[DRAFT]
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
XXXXX HEALTHCARE CORPORATION
and
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
------------------------------
UNDERWRITING AGREEMENT
------------------------------
Dated as of __________, 1995
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
XXXXX HEALTHCARE CORPORATION
% EXCHANGEABLE SUBORDINATED NOTES DUE 2007
EXCHANGEABLE FOR SHARES OF COMMON STOCK
OF VENCOR, INC.
UNDERWRITING AGREEMENT
----------------------
__________, 1995
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX LYNCH, XXXXXX,
XXXXXX & XXXXX INCORPORATED
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Subject to the terms and conditions herein contained, Xxxxx
Healthcare Corporation, a Nevada corporation (the "Company"), proposes to issue
and sell to Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation ("DLJ") and
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated (together with DLJ, the
"Underwriters") an aggregate of $_____ million principal amount of its %
Exchangeable Subordinated Notes due 2007 (the "Securities"). The Securities are
to be issued pursuant to the provisions of an Indenture (the "Indenture") to be
dated as of __________, 1995, by and between the Company and The Bank of New
York, as Trustee (the "Trustee") and will also be subject to the provisions of
an escrow agreement to be dated as of __________, 1995 (the "Escrow Agreement")
between the Company and The Bank of New York, as Escrow Agent (the "Escrow
Agent"). The Securities will be exchangeable for shares ("Vencor Common
Shares") of common stock of Vencor, Inc., a Delaware corporation ("Vencor"), on
the terms set forth in the Securities, the Indenture and the Escrow Agreement.
This Agreement, the Securities, the Indenture and the Escrow Agreement are
collectively referred to herein as the "Transaction Documents."
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated pursuant thereto
(collectively, the "Act"), a registration statement on Form S-3 (No. 33- ),
with respect to the Securities, including a preliminary prospectus, subject to
completion, relating to the Securities. The registration statement, as amended
at the time it becomes effective or, if a post-effective amendment is filed with
respect thereto, as amended by such post-effective amendment at the time of its
effectiveness (including in each case all documents incorporated or deemed to be
incorporated by reference therein, if any, all financial statements and
exhibits, and the information, if any, contained in a prospectus subsequently
filed with the Commission pursuant to Rule 424(b) under the Act and deemed to be
a part of the registration statement at the time of its effectiveness pursuant
to Rule 430A of the Act) is hereinafter referred to as the "Registration
Statement;" and the prospectus constituting a part of the Registration Statement
at the time it became effective, or such revised prospectus as shall be provided
to the Underwriters for use in connection with the offering of the Securities
that differs from the prospectus on file with the Commission at the time the
Registration Statement became effective (including, in each case, all documents
incorporated or deemed to be incorporated by reference therein, if any), whether
or not filed with the Commission pursuant to Rule 424(b) under the Act, is
hereinafter referred to as the "Prospectus." Any reference herein to the
Registration Statement, the Prospectus, any amendment or supplement thereto or
any preliminary prospectus shall be deemed to refer to and include the documents
incorporated by reference therein, and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration Statement
or Prospectus shall be deemed to refer to and include the filing after the
execution hereof of any document with the Commission deemed to be incorporated
by reference therein.
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell to the Underwriters,
and the Underwriters agree, severally and not jointly, to purchase from the
Company, the Securities in the respective principal amounts set forth opposite
their names on Schedule I hereto, plus such amount as they may individually
become obligated to purchase pursuant to Section 8 hereof, at a purchase price
equal to % of the principal amount of the Securities together with accrued
interest, if any, to the Closing Date (the "Purchase Price").
3. DELIVERY AND PAYMENT. Delivery to you of and payment for
the Securities shall be made at 10:00 A.M., New York City time, on __________,
1995 (such time and date being referred to as the "Closing Date"), at the
offices of DLJ at 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Cashier's Window, Main
Level), or such other place as you shall reasonably designate.
The Securities in definitive form shall be registered in such
names and issued in such denominations as you shall request in writing not later
than two full business days prior to the Closing Date, and shall be made
available to you at the offices
- 2 -
of DLJ (or at such other place as shall be acceptable to you) for inspection not
later than 10:00 A.M., New York City time, on the business day next preceding
the Closing Date. The Securities shall be delivered to you on the Closing Date
with any transfer taxes payable upon initial issuance thereof duly paid by the
Company, for your respective accounts against payment of the Purchase Price by
certified or official bank checks payable in New York Clearing House funds to
the order of the Company. The Closing Date and the location of delivery of, and
the form of payment for, the Securities may be varied by agreement between DLJ
and the Company.
4. AGREEMENTS OF THE COMPANY. The Company agrees with each of
you that:
(a) It will, if the Registration Statement has not
heretofore become effective under the Act, and if otherwise necessary or
required by law, file an amendment to the Registration Statement or, if
necessary pursuant to Rule 430A of the Act, a post-effective amendment to the
Registration Statement, in each case as soon as practicable after the execution
and delivery of this Agreement, and it will use its best efforts to cause the
Registration Statement or such post-effective amendment to become effective at
the earliest possible time. If the Registration Statement has become effective
and the Company, omitting from the Prospectus certain information in reliance
upon Rule 430A of the Act, elects not to file a post-effective amendment
pursuant to Rule 430A of the Act, it will file the form of Prospectus required
by Rule 424(b) of the Act within the time period specified by Rule 430A and Rule
424(b) of the Act. The Company will otherwise comply in a timely manner with
all applicable provisions of Rule 424 and Rule 430A of the Act.
(b) It will advise DLJ promptly and, if requested by DLJ,
confirm such advice in writing, (i) when the Registration Statement has become
effective, if and when the Prospectus is sent for filing pursuant to Rule 424 of
the Act and when any post-effective amendment to the Registration Statement
becomes effective, (ii) of the receipt of any comments from the Commission or
any state securities commission or any other regulatory authority that relate to
the Registration Statement or requests by the Commission or any state securities
commission or any other regulatory authority for any amendment or supplement to
the Registration Statement or any amendment or supplements to the Prospectus or
for additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement, or of the
suspension of qualification of the Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purpose by the
Commission or any state securities commission or any other regulatory authority
and (iv) of the happening of any event during the period referred to in
paragraph (d), below, which makes any statement of a material fact made in the
Registration Statement untrue or which requires the making of any additions to
or changes in the Registration Statement in order to make the statements therein
not misleading or that makes any statement of a material fact made in the
Prospectus untrue or which requires the making of any addition to or change in
the Prospectus in order to make the statements therein, in light of the
- 3 -
circumstances under which they were made, not misleading. The Company shall use
its best efforts to prevent the issuance of any stop order or order suspending
the qualification or exemption of the Securities under any Federal or state
securities or Blue Sky laws, and, if at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement, or any
state securities commission or any other regulatory authority shall issue an
order suspending the qualification or exemption of the Securities under any
state securities or Blue Sky laws, the Company shall use every reasonable effort
to obtain the withdrawal or lifting of such order at the earliest possible time.
(c) Promptly after the Registration Statement becomes
effective, and from time to time thereafter for such period as in your
reasonable judgment a prospectus is required to be delivered in connection with
sales of the Securities by an Underwriter or a dealer, it will furnish to each
Underwriter and each dealer, without charge, as many copies of the Prospectus,
including all documents incorporated by reference therein, (and of any amendment
or supplement to the Prospectus) as you may reasonably request.
(d) If during the period specified in paragraph (c) of this
Section 4 any event shall occur as a result of which it becomes necessary to
amend or supplement the Prospectus in order to make the statements therein, in
the light of the circumstances existing as of the date the Prospectus is
delivered to an offeree or a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with any law, it will promptly
prepare and file with the Commission an appropriate amendment or supplement to
the Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not, in the light of the circumstances existing as of the
date the Prospectus is so delivered, be misleading, and will comply with
applicable law, and will promptly notify you of such event and amendment or
supplement and furnish to you without charge such number of copies thereof as
you may reasonably request.
(e) It will make generally available to its security
holders, as soon as practicable and for the time period specified by Rule 158
under the Act, a consolidated earnings statement which shall satisfy the
provision of Section 11(a) and Rule 158 of the Act.
(f) Whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, it will pay and be responsible for
all costs, charges, expenses, fees and taxes incurred in connection with or
incident to (i) the preparation, printing, filing, distribution and delivery
under the Act of the Registration Statement (including financial statements and
exhibits), each preliminary prospectus, the Prospectus and all amendments and
supplements thereto, (ii) the registration with the Commission and the issuance
and delivery of the Securities, (iii) the printing and delivery of this
Agreement, the Indenture, the Escrow Agreement and all other agreements,
memoranda, reports, correspondence and other documents printed, distributed and
delivered in connection with the offering of the Securities, (iv) the
registration or
- 4 -
qualification of the Securities for offer and sale under the securities or Blue
Sky laws of the jurisdictions referred to in paragraph (i) below (including, in
each case, the reasonable fees and disbursements of counsel relating to such
registration or qualification and memoranda relating thereto and any filing fees
in connection therewith), (v) furnishing such copies of the Registration
Statement (including exhibits), Prospectus and preliminary prospectuses, and all
amendments and supplements to any of them, including any document incorporated
by reference therein, as may be reasonably requested by the Underwriters or by
dealers to whom Securities may be sold, (vi) any filing with the National
Association of Securities Dealers, Inc. (the "NASD") in connection with the
offering of the Securities (including, without limitation, any filing fees in
connection therewith but excluding the fees of Xxxxx Xxxx & Xxxxxxxx, legal
counsel to the Underwriters ("Underwriters' Counsel")), (vii) the listing of the
Securities on the New York Stock Exchange (the "NYSE"), (viii) the rating of the
Securities by investment rating agencies, (ix) any "qualified independent
underwriter" as required by Schedule E of the Bylaws of the NASD (including fees
and disbursements of counsel for such qualified independent underwriter) and (x)
the performance by the Company of its other obligations under this Agreement,
including (without limitation) the fees of the Trustee and Escrow Agent, the
cost of their respective personnel and other internal costs, the cost of
printing and engraving the certificates representing the Securities, and all
expenses incident to the sale and delivery of the Securities to the
Underwriters.
(g) It will furnish to DLJ, without charge, one signed copy
(plus one additional signed copy to Underwriters' Counsel) of the Registration
Statement as first filed with the Commission and of each amendment or supplement
to it, including each post-effective amendment, all exhibits filed therewith and
all documents incorporated by reference therein, and such number of conformed
copies of the Registration Statement as so filed and of each amendment to it,
including each post-effective amendment, but without exhibits, as you may
reasonably request.
(h) It will not file any amendment or supplement to the
Registration Statement, whether before or after the time when it becomes
effective, or make any amendment or supplement to the Prospectus (other than any
document required to be filed under the Securities Exchange Act of 1934, as
amended, including the rules and regulations thereunder (collectively, the
"Exchange Act") that upon filing is deemed to be incorporated by reference
therein) of which you shall not previously have been advised and provided a copy
prior to the filing thereof or to which you shall reasonably object unless in
the opinion of legal counsel to the Company such amendment or supplement is
required by law to be filed; it will furnish to you at or prior to the filing
thereof a copy of any document that upon filing is deemed to be incorporated by
reference in the Registration Statement or Prospectus; and it will prepare and
file with the Commission, promptly upon your reasonable request, any amendment
or supplement to the Registration Statement or amendment or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Securities by you, and will use its best efforts to cause
the same to become effective as promptly as possible.
- 5 -
(i) Prior to any public offering of the Securities, it will
cooperate with you and Underwriters' Counsel in connection with the registration
or qualification of the Securities for offer and sale by the Underwriters under
the state securities or Blue Sky laws of such United States jurisdictions as you
may request. The Company will continue such qualification in effect so long as
required by law for distribution of the Securities and will file such consents
to service of process or other documents as may be necessary in order to effect
such registration or qualification (PROVIDED, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which it is
not so qualified nor to take any action that would subject it to general consent
to service of process in any jurisdiction in which it is not now so subject).
(j) It timely will complete all required filings and
otherwise comply fully in a timely manner with all provisions of the Exchange
Act to effect the registration of the securities pursuant thereto, and, during
the period specified in paragraph (c) of this Section 4, will file timely all
reports required to be filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act and it will use its best
efforts to cause the Securities to be listed on the NYSE.
(k) So long as any of the Securities are outstanding, it
will mail to each of the Underwriters, without charge, a copy of each report or
other publicly available information furnished to holders of the Securities, or
filed with the Commission, whether or not required by law or pursuant to the
Indenture, and such other publicly available information concerning the Company
and its subsidiaries as you may reasonably request, at the same time as such
reports or other information are furnished to such holders.
(l) To the extent permitted by law, it will not voluntarily
claim, and will actively resist any attempts to claim, the benefit of any usury
laws against the holders of the Securities.
(m) It will use the proceeds from the sale of the Securities
in the manner described in the Prospectus under the caption "Use of Proceeds."
(n) During the period beginning on the date of this
Agreement and continuing to and including the Closing Date, it will not offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company or warrants, rights, or options to purchase debt securities of the
Company (other than (i) the Securities and (ii) commercial paper issued in the
ordinary course of business), without your prior written consent.
(o) It will use its best efforts to do and perform all
things required to be done and performed under this Agreement by it prior to or
after the
- 6 -
Closing Date and will use its reasonable best efforts to satisfy all conditions
precedent on its part to be satisfied prior to the delivery of the Securities.
5. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to each Underwriter that:
(a) When the Registration Statement becomes effective,
including on the date of effectiveness of any post-effective amendment, at the
date of the Prospectus (if different) and at the Closing Date, the Registration
Statement will comply in all material respects with the provisions of the Act,
and will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading; at the date of the Prospectus, at the date of
any supplement or amendment to the Prospectus and at the Closing Date, the
Prospectus and each supplement or amendment thereto will not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations and
warranties contained in this paragraph (a) shall not apply to statements in or
omissions from the Registration Statement or the Prospectus (or any supplement
or amendment to them) made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by or on behalf
of any Underwriter through DLJ expressly for use therein. The Company
acknowledges for all purposes under this Agreement (including this paragraph and
Section 6 hereof) that the statements set forth in the last paragraph on the
cover page and the third paragraph under the caption "Underwriting" in the
Prospectus constitute the only written information furnished to the Company by
or on behalf of any Underwriter through DLJ expressly for use in the
Registration Statement, the preliminary prospectus, or the Prospectus (or any
amendment or supplement to any of them) and that the Underwriters shall not be
deemed to have provided any information (and therefore are not responsible for
any statements or omissions) pertaining to any arrangement or agreement with
respect to any party other than the Underwriters. When the Registration
Statement becomes effective, the Indenture will be deemed to have been qualified
under and will conform in all material respects to the requirements of the Trust
Indenture Act of 1939, as amended, and the rules and regulations promulgated
pursuant thereto (collectively, the "TIA"). At the date of any post-effective
amendment to the Registration Statement, at the date of the Prospectus and any
amendment or supplement thereto (if different) and at the Closing Date, the
qualification of the Indenture under the TIA will not have been suspended and
the Indenture will conform in all material respects to the requirements of the
TIA. No contract or document of a character required to be described in the
Registration Statement, the Prospectus or any of the documents incorporated by
reference therein or to be filed as an exhibit to the Registration Statement or
to any of the documents incorporated by reference therein has not been described
and filed as required.
(b) Each preliminary prospectus and the Prospectus, filed as
part of the Registration Statement as originally filed or as part of any
amendment or
- 7 -
supplement thereto, or filed pursuant to Rule 424 or 430A under the Act,
complied when so filed in all material respects with the Act.
(c) The documents incorporated by reference in the
Registration Statement, the Prospectus, any amendment or supplement thereto or
any preliminary prospectus, when they became or become effective under the Act
or were or are filed with the Commission under the Exchange Act, as the case may
be, conformed or will conform in all material respects with the requirements of
the Act or the Exchange Act, as applicable.
(d) No action has been taken and no statute, rule,
regulation or order has been enacted, adopted or issued by any United States
Federal or state governmental body, agency or official which prevents the
issuance of the Securities, suspends the effectiveness of the Registration
Statement, prevents or suspends the use of any preliminary prospectus or
suspends the sale of the Securities in any jurisdiction referred to in Section
4(i) hereof; no injunction, restraining order, or order of any nature by any
Federal or state court has been issued with respect to the Company or any of its
subsidiaries which would prevent the issuance or sale of the Securities, suspend
the effectiveness of the Registration Statement, or prevent or suspend the use
of any preliminary prospectus or Prospectus in any jurisdiction referred to in
Section 4(i) hereof.
(e) The capitalization table set forth in the Prospectus
under the caption "Historical and Pro Forma Capitalization" identifies in
reasonable detail all outstanding short-term and long-term indebtedness and
shareholders' equity of the Company and its subsidiaries, prior to and after
giving PRO FORMA effect to the consummation of the offering of the Securities,
the application of the net proceeds therefrom as described in the Prospectus and
certain other transactions described in the Prospectus.
(f) The Indenture has been duly authorized by the Company
and, when duly executed and delivered in accordance with its terms, will be a
valid and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and similar laws
affecting creditors' rights and remedies generally and to general principles of
equity (regardless of whether enforcement is sought in a proceeding at law or in
equity) and except to the extent that a waiver of rights under any usury laws
may be unenforceable.
(g) The Escrow Agreement has been duly authorized, by the
Company and, when duly executed and delivered in accordance with its terms, will
be a valid and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and similar laws
affecting creditors' rights and remedies generally and to general principles of
equity (regardless of whether enforcement is sought in a proceeding at law or in
equity).
- 8 -
(h) The Securities have been duly authorized by the Company
and, when executed and delivered by the Company and authenticated by the Trustee
in accordance with the Indenture and paid for in accordance with the terms of
this Agreement, will constitute legal, valid and binding obligations of the
Company, enforceable against the Company according to their terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and similar laws affecting creditors' rights and remedies generally and
to general principles of equity (regardless of whether enforcement is sought in
a proceeding at law or in equity) and except to the extent that a waiver of
rights under any usury laws may be unenforceable, will be entitled to the
benefits of the Indenture and will conform in all material respects to the
description thereof in the Prospectus.
(i) This Agreement has been duly authorized and validly
executed and delivered by the Company and constitutes a valid and legally
binding agreement of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and similar laws affecting creditors' rights and
remedies generally and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity) and except to the
extent that rights to indemnification and contribution with respect to liability
in connection with Federal or state securities laws may be unenforceable under
such laws or the policies underlying such laws and except to the extent that a
waiver of rights under any usury laws may be unenforceable.
(j) The execution and delivery of this Agreement by the
Company, the execution and delivery of the Indenture, the Escrow Agreement and
the Securities by the Company, the issuance and sale of the Securities, the
performance of the Company's obligations under this Agreement, the Securities,
the Indenture and the Escrow Agreement and the consummation of the transactions
contemplated by this Agreement, the Indenture and the Escrow Agreement
including, without limitation, the delivery of Vencor Common Shares pursuant to
the Securities will not conflict with or result in a breach or violation of any
of the respective charters or bylaws of the Company or any of its subsidiaries
(each, a "Subsidiary" and collectively, the "Subsidiaries") or any of the terms
or provisions of, or constitute a default or cause an acceleration of any
obligation under or result in the imposition or creation of (or the obligation
to create or impose) any security interest, mortgage, pledge, claim, lien,
encumbrance or adverse interest of any nature (each, a "Lien") with respect to,
any of the Transaction Documents or any other obligation, bond, agreement, note,
debenture, or other evidence of indebtedness, or any indenture, mortgage, deed
of trust or other agreement, lease or instrument (collectively, "Agreement") to
which the Company or any of the Subsidiaries is a party or by which it or any of
them is bound, or to which any properties of the Company or any of the
Subsidiaries is or may be subject, or any order of any court or governmental
agency, body or official having jurisdiction over the Company or any of the
Subsidiaries or any of their properties, or violate or conflict with any
statute, rule or regulation or administrative regulation or decree or court
decree applicable to the Company or any of the Subsidiaries, or any of their
respective assets or properties,
- 9 -
where, in any such instance, such conflict, breach, violation, default,
acceleration of indebtedness or Lien would have, singly or in the aggregate, a
material adverse effect on the assets, liabilities, results of operations,
financial condition or prospects of the Company and the Subsidiaries, taken as a
whole (a "Material Adverse Effect").
(k) No authorization, approval or consent or order of, or
filing with, any court or governmental body, agency or official is necessary in
connection with the transactions contemplated by this Agreement, except such as
may be required by the NASD or have been obtained and made under the Act, the
Exchange Act, the TIA or state securities or Blue Sky laws or regulations.
Neither the Company nor, to the best of the Company's knowledge, any of its
affiliates is presently doing business with the government of Cuba or with any
person or affiliate located in Cuba.
(l) The Securities have been approved for listing on the
NYSE, subject to official notice of issuance.
(m) The Company has been duly organized, is validly existing
as a corporation in good standing under the laws of the State of Nevada and has
the requisite power and authority to carry on its business as it is currently
being conducted, to own, lease and operate its properties and to authorize the
offering of the Securities, to execute, deliver and perform this Agreement and
to issue, sell and deliver the Securities, and is duly qualified and is in good
standing as a foreign corporation authorized to do business in each jurisdiction
where the operation, ownership or leasing of property or the conduct of its
business requires such qualification and where failure to be so qualified or in
good standing would have a Material Adverse Effect. Each of the Subsidiaries of
the Company that (i) directly or indirectly own or lease any interest in any
hospitals, healthcare facilities or medical office buildings, (ii) directly or
indirectly conduct any insurance activities or (iii) are otherwise material to
the Company and the Subsidiaries, taken as a whole (collectively, the
"Significant Subsidiaries"), has been duly organized, is validly existing as a
corporation in good standing under the laws of its jurisdiction of incorporation
and has the requisite power and authority to carry on its business as it is
currently being conducted and to own, lease and operate its properties and each
is duly qualified and is in good standing as a foreign corporation authorized to
do business in each jurisdiction where the operation, ownership or leasing of
property or the conduct of its business requires such qualifications and where
failure to be so qualified or in good standing would have a Material Adverse
Effect.
(n) All of the issued and outstanding shares of capital
stock of, or other ownership interests in, each of the Significant Subsidiaries
have been duly authorized and validly issued, and all of the shares of capital
stock of, or other ownership interests in, each of the Significant Subsidiaries
other than Australian Medical Enterprises Limited ("AME") are owned, directly or
through subsidiaries, by the Company. All such shares of capital stock are fully
paid and nonassessable, and are owned free and clear of any Lien, except Liens
securing indebtedness under the Credit Agreement (as defined in the Prospectus),
and there are no outstanding subscriptions, rights, warrants, options,
- 10 -
calls, convertible or exchangeable securities, commitments of sale, or Liens
related to or entitling any person to purchase or otherwise to acquire any
shares of the capital stock of, or other ownership interest in, any of the
Subsidiaries, except that shareholders of AME have certain preemptive rights
with respect to rights offerings by AME.
(o) Neither the Company nor the Significant Subsidiaries is
in violation of its respective charter or bylaws and neither the Company nor the
Subsidiaries is in default in the performance of any obligation, bond,
agreement, debenture, note or any other evidence of indebtedness, or any
indenture, mortgage, deed of trust or other contract, lease or other instrument
to which the Company or any of the Subsidiaries is a party or by which any of
them is bound, or to which any of the property or assets of the Company or any
of the Subsidiaries is subject, except as would not have, singly or in the
aggregate, a Material Adverse Effect.
(p) Except as disclosed in the Registration Statement or the
Prospectus, there is no action, suit, proceeding or investigation before or by
any court, governmental agency or body, arbitration board or tribunal, or
governmental or private accrediting body, domestic or foreign, pending against
or affecting the Company or any of the Subsidiaries, or any of their respective
assets or properties, which is required to be disclosed in the Registration
Statement or the Prospectus, or in which there is a reasonable possibility of
adverse decisions which in the aggregate could reasonably be expected to have a
Material Adverse Effect, or which might materially and adversely affect the
Company's performance of its obligations, as applicable, pursuant to this
Agreement (including, without limitation, the issuance of the Securities), the
Indenture, the Escrow Agreement or the transactions contemplated hereby and
thereby, and to the best of the Company's knowledge, after due inquiry, no such
action, suit, or proceeding is contemplated or threatened.
(q) Except as disclosed in the Registration Statement or the
Prospectus, neither the Company nor the Subsidiaries is subject to any judgment,
order or decree of any court, governmental authority or arbitration board or
tribunal which has had or which can reasonably be expected to have, a Material
Adverse Effect.
(r) The firms of accountants that have certified or shall
certify the applicable consolidated financial statements and supporting
schedules and the notes thereto of the Company and American Medical Holdings,
Inc., a Delaware corporation ("AMH"), filed or to be filed with the Commission
as part of the Registration Statement and the Prospectus or incorporated therein
by reference are, to the best of the Company's knowledge, independent public
accountants with respect to the Company and its Subsidiaries and AMH and its
Subsidiaries, as the case may be, as required by the Act. The consolidated
financial statements, together with related schedules and notes, set forth or
incorporated by reference in the Prospectus and the Registration Statement,
comply as to form in all material respects with the requirements of the Act and
fairly present the consolidated financial position of the Company and its
Subsidiaries and AMH and its Subsidiaries, as the case may be, at the respective
dates indicated and the results of their
- 11 -
operations and their cash flows for the respective periods indicated, in
accordance with generally accepted accounting principles in the United States of
America ("GAAP") consistently applied throughout such periods and in accordance
with Regulation S-X. The PRO FORMA financial statements contained in the
Registration Statement have been prepared in conformity with the standards set
forth in Rule 11-02 of Regulation S-X and on a basis consistent with such
historical statements and give effect to assumptions made on a reasonable basis
and present fairly the historical and proposed transactions contemplated by the
Prospectus and this Agreement. The Company's ratio of earnings to fixed charges
(actual and PRO FORMA) included in the Prospectus under the captions
"Prospectus Summary--Summary Pro Forma Financial Information," "Pro Forma
Financial Information" and in Exhibits 12.1 and 12.2 to the Registration
Statement have been calculated in compliance with Item 503(d) of the
Commission's Regulation S-K. The other financial and statistical information
and data of the Company included or incorporated by reference in the Prospectus
and in the Registration Statement, historical and PRO FORMA, are in all
material respects accurately presented and prepared on a basis consistent with
the books and records of the Company.
(s) The projected amount of operating synergies and other
cost reductions resulting from the Merger (as defined in the Prospectus)
included in the Registration Statement was determined by the Company with a
reasonable basis and in good faith and the assumptions used in the determination
of the amount of such projected operating synergies and other cost reductions
are all those the Company believes are significant in projecting the amount of
such synergies and other cost reductions. Notwithstanding the foregoing, no
assurance can be made as to the amount of cost savings, if any, that actually
will be realized.
(t) Except as contemplated by the Registration Statement and
the Prospectus, subsequent to the respective dates as of which information is
presented in the Registration Statement and the Prospectus and up to the Closing
Date (i) neither the Company nor the Subsidiaries has incurred any liabilities
or obligations, direct or contingent, which are material to the Company and the
Subsidiaries, taken as a whole, or entered into any transaction not in the
ordinary course of business, (ii) there has been no decision or judgment in the
nature of litigation or arbitration that could reasonably be expected to have a
Material Adverse Effect, (iii) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital stock and
(iv) there has not been any material adverse change, or any development which
could involve a material adverse change, in the results of operations, assets,
liabilities, financial condition or prospects of the Company or its
Subsidiaries, taken as a whole (any of the items set forth in clauses (i), (ii),
(iii) or (iv) above, a "Material Adverse Change").
(u) (i) Except as described in the Registration Statement or
Prospectus or as could not reasonably be expected to have a Material Adverse
Effect, each of the Company and the Subsidiaries has all certificates, consents,
exemptions, orders, permits, licenses, authorizations, accreditations or other
approvals or rights (each,
- 12 -
an "Authorization") of and from, and has made all declarations and filings with,
all Federal, state, local and other governmental authorities, all
self-regulatory organizations, all governmental and private accrediting bodies
and all courts and other tribunals, necessary or required to own, lease, license
and use its properties and assets and to conduct its business in the manner
described in the Prospectus, (ii) all such Authorizations are valid and in full
force and effect, except as could not reasonably be expected to have, singly or
in the aggregate, a Material Adverse Effect, (iii) the Company and the
Subsidiaries are in compliance with the terms and conditions of all such
Authorizations and with the rules and regulations of the regulatory authorities
and governing bodies having jurisdiction with respect thereto except as could
not reasonably be expected to have a Material Adverse Effect and (iv) neither
the Company nor the Subsidiaries has received any notice of proceedings relating
to the revocation or modification of any such Authorization.
(v) The Company is not an "affiliate" of Vencor within the
meaning of Rule 144 promulgated by the Commission under the Act.
(w) The [8,301,067] Vencor Common Shares to be delivered to
the Escrow Agent pursuant to the Exchange Agreement (the "Deposited of Shares")
have been duly authorized and validly issued and are fully paid and
non-assessable.
(x) The Company will have at the time of delivery thereof to
the Escrow Agent valid and legal title to the Deposited Shares free and clear of
any Lien and if any Deposited Shares are delivered to a holder of Securities
pursuant to the terms of the Securities such holder will acquire valid and legal
title to such Deposited Shares free and clear of any Lien.
(y) The Deposited Shares are listed on the New York Stock
Exchange.
(z) It is not necessary to register the Deposited Shares
under the Act in connection with the offering and sale of the Securities in the
manner contemplated by this Agreement and the Prospectus.
(aa) The factual statements set forth in the opinion of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx attached as Exhibit A hereto (the
"Non-affiliate Opinion") are true and correct.
(bb) Neither the Company nor any agent acting on its behalf
has taken or will take any action that is reasonably likely to cause the
issuance or sale of the Securities to violate Regulation G, T, U, or X of the
Board of Governors of the Federal Reserve System, in each case as in effect, on
the date hereof.
(cc) Neither the Company nor any of the Significant
Subsidiaries is (i) an "investment company" or a company "controlled" by an
investment company
- 13 -
within the meaning of the Investment Company Act of 1940, as amended, or (ii) a
"holding company" or a "subsidiary company" of a holding company, or an
"affiliate" thereof within the meaning of the Public Utility Holding Company Act
of 1934, as amended.
(dd) Each certificate signed by any officer of the Company
and delivered to the Underwriters or the Underwriters' Counsel shall be deemed
to be a representation and warranty by the Company to each Underwriter as to the
matters covered thereby.
(ee) There exists as of the date hereof (after giving effect
to the transactions contemplated by the Transaction Documents) no event or
condition which would constitute a default or an event of default (in each case
as defined in the Credit Agreement) under the Credit Agreement and no event or
condition which would constitute a default or an event of default (in each case
as defined in each of the Transaction Documents) under any of the Transaction
Documents which would reasonably be expected to result in a Material Adverse
Effect.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless (i)
each of the Underwriters and their respective affiliates, (ii) each person, if
any, who controls (within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act) any of the Underwriters or any of their respective affiliates
(any of the persons referred to in this clause (ii) being hereinafter referred
to as a "Controlling Person"), and (iii) each of the respective officers,
directors, partners, employees, representatives and agents of any of the
Underwriters or any Controlling Person, and each of their respective officers,
directors, partners, employees, representatives and agents (any person referred
to in clause (i), (ii) or (iii) of this Section 6(a) may hereinafter be referred
to as an "Indemnified Person") to the fullest extent lawful, from and against
any and all losses, claims, damages, judgments, actions, costs, assessments,
expenses and other liabilities (collectively, "Liabilities"), including without
limitation and as incurred, reimbursement of all reasonable costs of
investigating, preparing, pursuing or defending any claim or action, or any
investigation or proceeding by any foreign, Federal, state or local authority,
regulatory body, administrative agency, court or other governmental or
quasi-governmental body, commenced or threatened, including the reasonable fees
and expenses of counsel to any Indemnified Person, to the extent such
Liabilities are directly or indirectly caused by, related to, based upon or
arising out of, or in connection with, any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
supplement or amendment thereto), or the Prospectus (including any amendment or
supplement thereto) or any preliminary prospectus, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading, except
insofar as such Liabilities are caused by any such untrue statement or omission
or alleged untrue
- 14 -
statement or omission that is (x) made in reliance upon and in conformity with
information relating to any of the Underwriters furnished in writing to the
Company by or on behalf of the Underwriter through DLJ expressly for use in the
Registration Statement (or any amendment or supplement thereto) or the
Prospectus (or any amendment or supplement thereto) or any preliminary
prospectus or (y) with respect to the Underwriter from whom the person asserting
the Liabilities purchased Securities, made in any preliminary prospectus if a
copy of the Prospectus (as amended or supplemented, if the Company shall have
furnished the Underwriters with such amendments or supplements thereto on a
timely basis) was not delivered by or on behalf of such Underwriter to the
person asserting the Liabilities, if required by law to have been so delivered
by the Underwriter seeking indemnification, at or prior to the written
confirmation of the sale of the Securities, and it shall be finally determined
by a court of competent jurisdiction, in a judgment not subject to appeal or
review, that the Prospectus (as so amended or supplemented) would have
completely corrected such untrue statement or omission. The foregoing indemnity
shall be in addition to any liability that the Company might otherwise have to
any of the Underwriters and such other Indemnified Persons. The Company shall
notify you promptly of the institution, threat or assertion of any claim,
proceeding (including any governmental investigation) or litigation in
connection with the matters addressed by this Agreement which involves the
Company or an Indemnified Person.
(b) In case any action or proceeding (for all purposes of
this Section 6, including any governmental or quasi-governmental investigation)
shall be brought or asserted against any of the Indemnified Persons with respect
to which indemnity under this Section 6 may be sought against the Company, such
Underwriter (or the Underwriter controlled by such Controlling Person) promptly
shall notify the Company in writing and the Company shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to such
Underwriter and payment of all fees and expenses; PROVIDED, that the delay or
failure to give such notice shall not relieve the Company from any liability
that it may have on account of the indemnity under this Section 6, unless and
only to the extent that such delay or omission materially adversely affects the
ability of the Company to defend or assume the defense of such action or
proceeding. Upon receiving such notice, the Company shall be entitled to
participate in any such action or proceeding and to assume, at its sole expense,
the defense thereof, with counsel reasonably satisfactory to such Indemnified
Person (who shall not, except with the consent of the Indemnified Person to be
represented, be counsel to the Company or any of the Subsidiaries) and, after
written notice from the Company to such Indemnified Person of its election so to
assume the defense thereof within five business days after receipt of the notice
from the Indemnified Person of such action or proceeding, the Company shall not
be liable to such Indemnified Person hereunder for legal expenses of other
counsel subsequently incurred by such Indemnified Person in connection with the
defense thereof, other than reasonable costs of investigation, unless (i) the
Company agrees in writing to pay such fees and expenses, or (ii) the Company
fails promptly to assume such defense or fails to employ counsel reasonably
satisfactory to such Indemnified Person, or (iii) the named parties to any such
action or proceeding (including
- 15 -
any impleaded parties) include both such Indemnified Person and the Company or
an affiliate of the Company, and that Indemnified Person shall have been advised
in writing by counsel, with a copy of such writing to the Company, that either
(x) there may be one or more legal defenses available to such Indemnified Person
that are different from or additional to those available to the Company or such
affiliate or (y) a conflict may exist between such Indemnified Person and the
Company or such affiliate. In the event of any of clause (i), (ii) and (iii) of
the immediately preceding sentence, the Company shall not have the right to
assume the defense thereof on behalf of the Indemnified Person and such
Indemnified Person shall have the right to employ its own counsel in any such
action and the fees and expenses of such counsel shall be paid, as incurred, by
the Company, subject to repayment to the Company if it is ultimately determined
that an Indemnified Person is not entitled to indemnification hereunder, it
being understood, however, that the Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all of the Indemnified
Persons which firm shall be designated in writing by DLJ. The Company shall not
be liable for any settlement of any such action or proceeding effected without
the Company's written consent, which consent may not be unreasonably withheld,
but if settled with the written consent of the Company, the Company agrees to
indemnify and hold harmless any Indemnified Person from and against any loss or
liability by reason of such settlement. The Company shall not, without the
prior written consent of each Indemnified Person, settle, compromise or consent
to the entry of any judgment in or otherwise seek to terminate any pending or
threatened action, claim, suit, investigation or other proceeding in respect of
which any Indemnified Person is or could have been a party and indemnification
or contribution could have been sought hereunder by such Indemnified Person,
unless such settlement, compromise, consent or termination includes an
unconditional release of each Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
(c) Each of the Underwriters agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement, and any person controlling (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Company,
to the same extent as the foregoing indemnity from the Company to each of the
Indemnified Persons, but only with respect to claims and actions based on
information relating to such Underwriter furnished in writing by or on behalf of
such Underwriter through DLJ expressly for use in the Registration Statement,
Prospectus or preliminary prospectus, as applicable. In case any action shall
be brought against the Company, any of its directors, any such officer, or any
such controlling person based on the Registration Statement, the Prospectus or
any preliminary prospectus in respect of which indemnity is sought against any
Underwriter pursuant to the foregoing sentence, the Underwriter shall have the
rights and duties given to the Company (except that if the Company shall have
assumed the defense thereof, such Underwriter shall not be required to do so,
but may employ separate counsel therein and participate in the defense thereof,
but the fees and expenses of such counsel shall be at
- 16 -
the expense of such Underwriter), and the Company, its directors, any such
officers, and each such controlling person shall have the rights and duties
given to the Indemnified Person by Section 6(b) above.
(d) If the indemnification provided for in this Section 6 is
finally determined by a court of competent jurisdiction to be unavailable to an
Indemnified Person in respect of any Liabilities referred to herein, then the
Company, in lieu of indemnifying such Indemnified Person, shall contribute to
the amount paid or payable by such Indemnified Person as a result of such
Liabilities: (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Indemnified Person on
the other hand from the offering of the Securities,or (ii) if the allocation
provided by clause (i), above, is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i), above, but also the relative fault of the Company and the
Indemnified Person in connection with the actions, statements or omissions that
resulted in such Liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and any of the Underwriters (and its related Indemnified Persons), on the other
hand, shall be deemed to be in the same proportion as the total proceeds from
the offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Underwriter, in each case as set forth in the
Prospectus. The relative fault of the Company and the Underwriter shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact related to information supplied by the Company or the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The indemnity
and contribution obligations of the Company set forth herein shall be in
addition to any liability or obligation the Company may otherwise have to any
Indemnified Person.
The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 6(d) were
determined by PRO RATA allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the Liabilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, none of the Underwriters (and
its related Indemnified Persons referred to in Section 6 above) shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total underwriting discount applicable to the Securities purchased by
such underwriter exceeds the amount of any damages or liabilities which such
Underwriter (and its related Indemnified Persons referred to in Section 6 above)
has otherwise been required to pay
- 17 -
or incur by reason of such untrue or alleged untrue statement or omission or
alleged omission or other indemnified action or proceeding. Notwithstanding
anything to the contrary contained herein, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 6(d) are several in proportion to the respective aggregate principal
amount of Securities purchased by each of the Underwriters hereunder and not
joint.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
respective obligations of the several Underwriters to purchase any Securities
under this Agreement are subject to the satisfaction or waiver by the several
underwriters of each of the following conditions on the Closing Date:
(a) All the representations and warranties of the
Company contained or incorporated by reference in this Agreement shall be true
and correct on the Closing Date after giving effect to the transactions
contemplated by the Transaction Documents, with the same force and effect as if
made on and as of the Closing Date. The Company and its Subsidiaries shall have
performed or complied with all of their obligations and agreements herein
contained and required to be performed or complied with by it at or prior to the
Closing Date.
(b) (i) The Registration Statement shall have become
effective (or, if a post-effective amendment is required to be filed pursuant to
Rule 430A of the Act, such post-effective amendment shall have become effective
(or, if any Securities are sold in reliance upon Rule 430A of the Act and no
post-effective amendment is so required to be filed, the Prospectus shall have
been timely filed with the Commission in accordance with Section 4(a) hereof))
on the date of this Agreement or at such later date and time as you may approve
in writing, (ii) at the Closing Date, no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending before or contemplated by
the Commission and every request for additional information on the part of the
Commission shall have been complied with in all respects, (iii) no stop order
suspending the sale of the Securities in any jurisdiction referred to in Section
4(i) shall have been issued and no proceeding for that purpose shall have been
commenced or shall be pending or threatened, and (iv) since the effective date
of the Registration Statement, there shall not have occurred any event required
to be set forth in an amendment or supplement to the Registration Statement or
Prospectus that has not been set forth, and there shall not have been any
document required to be filed under the Exchange Act that upon such filing would
be deemed to be incorporated by reference in the Prospectus that has not been so
filed.
(c) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency, body or official which would, as of the Closing Date,
prevent the issuance of
- 18 -
the Securities; and no injunction, restraining order or order of any nature by
any Federal or state court shall have been issued as of the Closing Date which
would prevent the issuance of the Securities. Subsequent to the execution and
delivery of this Agreement and prior to the Closing Date, there shall not have
been 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
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) of the
Act.
(d) (i) Since the earlier of the date hereof or the dates as
of which information is given in the Registration Statement and the Prospectus,
there shall not have been any Material Adverse Change or any material adverse
change, or any development which could involve a material adverse change, in the
results of operations, assets, liabilities, financial condition or prospects of
Vencor and its subsidiaries, taken as a whole (a "Material Adverse Vencor
Change"), (ii) since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, there shall not have been any
material adverse change, or development involving a prospective material adverse
change, in the capital stock or debt, of the Company and the Subsidiaries, taken
as a whole, and (iii) neither the Company nor any of its Subsidiaries shall have
any liability or obligation, direct or contingent, that is material to the
Company and the Subsidiaries, taken as a whole, and which is not disclosed in
the Registration Statement and the Prospectus.
(e) You shall have received a certificate of the Company,
dated the Closing Date, executed on behalf of the Company, by an executive
officer and a financial officer of the Company satisfactory to you confirming,
as of the Closing Date, the matters set forth in paragraphs (a), (b), (c), (d)
and (k) of this Section 7.
(f) On the Closing Date, you shall have received:
(1) an opinion (satisfactory to you and your counsel),
dated the Closing Date, of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx, counsel
for the Company ("Skadden, Arps"), to the effect that:
(i) the Company has the corporate power and
corporate authority to enter into and perform its obligations under
this Agreement; and this Agreement has been duly authorized,
executed and delivered by the Company;
(ii) the Registration Statement (other than the
documents incorporated by reference therein described in clause
(iii) below), at the time it became effective and on the Closing
Date, complied as to form in all material respects with the
applicable requirements of the Act and the TIA (except for
- 19 -
financial statements, schedules and other financial data included
therein and the Statement of Eligibility and Qualification of the
Trustee on Form T-1 (the "Form T-1"), as to which no opinion need be
expressed);
(iii) each document filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus, at the time it
was filed or last amended, complied as to form in all material
respects to the applicable requirements of the Exchange Act (except
for financial statements, schedules and other financial data
included or incorporated by reference therein or omitted therefrom,
as to which no opinion need be expressed);
(iv) the Securities have been duly authorized and
executed by the Company and, when authenticated in accordance with
the terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be
valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms and entitled to the
benefits of the Indenture under which they are being issued, except
to the extent that the enforceability thereof may be limited by (a)
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws in effect as of the date of the
opinion or thereafter relating to or affecting creditors' rights
generally and (b) general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity)
and except that such counsel need express no opinion as to the
enforceability or effect of the waiver of rights under any usury
laws pursuant to the Indenture;
(v) the Indenture has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the Trustee, is a
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except to the extent that the
enforceability thereof may be limited by (a) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws in effect as of the date of the opinion or thereafter relating
to or affecting creditors' rights generally and (b) general
principles of equity (regardless of whether enforcement is sought in
a proceeding at law or in equity) and except that such counsel need
express no opinion as to the enforceability or effect of the waiver
of rights under any usuary laws pursuant to the Indenture;
- 20 -
(vi) the Escrow Agreement has been duly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the Escrow Agent,
is a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except to the extent that
the enforceability thereof may be limited by (a) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws in effect as of the date of the opinion or
thereafter relating to or affecting creditors' rights generally and
(b) general principles of equity (regardless of whether enforcement
is sought in a proceeding at law or in equity);
(vii) the Securities, the Indenture and the Escrow
Agreement conform in all material respects to the descriptions
thereof contained in the Prospectus;
(viii) the Company and each of its Significant
Subsidiaries (as identified by the Company on a schedule to such
opinion) is a corporation existing and in good standing under the
laws of its jurisdiction or organization;
(ix) neither the Company nor any of its
Significant Subsidiaries is (a) an "investment company" or a company
"controlled" by an investment company within the meaning of the
Investment Company Act of 1940, as amended, or (b) a "holding
company" or a "subsidiary company" of a holding company, or an
"affiliate" therefor within the meaning of the Public Utility
Holding Company Act of 1935, as amended;
(x) no consent, approval, authorization or other
order of, or filing with, any Federal or New York executive,
legislative, judicial, administrative or regulatory body, including,
without limitation, the Commission (each, a "Governmental
Authority"), is legally required under any laws, rules and
regulations of the State of New York and the United States of
America that, in the experience of such counsel, are normally
applicable to transactions of the type contemplated by this
Agreement, the Indenture and the Escrow Agreement (provided that no
opinion need be expressed as to the "blue sky" or state securities
laws of any jurisdiction) (collectively, the "Applicable Laws") for
the issuance or sale to the Underwriters of the Securities as
contemplated by this Agreement except such as may be required under
the Act, the Exchange Act and the TIA;
- 21 -
(xi) the execution and delivery by the Company of
this Agreement, the Indenture, the Escrow Agreement, the issuance
and sale of the Securities to you as contemplated thereby and the
performance of the Company's obligations pursuant to this Agreement,
the Indenture and the Escrow Agreement including, without
limitation, the delivery of Vencor Common Shares pursuant to the
Securities (a) will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under the charter or bylaws of the Company; (b) will not
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default (with the passage of time
or otherwise) under, or result in the imposition of a Lien on any
properties of the Company or any of its Subsidiaries or an
acceleration of indebtedness pursuant to any of the agreements
listed on a schedule attached to such counsel's opinion, where, in
any such instance, such breach, default, Lien, acceleration of
indebtedness or conflict could have, singly or in the aggregate, a
material adverse effect or a prospective material adverse effect on
the assets, liabilities, results of operations or financial
condition of the Company and its Subsidiaries, taken as a whole;
PROVIDED that, with respect to the Credit Agreement dated February
28, 1995, among the Company and the lenders party thereto, as
amended by Amendment No. 1 to the Credit Agreement dated as of
August 31, 1995 among the Company and the lenders party thereto, no
opinion need be expressed with respect to the performance of any of
the obligations contained in the Indenture (i) to the extent that
they require the Company to repay or repurchase (or to offer to
repay or repurchase) any of the Securities upon a Change of Control
Triggering Event (as defined in the Indenture) or in the event of
certain Asset Sales (as defined in the Indenture) or (ii) to the
extent they would require the Company to grant any lien; and (c)
will not conflict with or violate any Applicable Law or any order or
decree of New York or Federal Governmental Authorities by which the
Company or any of its Subsidiaries is bound, the existence of which
is actually known to such counsel or has been specifically disclosed
to such counsel in writing by the Company;
(xii) the Credit Agreement conforms in all
material respects to the descriptions thereof contained in the
Prospectus;
(xiii) All of the Deposited Shares have been duly
authorized and validly issued and are fully paid and non-assessable.
- 22 -
(xiv) The Company had, at the time of delivery
thereof to the Escrow Agent, valid and legal title to the Deposited
Shares free and clear of any Lien and if any Deposited Shares are
delivered to a holder of Securities pursuant to the terms of the
Securities, such holder will acquire valid and legal title to such
Deposited Shares free and clear of any Lien.
(xv) It is not necessary to register the
Deposited Shares under the Act in connection with the offering and
sale of the Securities in the manner contemplated by this Agreement
and the Prospectus.
(xvi) the Staff of the Commission has orally
advised such counsel that the Registration Statement was declared
effective under the Act and the Indenture was qualified under the
TIA, in each case, at 4:15 p.m., Washington, D.C. time, on October
10, 1995, and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement or
the qualification of Indenture has been issued and no proceedings
for that purpose are pending; and the Prospectus has been sent for
filing with the Commission pursuant to Rule 424(b) within the time
period required by such Rule.
(2) In giving their opinion required by subsection
(f)(1) of this Section 7, such counsel may state that such opinions are
limited to matters governed by the Federal laws of the United States of
America and the laws of the State of New York.
In addition, such counsel shall state that such counsel
has participated in conferences with officers and other representatives of
the Company, representatives of the independent public accountants for the
Company, your representatives and your counsel at which the contents of
the Registration Statement and the Prospectus and related matters were
discussed and, although such counsel is not passing upon, and does not
assume any responsibility for, the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the Prospectus,
on the basis of the foregoing, no fact has come to the attention of such
counsel that leads it to believe that the Registration Statement, at the
time it 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, or that the
Prospectus, as of its date and as of the Closing Date, 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, in light
of the circumstances under which they were made, not misleading, except
that such counsel need not express any opinion or belief with respect to
the financial statements, schedules and other
- 23 -
financial data included or incorporated by reference in or excluded from
the Registration Statement or the Prospectus, the exhibits to the
Registration Statement or the Form T-1.
In rendering the foregoing opinions, Xxxxxxx, Arps may
rely as to matters of Nevada law on the opinion of Xxxxxxxx & Wedge,
Nevada counsel to the Company, or such other counsel as is reasonably
satisfactory to the Underwriters' Counsel.
(3) a reliance letter (satisfactory to you and your
counsel), dated the Closing Date, of Skadden, Arps permitting you to rely
upon the Non-affiliate Opinion as if it were addressed to you.
(4) an opinion (satisfactory to you and Underwriters'
Counsel), dated the Closing Date, of Xxxxx X. Xxxxx, Esq., Senior Vice
President and General Counsel of the Company, to the effect that:
(i) the descriptions in the Registration
Statement and the Prospectus of statutes, legal and governmental
proceedings, contracts and other documents and regulatory matters,
including, without limitation, those described in the Prospectus
under the captions "Risk Factors--Limits on Reimbursement,"
"--Extensive Regulation," "--Healthcare Reform Legislation" and in
the Company's Annual Report on Form 10-K for the fiscal year
ended May 31, 1995 under the captions "Medicare, Medicaid and
Other Revenues" and "Health Care Reform, Regulation and
Licensing" and in the Company's Quarterly Report on Form 10-Q
for the quarter ended August 31, 1995 under the caption "Legal
Proceedings" insofar as such statements constitute summaries of
legal matters, documents or proceedings referred to therein are
accurate in all material respects and such counsel does not know
of any contracts or documents of a character required to be
described in the Registration Statement or Prospectus (or
required to be filed under the Exchange Act if upon such filing
they would be incorporated by reference therein) or to be filed
as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such
counsel need express no opinion as to the financial statements,
notes or schedules or other financial data included or
incorporated by reference therein or those parts of the
Registration Statement that constitute the Form T-1);
(ii) each of the Company and its Significant
Subsidiaries has such Authorizations from all regulatory or
governmental officials, bodies and tribunals as are necessary to
- 24 -
own, lease and operate its respective properties and to conduct its
business in the manner described in the Prospectus;
(iii) to the best of such counsel's knowledge,
there is no current, pending or threatened action, suit or
proceeding before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its
Subsidiaries or to which any of their respective property is subject
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus;
(iv) all of the issued and outstanding shares of
capital stock of, or other ownership interests in, each Significant
Subsidiary of the Company have been duly and validly authorized and
issued, and the shares of capital stock of, or other ownership
interests in, each such subsidiary, other than AME, are owned of
record, directly or through subsidiaries, by the Company, are fully
paid and nonassessable, and to the best knowledge of such counsel
are owned free and clear of any material, consensual Lien, other
than Liens arising under the Credit Agreement, except that
shareholders of AME have certain preemptive rights with respect to
rights offerings by AME; and
(v) the Company and each of its significant
subsidiaries (as defined under the Commission's Regulation S-X and
identified on a schedule to such opinion) is a duly organized
corporation, has the requisite corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus, and, to
the extent each is a party thereto, to execute, deliver and perform
its obligations pursuant to the Indenture, the Escrow Agreement and
this Agreement, and is duly qualified as a foreign corporation and
in good standing in each jurisdiction where the ownership, leasing
or operation of property or the conduct of its business requires
such qualification, except where the failure so to be qualified
could not have, singly or in the aggregate, a Material Adverse
Effect.
(5) In giving their opinion required by subsection
f(4) of this Section 7, such counsel shall state that no fact has come to
the attention of such counsel that leads it to believe that the
descriptions of statutes, legal and governmental proceedings, contracts
and other documents and regulatory matters described in the Registration
Statement and the Prospectus under the captions set forth in subsection
(f)(4)(i) of this Section 7 contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
- 25 -
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(6) an opinion (satisfactory to you and Underwriters'
Counsel), dated the Closing Date, of Xxxxxxxx & Wedge, special Nevada
counsel to the Company, to the effect that:
(i) the Company has the corporate power and
authority to execute, deliver and perform this Agreement and the
Company has the corporate power and authority to authorize,
issue and sell the Securities as contemplated by this Agreement;
(ii) this Agreement has been duly authorized,
executed and delivered by the Company, and the Securities, the
Indenture and the Escrow Agreement have been duly authorized,
executed and delivered by the Company;
(iii) the Company is a duly organized and validly
existing corporation in good standing under the laws of the
State of Nevada and has the requisite corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement
and the Prospectus, and to execute and deliver, and perform its
obligations pursuant to, the Indenture, the Escrow Agreement,
the Securities and this Agreement;
(iv) no consent, approval, authorization, or order
of any Nevada governmental agency or body is required, for the
consummation by the Company of the transactions contemplated by
this Agreement in connection with the issuance and sale of the
Securities;
(v) the execution and delivery by the Company of
this Agreement, the Indenture, the Escrow Agreement and the
issuance and sale of the Securities to you as contemplated by
this Agreement and the performance of its obligations pursuant
to this Agreement, the Securities, the Indenture and the Escrow
Agreement including, without limitation, the delivery of Vencor
Common Shares pursuant to the Securities will not conflict with
or result in a breach or violation of any of the terms or
provision of, or constitute a default under, (a) any of the
charter or bylaws of the Company, or (b) any existing applicable
statute, rule or regulation or any order of any Nevada court or
governmental agency or body having jurisdiction over the Company
or any of its properties; provided that the opinion expressed in
clause (b) is limited to those statutes, rules or regulations
which, in the experience of such counsel, are normally
applicable to transactions of the type contemplated
- 26 -
by this Agreement in connection with the issuance and sale of
the Securities; and
(vi) in any action or proceeding arising out of
or relating to this Agreement, the Indenture or the Escrow
Agreement in any court of the State of Nevada or in any federal
court sitting in the State of Nevada, such court would recognize
and give effect to the provisions of Section 10 of this
Agreement, Section [9.10] of the Indenture and Section __ of the
Escrow Agreement wherein the parties thereto agreed, to the
extent therein stated, that each such document shall be governed
by and construed in accordance with the internal laws of the
State of New York.
(g) You shall have received an opinion, dated the Closing
Date, of Xxxxx Xxxx & Xxxxxxxx counsel for the Underwriters, in form and
substance reasonably satisfactory to you.
(h) You shall have received complete sets of all closing
documents, including without limitation all opinions, required to be delivered
under any of the other Transaction Documents.
(i) You shall have received letters on and as of the date
hereof as well as on and as of the Closing Date, in the latter case constituting
an affirmation of the statements set forth in the earlier letters, in form and
substance satisfactory to you, from KPMG Peat Marwick LLP and Price Waterhouse
LLP, independent public accountants to the Company and AMH, respectively, with
respect to the financial statements and certain financial information contained
or incorporated by reference in the Registration Statement and the Prospectus as
you shall reasonably require.
(j) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement, the
Securities, the Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated hereby
shall be reasonably satisfactory to Xxxxx Xxxx & Xxxxxxxx and such counsel shall
have been furnished with such documents and opinions, in addition to those set
forth above, as they may reasonably require for the purpose of enabling them to
review or pass upon the matters referred to in this Section 7, in order to
evidence the accuracy, completeness and satisfaction in all material respects of
any of the representations, warranties or conditions herein contained and to
render the opinion referred to in Section 7(g) hereof.
(k) There shall have been no amendments, alterations,
modifications, or waivers of any provisions of the Transaction Documents since
the date of the execution and delivery thereof by the parties thereto other than
those which are disclosed in the Registration Statement or the Prospectus or any
supplement thereto or which under the Act are not required to be disclosed in
the Prospectus or any supplement thereto and which have been disclosed to the
Underwriters prior to the date hereof.
- 27 -
8. EFFECTIVE DATE OF AGREEMENT, DEFAULT AND TERMINATION. This
Agreement shall become effective upon the later of (i) the execution and
delivery of this Agreement by the parties hereto, (ii) the effectiveness of the
Registration Statement, and (iii) if a post-effective amendment is required to
be filed pursuant to Rule 430A under the Act, the effectiveness of such
post-effective amendment.
This Agreement may be terminated at any time on or prior to
the Closing Date by you by notice to the Company if any of the following has
occurred: (i) subsequent to the date the Registration Statement is declared
effective or the date of this Agreement, any Material Adverse Change, or any
Material Adverse Vencor Change which, in your judgment, impairs the investment
quality of the Securities, (ii) any outbreak or escalation of hostilities or
other national or international calamity or crisis or material adverse change in
the financial markets of the United States or elsewhere, or any other
substantial national or international calamity or emergency if the effect of
such outbreak, escalation, calamity, crisis or emergency would, in your judgment
make it impracticable or inadvisable to market the Securities or to enforce
contracts for the sale of the Securities, (iii) any suspension or limitation of
trading generally in securities, or in any securities of the Company or Vencor,
on the New York, American or Pacific Stock Exchanges, the National Association
of Securities Dealers Automated Quotation National Market, or the
over-the-counter markets or any setting of minimum prices for trading on such
exchanges or markets, (iv) any declaration of a general banking moratorium by
either Federal or New York authorities, (v) the taking of any action by any
Federal, state or local government or agency in respect of its monetary or
fiscal affairs that in your judgment has a material adverse effect on the
financial markets in the United States, and would, in your judgment, make it
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities, (vi) any securities of the Company or any of its
Subsidiaries shall have been downgraded or placed on any "watch list" for
possible downgrading or reviewed for a possible change that does not indicate
the direction of the possible change by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule 436(g)(2) of
the Act, or (vii) the enactment, publication, decree or other promulgation of
any Federal or state statute, regulation, or rule or order of any court or other
governmental authority which in your judgment could have a Material Adverse
Effect.
If this Agreement shall be terminated by you pursuant to
clause (i), (vi) or, in the case of a statute, regulation, rule or order
specifically addressing the Company, and not affecting its industry generally,
(vii) of the second paragraph of this Section 8 or because of the failure or
refusal on the part of the Company to comply with the terms or to fulfill any of
the conditions of this Agreement, the Company agrees to reimburse you for all
reasonable out-of-pocket expenses (including the reasonable fees and
disbursements of counsel) incurred by you. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it has agreed
to pay pursuant to Section 4(f) hereof. If this Agreement is terminated
pursuant to this Section
- 28 -
8, such termination shall be without liability of any Underwriter to the Company
or any of its Subsidiaries.
If on the Closing Date either Underwriter shall fail or refuse
to purchase the Securities which it has agreed to purchase hereunder on such
date and arrangements satisfactory to the non-defaulting Underwriter and the
Company for the purchase of such Securities are not made within 48 hours after
such default, this Agreement shall terminate without liability on the part of
the non-defaulting Underwriter and the Company, except as otherwise provided in
this Section 8. In any such case that does not result in termination of this
Agreement, either the non-defaulting Underwriter or the Company may postpone the
Closing Date for not longer than seven (7) days, in order that the required
changes, if any, in the Registration Statement and the Prospectus or any other
documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve a defaulting Underwriter from liability in respect
of any default of any such Underwriter under this Agreement.
9. NOTICES. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (a) if to the Company, to it at
0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx 00000, Attention: Treasurer, with
copies to Attention: General Counsel and to Skadden, Arps, Slate, Xxxxxxx &
Xxxx, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxx X. XxXxxxxx and (b) if to any Underwriter, to Xxxxxxxxx, Xxxxxx
& Xxxxxxxx Securities Corporation, 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Department, and, in each case, with a copy to Xxxxx Xxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention : Xxxxxxx X.
Xxxxxxxxx, Xx., or in any case to such other address as the person to be
notified may have requested in writing.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS
APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPALS OF CONFLICTS OF LAW. THE COMPANY HEREBY
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK
STATE COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH ANY SUIT, ACTION
OR PROCEEDING RELATED TO THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED
HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH SUIT, ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. THE COMPANY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND
ANY CLAIM THAT ANY
- 29 -
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
11. SEVERABILITY. Any determination that any provision of
this Agreement may be, or is, unenforceable shall not affect the enforceability
of the remainder of this Agreement.
12. SUCCESSORS. Except as otherwise provided, this
Agreement has been and is made solely for the benefit of and shall be binding
upon the Company, the Underwriters, any Indemnified Person referred to herein
and their respective successors and assigns, all as and to the extent provided
in this Agreement, and no other person shall acquire or have any right under or
by virtue of this Agreement. The terms "successors and assigns" shall not
include a purchaser of any of the Securities from any of the Underwriters merely
because of such purchase.
13. CERTAIN DEFINITIONS. For purposes of this Agreement,
(a) "business day", means any day on which the NYSE is open for trading and (b)
"subsidiary" has the meaning set forth in Rule 405 of the Act.
14. COUNTERPARTS. This Agreement may be executed in one
or more counterparts and, if executed in one or more counterparts, the executed
counterparts shall each be deemed to be an original, not all such counterparts
shall together constitute one and the same instrument.
15. HEADINGS. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
16. SURVIVAL. The indemnities and contribution provisions
and the other agreements, representations and warranties of the Company, its
officers and directors and of the Underwriters set forth in or made pursuant to
this Agreement shall remain operative and in full force and effect, and will
survive delivery of and payment for the Securities, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
any of the Underwriters or by or on behalf of the Company, the officers or
directors of the Company or any controlling person of the Company, (ii)
acceptance of the Securities and payment for them hereunder and (iii)
termination of this Agreement.
- 30 -
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument. Please confirm that the foregoing
correctly sets forth the agreement among the Company and you.
Very truly yours,
XXXXX HEALTHCARE CORPORATION
By:
------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Senior Vice President
- 31 -
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX LYNCH, XXXXXX, XXXXXX &
XXXXX INCORPORATED
Acting on behalf of themselves
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
XXXXXXX LYNCH, XXXXXX, XXXXXX &
XXXXX INCORPORATED
By:
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
- 32 -
SCHEDULE I
PRINCIPAL PERCENTAGE
UNDERWRITER AMOUNT OF TOTAL
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation $ %
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated %
Total .............. $ 100%
I-1
