EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of June 28, 2001, between HCA -
The Healthcare Company, a Delaware corporation (the "Seller"), and Canadian
Investments LLC, a Delaware limited liability company (the "Purchaser").
WHEREAS. the Seller and the Purchaser have entered into a transaction
referred to in a Confirmation first dated June 7, 2001 and amended on June 28,
2001, which as of the date of this Agreement supplements and forms part of an
Amended and Restated Master Agreement dated as of June 28, 2001 (that Amended
and Restated Master Agreement, including the Schedule thereto, as so
supplemented and as further updated or amended and supplemented from time to
time, hereinafter referred to as the "Master Agreement") and may enter into
additional transactions thereunder (collectively, the "Transactions"), in
connection with which the Purchaser will acquire shares of the Seller's voting
common stock, $.01 par value per share, issued by HCA - The Healthcare Company
(the "Stock"); and
WHEREAS, shares of Stock so acquired by the Purchaser in connection
with the Transactions, may under some circumstances be deemed to be "restricted
securities" within the meaning of subparagraph (a)(3) of Rule 144 issued by the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"), or may otherwise be subject to the
resale limitations of Rule 144; and
WHEREAS, the parties are entering into this Agreement to provide the
Purchaser with the ability to sell any shares of Stock acquired by the Purchaser
in connection with the Transactions, that may be deemed "restricted securities"
or otherwise subject to the resale limitations of Rule 144, on a registration
statement of the Company covering the resale of such shares if the sale is to
occur in connection with cash settlement of the Purchaser's obligation under the
Transactions (any such sale, a "Settlement Sale");
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
1. CERTAIN AGREEMENTS OF THE SELLER REGARDING THE REGISTRATION OF THE
SHARES OF STOCK UNDER THE SECURITIES ACT AND THE ISSUANCE OF SUCH SHARES
(a) In order to permit the Purchaser to resell any shares of Stock
that it may acquire in connection with the Transactions in a Settlement Sale
that may have a prospectus delivery requirement, the Seller agrees that as soon
as practically possible, but no later than 35 days after the date hereof, it
will either (i) prepare and file with the Commission a registration statement on
Form S-3 under the Securities Act with respect to a number of shares of Stock
not less than the aggregate number of Shares subject to the
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Transactions (the "Registered Number of Shares"), or (ii) effect a
post-effective amendment to a registration statement on Form S-3 (either such
registration statement, as it may be amended from time to time, is hereinafter
referred to as the "Registration Statement"). The Registration Statement shall
permit the secondary resale thereunder by the Purchaser of up to the Registered
Number of Shares of the Stock on a delayed or continuous basis in accordance
with Rule 415 under the Securities Act, or any successor rule that may be
promulgated by the Commission under the Securities Act, as they each may, from
time to time, be in effect. If the Registration Statement includes securities
other than the Stock that may be sold by the Purchaser, then Seller shall
reserve on such Registration Statement sufficient availability for the
Purchaser, at all times during the term of this Agreement, to sell up to an
aggregate of the Registered Number of Shares of Stock.
(b) In connection with the Registration Statement and the
registration of the resale of the shares of Stock under the Securities Act, the
Seller agrees that it will:
(i) (a) use all commercially reasonable efforts to cause the
Registration Statement to be effective as soon as
practically possible, and (b) in any event cause the
Registration Statement to be effective no later than 180
days after the date of filing of such Registration
Statement;
(ii) prepare and file with the Commission such amendments
and supplements to the Registration Statement and the
prospectus contained therein (such prospectus, as it may be
amended or supplemented from time to time, is hereinafter
referred to as the "Prospectus") as may be necessary, in the
opinion of the Seller and its counsel, to keep the
Registration Statement effective and to comply with the
provisions of the Securities Act with respect to the
disposition of all the shares of Stock by the Purchaser
until such time as all shares of the Stock have either (A)
been delivered to the Seller in settlement of the
Transactions or (B) been disposed of by the Purchaser in
accordance with the methods of disposition utilized by the
Purchaser consistent with its obligation under the
Transactions and the Securities Act and other applicable
securities laws and regulations; provided, however, to the
extent that any such amendment or supplement to the
Registration Statement or the Prospectus relates
specifically to the Purchaser or its disposition of shares
of Stock, the Seller will, within a reasonable time prior to
the filing of the amendment or supplement, provide copies of
such document to the Purchaser and not file any such
document in a form to which the Purchaser shall reasonably
object;
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(iii) promptly furnish to the Purchaser such number of
copies of the Registration Statement and of each amendment
and supplement thereto (in each case including all
exhibits), such number of copies of the Prospectus and such
other documents as the Purchaser may reasonably request in
order to facilitate the disposition of the shares of Stock
as contemplated in the Transactions;
(iv) use its best efforts to register or qualify the shares
of Stock covered by the Registration Statement under such
other applicable securities or Blue Sky laws of such
jurisdictions within the United States of America (including
territories and commonwealths thereof) as the Purchaser
shall reasonably request, except that the Seller shall not
for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction
wherein it is not so qualified, to subject itself to
taxation in any such jurisdiction, or to consent to general
service of process in any jurisdiction;
(v) notify the Purchaser at any time when a prospectus
relating thereto is required to be delivered under the
Securities Act within the period mentioned in clause (ii)
above of the happening of any event as a result of which the
Prospectus, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading and, at the request of the
Purchaser, prepare and furnish to the Purchaser a reasonable
number of copies of a supplement to or an amendment of the
Prospectus as may be necessary so that, as thereafter
delivered to the purchasers of shares of Stock, the
Prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading; provided, that the Seller shall be
entitled to postpone the filing of any such amendment or
supplement by written notice to the Purchaser if either (i)
the Seller shall have determined in good faith that such
disclosure is not in the best interest of the Seller and its
stockholders because of the existence of, or in anticipation
of, any acquisition or financing activity, or the
unavailability of any required financial statements, or any
other event or condition of similar significance to the
Seller, or (ii) the Seller is proceeding promptly and in
good faith to amend or supplement such Registration
Statement and related Prospectus to describe such events;
provided further, that in no event shall the Seller be
entitled to postpone the filing of any such amendment or
supplement for a period greater than 45 consecutive business
days
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without the consent of Purchaser, which shall not be
unreasonably withheld;
(vi) if requested by the Purchaser, enter into an
underwriting agreement with an Underwriter (as that term is
defined in Section 10 below) or Underwriters, as the case
may be, providing for the sale of the shares of Stock in an
Underwritten Offering (as that term is defined in Section 10
below) and/or enter into a sales agency agreement providing
for, among other things, the appointment by the Purchaser of
a nationally recognized investment banking firm reasonably
satisfactory to the Seller to act as sales agent on behalf
of the Purchaser, each of which agreements shall be
customary in form, substance and scope and shall contain
customary representations, warranties, covenants and
indemnities and require customary opinions of counsel and
accountants' "cold comfort" letters and certificates; and
use its best efforts to obtain any such opinions of counsel
and accountants' "cold comfort" letters referred to in such
underwriting agreement or sales agency agreement, and take
all such other reasonable actions in connection therewith in
order to expedite or facilitate the disposition of the
shares of Stock as contemplated by such agreements;
(vii) enter into, and use its best efforts to cause its
affiliates to enter into, customary lock-up arrangements
(not to exceed 90 days) with Underwriters of an Underwritten
Offering; provided however, that such arrangements shall not
extend (i) to the issuance to management of the Seller or
any affiliate of securities convertible into shares of
Stock, or (ii) to the issuance or distribution of shares of
Stock to holders of convertible securities upon conversion;
(viii) make available to its security holders, as soon as
practicable, an earnings statement covering a period of at
least twelve months which satisfies the provisions of
Section 11(a) of the Securities Act (including, at the
option of the Seller, Rule 158 issued by the Commission
thereunder);
(ix) provide to the Purchaser and any Underwriter (and any
of their respective representatives) reasonable access to
appropriate officers and employees of the Seller, the
Seller's attorneys and its independent public accountants to
answer questions and to supply information reasonably
requested by the Purchaser and such Underwriter in
connection with the Registration Statement and the
Prospectus as they shall reasonably determine to be
necessary to
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enable them to conduct a reasonable investigation of the
Seller within the meaning of the Securities Act, subject to
execution of customary confidentiality agreements; and
(x) cause the shares of Stock to be listed on any securities
exchange or quotation system, if any, on which the Seller's
common stock shall then be listed, subject to official
notice of issuance, which notice shall be given by the
Seller upon issuance.
(c) The Seller agrees that it will not, prior to the complete
termination of the Transactions, take, or refrain from taking, any action that
would have the effect of preventing or disabling (i) the Purchaser from
delivering to the Seller the shares of Stock in physical settlement of all or
any part or (ii) the Purchaser or the Seller from otherwise performing any of
its respective obligations under this Agreement or the Master Agreement
(including the Transactions).
(d) The Purchaser acknowledges that agreements and representations
and warranties of the Seller in this Agreement shall in no way be interpreted to
require the Seller to take any additional action to facilitate a Settlement Sale
so long as the Purchaser is entitled or required under the Transactions to
settle its obligations thereunder through delivery of the Stock to the Seller in
any case in which the Seller fails to take any such action.
2. CERTAIN AGREEMENTS OF THE PURCHASER IN CONNECTION WITH THE
REGISTRATION OF THE SHARES OF STOCK UNDER THE SECURITIES ACT
In connection with the Registration Statement and the registration of
the resale of the shares of Stock under the Securities Act, the Purchaser agrees
that:
(a) it will furnish the Seller with such information regarding the
Purchaser and the distribution of the shares of Stock as the Seller may from
time to time reasonably request in writing and as shall be required by law; and
(b) upon receipt of any notification of the type described in
Section 1(b)(v) above, and until a supplemented or amended Prospectus is
available as provided in Section 1(b)(v) above, the Purchaser will not offer or
sell any shares of Stock and shall return all copies of earlier versions of the
Prospectus to the Seller if requested to do so by the Seller, and the Purchaser
in all cases will only sell the Stock as contemplated in the Transactions.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Purchaser that:
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(a) as of the date hereof and as of each Share Sale Date, the
Seller is duly incorporated and is validly existing and in good standing as a
corporation under the laws of the State of Delaware and has full corporate power
and authority to conduct its business as currently conducted;
(b) as of the date hereof, this Agreement has been duly authorized,
executed and delivered by the Seller and, assuming due authorization, execution
and delivery thereof by the Purchaser, constitutes a valid and legally binding
obligation of the Seller enforceable against the Seller in accordance with its
terms, except (A) as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law) and (B) that the enforceability of rights to
indemnification and contribution thereunder may be limited by federal or state
securities laws;
(c) as of the date hereof, the sale of shares of Stock by the
Purchaser and the compliance by the Seller with all the provisions of this
Agreement as of the date hereof will not, and, as of each Share Sale Date, such
sale and compliance does not, breach or result in a default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Seller or any of its subsidiaries is a party or by which the Seller or
any of its subsidiaries is bound or to which any of the property or assets of
the Seller or any of its subsidiaries is subject, nor, as of the date hereof,
will, and, as of each Share Sale Date, does, such action violate the Certificate
of Incorporation or Bylaws of the Seller or any statute or any rule or
regulation that has been issued pursuant to any statute or any order known to
the Seller issued by any court or governmental agency or body or court having
jurisdiction over the Seller or any of its subsidiaries or any of their
properties;
(d) as of each Share Sale Date, the shares of Stock are included in
the securities that are the subject of the Registration Statement; and, as of
each Share Sale Date following the date the Registration Statement has been
declared effective by the Commission, no stop order suspending the effectiveness
of the Registration Statement has been issued and, to the Seller's knowledge, as
of each Share Sale Date, no such proceeding is pending or threatened by the
Commission;
(e) the Registration Statement, when effective, and the Prospectus,
and any further amendments or supplements thereto, will, and, as of each Share
Sale Date, such Registration Statement, Prospectus and amendments or supplements
do, comply as to form in all material respects with the requirements of the
Securities Act and the rules and regulations of the Commission thereunder (the
"Rules and Regulations"); and, as of each Share Sale Date, the documents
incorporated by reference in the Prospectus, when they are filed with the
Commission, will comply as to form in all material respects with
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the requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations of the Commission thereunder;
(f) as of each Share Sale Date, there are no contracts or other
documents that are required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the Securities Act or by the Rules and
Regulations which will not have been described or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by the
Rules and Regulations; and
(g) as of each Share Sale Date, the Registration Statement and the
Prospectus will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Seller, as of the date
hereof and as of each Share Sale Date, that:
(a) this Agreement has been duly authorized, executed and delivered
by the Purchaser and, assuming due authorization, execution and delivery thereof
by the Seller, constitutes a valid and legally binding obligation of the
Purchaser enforceable against the Purchaser in accordance with its terms except
(A) as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law) and (B) that the enforceability of rights to
indemnification and contribution thereunder may be limited by federal or state
securities laws;
(b) it is an "accredited investor" as that term is defined in
Rule 501(a)(3) of Regulation D issued by the Commission under the Securities Act
and is acquiring Stock for investment for its own account in connection with the
Transactions and not with a view to, or for resale, or other disposition
thereof; and it will not offer, transfer, sell, pledge, hypothecate or otherwise
dispose of any of such Stock (or solicit any offers to buy, purchase, or
otherwise acquire or take a pledge of any of such Stock) except in compliance
with the Securities Act, the Rules and Regulations, and this Agreement and the
Transactions.
5. OPINION OF COUNSEL FOR THE SELLER; COMFORT LETTER
On each Share Sale Date, the Purchaser shall receive from counsel for
the Seller (which counsel may be in-house counsel to the Seller) an opinion,
dated such date, as to
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the matters set forth in the Annex attached hereto, and such opinion shall be
satisfactory in form and substance to the Purchaser.
On each Share Sale Date, the Seller shall use reasonable commercial
efforts to obtain, on behalf of the Purchaser, a "cold comfort" letter from the
independent certified public accountants of the Seller (and any other
independent certified public accountants of any subsidiaries for which financial
statements are included in the Registration Statement), addressed to the
Purchaser, in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary underwritten
offerings.
6. INDEMNIFICATION
(a) In connection with the registration of the shares of Stock
under the Securities Act, the Seller will indemnify and hold harmless the
Purchaser and its directors and officers and each Underwriter of the shares of
Stock and each other person, if any, who controls the Purchaser or such
Underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which the Purchaser or such
director or officer or Underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions or proceedings in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or (ii) 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; and the Seller will
reimburse the Purchaser, each such director and officer, each such Underwriter
and each such controlling person for any legal or any other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability, action or proceeding as such expenses are incurred;
provided, however, that the Seller shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, Prospectus, amendment or supplement
in reliance upon and in conformity with written information furnished to the
Seller by the Purchaser or such officer or director, Underwriter or controlling
person specifically for use in the preparation thereof. Such indemnity shall
remain in full force and effect irrespective of any investigation by any person
indemnified above.
(b) In connection with the registration of the shares of Stock under
the Securities Act, the Purchaser will indemnify and hold harmless the Seller
and each person, if any, who controls the Seller within the meaning of the
Securities Act, each officer of the Seller who has signed the Registration
Statement, each director of the Seller and each Underwriter from any and all
losses, claims, damages or liabilities, joint or several, to which the Seller or
such officer or director or Underwriter or controlling
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person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or the Prospectus, or any
amendment or supplement thereof, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse the Seller and each such officer, director, Underwriter and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Purchaser will be liable hereunder in any such case if and only to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with information pertaining to the
Purchaser, as such, furnished in writing to the Seller by the Purchaser
specifically for use in the Registration Statement or the Prospectus; and
provided further, that the aggregate obligation of the Purchaser to indemnify
the Seller and each such officer, director, Underwriter and controlling person
shall be limited to the proceeds received by the Purchaser from the sale of
shares of Stock pursuant to the Registration Statement.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 6, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party, give written notice
to the latter of the commencement of such action; provided, however, that the
failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under the preceding paragraphs
of this Section 6, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, the indemnifying party shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
indemnified party, and shall assume the payment of all expenses in connection
with such defense. The indemnified party or any controlling person of such
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party or such
controlling person unless (i) the indemnifying party shall have agreed to pay
such fees and expenses or (ii) the indemnifying party shall have failed to
assume the defense for such action or proceeding and to employ counsel
reasonably satisfactory to the indemnified party in any such action or
proceeding or (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both the indemnified party or such
controlling person and the indemnifying party, and such indemnified party or
such controlling person shall have been advised in writing by counsel that
counsel employed by the indemnifying party would, under applicable professional
standards, have a conflict in representing both the indemnifying party and the
indemnified party or such controlling person (in which case, if such indemnified
person or such controlling
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person notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action or
proceeding on behalf of the indemnified party or such controlling person); it
being understood, however, that the indemnifying party shall not, in connection
with any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (together with appropriate
local counsel) at any time for such indemnified party or parties and controlling
persons thereof, which firm shall be designated, if the Purchaser is the
indemnified party, by the Purchaser, if an Underwriter is the indemnified party,
by the Underwriter, and if the Seller is the indemnified party, by the Seller.
No party shall be liable for any settlement of any such action or proceeding
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent, or if there is a final
judgment for the plaintiff in any such action or proceeding, the indemnifying
party agrees to indemnify and hold harmless such indemnified party and such
controlling person from and against any loss or liability (to the extent stated
above) by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under the first or second paragraph hereof
in respect of any losses, claims, damages or liabilities referred to therein
(other than by reason of such indemnified party's failure to comply with the
first sentence of paragraph (c) of this Section 6), then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the Seller on the one hand and of
the Purchaser or any other person named in this Section 6 as a possible
indemnifying or indemnified party on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of the
Seller on the one hand and of the Purchaser or any such other person on the
other 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 relates to information supplied by the Seller
or by the Purchaser or such other person and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party or any such person
as a result of the losses, claims, damages and liabilities referred to above
shall be deemed to include, subject to the limitations set forth in Section
6(c), any legal or other fees or expenses reasonably incurred by such party or
person in connection with investigating or defending any action or claim. The
Purchaser agrees that only an Underwriter that agrees to the terms of this
Section 6 shall be entitled to its benefits.
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(e) Each of the Seller and the Purchaser agrees (and the Purchaser
shall use its best efforts to cause each Underwriter to agree) that it would not
be just and equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to in Section 6(d).
Notwithstanding the provisions of this Section 6, the Purchaser shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Stock is offered to the public exceeds the amount of any
damages which the Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
7. EXPENSES
The Seller will pay all expenses incurred by the Seller in complying
with Section 1 hereof, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Seller, fees of the National Association
of Securities Dealers, Inc., listing fees, transfer taxes, fees of transfer
agents and registrars, and costs of insurance, but excluding any selling
commissions applicable to the sale of shares of Stock. The Purchaser and the
Seller agree that they will exercise their reasonable best efforts to eliminate
the requirement to pay any stock transfer taxes.
8. PERSONS ENTITLED TO BENEFIT OF AGREEMENT
This Agreement shall inure to the benefit of and be binding upon the
Seller, the Purchaser and their respective successors and assigns. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (a)(i) the representations, warranties, indemnities
and agreements of the Seller contained in this Agreement shall also be deemed to
be for the benefit of the person or persons, if any, who control the Purchaser
within the meaning of Section 15 of the Securities Act and (ii) the indemnities
provided by the Purchaser in this Agreement shall be for the benefit of the
persons set forth in such indemnities and (b)(i) the representations,
warranties, indemnities and agreements of the Purchaser contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control the Seller within the meaning of Section 15 of the
Securities Act and (ii) the indemnities provided by the Purchaser in this
Agreement shall be for the benefit of the persons set forth in such indemnities.
Nothing in this Agreement is intended or shall be construed to give any person,
other than the persons referred to in this Section 8, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
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9. NOTICES
All notices and other communications provided for herein shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by registered or certified mail, return receipt requested, postage prepaid:
(a) if to the Seller, to it at:
HCA - The Healthcare Company
Xxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telecopy: (000) 000-0000
(b) if to the Purchaser, to it at:
Canadian Investments LLC
x/x Xxxxxxx Xxxxxxxx (Xxx Xxxx), Inc.
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx, Chief Financial Officer
Telecopy: (000) 000-0000
with a copy sent to:
TD Securities (USA) Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: P. Xxxxxx Xxxxxxx, Xx.
Facsimile: 000-000-0000
or at such other address as any party shall have specified by notice in writing
to the others. Failure to provide copies shall not affect the validity of the
notice given to the primary recipient.
10. CERTAIN DEFINITIONS
Terms defined in the Master Agreement have the same meanings when used
in this Agreement. For purposes of this Agreement:
(a) the term "Business Day" means any day on which the New
York Stock Exchange, Inc. is open for trading;
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(b) the term "Share Sale Date" means each date Purchaser sells or
causes to be sold Stock, either for the benefit of Seller or Purchaser, pursuant
to the Master Agreement;
(c) the term "Underwriter" means any person who participates in the
distribution of shares of Stock within the meaning of Section 2(11) of the
Securities Act; and
(d) the term "Underwritten Offering" means a sale of shares of Stock
by the Purchaser to an Underwriter for reoffering to the public.
(e) the term "Purchaser" shall include Canadian Investments LLC and
all affiliates thereof.
11. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
hereto and supersedes all prior agreements and understandings, oral and written
between the parties hereto with respect to the subject matter hereof.
12. SUCCESSORS AND ASSIGNS
All covenants and agreements and representations and warranties in this
Agreement contained by or on behalf of any of the parties hereto shall bind and
inure to the benefit of the respective successors and assigns of the parties
hereto whether so expressed or not. The term "Stock" as used in this Agreement
includes the common stock of any successor of the Seller.
13. AMENDMENT; WAIVER
No provision of this Agreement may be amended, waived or otherwise
modified without the prior written consent of the parties hereto.
14. SECTION HEADINGS
The section headings contained in this Agreement are for reference
purposes only and shall not effect the meanings or interpretation of this
Agreement.
15. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
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16. APPLICABLE LAW
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
HCA - The Healthcare Company
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Title: V.P., Investments
Canadian Investments LLC
By: /s/ Xxxxx Xxxxxx
---------------------------------
Title: Attorney-in-Fact
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ANNEX
FORM OF OPINION OF COUNSEL OF SELLER
Re: HCA - The Healthcare Company Registration Rights Agreement
Gentlemen:
I am employed as a Vice President-Legal of HCA--The Healthcare
Company, a Delaware corporation ("HCA"), and in that capacity have acted as
counsel to HCA with respect to the Registration Rights Agreement dated as of
June 28, 2001 (the "Registration Rights Agreement"), between HCA and Canadian
Investments LLC ("Purchaser").
This opinion is delivered to you pursuant to Section 5 of the
Registration Rights Agreement. Terms used herein with their initial letters
capitalized shall have the same meanings as in the Registration Rights
Agreement, unless otherwise specified herein or otherwise defined herein.
In connection with the transactions contemplated under the
Registration Rights Agreement, I have examined originals or copies of the
Amended and Restated Master Agreement between HCA and the Purchaser, including
the Schedule and the Confirmation relating thereto (the "Master Agreement") and
the Registration Rights Agreement. Additionally, I have examined the Restated
Certificate of Incorporation, as amended and Bylaws, as amended, of HCA;
together with originals or copies of such other documents as I have deemed
necessary or appropriate as a basis for the opinions hereinafter expressed.
[Additional assumptions and statements as to materials on which reliance is
placed will depend on circumstances at appropriate time.]
With your permission, I have assumed (i) the genuineness of
all signatures on all documents reviewed by me (other than the signatures of
officers of HCA), (ii) the authenticity, accuracy and completeness of all
documents submitted to me as originals, and (iii) the conformity to original
documents of all such documents submitted to me as photocopies or certified
copies. As to various questions of fact material to my opinions, I have relied
upon representations made in the Registration Rights Agreement and the Master
Agreement, and upon representations of various officers and employees of HCA and
in certificates of various public officials.
Based and relying upon the foregoing and upon such other
information and documents furnished to me as I believe necessary to enable me to
render the following opinions, and subject to the comments and exceptions
hereinafter related, I am of the opinions that:
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1. HCA is a corporation duly organized and validly existing
and in good standing under the laws of its jurisdiction of incorporation, and
has all corporate power and authority necessary to own and lease its properties
and conduct the business in which it is engaged.
2. HCA has the corporate power and authority to execute,
deliver and perform the Registration Rights Agreement and has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Registration Rights Agreement.
3. The Registration Rights Agreement has been duly executed
and delivered by HCA and, assuming due authorization, execution and delivery
thereof by the Purchaser, constitutes a valid and legally binding obligation of
HCA enforceable against HCA in accordance with its terms.
4. To my knowledge, the execution, delivery and performance of
the Registration Rights Agreement by HCA, and the consummation of each of the
transactions contemplated thereby, will not conflict with the terms of, or
constitute a default under, any agreement, indenture or instrument known to me,
or result in a violation of the corporate certificate or by-laws of HCA (as in
effect on the date hereof) or any order, rule or regulation (also as in effect
on the date hereof) of any court or governmental agency having jurisdiction over
HCA, or its properties, except for defaults and violations which would not, in
the aggregate, have a material adverse effect on the business or assets or on
the condition, financial or otherwise, of HCA and its subsidiaries on a
consolidated basis; and, other than those which have been obtained, no consent,
authorization or order of, or filing of registration with, any court or
governmental agency is required for the execution, delivery or performance by
HCA of the Registration Rights Agreement.
5. The shares of Stock are included in the securities that are
the subject of the Registration Statement; the Registration Statement was
declared effective by the Commission on _______________; and, to my knowledge,
no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose is pending or threatened by the
Commission.
6. The Registration Statement, as of its effective date, and
the Prospectus, as of its date, and any further amendments or supplements
thereto, as of their respective dates (other than the financial statements and
other financial data contained therein, as to which I express no opinion)
complied as to form in all material respects with the requirements of the
Securities Act and the Rules and Regulations; the documents incorporated by
reference in the Prospectus (other than the financial statements and related
schedules therein, as to which I express no opinion), when they were filed with
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the Commission, complied as to form in all material respects with requirements
of the Exchange Act and the rules and regulations of the Commission thereunder.
7. To my knowledge, there are no contracts or other documents
that are required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and Regulations
that have not been described or filed as exhibits to the Registration Statement
or incorporated therein by reference as permitted by the Rules and Regulations.
The opinions set forth above are subject to the following
qualifications and limitations:
(a) The enforceability of the Registration Rights Agreement is
subject to applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and similar laws affecting creditors' rights and remedies
generally and subject to general principles of equity.
(b) I express no opinion as to any provision of the
Registration Rights Agreement providing for the payment of attorneys' fees.
(c) I express no opinion as to any provision of the
Registration Rights Agreement purporting to relieve the Purchaser of the
exercise of reasonable diligence.
(d) I express no opinion (i) as to, and assume compliance
with, any applicable state securities laws, (ii) with respect to the
enforceability of the indemnity or contribution provisions under the
Registration Rights Agreement insofar as rights thereto may be limited by
applicable law, or (iii) with respect to the enforceability of any provision of
the Registration Rights Agreement pursuant to which any party is indemnified
against a liability arising under applicable securities laws.
In addition, I have participated in conferences with
representatives of the HCA at which the contents of the Registration Statement
and related matters were discussed and, although I have not undertaken to
determine independently, nor do I pass upon or assume any responsibility,
explicitly or implicitly, for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, on the basis of and subject
to the foregoing, no facts have come to my attention that lead me to believe
that the Registration Statement, as of its effective date, contains any untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading (other than the financial statements and other financial or
statistical data included or required to be included in the Registration
Statement or Prospectus, as to which I express no opinion), or that the
Prospectus contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in
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light of the circumstances under which they were made, not misleading (other
than the financial statements and other financial or statistical data included
or required to be included in the Registration Statement or Prospectus, as to
which I express no opinion).
Whenever any opinion rendered herein is predicated as being
based on my knowledge, this is intended to signify that, in the course of my
employment as Vice President-Legal of HCA, no information has come to my
attention which would cause me to conclude that there are facts relevant to such
opinion which would require such opinion to be modified in any respect. Except
to the extent expressly stated herein, I have not undertaken any independent
investigation to determine the existence or absence of any such facts, and I
have relied as to matters of fact upon the representations of HCA contained in
the Registration Rights Agreement and the Master Agreement.
My opinions herein are based upon Requirements of Law (as
defined in the Master Agreement) in effect on the date hereof. I neither express
nor imply any opinion with respect to any Requirements of Law which may be
enacted or adopted after the date hereof, and I undertake no duty to advise you
of any changes in any Requirements of Law which may be enacted or adopted after
the date hereof.
I am admitted to the practice of law only in the Commonwealth
of Kentucky. Accordingly, the opinions expressed herein are limited to the
federal laws and the laws of the Commonwealth of Kentucky and, to the extent
necessary, the General Corporation Law of the State of Delaware, which is the
state of incorporation of HCA. I wish to advise you, however, that my knowledge
with respect to the General Corporation Law of the State of Delaware is derived
solely from a reading of the statute without consideration of any judicial or
administrative interpretation thereof and that I am not a member of the Delaware
bar. No opinion is expressed with respect to any laws of any other jurisdictions
or states or the effect of any such laws on the matters dealt with herein or the
transactions contemplated by the Registration Rights Agreement.
This opinion is rendered solely to Canadian Investments LLC in
connection with the transactions contemplated in the Registration Rights
Agreement. This opinion may not be relied upon in any manner or for any purpose,
or furnished or relied upon by any other person, without my prior written
consent.
Respectfully submitted,
Xxxx X. Xxxxxx XX
Vice President-Legal
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