EXHIBIT 10.8
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SECURITIES PURCHASE AGREEMENT
AMONG
UNITED SURGICAL PARTNERS INTERNATIONAL, INC.
AND
THE SEVERAL PURCHASERS NAMED IN ANNEX I HERETO
DATED AS OF JUNE 26, 1998
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TABLE OF CONTENTS
PAGE
I. PURCHASE AND SALE OF SECURITIES
SECTION 1.01 Issuance, Sale and Delivery of Securities on the
Closing Date.............................................1
SECTION 1.02 Closing Date.............................................2
II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 2.01 Organization, Qualifications and Corporate Power.........2
SECTION 2.02 Authorization of Agreements, Etc.........................2
SECTION 2.03 Validity.................................................3
SECTION 2.04 Authorized Capital Stock.................................3
SECTION 2.05 Governmental Approvals...................................4
SECTION 2.06 Corporate Transactions...................................4
SECTION 2.07 Events Subsequent to Date of Incorporation...............4
SECTION 2.08 Actions Pending..........................................4
SECTION 2.09 Trade Secrets............................................5
SECTION 2.10 Taxes....................................................5
SECTION 2.11 Other Agreements.........................................5
SECTION 2.12 Title to Properties......................................5
SECTION 2.13 Compliance with Laws, Etc................................5
SECTION 2.14 Affiliated Transactions..................................5
SECTION 2.15 Brokers' or Finders' Fees................................6
III. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
SECTION 3.01 Authorization............................................6
SECTION 3.02 Validity.................................................6
SECTION 3.03 Investment Representations...............................6
SECTION 3.04 Governmental Approvals...................................7
SECTION 3.05 Brokers' or Finders' Fees................................8
IV. CONDITIONS PRECEDENT
SECTION 4.01 Conditions Precedent to the Obligations of
the Purchasers...........................................8
SECTION 4.02 Conditions Precedent to the Obligations of
the Company.............................................10
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PAGE
V. MISCELLANEOUS
SECTION 5.01 Expenses, Etc...........................................10
SECTION 5.02 Survival of Agreements..................................10
SECTION 5.03 Parties in Interest.....................................11
SECTION 5.04 Notices.................................................11
SECTION 5.05 Entire Agreement; Modifications.........................11
SECTION 5.06 Counterparts............................................12
SECTION 5.07 Assignment..............................................12
SECTION 5.08 Governing Law...........................................12
TESTIMONIUM................................................................13
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INDEX TO EXHIBITS, ANNEXES AND SCHEDULES
EXHIBIT DESCRIPTION
A Form of Amendment No. 1 to the Amended and Restated
Registration Rights Agreement
B Form of Amendment No. 1 to the Amended and Restated
Stockholders Agreement
ANNEX DESCRIPTION
I Purchasers
SCHEDULE DESCRIPTION
2.01(b) Company Ownership of Stock or Other Interests
2.04(a) Ownership of Capital Stock of Company
2.04(b) Rights, Warrants, Options, Etc.
2.05 Government Approvals
2.06 Corporate Transactions
2.07 Events Subsequent to Date of lncorporation
2.08 Actions Pending
2.12 Title to Properties
2.14 Affiliated Transactions
2.15 Brokers' or Finders' Fee
3.03(d) Certain Purchasers
3.05 Brokers' or Finders' Fee
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SECURITIES PURCHASE AGREEMENT dated as of June 26, 1998, among UNITED
SURGICAL PARTNERS INTERNATIONAL, INC., a Delaware corporation (the "Company")
and the several purchasers named in Annex I hereto (each of such purchasers
being hereinafter at times referred to individually as a "Purchaser" and
collectively as the "Purchasers").
WHEREAS, the Company has been formed to engage in the business of owning
and operating hospitals and/or surgical centers and acquiring additional
hospitals and/or surgical centers and other businesses related thereto
(collectively, the "Business");
WHEREAS, on the Closing Date (as hereinafter defined), the Company wishes
to issue, sell and deliver to the Purchasers an aggregate 400,000 shares of the
Company's Class A Common Stock, $.01 par value ("Class A Common Stock") and
1,200 shares of the Company's Series A Redeemable Preferred Stock, $.01 par
value ("Preferred Stock") (said shares of Class A Common Stock and Preferred
Stock being hereinafter collectively called the "Shares");
WHEREAS, the Purchasers, severally and not jointly, wish to purchase the
Shares, all on the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SECURITIES
SECTION 1.01 ISSUANCE, SALE AND DELIVERY OF SECURITIES ON THE CLOSING
DATE. (a) Subject to the terms and conditions set forth herein, on the Closing
Date, the Company shall issue, sell and deliver to each Purchaser, and each
Purchaser shall purchase from the Company (i) the number of shares of Class A
Common Stock set forth opposite the name of such Purchaser on Annex I hereto
under the heading "Number of Class A Common Shares" at a purchase price of $2.00
per share and (ii) the number of shares of Preferred Stock set forth opposite
the name of such Purchaser on Annex I hereto under the heading "Number of
Preferred Shares" at a purchase price of $1,000 per share. On the Closing Date,
the Company shall issue a certificate or certificates in definitive form,
registered in the name of each Purchaser, evidencing the securities being
purchased by each such Purchaser hereunder.
(b) As payment in full for the shares of Class A Common Stock and the
shares of Preferred Stock being purchased by each Purchaser hereunder on the
Closing Date, and against delivery thereof as aforesaid, on the Closing Date,
each Purchaser shall (i) pay to the Company, by personal check or by wire
transfer of immediately available funds to an account or accounts designated by
the Company, the amount set forth opposite the name of such Purchaser on Annex I
hereto under the heading "Total Purchase Price."
SECTION 1.02 CLOSING DATE. The closing of the sale and purchase of the
Shares shall take place at the offices of Reboul, MacMurray, Hewitt, Maynard, &
Kristol, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, at 10 a.m., New York time, on
June 26, 1998, or at such other date and time as may be mutually agreed upon
among the Purchasers and the Company (such closing being herein called the
"Closing" and such date and time being herein called the "Closing Date").
II
REPRESENTATIONS AND W ARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchasers as follows:
SECTION 2.01 ORGANIZATION QUALIFICATIONS AND CORPORATE POWER. (a) The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and is duly licensed or
qualified in each jurisdiction in which the nature of its business or the
ownership of its properties makes such licensing or qualification necessary,
except where the failure to be so licensed or qualified would not have a
material adverse effect on its ability to carry on its business. The Company has
the corporate power and authority to own and hold its properties, to carry on
its business as currently conducted and to execute and deliver this Agreement,
Amendment No. 1 to the Amended and Restated Registration Rights Agreement dated
as of the date hereof substantially in the form attached hereto as Exhibit A ("
Amendment No. 1 to the Registration Rights Agreement") among the Company and the
Purchasers and Amendment No. 1 to the Amended and Restated Stockholders
Agreement dated as of the date hereof substantially in the form attached hereto
as Exhibit B ("Amendment No. 1 to the Stockholders Agreement") among the
Company and the Purchasers, to perform its obligations under this Agreement,
Amendment No. 1 to Registration Rights Agreement and Amendment No. 1 to the
Stockholders Agreement, and to issue, sell and deliver the Shares.
(b) Except as set forth on Schedule 2.01(b) hereto, the Company does not
own of record or beneficially, directly or indirectly, (i) any shares of capital
stock or securities convertible into capital stock of any other corporation or
(ii) any participating interest in any partnership, joint venture or other
non-corporate business enterprise.
SECTION 2.02 AUTHORIZATION OF AGREEMENTS ETC.
(a) Each of the execution and delivery by the Company of this Agreement,
Amendment No. 1 to Registration Rights Agreement and Amendment No. 1 to the
Stockholders Agreement, the performance by the Company of its obligations
hereunder and thereunder, and the issuance, sale and delivery by the Company of
the Shares have been duly authorized by all requisite corporate action and will
not violate any provision of law, any order of any court or other agency of
government, the Certificate of Incorporation or By-laws of the Company, or any
provision of any indenture, agreement or other instrument to which the Company
or any of the
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properties or assets of the Company is bound, or conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any such indenture, agreement or other instrument, or result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company or any subsidiary
thereof.
(b) The Shares have been duly authorized by the Company and, when sold and
paid for in accordance with this Agreement, will be validly issued, fully paid
and non-assessable shares of Class A Common Stock or Preferred Stock, as the
case may be. The issuance, sale and delivery of the Shares to the Purchasers
hereunder is not subject to any preemptive rights of stockholders of the Company
or to any right of first refusal or other similar right in favor of any person.
SECTION 2.03 VALIDITY. This Agreement has been duly executed and delivered
by the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, subject,
as to enforcement of remedies, to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws from time to time in effect
affecting the enforcement of creditors' rights generally and to general equity
principles. Amendment No. 1 to the Registration Rights Agreement and Amendment
No. 1 to the Stockholders Agreement, when executed and delivered by the Company
as provided in this Agreement, and when executed and delivered by the other
parties thereto, will constitute the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws from time to time in effect affecting the enforcement of
creditors' rights generally and to general equity principles.
SECTION 2.04 AUTHORIZED CAPITAL STOCK.
(a) The authorized capital stock of the Company consists of (i) 30,000,000
shares of Common Stock, $.01 par value, (ii) 20,000,000 shares of Class A Common
Stock and (iii) 31,200 shares of Preferred Stock, $.01 par value. All of the
issued and outstanding shares of capital stock of the Company are owned of
record as set forth on Schedule 2.04(a) hereto.
(b) Except as contemplated by this Agreement, the Amended and Restated
Stockholders Agreement dated as of April 30, 1998 among the Company and the
several stockholders named therein (as amended), the Company's Certificate of
Incorporation or as set forth on Schedule 2.04(b) hereto, (i) no subscription,
warrant, option, convertible security or other right (contingent or other) to
purchase or acquire any shares of any class of capital stock of the Company is
authorized or outstanding, (ii) there is no binding commitment of the Company to
issue any shares, warrants, options or other such rights or to distribute to
holders of any class of the Company's capital stock, any evidences of
indebtedness or assets, and (iii) the Company has no obligations (contingent or
other) to purchase, redeem or otherwise acquire any shares of its capital stock
or any interest therein or to pay any dividend or make any other distribution in
respect thereof.
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SECTION 2.05 GOVERNMENTAL APPROVALS. Subject to the accuracy of the
representations and warranties of the Purchasers set forth in Article III
hereof, except as set forth on Schedule 2.05 hereto, no registration or filing
with, or consent or approval of, or other action by, any Federal, state or other
governmental agency or instrumentality is or will be necessary for the valid
execution and delivery of this Agreement, Amendment No. 1 to the Registration
Rights Agreement and Amendment No. 1 to the Stockholders Agreement, the
performance of this Agreement, Amendment No. 1 to the Registration Rights
Agreement and Amendment No. 1 to the Stockholders Agreement, or the issuance,
sale and delivery of the Shares, other than, if applicable, compliance with the
requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR Act").
SECTION 2.06 CORPORATE TRANSACTIONS. The Company was incorporated on
February 27, 1998. Since such date of incorporation, the Company has not
conducted any business or otherwise entered into any transactions other than (a)
its organization, the adoption of its By-laws and the election of directors and
officers, (b) the authorization and execution of the Stock Purchase Agreement,
the Stockholders Agreement and the Registration Rights Agreement, each dated as
of March 2, 1998 and among the Company and the several parties named therein,
(c) the authorization and execution of the Securities Purchase Agreement, the
Amended and Restated Registration Rights Agreement (the "Amended and Restated
Registration Rights Agreement") and the Amended and Restated Stockholders
Agreement, each dated as of April 30, 1998 and among the Company and several
parties named therein, (d) the authorization of this Agreement, Amendment No 1
to the Registration Rights Agreement, Amendment No. 1 to the Stockholders
Agreement and the transactions contemplated hereby and thereby and (e) the other
transactions set forth on Schedule 2.06 hereto.
SECTION 2.07 EVENTS SUBSEQUENT TO DATE OF INCORPORATION. Except as
contemplated by this Agreement or as set forth on Schedule 2.07 hereto, the
Company has not (a) issued any stock, bonds or other corporate securities, (b)
borrowed any amount or incurred any liabilities (absolute or contingent), (c)
discharged or satisfied any lien or incurred or paid any obligation or liability
(absolute or contingent), other than expenses incidental to the Company's
formation, (d) declared or made any payment or distribution to stockholders or
purchased or redeemed any shares of its capital stock or other securities or (e)
conducted any business of a material nature.
SECTION 2.08 ACTIONS PENDING. Except as set forth on Schedule 2.08 hereto,
there is no action, suit, investigation or proceeding pending or, to the
knowledge of the Company, threatened against or affecting the Company or any
subsidiary or any of their respective properties or rights before any court or
by or before any governmental body or arbitration board or tribunal, the outcome
of which might reasonably be expected to result in any material adverse effect
on the properties, assets, condition (financial or other), prospects, operating
results or business of the Company and its subsidiaries taken as a whole. To the
knowledge of the Company, except as set forth on Schedule 2.08 hereto, there
does not exist any reasonable basis for any such action, suit, investigation or
proceeding.
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SECTION 2.09 TRADE SECRETS. To the knowledge of the Company, (a) no third
party has claimed that any person affiliated with the Company or any subsidiary
has violated any of the terms or conditions of his employment contract with such
third party, or disclosed or utilized any trade secrets or proprietary
information or documentation of such third party, or interfered in the
employment relationship between such third party and any of its employees and
(b) no person affiliated with the Company or any subsidiary has employed any
trade secrets or any information or documentation proprietary to any former
employer.
SECTION 2.10. TAXES. The Company and each subsidiary, as applicable, has
duly and timely filed or caused to be filed all Federal, state, local and
foreign tax returns that have been required to be filed to date by it and has
timely paid or caused to be timely paid all taxes or all assessments received by
it to the extent that such taxes or assessments have become due.
SECTION 2.11 OTHER AGREEMENTS. Neither the Company nor any subsidiary is
in default in any material respect in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any material
agreement or instrument to which it is a party.
SECTION 2.12 TITLE TO PROPERTIES. Except as set forth on Schedule 2.12
hereto, the Company and each of its subsidiaries owns its properties and assets
free and clear of mortgages, pledges, security interests, liens, charges and
other encumbrances.
SECTION 2.13 COMPLIANCE WITH LAWS. ETC. (a) Each of the Company and its
subsidiaries has all material governmental licenses, franchises and permits for
the conduct of its business as currently conducted (collectively, "Governmental
Permits").
(b) The business of the Company and each of its subsidiaries is Being
conducted in compliance with all applicable laws, ordinances, rules and
regulations of all governmental authorities relating to their respective
properties or applicable to their respective businesses, including without
limitation the terms of all Governmental Permits and Federal securities laws,
other than minor non-compliance that can be cured at nominal cost without
adversely affecting the business of the Company or any subsidiary as it is
currently conducted. Neither the Company nor any subsidiary has received any
notice of any alleged violation of any of the foregoing, nor is the Company
aware of any basis for any such allegation.
SECTION 2.14 AFFILIATED TRANSACTIONS. Except as contemplated by this
Agreement or as set forth on Schedule 2.14 hereto, to the knowledge of the
Company, no officer, director or stockholder of the Company or any person
related by blood or marriage to any such person or any entity in which any such
person owns any beneficial interest, is a party to any agreement, contract,
commitment or transaction with the Company or has any material interest in any
material property used by the Company.
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SECTION 2.15 BROKERS' OR FINDERS' FEES. Except as set forth on Schedule
2.15, all negotiations relative to this Agreement and the transactions
contemplated hereby have been carried out by the Company with the Purchasers,
without the intervention of any person on behalf of the Company in such a manner
to give rise to any claim by any person for a finders' fee, brokerage commission
or similar payment.
III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser represents and warrants to the Company, severally and not
jointly,as follows:
SECTION 3.01 AUTHORIZATION. The execution, delivery and performance by
such Purchaser of this Agreement, Amendment No. 1 to the Registration Rights
Agreement and Amendment No. 1 to the Stockholders Agreement and the purchase and
receipt by such Purchaser of the Shares being purchased by it hereunder have
been duly authorized by all requisite action on the part of such Purchaser, and
will not violate any provision of law, any order of any court or other agency of
government applicable to such Purchaser, or any provision of any indenture,
agreement or other instrument by which such Purchaser or any of such Purchaser's
properties or assets are bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument.
SECTION 3.02 VALIDITY. This Agreement has been duly executed and delivered
by such Purchaser and constitutes the legal, valid and binding obligation of
such Purchaser, enforceable against such Purchaser in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws from time to time in effect affecting the enforcement of creditors'
rights generally and to general equity principles. Amendment No. 1 to the
Registration Rights Agreement and Amendment No. 1 to the Stockholders Agreement,
when executed and delivered by such Purchaser in accordance with this Agreement,
and when executed and delivered by the other parties thereto, will constitute
the legal, valid and binding obligation of such Purchaser, enforceable in
accordance with their terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws from time to time in effect
affecting the enforcement of creditors' rights generally and to general equity
principles.
SECTION 3.03 INVESTMENT REPRESENTATIONS. (a) Such Purchaser is acquiring
the Shares for its own account, for investment, and not with a view toward the
resale or distribution thereof in violation of applicable law.
(b) Such Purchaser understands that it must bear the economic risk of its
investment for an indefinite period of time because the Shares are not
registered under the Securities Act of 1933, as amended (the "Securities Act")
or any applicable state securities laws,
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and may not be resold unless subsequently registered under the Securities Act
and such other laws or unless an exemption from such registration is available.
Such Purchaser also understands that, except as provided in the Amended and
Restated Registration Rights Agreement (as amended), it is not contemplated that
any registration will be made under the Securities Act or that the Company will
take steps which will make the provisions of Rule 144 under the Securities Act
available to permit resale of the Shares. Such Purchaser will not pledge,
transfer, convey or otherwise dispose of any of the Shares, except in a
transaction that is the subject of either (x) an effective registration
statement under the Securities Act and any applicable state securities laws, or
(y) an opinion of counsel to the effect that such registration is not required
(which opinion and counsel shall be reasonably satisfactory to the Company, it
being agreed that Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol shall be
satisfactory, and may be relied on by the Company in making such determination),
it being intended that the agreements with respect to the Shares contained in
this sentence shall be construed consistently with the provisions relating to
the same subject matter contained in the Amended and Restated Registration
Rights Agreement (as amended).
(c) Such Purchaser is able to fend for itself in the transactions
contemplated by this Agreement and has the ability to bear the economic risks of
its investment in the Shares being purchased by it for an indefinite period of
time. Such Purchaser has had the opportunity to ask questions of, and receive
answers from, officers of the Company with respect to the business and financial
condition of the Company and the terms and conditions of the offering of the
Shares and to obtain additional information necessary to verify such information
or can acquire it without unreasonable effort or expense.
(d) Such Purchaser has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of its
investment in the Shares. Such Purchaser (other than the Purchasers set forth on
Schedule 3.03(d) hereto) is an "accredited investor" as such term is defined in
Rule 501 of Regulation D under the Securities Act with respect to its purchase
of the Shares, and that if such Purchaser is a partnership, it has not been
formed solely for the purpose of purchasing the Shares it is purchasing
hereunder (unless each of the partners of such partnership is an accredited
investor).
SECTION 3.04 GOVERNMENTAL APPROVALS. No registration or filing with, or
consent or approval of, or other action by, any Federal, state or other
governmental agency or instrumentality is or will be necessary by such Purchaser
for the valid execution, delivery and performance of this Agreement, Amendment
No. 1 to the Registration Rights Agreement and Amendment No. 1 to the
Stockholders Agreement, other than, if applicable, compliance with the
requirements of the HSR Act.
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SECTION 3.05 BROKERS' OR FINDERS' FEES. Except as set forth on Schedule
3.05, all negotiations relative to this Agreement and the transactions
contemplated hereby have been carried out by the Purchasers with the Company,
without the intervention of any person on behalf of the Purchasers in such a
manner as to give rise to any claim by any person for a finders' fee, brokerage
commission or similar payment.
IV
CONDITIONS PRECEDENT
SECTION 4.01 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PURCHASERS.
The obligations of each Purchaser hereunder are, at its option, subject to the
satisfaction, on or before the Closing Date, of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TO BE TRUE AND CORRECT. The
representations and warranties of the Company contained in this Agreement shall
be true and correct in all material respects on the Closing Date, with the same
force and effect as though such representations and warranties had been made on
and as of such date, and the Company shall have certified to such effect to the
Purchasers in writing.
(b) PERFORMANCE. The Company shall have performed and complied with all
agreements and conditions contained herein required to be performed or complied
with by it prior to or on the Closing Date, and the Company shall have certified
to such effect to the Purchasers in writing.
(c) ALL PROCEEDINGS TO BE SATISFACTORY. All corporate and other
proceedings to be taken by the Company and all waivers and consents to be
obtained by the Company in connection with the transactions contemplated hereby
shall have been taken or obtained by the Company and all documents incident
thereto shall be satisfactory in form and substance to the Purchasers and their
counsel.
(d) LEGAL ACTIONS OR PROCEEDINGS. No legal action or proceeding shall have
been instituted or threatened seeking to restrain, prohibit, invalidate or
otherwise affect the consummation of the transactions contemplated hereby.
(e) AMENDMENT NO. 1 TO THE REGISTRATION RIGHTS AGREEMENT AND AMENDMENT NO.
1 TO THE STOCKHOLDERS AGREEMENT. The Company shall have executed and delivered
Amendment No. 1 to the Registration Rights Agreement and Amendment No. 1 to the
Stockholders Agreement.
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(f) OPINION OF COUNSEL. The Purchasers shall have received an opinion of
Nossaman, Guthner, Xxxx & Xxxxxxx, LLP in form and substance reasonably
satisfactory to the Purchasers and their counsel.
(g) SUPPORTING DOCUMENTS. The Purchasers and their counsel shall have
received copies of the following supporting documents:
(i)(x) copies of the Certificate of Incorporation of the Company, and all
amendments thereto, certified as of a recent date by the Secretary of State
of the State of Delaware, and (y) a certificate of said Secretary dated as of
a recent date as to the due incorporation and good standing of the Company
and listing all documents of the Company on file with said Secretary;
(ii) a certificate of the Secretary or an Assistant Secretary of the
Company dated the Closing Date and certifying (w) that attached thereto is a
true and complete copy of the By-laws of the Company as in effect on the date
of such certification; (x) that attached thereto is a true and complete copy
of resolutions adopted by the Board of Directors of the Company authorizing
the execution, delivery and performance of this Agreement, Amendment No. 1 to
the Registration Rights Agreement, Amendment No. 1 to the Stockholders
Agreement and the issuance, sale and delivery of the Shares, and that all
such resolutions are still in full force and effect and are all the
resolutions adopted in connection with the transactions contemplated hereby
and thereby; (y) that the Certificate of Incorporation of the Company has not
been amended since the date of the last amendment referred to in the
certificate delivered pursuant to clause (i)(x) above; and (z) as to the
incumbency and specimen signature of each officer of the Company executing
this Agreement, Amendment No. 1 to the Registration Rights Agreement,
Amendment No. 1 to the Stockholders Agreement and the stock certificates
representing the Shares and any certificate or instrument furnished pursuant
hereto, and a certification by another officer of the Company as to the
incumbency and signature of the officer signing the certificate referred to
in this paragraph (ii); and
(iii) such additional supporting documents and other information with
respect to the operations and affairs of the Company as the Purchasers or
their counsel may reasonably request.
All such documents shall be satisfactory in form and substance to the
Purchasers and their counsel.
(h) CONSENTS: HSR ACT WAITING PERIOD. The Company shall have obtained all
authorizations, consents, waivers and approvals as may be required in connection
with the consummation of this Agreement and the transactions contemplated
hereby. Without limiting the generality of the foregoing, all applicable waiting
periods under the HSR Act with respect to the transactions contemplated hereby
shall have expired or been terminated.
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SECTION 4.02 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE COMPANY. The
obligations of the Company hereunder are, at its option, subject to the
satisfaction, on or before the Closing Date of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TO BE TRUE AND CORRECT. The
representations and warranties of the Purchasers contained in this Agreement
shall be true and correct in all material respects on the Closing Date, with the
same effect as though such representations and warranties had been made on and
as of such date.
(b) PERFORMANCE. The Purchasers shall have performed and complied with all
agreements and conditions contained herein required to be performed or complied
with by them prior to or on the Closing Date.
(c) ALL PROCEEDINGS TO BE SATISFACTORY. All proceedings to be taken by the
Purchasers and any waivers and consents to be obtained by the Purchasers in
connection with the transactions contemplated hereby shall have been taken or
obtained by the Purchasers and all documents incident thereto shall be
satisfactory in form and substance to the Company and its counsel.
(d) LEGAL ACTIONS OR PROCEEDINGS. No legal action or proceeding shall have
been instituted or threatened seeking to restrain, prohibit, invalidate or
otherwise affect the consummation of the transactions contemplated hereby.
(e) AMENDMENT NO. 1 TO THE REGISTRATION RIGHTS AGREEMENT AND AMENDMENT
NO. 1 TO THE STOCKHOLDERS AGREEMENT. Each of the Purchasers shall have executed
and delivered Amendment No. 1 to the Registration Rights Agreement and Amendment
No. 1 to the Stockholders Agreement.
V
MISCELLANEOUS
SECTION 5.01 EXPENSES. ETC, Each party shall pay its own expenses, except
that the Company shall pay a11 fees and expenses of Reboul, MacMurray, Xxxxxx,
Xxxxxxx & Kristol incident to the negotiation, preparation and execution of this
Agreement. Each party hereto will indemnify and hold harmless the others against
and in respect of any claim for brokerage or other commissions relative to this
Agreement or to the transactions contemplated hereby, made as a result of any
agreements, arrangements or understandings made or claimed to have been made by
such party with any third party.
SECTION 5.02 SURVIVAL OF AGREEMENTS. All covenants, agreements,
representations and warranties made herein shall survive the execution and
delivery of this
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Agreement and the issuance, sale and delivery of the Shares pursuant hereto and
all statements contained in any certificate or other instrument delivered by the
Company hereunder shall be deemed to constitute representations and warranties
made by the Company.
SECTION 5.03 PARTIES IN INTEREST. All covenants and agreements contained
in this Agreement by or on behalf of any of the parties hereto shall bind and
inure to the benefit of the respective successors and assigns of the parties
hereto whether so expressed or not.
SECTION 5.04 NOTICES. Any notice or other communications required or
permitted hereunder shall be deemed to be sufficient if contained in a written
instrument delivered in person or by overnight courier or duly sent by first
class certified mail, postage prepaid, or by facsimile addressed to such party
at the address or facsimile number set forth below:
if to the Company, to:
United Surgical Partners International, Inc.
00000 Xxxxxxx Xxxx
Xxxxx 000 Xxxxx
Xxxxxx, Xxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxx Xxxxx
with a copy to:
Nossaman, Guthner, Xxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
if to any Purchaser, to such Purchaser at the address appearing on Annex I
hereto;
or, in any case, at such other address or addresses as shall have been furnished
in writing by such party to the other parties hereto. All such notices,
requests, consents and other communications shall be deemed to have been
received (a) in the case of personal or courier delivery, on the date of such
delivery, (b) in the case of mailing, on the fifth business day following the
date of such mailing and (c) in the case of facsimile, when received.
SECTION 5.05 ENTIRE AGREEMENT; MODIFICATIONS. This Agreement (including
the Exhibits, Annexes and Schedules hereto) constitutes the entire agreement of
the parties with respect to the subject matter hereof and may not be amended or
modified nor any provisions waived except in a writing signed by the party to be
charged.
11
SECTION 5.06 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 5.07 ASSIGNMENT. This Agreement may not be assigned by the Company
or the Purchasers without the prior written consent of the Company and each of
the Purchasers.
SECTION 5.08 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
12
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written.
UNITED SURGICAL PARTNERS
INTERNATIONAL, INC.
By /s/ XXXXXX XXXXX
Xxxxxx Xxxxx
Chief Executive Officer
PURCHASERS:
M. XXXXXX XXXXX TRUST U/A
(DTD August 31, 1990)
/s/ M. XXXXXX XXXXX
M. Xxxxxx Xxxxx
Trustee
/s/ XXXXXXXXX X. XXXXX
Xxxxxxxxx X. Xxxxx
Trustee
PURCHASERS:
CALVER FUND,INC.
/s/ XXXX X. XXXXXXXX
Xxxx X. Xxxxxxxx
President
PURCHASERS:
/s/ XXXXX XXX XXXXXX
Xxxxx Xxx Xxxxxx
PURCHASERS:
NGKE/USPI PARTNERS
By /s/ XXXXXX XXXXXX
Xxxxxx Xxxxxx
Managing Partner
PURCHASERS:
L & W CO.
/s/ XXXXXX X. XXXXXXX
Xxxxxx X. Xxxxxxx
Vice-President & Trust Officer
PURCHASERS:
/s/ XXXXXX XXXXXXXXXX
Xxxxxx Xxxxxxxxxx
PURCHASERS:
/s/ XXXXXXX XXXXXX
Xxxxxxx Xxxxxx
PURCHASERS:
/s/ XXXX XXXXXXX
Xxxx Xxxxxxx
PURCHASERS:
RIVID LLC
By /s/ XXXXX XXXXXXXXXX
Xxxxx Xxxxxxxxxx
Manager
PURCHASERS:
CGJR II, L.P.
By CGJR Capital Management, Inc.
General Partner
By /s/ XXXXXXXXXXX XXXXX, JR.
Xxxxxxxxxxx Xxxxx, Jr.
President
PURCHASERS:
CGJR/MF III, L.P.
By CGJR Capital Management, Inc.
General Partner
By /s/ XXXXXXXXXXX XXXXX, JR.
Xxxxxxxxxxx Xxxxx, Jr.
President
PURCHASERS:
/s/ XXXXXXX XxXXXXXX
Xxxxxxx XxXxxxxx
PURCHASERS:
/s/ XXXXX XXXXXX
Xxxxx Xxxxxx
PURCHASERS:
/s/ XXXXXXXX XXXXXX
Xxxxxxxx Xxxxxx
PURCHASERS:
/s/ XXXXX XXXXXX
Xxxxx Xxxxxx
PURCHASERS:
/s/ XXXXXXX X. XXXXXXXX
Xxxxxxx X. Xxxxxxxx
/s/ XXXX X. XXXXXXXX
Xxxx X. Xxxxxxxx
Tenants in Common
PURCHASERS:
/s/ XXX X. XXXXX
Xxx X. Xxxxx
ANNEX I - PURCHASERS
Number of Number of Total
Class A Common Preferred Purchase
Shares Shares Price
-------------- --------- ----------
M. Xxxxxx Xxxxx Trust 20,000 60 $ 100,000
Calver Fund, Inc. 40,000 120 $ 200,000
Xxxxx Xxx Xxxxxx 40,000 120 $ 200,000
NGKE/USPI Partners 40,000 120 $ 200,000
L & W Co. 20,000 60 $ 100,000
Xxxxxx Xxxxxxxxxx 30,000 90 $ 150,000
Xxxxxxx Xxxxxx 20,000 60 $ 100,000
Xxxx Xxxxxxx 40,000 120 $ 200,000
Rivid LLC 30,000 90 $ 150,000
CGJR II, L.P. 25,500 77 $ 128,000
CGJR/MF III, L.P. 14,500 43 $ 72,000
Xxxxxxx XxXxxxxx 20,000 60 $ 100,000
Xxxxx Xxxxxx 20,000 60 $ 100,000
Xxxxxxxx Xxxxxx 10,000 30 $ 50,000
Xxxxx Xxxxxx 10,000 30 $ 50,000
Xxxxxxx X. & Xxxx X. Xxxxxxxx 10,000 30 $ 50,000
Xxx X. Xxxxx 10,000 30 $ 50,000
------ ------ ----------
Totals: 400,000 1,200 $2,000,000
ANNEX I (continued)
Addresses:
M. Xxxxxx Xxxxx, M.D.
00 Xxx Xxxx
Xxxxxxx, XX 00000
Calver Fund, Inc.
c/o Xxxx Xxxxxxxx
00000 Xxxxxx Xxxxxxx - Xxxxx 000
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Xxxxx Xxx Xxxxxx
Horizon Health Corporation
0000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
NGKE/USPI Partners
c/o Xxxxxx Xxxxxx
Nossaman, Guthner, Xxxx & Elliot, LLP
000 X. Xxxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Facsimile: 000-000-0000
L & W Co.
Attn: Xxxxxx X. Xxxxxxx
c/o North Dallas Bank & Trust Co.
00000 Xxxxxxx Xxxx @ XXX
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Xxxxxx Xxxxxxxxxx
Brownstein, Hyatt, Xxxxxx & Xxxxxxxxxx
000 00xx Xxxxxx - 00xx Xxxxx
Xxxxxx, XX 00000
Facsimile 000-000-0000
Rivid LLC
c/o Xxxxx Xxxxxxxxxx
000 Xxxxxxxx Xxxx. - Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile 000-000-0000
Xxxxxxx Xxxxxx
United Dental Care
00000 Xxxxxxx Xxxx - Xxxxx 000 Xxxx
Xxxxxx, XX 00000
Facsimile 000-000-0000
Xxxx Xxxxxxx
Xxxxxxxx Company
0000 XXX Xxxxxxx - Xxxxx 0000
Xxxxxx, XX 00000
Facsimile. 000-000-0000
CGJR II, L.P.
CGJR/MF III, L.P.
c/o Xxxxxxxxxxx Xxxxx, Jr.
00 Xxxxxx Xxxxx Xxxx Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile 000-000-0000
Xxxxxxx XxXxxxxx
Xxxxx Xxxxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile 000-000-0000
Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
2121 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Facsimile. 000-000-0000
Xxxxxxx X Xxxxxxxx
Xxx X. Xxxxx
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
00000 Xxxx Xxxxxx Xxxxx 0000
Xxxxxx, XX 00000
Facsimile 214-979 4100
EXHIBIT A
FORM OF AMENDED AND RESTATED REGISTRATION RIGHTS AMENDMENT
SEE TAB 2
EXECUTION COPY
EXHIBIT A
AMENDMENT NO. I
TO
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
AMENDMENT NO. 1 to the Amended and Restated Registration Rights
Agreement, dated as of June 26, 1998 (the "Amendment"), by and among United
Surgical Partners International, Inc., a Delaware corporation (the "Company")
and the parties named at the foot hereof (each of such parties being
hereinafter referred to individually as a 'Purchaser" and collectively as the
"Purchasers"), amending the Amended and Restated Registration Rights
Agreement dated as of April 30, 1998 among the Company and the several
signatories thereto (the "Registration Rights Agreement").
On the date hereof, the Company and the Purchasers are consummating
the transactions contemplated by the Securities Purchase Agreement dated as
of the date hereof (the "Securities Purchase Agreement") pursuant to which
the Company has agreed to sell to the Purchasers an aggregate 400,000 shares
of the Company's Class A Common Stock. $ 01 par value ("Class A Common
Stock") (such shares of Class A Common Stock being hereinafter collectively
called the "Shares").
It is a condition to the closing of the transactions contemplated by
the Securities Purchase Agreement that the Company and the Purchasers execute
this Amendment.
Pursuant to Section 13(d) of the Registration Rights Agreement, the
Registration Rights Agreement is hereby amended as follows:
1. Each Purchaser is hereby made a party to the Registration Rights
Agreement with the same rights and obligations as a holder of "Investor
Shares" (with respect to the Shares) as set forth in the Registration Rights
Agreement.
2. The Registration Rights Agreement, as amended by this Amendment,
is hereby in all respects confirmed.
3. This Amendment shall be governed by and construed in accordance
with the laws of the State of Delaware.
4. This Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
UNITED SURGICAL PARTNERS
INTERNATIONAL, INC.
By
------------------------
Xxxxxx Xxxxx
Chief Executive
AGREED TO AND ACCEPTED
as of the date first above written.
M. XXXXXX XXXXX TRUST U/A
(DTD August 31, 1990)
--------------------------------------------
M. Xxxxxx Xxxxx
Trustee
--------------------------------------------
Xxxxxxxxx X. Xxxxx
Trustee
AGREED TO AND ACCEPTED
as of the date first above written.
CALVER FUND, INC.
By
------------------------------------------
Xxxx X. Xxxxxxxx
President
AGREED TO AND ACCEPTED
as of the date first above written.
------------------------------------------
Xxxxx Xxx Xxxxxx
AGREED TO AND ACCEPTED
as of the date first above written.
NGKE/USPI PARTNERS
By
------------------------------------------
Xxxxxx Xxxxxx
Managing Partner
AGREED TO AND ACCEPTED
as of the date first above written.
L & W CO.
By
------------------------------------------
Xxxxxx X. Xxxxxxx
Vice-President & Trust Officer
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxxxxx Xxxxxxxxxx
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxxxxxx Xxxxxx
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxxx Xxxxxxx
AGREED TO AND ACCEPTED
as of the date first above written.
RIVID LLC
By
------------------------------------------
Xxxxx Xxxxxxxxxx
Manager
AGREED TO AND ACCEPTED
as of the date first above written.
CGJR II, L.P.
By CGJR Capital Management, Inc.
General Partner
By
------------------------------------------
Xxxxxxxxxxx Xxxxx, Jr.
President
AGREED TO AND ACCEPTED
as of the date first above written.
CGJR/MF III, L.P.
By CGJR Capital Management. Inc.
General Partner
By
------------------------------------------
Xxxxxxxxxxx Xxxxx, Jr.
President
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxxxxxx XxXxxxxx
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxxxx Xxxxxx
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxxxxxxx Xxxxxx
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxxxx Xxxxxx
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Xxxx X. Xxxxxxxx
Tenants in Common
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxx X. Xxxxx
EXHIBIT B
FORM OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
SEE TAB 3
EXECUTION COPY
EXHIBIT B
AMENDMENT NO. 1
TO
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
AMENDMENT NO. 1 to the Amended and Restated Stockholders Agreement,
dated as of June 26, 1998 (the "Amendment"), by and among United Surgical
Partners International, Inc. a Delaware corporation (the "Company"), and the
parties named at the foot hereof (each of such parties being hereinafter
referred to individually as a "Purchaser" and collectively as the
"Purchasers") amending the Amended and Restated Stockholders Agreement dated
as of April 30, 1998 among the Company and the several signatories thereto
(the "Stockholders Agreement").
On the date hereof, the Company and the Purchasers are consummating
the transactions contemplated by the Securities Purchase Agreement dated as
of the date hereof (the "Securities Purchase Agreement") pursuant to which
the Company has agreed to sell to the Purchasers an aggregate 400,000 shares
of the Company's Class A Common Stock, $.01 par value ("Class A Common
Stock") and an aggregate 1,200 shares of the Company's Series A Redeemable
Preferred Stock, $.01 par value ("Preferred Stock") (said shares of Class A
Common Stock and Preferred Stock being hereinafter collectively called the
"Shares").
It is a condition to the closing of the transactions contemplated by
the Securities Purchase Agreement that the Company and the Purchasers execute
this Amendment,
Pursuant to Section 13 of the Stockholders Agreement, the
Stockholders Agreement is hereby amended as follows:
1. Each Purchaser is hereby made a party to the Stockholders
Agreement with the same rights and obligations as the "Investors" as set
forth in the Stockholders Agreement.
2. The Stockholders Agreement, as amended by this Amendment, is
hereby in all respects confirmed.
3. This Amendment shall be governed by and construed in accordance
with the laws of the State of Delaware.
4. This Amendment may be executed in two or more counterparts, each
of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
UNITED SURGICAL PARTNERS
INTERNATIONAL, INC.
By:
------------------------
Xxxxxx Xxxxx
Chief Executive Officer
AGREED TO AND ACCEPTED
as of the date first above written.
M. XXXXXX XXXXX TRUST U/A
(DTD August 31, 1990)
--------------------------------------------
M. Xxxxxx Xxxxx
--------------------------------------------
Xxxxxxxxx X. Xxxxx
Trustees
AGREED TO AND ACCEPTED
as of the date first above written.
CALVER FUND, INC.
--------------------------------------------
Xxxx X. Xxxxxxxx
President
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxxxx Xxx Xxxxxx
AGREED TO AND ACCEPTED
as of the date first above written.
NGKE/USPI PARTNERS
--------------------------------------------
Xxxxxx Xxxxxx
Managing Partner
AGREED TO AND ACCEPTED
as of the date first above written.
L & W CO.
By
------------------------------------------
Xxxxxx X. Xxxxxxx
Vice-President & Trust Officer
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxxxxx Xxxxxxxxxx
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxxxxxx Xxxxxx
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxxx Xxxxxxx
AGREED TO AND ACCEPTED
as of the date first above written.
RIVID LLC
By
------------------------------------------
Xxxxx Xxxxxxxxxx
Manager
AGREED TO AND ACCEPTED
as of the date first above written.
CGJR II, L.P.
By CGJR Capital Management, Inc.
General Partner
By
------------------------------------------
Xxxxxxxxxxx Xxxxx, Jr.
President
AGREED TO AND ACCEPTED
as of the date first above written.
CGJR/MF III, L.P.
By CGJR Capital Management, Inc.
General Partner
By
------------------------------------------
Xxxxxxxxxxx Xxxxx, Jr.
President
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxxxxxx XxXxxxxx
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxxxx Xxxxxx
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxxxxxxx Xxxxxx
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxxxxxxx Xxxxxx
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxxxx Xxxxxx
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Xxxx X. Xxxxxxxx
Tenants in Common
AGREED TO AND ACCEPTED
as of the date first above written.
--------------------------------------------
Xxx X. Xxxxx
SCHEDULE 2.01(b)
COMPANY OWNERSHIP OF STOCK OR OTHER INTERESTS
1. COLUMBIA INTERNATIONAL HOLDINGS, INC., a Delaware corporation
("CIH"), which is 100% owned by the Company.
2. COLUMBIA HEALTHCARE CORPORATION OF SPAIN, S. L., a Spanish
corporation ("Spanish Parent"), which is presently 100% owned by
CIH. The Company has entered into a Shareholders Agreement with
Hospital Management Team, S.L., a Spanish corporation ("HMT"),
pursuant to which CIH will contribute 100% of the stock of Spanish
Parent and $250,000 to USP Europe, S.L., a Spanish corporation ("USP
Europe"), in exchange for 82.5% of the stock of USP Europe. Under
the Shareholders Agreement, HMT will (a) purchase 17.5% of the stock
of USP Europe, (b) be granted an option to purchase an additional
2.5% of such stock and (c) have the right to purchase shares and be
granted options in connection with future stock issuances that will,
if fully exercised, allow HMT to maintain its 20% ownership interest
(including shares underlying options) in USP Europe.
3. INSTITUTO DEXEUS, S. A., a Spanish corporation that is 79.0654%
owned by Spanish Parent ("Dexeus").
4. DIAGNOSTICOS Y TRATAMIENTOS, S. A., a Spanish corporation that is
71.28% owned by Dexeus.
5. DENSITOMETRIA OSEO COMUTERIZADA, S. L., a Spanish corporation that
is 15% owned by Dexeus.
6. IMAGENES DIAGNOSTICAS, S. A., a Spanish corporation that is 7% owned
by Dexeus.
7. ESTUDIOS FUNCIONALES, S. A., a Spanish corporation that is 12% owned
by Dexeus.
8. UNIDAD DE RECUPERACION DEL SUELO PELVICO, S. L., a Spanish
corporation that is 15% owned by Dexeus.
9. CENTRO DE PATOLOGIA CELULAR, S. A., a Spanish corporation that is
10% owned by Dexeus.
SCHEDULE 2.04(a)
OWNERSHIP OF CAPITAL STOCK OF THE COMPANY
Number of Shares
Stockholder of Record of Class A Common Stock
--------------------- -----------------------
Welsh, Xxxxxx Xxxxxxxx & Xxxxx VII, L.P. 6,482,665
WCAS Healthcare Partners, L.P. 96,890
Xxxxxxx X. Xxxxx 79,036
Xxxxxxx X. Xxxxxx 79,035
Xxxxx X. Xxxxxxxx 79,035
Xxxxxxx X. Xxxxx 13,842
Xxxxxx X. Xxxx 13,842
Xxxxxx X. XxXxxxxxx 41,525
Xxxxx XxxXxxxx 693
Xxxxxx X. Xxxxxxxxx 13,842
Xxxxxxx xxXxxxxx 4,844
Xxxxxxx X. Xxxxxx 2,076
Xxxx X. Xxxxxxx 10,658
D. Xxxxx Xxxxxxx 2,768
Xxxxxxx Xxxxxx 10,500
Xxxxxx Xxxxx 656,250
Xxx Xxxxxxx 187,500
Xxxxxx Xxxxx 37,500
Xxxxxxx Xxxxx 75,000
XxXxx Xxxxxx 37,500
Xxxxx XxXxxxxx 75,000
------
TOTAL: 8,000,000
SCHEDULE 2.04(b)
RIGHTS, WARRANTS, OPTIONS, ETC.
1. The Company's Board of Directors has authorized the
grant of stock options covering a total of 880,800 shares of Common Stock at
an option price of $2.00 per share.
2. The letter of intent, dated January 23, 1998, between
WCAS VII and Xxxxxx X. Xxxxx states that Xx. Xxxxx may be entitled to be
granted additional options if Xx. Xxxxx continues to invest in the Company on
a pro rata basis with WCAS VII and its affiliated investors after the initial
proposed investment of $50,000,000 is made by WCAS VII and its affiliates.
SCHEDULE 2.05
GOVERNMENTAL APPROVALS
1. If the Purchasers exercise their rights pursuant to
Section 4 of the Amended and Restated Registration Rights Agreement to
require the Company to register any portion of their Company shares, the
Company will be required to make filings under applicable federal and state
securities laws in order to perform its obligations.
2. The Company is required to file a Form 25102(f) or an
SEC Form D with the California Commissioner of Corporations following the
Closing Date.
SCHEDULE 2.06
CORPORATE TRANSACTIONS
1. The Company has established a corporate office in
Dallas, Texas, has several employees and is actively investigating and
negotiating several possible acquisition and joint venture transactions.
2. The Company executed a Stock Purchase Agreement,
consummated the acquisition of the stock of CIH and made a loan of
$2,644,222.37 to Spanish Parent on April 30, 1998. Since that time, the
corporations listed on Schedule 2.01(b) have conducted their respective
businesses.
3. The Company entered into the Shareholders Agreement
referred to in Item 2 of Schedule 2 01(b) and is in the process of
implementing the transactions provided for therein.
4. The Company has entered into a non-binding letter of
intent, dated June 4, 1998, with Health Horizons, Inc , a Delaware
corporation ("HHI"), which provides for HHI to be merged into a wholly-owned
subsidiary of the Company for approximately $6.8 million, 60% of which will
be in USPI stock (40% Class A Common and 60% Series B Convertible Preferred
Stock) and 40% of which will be in cash, plus a maximum "earn-out" payment of
$1.5 million (all payable in cash, if earned)
5. The Company has also entered into a non-binding letter
of intent, dated May 1, 1998, with St. Rose Dominican Hospital, a Nevada
not-for-profit corporation, to participate in the development of an
outpatient surgery center in Henderson, Nevada.
6. Spanish Parent and/or USP Europe are in negotiations to
acquire two additional hospitals in Spain.
7. The Company is in various stages of negotiations for the
acquisition or development of other outpatient surgery centers or hospitals
in the United States.
SCHEDULE 2.07
EVENTS SUBSEQUENT TO DATE OF INCORPORATION
See Schedules 2.01(b), 2.04(a), 2.04(b) and 2.06, which are incorporated
herein by this reference.
SCHEDULE 2.08
ACTIONS PENDING
None.
SCHEDULE 2.12
TITLE TO PROPERTY
Dexeus has an outstanding mortgage debt of approximately $1.9 million.
SCHEDULE 2.14
AFFILIATED TRANSACTIONS
See Schedule 2.04(b), which is incorporated herein by this reference.
SCHEDULE 2.15
BROKERS' OR FINDERS' FEES
None.
SCHEDULE 3.03(d)
CERTAIN PURCHASERS
None.
SCHEDULE 3.05
BROKERS' OR FINDERS' FEES
None.
