Draft of January 23, 1997
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XXXXX HEALTHCARE CORPORATION
and
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
XXXXXXX, XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
X.X. XXXXXX SECURITIES INC.
XXXXX XXXXXX INC.
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UNDERWRITING AGREEMENT
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Dated as of January __, 1997
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XXXXX HEALTHCARE CORPORATION
____% SENIOR NOTES DUE 2003
____% SENIOR NOTES DUE 2005
___% SENIOR SUBORDINATED NOTES DUE 2007
UNDERWRITING AGREEMENT
January __, 1997
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX, XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX
& XXXXX INCORPORATED
X.X. XXXXXX SECURITIES INC.
XXXXX XXXXXX INC.
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, Xxxxx &
Co., X.X. Xxxxxx Securities Inc., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated and Xxxxx Xxxxxx Inc. (together with DLJ, the "Underwriters") an
aggregate of $400 million principal amount of its ____% Senior Notes due 2003,
an aggregate of $900.0 million principal amount of its ___% Senior Notes due
2005 and an aggregate of $700.0 million principal amount of its ___% Senior
Subordinated Notes due 2007 (together, the "Securities"). The 2003 Senior Notes
are to be issued pursuant to the provisions of an Indenture (the "2003 Senior
Note Indenture") to be dated as of January 15, 1997, by and between the Company
and The Bank of New York, as Trustee (the "2003 Senior Note Trustee"). The 2005
Senior Notes are to be issued pursuant to the provisions of an Indenture (the
"2005 Senior Note Indenture") to be dated as of January 15, 1997, by and between
the Company and The Bank of New York, as Trustee (the "2005 Senior Note
Trustee"). The Senior Subordinated Notes are to be issued pursuant to the
provisions of an Indenture (the "Senior Subordinated Note Indenture" and,
together with the 2003 Senior Note Indenture and the 2005 Senior Note Indenture,
the "Indentures") to be dated as of January 15, 1997 by and between the Company
and The Bank of New York, as Trustee (the "Senior Subordinated Note Trustee"
and, together with the 2003 Senior Note Trustee and the 2005 Senior Note
Trustee, the "Trustees").
The Securities are being issued and sold in connection with the acquisition
(the "Acquisition") of OrNda HealthCorp, a Delaware corporation ("OrNda"), by
the Company. The Acquisition is being effected pursuant to an Agreement and
Plan of Merger, dated as of October 16, 1996, as amended as of November 22, 1996
(the "Merger Agreement"), by and among the Company, OHC Acquisition Co., a
Delaware corporation and a wholly owned subsidiary of the Company (the "Merger
Sub"), and OrNda. Pursuant to the Merger Agreement, the Company will acquire
all of the issued and outstanding capital stock of OrNda (the "Merger"). At the
time the Merger is consummated (the "Effective Time of the Merger") and pursuant
to the Merger Agreement, Merger Sub will be merged with and into OrNda with
OrNda as the surviving corporation. Prior to or concurrently with the issuance
and sale of the Securities, the Company will enter into a new bank credit
facility (together with the documents and agreements contemplated thereby, the
"New Credit Facility") with Xxxxxx Guaranty Trust Company of New York, Bank of
America NT&SA, The Bank of New York and the Bank of Nova Scotia, as arranging
agents, and certain lenders named therein. The Merger Agreement, the New Credit
Facility, this Agreement, the Securities and the Indentures 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. 333-17907),
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 any related registration statement, if
any, increasing the size of the offering pursuant to Rule 462(b) under the Act,
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 (i) the 2003 Senior Notes 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 2003 Senior Notes,
together with accrued interest, if any, to the Closing Date (the "2003 Senior
Note Purchase Price"), (ii) the 2005 Senior Notes in the respective principal
amounts set forth opposite their names on Schedule II 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 2005
Senior Notes, together with accrued interest, if any, to the Closing Date (the
"2005 Senior Note Purchase Price") and (iii) the Senior Subordinated Notes in
the respective principal amounts set forth opposite their names on Schedule III
hereto, plus such amounts 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 Senior Subordinated Notes, together
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with accrued interest, if any, to the Closing Date (the "Senior Subordinated
Note Purchase Price" and, together with the 2003 Senior Note Purchase Price and
the 2005 Senior Note Purchase Price, the "Purchase Price").
3. DELIVERY AND PAYMENT. Delivery to you of and payment for the
Securities shall be made at 9:00 A.M., New York City time, on January __, 1997
(such time and date being referred to as the "Closing Date"), at the offices of
DLJ at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 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
appropriate Purchase Price by wire transfer of immediately available funds to an
account designated by 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 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
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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 provisions 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 reasonable 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
Indentures 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 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 Xxxxxxxx & 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 Rule 2720 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 Trustees, 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.
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(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.
(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
and any definitive proxy or information statement 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) 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.
(l) It will use the proceeds from the sale of the Securities in the
manner described in the Prospectus under the caption "Use of Proceeds."
(m) 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.
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(n) 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
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 Indentures 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
Indentures under the TIA will not have been suspended and the Indentures
will conform in all material respects to the requirements of the TIA. No
contract or document of a character required by the Act or the TIA 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 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
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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 and the application of the net proceeds therefrom and the
consummation of the Merger and the related transactions on the terms
described in the Prospectus.
(f) The Indentures have been duly authorized by the Company and, when
duly executed and delivered in accordance with their terms, will be valid
and legally binding agreements of the Company, enforceable against the
Company in accordance with 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.
(g) The Securities have been duly authorized by the Company and, when
executed and delivered by the Company and authenticated by the applicable
Trustee in accordance with the applicable 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
applicable Indenture and will conform in all material respects to the
description thereof in the Prospectus.
(h) 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.
(i) The execution and delivery of this Agreement and the Indentures
and issuance and sale of the Securities by the Company, the execution and
delivery of each of the other Transaction Documents by each of the Company,
Merger Sub and OrNda (each, a "Merger Party" and collectively, the "Merger
Parties"), to the extent each is a party thereto, the performance by the
Merger Parties, as applicable, of this Agreement, the Indentures and the
other Transaction Documents and the consummation of the transactions
contemplated by this Agreement and the other Transaction Documents will not
conflict with or result in a breach or violation of any of the respective
charters or bylaws of the Company, OrNda or any of their respective
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
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indebtedness, or any indenture, mortgage, deed of trust or other agreement,
lease or instrument (collectively, "Agreements") to which the Company,
OrNda 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, OrNda or any of the
Subsidiaries is or may be subject (other than pursuant to any Agreement
that will terminate or be amended prior to the consummation of the Merger,
including the existing credit facilities of each of the Company and OrNda),
or any order of any court or governmental agency, body or official having
jurisdiction over the Company, OrNda 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, OrNda or any of the Subsidiaries, or any of
their respective assets or properties, 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
business, financial condition, results of operations or prospects of the
Company, OrNda and the Subsidiaries, taken as a whole (a "Material Adverse
Effect").
(j) No authorization, approval, 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, state securities or Blue Sky laws or
regulations and, in the case of the Merger, the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements of 1976, as amended, state antitrust laws or state healthcare
licensure and regulation laws. 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.
(k) The Securities have been approved for listing on the NYSE, subject
to official notice of issuance.
(l) 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. OrNda and each of the Subsidiaries of the Company or of
OrNda that (i) directly or indirectly own or lease any interest in any
general hospitals or (ii) are otherwise material to the Company, OrNda 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.
(m) Except as otherwise disclosed in the Registration Statement, 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 (over
80% in the case of Healthcare Underwriting Group) are owned, directly or
through subsidiaries, by the Company or OrNda, as the case may be. All such
shares of capital stock are fully paid and nonassessable, and are owned
free and clear of any Lien, and, except as disclosed in a certificate or
opinion delivered to the Underwriters, there are no outstanding
subscriptions, rights, warrants, options, calls, convertible or
exchangeable securities, commitments of sale, or Liens
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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.
(n) None of the Company, OrNda or the Significant Subsidiaries is in
violation of its respective charter or bylaws and none of the Company,
OrNda or 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, OrNda 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, OrNda or any of the Subsidiaries
is subject, except as would not have, singly or in the aggregate, a
Material Adverse Effect.
(o) 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, OrNda 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 or any of its Subsidiaries'
performance of its obligations, as applicable, pursuant to this Agreement
(including, without limitation, the issuance of the Securities), the
Transaction Documents 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.
Except as disclosed in the Registration Statement or the
Prospectus, none of the Company, OrNda or 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.
(p) 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 OrNda 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 OrNda 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
OrNda and its Subsidiaries, as the case may be, at the respective dates
indicated and the results of their 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
relevant captions "Prospectus Summary--Summary Unaudited 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.
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(q) 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) none of the Company, OrNda or the Subsidiaries has
incurred any liabilities or obligations, direct or contingent, or entered
into any transaction not in the ordinary course of business, which could
reasonably be expected to have a Material Adverse Effect, (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 business, financial condition,
results of operations or prospects of the Company, OrNda and the
Subsidiaries, taken as a whole (any of the items set forth in clauses (i),
(ii), (iii) or (iv) above, a "Material Adverse Change").
(r) (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, OrNda and the Subsidiaries has all
certificates, consents, exemptions, orders, permits, licenses,
authorizations, accreditations or other approvals or rights (each, 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, OrNda 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) none of
the Company, OrNda or the Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Authorization.
(s) None of the Company, OrNda, Merger Sub or 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 or the incurrence of the
indebtedness under the New Credit Facility 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.
(t) None of the Company, OrNda, or any of the Significant Subsidiaries
is (i) an "investment company" or a company "controlled" by an investment
company 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 1935, as amended.
(u) 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.
(v) The Merger has been duly authorized by the Merger Parties and the
Merger has been approved by stockholders of OrNda and the Company holding
the requisite number of shares required to approve the Merger.
(w) Immediately after the consummation of the Merger and the
transactions contemplated by the Transaction Documents, the fair value and
present fair saleable value of the assets of the Company will exceed the
sum of its stated liabilities and identified contingent liabilities;
neither the Company nor OrNda will be, after giving effect to the
execution, delivery and performance of the Transaction Documents, to the
extent each is a party thereto, and the consummation of the transactions
contemplated thereby, (i) left
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with unreasonably small capital with which to carry on its business as it
is proposed to be conducted or (ii) unable to pay its debts (contingent or
otherwise) as they mature.
(x) The Company has delivered to the Underwriters a true and correct
copy of each of the Transaction Documents that have been executed and
delivered prior to the date of this Agreement and each other Transaction
Document in the form substantially as it will be executed and delivered on
or prior to the Closing Date, together with all related agreements and all
schedules and exhibits thereto, and there have been no amendments,
alterations, modifications or waivers of any of the provisions of any of
the Transaction Documents since their date of execution or from the form in
which it has been delivered to the Underwriters; 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 New Credit
Facility) under the New Credit Facility 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 other than the New Credit Facility which would reasonably be
expected to result in a Material Adverse Effect or, as of the date hereof,
materially adversely affect the ability of each of the Merger Parties to
consummate the Merger and the transactions contemplated by the Merger
Agreement.
(y) Each of the representations and warranties of each party contained
in the Merger Agreement and in the Credit Agreement, dated as of January
__, 1997, among the Company, the Lenders party thereto, Xxxxxx Guaranty
Trust Company of New York, Bank of America NT&SA, The Bank of New York and
the Bank of Nova Scotia, as Arranging Agents, and Xxxxxx Guaranty, as
Administrative Agent, entered into in connection with the New Credit
Facility is true and correct on and as of the date hereof.
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 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 an 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
- 11 -
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 determined
by a court of competent jurisdiction or binding mediation or arbitration
tribunal, in a judgment or determination 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 after becoming aware 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 reasonable 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,
except 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 promptly 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 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 reasonable 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
incurred in 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
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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 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 reasonable 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 (or any of their 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 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
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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, unless another date is specified therein. 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 them 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 or prior to 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, (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, to the knowledge of the
Company, 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 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, (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, OrNda and the Subsidiaries, taken as a
whole, and (iii) none of the Company, OrNda or any of the Subsidiaries
shall have any liability or obligation, direct or contingent, that is
material to the Company, OrNda and the Subsidiaries, taken as a whole, and
which is not disclosed in the Registration Statement and the Prospectus.
- 14 -
(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 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 financial
statements, the notes thereto and related schedules and other
financial data included therein and the Statements of Eligibility
and Qualification of the Trustees on Forms T-1 (the "Forms T-1"),
as to which no opinion need be expressed);
(ii) 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, the notes thereto and related
schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which no opinion
need be expressed);
(iii) the Securities have been duly authorized and executed
by the Company and, when authenticated in accordance with the
terms of the Indentures 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 respective terms and
entitled to the benefits of the respective Indenture under which
they are being issued, except to the extent that the
enforceability thereof may be limited by (a) bankruptcy,
insolvency, fraudulent transfer, 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 each of the Indentures;
(iv) each of the Indentures has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the applicable
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 transfer,
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 each of the Indentures;
(v) the Securities and the Indentures conform in all
material respects to the descriptions thereof contained in the
Prospectus;
- 15 -
(vi) 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 of organization;
(vii) neither the Company nor any of its Significant
Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization or other order
of, or filing with, any Federal, Delaware 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 Delaware, 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 and the Indentures (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;
and
(ix) the execution and delivery by the Company of this
Agreement and the Indentures and the issuance and sale of the
Securities to you as contemplated thereby and the performance of
its obligations pursuant to this Agreement and the Indentures
(a) will not conflict with or result in a breach of violation of
any of the terms or provisions of, or constitute a default under
the charter or bylaws of the Company; and (b) will not conflict
with or violate any Applicable Law or any order or decree of
Delaware, 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.
Such counsel shall also state that the Staff of the
Commission has orally advised such counsel that the Registration
Statement was declared effective under the Act and the Indentures
were qualified under the TIA, in each case, at _____ p.m.,
Washington, D.C. time, on January __, 1997, and, to the best of
such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or the qualification
of Indentures 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)(l) 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,
the laws of the State of New York and the laws of the State of
Delaware.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of
the Company and OrNda, representatives of the independent public
accountants for the Company and OrNda, 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
- 16 -
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 financial and
statistical data included or incorporated by reference in or excluded
from the Registration Statement or the Prospectus, the exhibits to the
Registration Statement or the Forms T-1.
In rendering the foregoing opinions, Xxxxxxx, Arps may rely as to
matters of Nevada law on the opinion of Xxxxxxxx and Wedge, Nevada
counsel to the Company, or such other counsel as is reasonably
satisfactory to the Underwriters' Counsel.
(3) 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, 1996 under the captions "Medicare, Medicaid and Other
Revenues" and "Healthcare Reform, Regulation and Licensing" and
in the Company's Quarterly Report on Form 10-Q for the quarter
ended November 30, 1996 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
(as defined under the Commission's Regulation S-X and identified
on a schedule to such opinion) has such Authorizations from all
regulatory or governmental officials, bodies and tribunals as are
necessary to own, lease and operate its respective properties and
to conduct its business in the manner described in the
Prospectus, except as could not reasonably be expected to have,
singly or in the aggregate, a material adverse effect on the
business, financial condition or results of operations of the
Company and its Subsidiaries, taken as a whole;
(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) except as otherwise disclosed in the Registration
Statement, 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 of its Significant
- 17 -
Subsidiaries (over 80% in the case of Healthcare Underwriting
Group) 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;
(v) the Company and each of its Significant Subsidiaries 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
Indentures 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 reasonably be expected to have, singly
or in the aggregate, a Material Adverse Effect; and
(vi) the execution and delivery by the Company of this
Agreement and the Indentures and the issuance and sale of the
Securities to you as contemplated thereby and the performance of
its obligations pursuant to this Agreement and the Indentures
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 business, financial condition or
results of operations of the Company and its Subsidiaries, taken
as a whole.
(4) In giving their opinion required by subsection f(3) 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)(3)(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 necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(5) an opinion (satisfactory to you and Underwriters Counsel),
dated the Closing Date, of Xxxxxxxx and 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 and the Indentures
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 Indentures, the Securities and this Agreement;
- 18 -
(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 and the Indentures, 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 and the Indentures 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 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 or the Indentures 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 and Section 9.10 of the Indentures
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
Xxxxxxxx & 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, together, in the case of the
opinions of Xxxxx X. Xxxxx and Xxxxxxxx and Xxxxx delivered pursuant to the
Merger Agreement and Xxxxx X. Xxxxx delivered pursuant to the New Credit
Facility, with appropriate reliance letters addressed to the Underwriters.
(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 Ernst & Young
LLP, independent public accountants to the Company and OrNda, 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 Xxxxxxxx & Xxxxxxxx.
(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.
- 19 -
(l) The certificate of merger with respect to the Merger shall have
been filed with the Secretary of State of the State of Delaware and shall
have become effective, the Merger shall have become effective under
Section 103(d) of the Delaware General Corporation Law and all other
transactions contemplated by the Transaction Documents (other than the
closing of the offering and sale of the Securities under this Agreement) to
be consummated at or prior to the Effective Time of the Merger shall have
been consummated prior to or simultaneously with the consummation of the
purchase and sale of the Securities hereunder.
(m) The New Credit Facility, providing for borrowings by the Company
in an amount up to $2.5 billion, shall be in effect and the existing credit
facilities of each of the Company and OrNda shall have been terminated.
(n) On or before the Closing Date, the Underwriters and Xxxxxxxx &
Xxxxxxxx, counsel for the Underwriters, shall have received such further
documents, opinions, certificates and schedules or instruments relating to
the business, corporate, legal and financial affairs of the Company, OrNda
and the Subsidiaries as they shall have reasonably requested prior to the
date of this Agreement.
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 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 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 reasonably be expected to
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 the general hospital 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
- 20 -
which it has agreed to pay pursuant to Section 4(f) hereof. If this Agreement is
terminated pursuant to this Section 8, such termination shall be without
liability of any Underwriter to the Company or any of its Subsidiaries.
If on the Closing Date any Underwriter shall fail or refuse to
purchase the securities which it has agreed to purchase hereunder on such date,
and the aggregate principal amount of such Securities that such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused to
purchase does not exceed 20% of the total principal amount of such Securities to
be purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion which the amount of Securities
set forth opposite its name in Schedule I, Schedule II and Schedule III,
respectively, hereto bears to the aggregate principal amount of Securities which
all the non-defaulting Underwriters, as the case may be, have agreed to
purchase, or in such other proportion as you (at your option) may specify, to
purchase the Securities that such defaulting Underwriter or Underwrites, as the
case may be, agreed but failed or refused to purchase on such date; PROVIDED
that in no event shall the aggregate principal amount of Securities that any
Underwriter has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 8 by an amount in excess of one-ninth of such principal
amount of Securities without the written consent of such Underwriter. If, on
the Closing Date any of the Underwriters shall fail or refuse to purchase the
Securities, as the case may be, and the total principal amount of Securities
with respect to which such default occurs exceeds 20% of the total amount of
Securities to be purchased on such date by all Underwriters and arrangements
satisfactory to you 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
Xxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Chief Financial
Officer, 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 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Syndicate Department, and, in each case, with a copy to
Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, or in any case to such other
address as the person to be notified may have required 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 PRINCIPLES 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 SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
- 21 -
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 under 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.
- 22 -
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:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX, XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX
& XXXXX INCORPORATED
X.X. XXXXXX SECURITIES INC.
XXXXX XXXXXX INC.
Acting on behalf of themselves
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:________________________________
Name: Xxxxx X. Xxxxxx
Title: Managing Director
XXXXXXX, XXXXX & CO.
By:________________________________
- 23 -
XXXXXXX LYNCH, XXXXXX, XXXXXX
& XXXXX INCORPORATED
By:_________________________________
X.X. XXXXXX SECURITIES INC.
By:________________________________
XXXXX XXXXXX INC.
By:_________________________________
- 24 -
SCHEDULE I
PRINCIPAL PERCENTAGE
UNDERWRITER AMOUNT OF TOTAL
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation . . . $ %
Xxxxxxx, Xxxxx & Co. . . . . . . . . . . . . . . . . . . .
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated . . . .
X.X. Xxxxxx Securities Inc. . . . . . . . . . . . . . . .
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . . . .
---------------- ----------------
Total. . . . . . . . . . . . . . . . . . . . . . . . . . $400,000,000 100%
---------------- ----------------
---------------- ----------------
I-1
SCHEDULE II
PRINCIPAL PERCENTAGE
UNDERWRITER AMOUNT OF TOTAL
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation . . . $ %
Xxxxxxx, Xxxxx & Co. . . . . . . . . . . . . . . . . . . .
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated . . . .
X.X. Xxxxxx Securities Inc. . . . . . . . . . . . . . . .
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . . . . .
---------------- ----------------
Total. . . . . . . . . . . . . . . . . . . . . . . . . . $900,000,000 100%
---------------- ----------------
---------------- ----------------
II-1
SCHEDULE III
PRINCIPAL PERCENTAGE
UNDERWRITER AMOUNT OF TOTAL
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation . . . $ %
Xxxxxxx, Xxxxx & Co. . . . . . . . . . . . . . . . . . . .
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated . . . .
X.X. Xxxxxx Securities Inc. . . . . . . . . . . . . . . .
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . . . . .
---------------- ----------------
Total. . . . . . . . . . . . . . . . . . . . . . . . . . $700,000,000 100%
---------------- ----------------
---------------- ----------------
III-1
