
Sale Prospectus and the Prospectus.
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(h) The
shares of Common Stock outstanding prior to the issuance of the
Shares have been duly authorized and are validly issued, fully paid
and non-assessable. No person is entitled to preemptive or similar
rights to acquire any securities of the Company, except any such
rights that are not triggered by or otherwise applicable to the
issuance of the Shares and that terminate upon the Closing Date (as
defined herein). There are no outstanding securities convertible
into or exchangeable for, or warrants, rights or options to
purchase from the Company, or obligations of the Company to issue,
any shares of its Common Stock or any other class of shares of
capital stock of the Company, except as described in the Time of
Sale Prospectus or issuable under the Company’s Equity
Incentive Plan as described in the Time of Sale
Prospectus.
(i) The
Shares have been duly authorized and, when issued and delivered in
accordance with the terms of 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.
(j) The
execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company that is material to the
Company, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company, and no
consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement,
except such as may be required by the securities or Blue Sky laws
of the various states in connection with the offer and sale of the
Shares.
(k) There has
not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations
of the Company from that set forth in the Time of Sale
Prospectus.
(l) There are
no legal or governmental proceedings pending or, to the knowledge
of the Company, threatened to which the Company is a party or to
which any of the properties of the Company is subject that are
required to be described in the Registration Statement or the
Prospectus and are not so described; and there are no 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
described or filed as required. The Time of Sale Prospectus
contains in all material respects the same description of the
foregoing matters contained in the Prospectus.
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(m) 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 Securities Act, complied when
so filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission
thereunder.
(n) 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, required to register as an
“investment company” as such term is defined in the
Investment Company Act of 1940, as amended.
(o) The
Company (i) is in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(“ Environmental Laws ”), (ii) has received
all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business and
(iii) is in compliance with all terms and conditions of any
such permit, license or approval, except where such noncompliance
with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly
or in the aggregate, have a material adverse effect on the
Company.
(p) The
Company has not incurred and is not subject to any 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 permit, license or approval, 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 Company.
(q) There are
no contracts, agreements or understandings between the Company and
any person (i) except as described in the Time of Sale
Prospectus, requiring the Company or granting such person the right
to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or
(ii) requiring the Company or granting such person the right
to require the Company to include any securities of the Company
with the Shares registered pursuant to the Registration
Statement.
(r) Subsequent
to the respective dates as of which information is given in each of
the Registration Statement, the Time of Sale Prospectus and the
Prospectus, (i) the Company has not incurred any material
liability or obligation, direct or contingent, nor entered into any
material transaction; (ii) the Company has not purchased any
of its outstanding capital stock, nor declared, paid or
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otherwise made
any dividend or distribution of any kind on its capital stock,
other than ordinary and customary dividends; and (iii) there
has not been any material change in the capital stock, short-term
debt or long-term debt of the Company, except in each case as
described in each of the Registration Statement, the Time of Sale
Prospectus and the Prospectus, respectively.
(s) The
Company does not own any real property. The Company has good and
marketable title to all personal property owned by it that is
material to the business of the Company, free and clear of all
liens, encumbrances and defects except such as are described in the
Time of Sale Prospectus or such as do not 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. Any real
property and buildings held under lease by the Company are held by
it under valid and subsisting leases that are enforceable against
the Company and, to the knowledge of the Company, each other party
thereto, in accordance with their terms, except, in each case, as
such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws affecting the enforcement of creditors’
rights generally and by general equitable principles, and with such
exceptions as could not, singly or in the aggregate, reasonably be
expected to have a material adverse effect on the Company and do
not interfere with the use made and proposed to be made of such
property and buildings by the Company.
(t) Except as
described in the Time of Sale Prospectus, the Company owns or has
valid, binding and enforceable licenses or other rights to use the
patents and patent applications, inventions, copyrights,
trademarks, service marks, trade names, service names, technology
and know-how (including trade secrets and other unpatented and/or
unpatentable proprietary rights) necessary or used in any material
respect to conduct the business of the Company in the manner
described in the Time of Sale Prospectus (collectively, the “
Company Intellectual Property ”); except as described
in the Time of Sale Prospectus, the Company is not obligated to pay
any royalty, grant any license, or provide other consideration to
any third party in connection with the Company Intellectual
Property; except as described in the Time of Sale Prospectus,
(i) the Company has not received any notice of infringement or
conflict with (and the Company does not know of any infringement or
conflict with) asserted rights of others with respect to any
Company Intellectual Property, (ii) the discoveries,
inventions, products or processes of the Company referred to in
each of the Time of Sale Prospectus and the Prospectus do not, to
the knowledge of the Company, infringe, interfere or conflict with
any right or patent claim of any third party, or any discovery,
invention, product or process which is the subject of a patent
application filed by any third party, known to the Company, and
(iii) no third party, including any academic or governmental
organization, possesses or could obtain rights to the Company
Intellectual Property which, if exercised, could enable such party
to
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develop
products competitive to those of the Company or could have a
material adverse effect on the ability of the Company to conduct
its business in the manner described in the Time of Sale
Prospectus.
(u) Except as
described in the Time of Sale Prospectus, the Company has duly and
properly filed or caused to be filed with the United States Patent
and Trademark Office (the “ PTO ”) and
applicable foreign and international patent authorities all patent
applications owned by the Company and necessary or used in any
material respect to conduct the business of the Company in the
manner described in the Time of Sale Prospectus (the “
Company Patent Applications ”); in connection with the
filing of the Company Patent Applications, the Company conducted
reasonable investigations and review of the published literature
and patent references relating to the inventions claimed in such
applications; the Company has complied with the PTO’s duty of
candor and disclosure for the Company Patent Applications and has
made no material misrepresentation in the Company Patent
Applications; the Company is not aware of any facts material to a
determination of patentability regarding the Company Patent
Applications not called to the attention of the PTO; the Company is
not aware of any facts not called to the attention of the PTO or
similar foreign authority that would preclude the grant of a patent
for the Company Patent Applications; and the Company has no
knowledge of any facts that would preclude it from having clear
title to the Company Patent Applications.
(v) Except as
described in the Time of Sale Prospectus, no material labor dispute
with the employees of the Company exists or, to the knowledge of
the Company is imminent, and the Company is not aware of any
existing, threatened or imminent labor disturbance by the employees
of any of its principal suppliers, manufacturers or contractors
that could have a material adverse effect on the
Company.
(w) The
Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which it is engaged;
the Company has not been refused any 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 business at a cost
that would not have a material adverse effect on the Company,
except as described in the Time of Sale Prospectus.
(x) Except as
described in the Time of Sale Prospectus, (i) the Company
possesses all certificates, authorizations and permits issued by
the appropriate federal, state or foreign regulatory authorities
necessary to conduct its business in the manner described in the
Time of Sale Prospectus, and (ii) the
7
Company has not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect
on the Company.
(y) The
Company maintains 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
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 accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences; and
the Company is otherwise in compliance with all applicable
effective provisions of the Sarbanes-Oxley Act of 2002 and the
rules and regulations issued thereunder by the Commission. Except
as described in the Time of Sale Prospectus, since the end of the
Company’s most recent audited fiscal year, there has been
(i) no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and
(ii) no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control
over financial reporting.
(z) Except as
described in the Time of Sale Prospectus, the Company has not sold,
issued or distributed any shares of Common Stock during the
six-month period preceding the date hereof, including any sales
pursuant to Rule 144A under, or Regulation D or S of, the
Securities Act, other than shares issued pursuant to employee
benefit plans, qualified stock option plans or other employee
compensation plans or pursuant to outstanding options, rights or
warrants.
(aa) The
financial statements of the Company (together with the related
notes thereto) included in the Registration Statement, the Time of
Sale Prospectus and the Prospectus present fairly the financial
position and results of the operations of the Company as of the
dates indicated and for the periods specified; and such financial
statements (together with the related notes thereto) have been
prepared in conformity with generally accepted accounting
principles, consistently applied throughout the periods involved
except as otherwise stated therein. The selected financial data
included in the Registration Statement, the Time of Sale Prospectus
and the Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited
financial information included in the Registration Statement, the
Time of Sale Prospectus and the Prospectus.
8
(bb) Each
material contract, agreement and license to which the Company is
bound is legal, valid, binding, enforceable and in full force and
effect against the Company, and to the knowledge of the Company,
each other party thereto, in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws affecting the enforcement of creditors’
rights generally and by general equitable principles. Neither the
Company nor, to the Company’s knowledge, any other party is
in breach or default with respect to any such contract, agreement
and license, and, to the Company’s knowledge, no event has
occurred which with notice or lapse of time would constitute a
breach or default, or permit termination, modification, or
acceleration, under any such contract, agreement or license. No
party has repudiated any provision of any such contract, agreement
or license.
(cc) The
Company has (i) filed or caused to be filed in a timely manner
(within any applicable extension periods) all tax returns required
to be filed by the United States Internal Revenue Code of 1986, as
amended, or by applicable state, local or foreign tax laws, and
each such tax return was true, complete and correct in all material
respects and (ii) timely paid in full all taxes with respect
to taxable periods covered by such tax returns, and all other
material taxes for which the Company is or might otherwise be
liable, except where such noncompliance with tax return filing
obligations, inaccuracies in such tax return filings or taxes owed
would not, singly or in the aggregate, have a material adverse
effect on the Company.
(dd) The
Registration Statement, the Time of Sale Prospectus, the Prospectus
and any preliminary prospectus comply, and any amendments or
supplements thereto will comply, with any applicable laws or
regulations of foreign jurisdictions in which the Time of Sale
Prospectus, the Prospectus or any preliminary prospectus, as
amended or supplemented, if applicable, were or will be distributed
in connection with the Directed Share Program.
(ee) No
consent, approval, authorization or order of, or qualification
with, any governmental body or agency, other than those obtained,
is required in connection with the offering of the Directed Shares
in any jurisdiction where the Directed Shares are being
offered.
(ff) The
Company has not offered, or caused Morgan Stanley or its affiliates
to offer, Shares to any person pursuant to the Directed Share
Program with the specific intent to unlawfully influence (i) a
customer or supplier of the Company to alter the customer’s
or supplier’s level or type of business with the Company, or
(ii) a trade journalist or publication to write or publish
favorable information about the Company or its products.
9
2.
Agreements to Sell and Purchase. The Company hereby
agrees to sell to the several Underwriters, and each Underwriter,
upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated,
agrees, severally and not jointly, to purchase from the Company the
respective numbers of Firm Shares set forth in Schedule I
hereto opposite its name at $___a share (the “ Purchase
Price ”).
On the basis of
the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Company agrees to sell to
the Underwriters the Additional Shares, and the Underwriters shall
have the right to purchase, severally and not jointly, up to
Additional Shares at the Purchase Price. You may exercise this
right on behalf of the Underwriters in whole or from time to time
in part by giving written notice of each election to exercise the
option not later than 30 days after the date of this
Agreement. Any exercise notice shall specify the number of
Additional Shares to be purchased by the Underwriters and the date
on which such shares are to be purchased. Each purchase date must
be at least one business day after the written notice is given and
may not be earlier than the closing date for the Firm Shares nor
later than ten business days after the date of such notice.
Additional Shares may be purchased as provided in Section 4
hereof solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. On each day, if
any, that Additional Shares are to be purchased (an “
Option Closing Date ”), each Underwriter agrees,
severally and not jointly, to purchase the number of Additional
Shares (subject to such adjustments to eliminate fractional shares
as you may determine) that bears the same proportion to the total
number of Additional Shares to be purchased on such Option Closing
Date as the number of Firm Shares set forth in Schedule I
hereto opposite the name of such Underwriter bears to the total
number of Firm Shares.
3. Terms
of Public Offering . The Company is advised by you that the
Underwriters propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and
this Agreement have become effective as in your judgment is
advisable. The Company is further advised by you that the Shares
are to be offered to the public initially at $___a share (the
“ Public Offering Price ”) and to certain
dealers selected by you at a price that represents a concession not
in excess of $___a share under the Public Offering
Price.
4.
Payment and Delivery. Payment for the Firm Shares
shall be made to the Company in Federal or other funds immediately
available in New York City against delivery of such Firm Shares for
the respective accounts of the several Underwriters at
10:00 a.m., New York City time, on
___, 2006, or at such other time on the same or such other date,
not later than
10
___, 2006, as shall be designated in
writing by you. The time and date of such payment are hereinafter
referred to as the “ Closing Date .”
Payment for any
Additional Shares shall be made to the Company in Federal or other
funds immediately available in New York City against delivery of
such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date
specified in the corresponding notice described in Section 2
or at such other time on the same or on such other date, in any
event not later than
___, 2006, as shall be designated in writing by you.
Firm Shares and
Additional Shares shall be registered in such names and in such
denominations as you shall request in writing not later than one
full business day prior to the Closing Date or the applicable
Option Closing Date, as the case may be. The Firm Shares and
Additional Shares shall be delivered to you on the Closing Date or
an Option Closing Date, as the case may be, for the respective
accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Shares to the
Underwriters duly paid, against payment of the Purchase Price
therefor.
5.
Conditions to the Underwriters’ Obligations .
The obligations of the Company to sell the Shares to the
Underwriters and the several obligations of the Underwriters to
purchase and pay for the Shares on the Closing Date are subject to
the condition that the Registration Statement shall have become
effective not later than ___(New York City time) on the date
hereof.
The several
obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent
to the execution and delivery of this Agreement and prior to the
Closing Date:
(i) there shall
not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for
a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the securities of
the Company by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act; and
(ii) there shall
not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company from that set
forth in the Time of Sale Prospectus
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that, in your
judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Shares on the terms and in
the manner contemplated in the Time of Sale Prospectus.
(b) The
Underwriters shall have received on the Closing Date a certificate,
dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in Section 5(a)(i) above and
to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date. The
officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings
threatened.
(c) The
Underwriters shall have received on the Closing Date an opinion of
DLA Piper Rudnick Gray Cary US LLP (“ DLA Piper
”), outside counsel for the Company, dated the Closing Date,
to the effect that:
(i) the Company
has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware, and has
the corporate power and authority to own its property and to
conduct its business as described in the Time of Sale
Prospectus;
(ii) the Company
is duly qualified to transact business and is in good standing as a
foreign corporation in the following states: ___;
(iii) the
authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in each of the Time of
Sale Prospectus and the Prospectus;
(iv) the shares of
Common Stock outstanding prior to the issuance of the Shares have
been duly authorized and are validly issued, fully paid and
non-assessable;
(v) the Shares
have been duly authorized and, when issued and delivered in
accordance with the terms of 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
under the General Corporation Law of the State of Delaware (the
“DGCL”), the certificate of incorporation or by-laws of
the Company or any agreement or
12
other
instrument that is filed as an exhibit to the Registration
Statement;
(vi) to such
counsel’s knowledge, there are no contracts, agreements or
understandings between the Company and any person (A) except
as described in the Time of Sale Prospectus, requiring the Company
or granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company or (B) requiring the Company or
granting such person the right to require the Company to include
any securities of the Company with the Shares registered pursuant
to the Registration Statement;
(vii) this
Agreement has been duly authorized, executed and delivered by the
Company;
(viii) the
execution and delivery by the Company of this Agreement, the
issuance of the Shares and the sale of the Shares by the Company to
the Underwriters pursuant to this Agreement and the performance by
the Company of its obligations under this Agreement will not
contravene any United States federal or New York or Maryland state
law, the DGCL, any provision of the certificate of incorporation or
by-laws of the Company or any agreement or other instrument binding
upon the Company that is filed as an exhibit to the Registration
Statement, or, to such counsel’s knowledge, any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company, and no consent, approval,
authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of
its obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Shares;
(ix) the
statements relating to legal matters, documents or proceedings
included in (A) each of the Time of Sale Prospectus and the
Prospectus under the captions “Risk Factors—Risks
Related to Our Business and Industry—We may face additional
costs and liability risks under HIPAA.;”
“Business—Government Regulation (except with respect to
“—Food and Drug Administration” and
“—Foreign Regulations”);”
“Management—Employment Agreements;”
“Management—Employee Benefit Plans;”
“Management—Limitation of Liability and
Indemnification;” “Certain Relationships and
Related
13
Transactions;” “Description of
Capital Stock;” “Material United States Federal Tax
Considerations for Non-United States Holders of Common
Stock;” and “Underwriters” (except with respect
to the third, fifth and eleventh paragraphs thereof) and
(B) the Registration Statement in Items 14 and 15, in each
case fairly summarize in all material respects such matters,
documents or proceedings;
(x) to such
counsel’s knowledge, there are no legal or governmental
proceedings pending or threatened to which the Company is a party
or to which any of the properties of the Company is 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
described or filed as required;
(xi) 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, required to register as an
“investment company” as such term is defined in the
Investment Company Act of 1940, as amended; and
(xii) in
connection with the preparation of the Registration Statement, the
Time of Sale Prospectus and the Prospectus, such counsel has
participated in conferences with directors, officers and other
representatives of the Company, representatives of and counsel for
the Underwriters and representatives of Ernst & Young LLP, the
Company’s independent public accountants, at which
conferences the contents of the Registration Statement, the Time of
Sale Prospectus and the Prospectus and related matters were
discussed, and, while the limitations inherent in the independent
verification of factual matters and in the character of
determinations involved in the registration process are such that
such counsel is not passing upon and does not assume any
responsibility, explicitly or implicitly, for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus (except to the extent expressly set forth in paragraph
(ix) above), (A) the Registration Statement and the
Prospectus (except for the financial statements, financial
schedules and other financial and accounting data and information
and statistical data included therein, as to which such counsel
need
14
not express any
view) appear on their face to be appropriately responsive in all
material respects to the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder, and
(B) nothing has come to the attention of such counsel that
causes such counsel to believe that (1) the Registration
Statement or the prospectus included therein (except for the
financial statements, financial schedules and other financial and
accounting data and information and statistical data included
therein, as to which such counsel need not express any view) at the
time the Registration Statement became effective contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, (2) the Time of Sale
Prospectus (except for the financial statements, financial
schedules and other financial and accounting data and information
and statistical data included therein, as to which such counsel
need not express any view) as of the date of this Agreement or as
amended or supplemented, if applicable, as of the Closing Date
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make
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