LIFEPOINT HOSPITALS, INC. 31/2% Convertible Senior Subordinated Notes Due 2014 Underwriting Agreement
Exhibit 1.1
31/2% Convertible Senior Subordinated Notes Due 2014
Underwriting Agreement
To the Representatives
named in Schedule I
hereto of the several
Underwriters named in
Schedule II hereto
named in Schedule I
hereto of the several
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
LifePoint Hospitals, Inc., a corporation organized under the laws of Delaware (the “Company”),
proposes to sell to the several underwriters named in Schedule II hereto (the “Underwriters”), for
whom you (the “Representatives”) are acting as representatives, the principal amount of its
securities identified in Schedule I hereto (the “Underwritten Securities”). The Company also
proposes to grant to the Underwriters an option to purchase up to an additional principal amount of
securities set forth in Schedule I hereto to cover over-allotments (the “Option Securities”; the
Option Securities, together with the Underwritten Securities, hereinafter called the “Securities”).
The Securities are convertible into shares of Common Stock, par value $0.01 per share (the “Common
Stock”), of the Company at the conversion price set forth in the Final Prospectus. The Securities
are to be issued under an indenture (the “Indenture”) to be dated as of May 29, 2007, between the
Company and The Bank of New York Trust Company, N.A., as trustee (the “Trustee”). To the extent
there are no additional Underwriters listed on Schedule I other than you, the term Representatives
as used herein shall mean you, as Underwriters, and the terms Representatives and Underwriters
shall mean either the singular or plural as the context requires. Any reference herein to the
Registration Statement, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of any Preliminary Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the
Registration Statement, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of any Preliminary Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated therein by reference. Certain terms used herein are
defined in Section 20 hereof.
1. Representations and Warranties. The Company represents and warrants to, and agrees
with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf registration statement, as defined
in Rule 405 (the file number of which is set forth in Schedule I hereto), on Form S-3 for
registration under the Act of the offering and sale of the Securities. Such Registration
Statement, including any amendments thereto filed prior to the Execution Time, became
effective upon filing. The Company may have filed with the Commission, as part of an
amendment to the Registration Statement or pursuant to Rule 424(b), one or more preliminary
prospectuses relating to the Securities, each of which has previously been furnished to you.
The Company will file with the Commission a final prospectus relating to the Securities in
accordance with Rule 424(b). As filed, such final prospectus shall contain all information
required by the Act and the rules thereunder, and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information and other changes
(beyond that contained in any Preliminary Prospectus) as the Company has advised you, prior
to the Execution Time, will be included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On each Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined
herein) and on any date on which Option Securities are purchased, if such date is not the
Closing Date (a “settlement date”), the Final Prospectus (and any supplement thereto) will,
comply in all material respects with the applicable requirements of the Act, the Exchange
Act and the Trust Indenture Act and the respective rules thereunder; on each Effective Date
and at the Execution Time, the Registration Statement did not 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 in order to make the statements therein not misleading; on the
Effective Date and on the Closing Date the Indenture did or will comply in all material
respects with the applicable requirements of the Trust Indenture Act and the rules
thereunder; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date
and any settlement date, the Final Prospectus (together with any supplement thereto) will
not, include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the Company
makes no representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto), it being understood and
agreed that the only such information furnished by or on
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behalf of any Underwriter consists of the information described as such in Section 8
hereof.
(c) The Disclosure Package did not, as of the Execution Time, 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. The preceding sentence does not apply to statements in or omissions from the
Disclosure Package based upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 8 hereof.
(d) (i) At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the
Company or any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in Rule
163, and (iv) at the Execution Time (with such date being used as the determination date for
purposes of this clause (iv)), the Company was or is (as the case may be) a “well-known
seasoned issuer” as defined in Rule 405.
(e) (i) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used as
the determination date for purposes of this clause (ii)), the Company was not and is not an
Ineligible Issuer (as defined in Rule 405).
(f) Each Issuer Free Writing Prospectus and the final term sheet prepared and filed
pursuant to Section 5(b) hereto does not include any information that conflicts with the
information contained in the Registration Statement, including any document incorporated by
reference therein and any prospectus deemed to be a part thereof that has not been
superseded or modified. The foregoing sentence does not apply to statements in or omissions
from any Issuer Free Writing Prospectus based upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the information described as such
in Section 8 hereof.
(g) The Company is not, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the Final Prospectus
will not be, an “investment company” as defined in the Investment Company Act.
(h) The Company has not paid or agreed to pay to any person any compensation for
soliciting another to purchase any securities of the Company (except as contemplated in this
Agreement).
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(i) Neither the Company nor any of its subsidiaries has taken, directly or indirectly,
any action designed to or that has constituted or that would reasonably be expected to cause
or result, under the Exchange Act or otherwise, in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the Securities.
(j) Each of the Company and its subsidiaries has been duly incorporated or organized
and is validly existing as a corporation, limited liability company or limited partnership
in good standing under the laws of the jurisdiction in which it is chartered or organized
with full corporate or partnership power and authority to own or lease, as the case may be,
and to operate its properties and conduct its business as described in the Disclosure
Package and the Final Prospectus, and is duly qualified to do business as a foreign
corporation, limited liability company or limited partnership and is in good standing under
the laws of each jurisdiction that requires such qualification, except where the failure to
be so incorporated, organized or formed or qualified, have such power or authority or be
qualified or in good standing would not reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), business, properties or results of
operations of the Company and its subsidiaries, taken as a whole (a “Material Adverse
Effect”).
(k) All the outstanding shares of capital stock of each subsidiary have been duly
authorized and validly issued and are fully paid and nonassessable, and, except as otherwise
set forth in the Disclosure Package and the Final Prospectus, all outstanding shares of
capital stock of the subsidiaries which are owned directly or indirectly by the Company are
so owned free and clear of any security interest, claim, lien or encumbrance (other than
liens securing the Company’s existing credit agreement dated as of April 15, 2005 by and
among the Company, as borrower, the lenders party thereto and Citicorp North America, Inc.
as administrative agent (as amended through the date hereof, the “Senior Credit Facility”)
or permitted thereunder).
(l) The Company’s issued and outstanding equity capitalization is as set forth in the
Final Prospectus under the caption “Capitalization” (except for subsequent issuances, if
any, pursuant to this Agreement, pursuant to the reservations, agreements or employee
benefit plans referred to in the Final Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Final Prospectus); the capital stock of the Company
conforms in all material respects to the description thereof contained in the Final
Prospectus; the issued and outstanding shares of Common Stock have been duly authorized and
validly issued and are fully paid and nonassessable; the shares of Common Stock initially
issuable upon conversion of the Securities have been duly authorized and reserved for
issuance and, when issued upon conversion of the Securities against payment of the
conversion price and in accordance with the Indenture, will be validly issued, fully paid
and nonassessable; none of the outstanding shares of capital stock of the Company was issued
in violation of the preemptive or other similar rights of any stockholder of the Company
and, except as set forth in the Final Prospectus and except for options, restricted stock
and other equity awards granted pursuant to the LifePoint Hospitals, Inc. Long-Term
Incentive Plan, Executive Stock Purchase Plan,
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Management Stock Purchase Plan, Outside Directors Stock and Incentive Compensation
Plan, Employee Stock Purchase Plan, Change in Control Severance Plan and the Executive
Performance Incentive Plan, no options, warrants or other rights to purchase, agreements or
other obligations to issue, or rights to convert any obligations into or exchange any
securities for, shares of capital stock or of ownership rights in the Company are
outstanding.
(m) (a) This Agreement has been duly authorized, executed and delivered by the Company;
(b) the Indenture has been duly authorized by the Company and, assuming due authorization,
execution and delivery thereof by the Trustee, when executed and delivered by the Company,
will constitute a legal, valid and binding instrument enforceable against the Company in
accordance with its terms (subject to the effects of (i) bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other laws affecting creditors’ rights
generally from time to time in effect, (ii) general principles of equity (whether considered
in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair
dealing (collectively, the “Enforceability Limitations”)); and (c) the Securities have been
duly authorized by the Company and, when executed and delivered by the Company and
authenticated by the Trustee in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms thereof, will
have been duly executed and delivered by the Company and will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the Indenture (subject to the
Enforceability Limitations).
(n) No consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions contemplated
herein or in the Indenture, except such as may be required under the blue sky laws of any
jurisdiction in which the Securities are offered and sold.
(o) None of the execution and delivery of the Indenture or this Agreement, the issuance
and sale of the Securities or the issuance of the Common Stock upon conversion of the
Securities, or the consummation of any other of the transactions herein or therein
contemplated, or the fulfillment of the terms hereof or thereof will conflict with or result
in a breach or violation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries pursuant to (i) the charter, by-laws or
other similar constituent documents of the Company or any of its subsidiaries; (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its or their property is
subject; or (iii) any statute, law, rule, regulation, judgment, order or decree of any
court, regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its subsidiaries or any of its or
their properties, other than in the case of clauses (ii) and (iii), such violations, liens,
charges or encumbrances that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
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(p) The consolidated historical financial statements of the Company and its
consolidated subsidiaries included in or incorporated by reference in the Registration
Statement, the Disclosure Package and the Final Prospectus present fairly in all material
respects the financial condition, results of operations and cash flows of each such entity
as of the dates and for the periods indicated, comply as to form with the applicable
accounting requirements of Regulation S-X and, except as otherwise disclosed in the
Registration Statement, the Disclosure Package and the Final Prospectus or the documents
incorporated by reference therein, have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods involved.
(q) No action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries or its
or their property is pending or, to the best knowledge of the Company, threatened that (i)
would reasonably be expected to have a material adverse effect on the performance of this
Agreement or the Indenture, or the consummation of any of the transactions contemplated
hereby or thereby or (ii) would reasonably be expected to have a Material Adverse Effect,
except as set forth or contemplated in the Disclosure Package or the Final Prospectus
(exclusive of any amendment or supplement thereto).
(r) Each of the Company and its subsidiaries owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted.
(s) Neither the Company nor any of its subsidiaries is in violation or default of (i)
any provision of its charter, by-laws or other similar constituent documents; (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement
or other agreement, obligation, condition, covenant or instrument to which it is a party or
bound or to which its property is subject; or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or such subsidiaries or any of its or their properties,
as applicable, other than in the cases of clauses (ii) and (iii), such violations and
defaults that would not reasonably be expected to have a Material Adverse Effect and, in the
case of clause (iii), except for any such violations and defaults set forth or contemplated
in the Disclosure Package and Final Prospectus.
(t) Ernst & Young LLP, who have certified certain financial statements of the Company
and its consolidated subsidiaries and delivered their report with respect to the audited
consolidated financial statements incorporated by reference in the Disclosure Package and
Final Prospectus, is an independent public accountant with respect to the Company within the
meaning of the Act.
(u) There are no stamp or other issuance or transfer taxes or duties or other similar
fees or charges required to be paid in connection with the execution and delivery of this
Agreement or the issuance or sale by the Company of the Securities.
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(v) The Company has filed all U.S. federal, state and local tax returns that are
required to be filed or has requested extensions thereof (except in any case in which the
failure so to file would not reasonably be expected to have a Material Adverse Effect and
except as set forth or contemplated in the Disclosure Package and Final Prospectus
(exclusive of any amendment or supplement thereto)) and has paid all taxes required to be
paid by it and any other assessment, fine or penalty levied against it, to the extent that
any of the foregoing is due and payable, except for any such assessment, fine or penalty
that is currently being contested in good faith or as would not reasonably be expected to
have a Material Adverse Effect and except as set forth or contemplated in the Disclosure
Package and Final Prospectus (exclusive of any amendment or supplement thereto).
(w) No labor problem or dispute with the employees of the Company or any of its
subsidiaries exists or, to its knowledge, is threatened or imminent, except as would not
reasonably be expected to have a Material Adverse Effect, and except as set forth or
contemplated in the Disclosure Package and Final Prospectus (exclusive of any amendment or
supplement thereto).
(x) The Company and each of its subsidiaries and their respective officers and
directors are insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the healthcare industry and
all such insurance is in full force and effect except for failures to have such insurance in
full force and effect or to carry or be entitled to insurance which would not reasonably be
expected to have a Material Adverse Effect.
(y) Except as could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, each of the Company and its subsidiaries has all necessary
licenses, permits, franchises, certificates of need, rights to participate in, or the
benefit of valid agreements to participate in, Medicare, Medicaid and other material
Third-Party Payor Programs and other rights necessary for the conduct of its business and
for the intended use of its properties and assets to the extent necessary to ensure no
material interruption of cash flow. No less than 75% of the Hospitals are accredited by
JCAHO. Each Hospital is licensed as an acute care hospital by such other Accreditation
Bodies having jurisdiction over it. Except as in the aggregate could not reasonably be
expected to affect 25% or more of all Hospitals and could not reasonably be expected to
result in a Material Adverse Effect, there are no deficiencies in any services provided at
any Hospital that would prevent the extension of any accreditation by JCAHO or other
applicable Accreditation Body as an acute care hospital. With respect to such Hospitals
eligible for accreditation by JCAHO, the Company and its subsidiaries are taking all
reasonable steps necessary or advisable to obtain such accreditation promptly and, in any
event, within twelve months after the loss or failure to obtain such accreditation. Except
as in the aggregate could not reasonably be expected to have a Material Adverse Effect: (a)
there are no rate appeals currently pending before any Governmental Authority with respect
to any Hospital; (b) there are no recoupment claims or contests pending or threatened as a
result of any audit by any Third-Party Payor Programs and no open or unsettled cost reports
for which the Company or any of its subsidiaries is financially responsible or has not been
indemnified in respect to any Hospital; and (c) there are no
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material claims or assertions made in any utilization review that any of the practices
or procedures used at any Hospital are improper or inappropriate.
(z) The accounts receivable of the Company and its subsidiaries have been and will
continue to be adjusted to reflect the reimbursement policies of third-party payors such as
Medicare, Medicaid and Blue Cross/Blue Shield, health maintenance organizations and
preferred provider organizations. The accounts receivable, after giving effect to the
allowance for doubtful accounts, relating to such third-party payors do not materially
exceed amounts the Company and its subsidiaries are entitled to receive.
(aa) Neither the Company nor, to the knowledge of the Company, any officers, directors,
employees or other agents of the Company or any of its subsidiaries or any of the Hospitals
operated by them has engaged in any activities which are prohibited under Federal Medicare
and Medicaid statutes including, but not limited to, 42 U.S.C. Section 1320a-7 (Program
Exclusion), Section 1320a-7a (Civil Monetary Penalties), 1320a-7b (the Anti-kickback
Statute), Sections 1395nn (the “Xxxxx” law, prohibiting certain self-referrals), or any
other federal healthcare law, including, but not limited to, the federal TRICARE statute, 10
U.S.C. Section 1071 et seq., the Federal Civil False Claims Act, 31 U.S.C.
Section 3729, Federal Criminal False Claims Act, 18 U.S.C. Section 287, False Statements
Relating to Health Care Matters, 18 U.S.C. Section 1035, Health Care Fraud, 18 U.S.C.
Section 1347, or any regulations promulgated pursuant to such statutes, or related state or
local statutes or regulations, including but not limited to the following:
(i) knowingly and willfully making or causing to be made a false statement or
representation of a material fact in any applications for any benefit or payment
under the Medicare or Medicaid program or from any third party (where applicable
federal or state law prohibits such payments to third parties);
(ii) knowingly and willfully making or causing to be made any false statement
or representation of a material fact for use in determining rights to any benefit or
payment under the Medicare or Medicaid program or from any third party (where
applicable federal or state law prohibits such payments to third parties);
(iii) failing to disclose knowledge by a claimant of the occurrence of any
event affecting the initial or continued right to any benefit or payment under the
Medicare or Medicaid program or from any third party (where applicable federal or
state law prohibits such payments to third parties) on its own behalf or on behalf
of another, with intent to secure such benefit or payment fraudulently; and
(iv) knowingly and willfully offering, paying, soliciting or receiving any
remuneration (including any kickback, bribe or rebate), directly or indirectly,
overtly or covertly, in cash or in kind (a) in return for referring an individual to
a person for the furnishing or arranging for the furnishing of any item or service
for which payment may be made in whole or in part by Medicare or Medicaid or any
third party (where applicable federal or state law prohibits such payments to third
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parties), or (b) in return for purchasing, leasing or ordering or arranging for
or recommending the purchasing, leasing or ordering of any good, facility, service
or item for which payment may be made in whole or in part by Medicare or Medicaid or
any third party (where applicable federal or state law prohibits such payments to
third parties).
(bb) The Company and each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences.
(cc) The Company and its subsidiaries (i) are in compliance with all applicable U.S.
federal, state and local laws and regulations regarding the protection of human health and
safety and the environment, including, without limitation, those relating to the generation,
storage, treatment, disposal, release and limited release of Hazardous Materials
(“Environmental Laws”); (ii) have received and are in compliance with all permits, licenses
or other approvals required of them under applicable Environmental Laws to conduct their
respective businesses; and (iii) have not received notice of any actual or potential
liability under any Environmental Law, except where such non-compliance with Environmental
Laws, failure to receive required permits, licenses or other approvals, or liability would
not, individually or in aggregate, reasonably be expected to have a Material Adverse Effect
or as set forth or contemplated in the Disclosure Package and Final Prospectus (exclusive of
any amendment or supplement thereto). The term “Hazardous Materials” means any substance,
material, pollutant, contaminant, chemical, constituent or waste, including without
limitation any medical waste, animal carcass, toxin, virus or disease-causing agent,
petroleum and petroleum products, subject to regulation under or which could give rise to
liability under Environmental Law.
(dd) Except as set forth in the Disclosure Package and Final Prospectus or as would not
have a Material Adverse Effect, neither the Company nor any of its subsidiaries is
conducting or financing any investigation, response or other corrective action with respect
to any release of Hazardous Materials at any location pursuant to any Environmental Law at
any location, nor is any of them subject to or party to any order, judgment, decree,
contract or agreement which obligates it to conduct or finance any such action.
(ee) Except as would not have a Material Adverse Effect, (i) all “pension plans” as
defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), established or maintained by the Company or any subsidiary that are intended to
be qualified under Section 401(a) of the Code are so
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qualified; (ii) neither the Company nor any of its subsidiaries maintains or is
required to contribute to a “welfare plan” (as defined in Section 3(1) of ERISA) which
provides retiree or other post-employment welfare benefits or insurance coverage (other than
“continuation coverage” (as defined in Section 602 of ERISA)); (iii) each pension plan and
welfare plan established or maintained by the Company or any of its subsidiaries is in
compliance in all material respects with the currently applicable provisions of ERISA; and
(iv) neither the Company nor any of its subsidiaries maintains, contributes to or is
required to contribute to any pension plan subject to Section 412 of the Code or Title IV of
ERISA that has any material liability under Title IV of ERISA.
(ff) No presentation of market-related or statistical data contained in or incorporated
by reference in the Disclosure Package or Final Prospectus has been made or reaffirmed
without a reasonable basis or has been disclosed in other than good faith.
Any certificate signed by any officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase
price set forth in Schedule I hereto the principal amount of the Securities set forth
opposite such Underwriter’s name in Schedule II hereto.
(b) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an option to the several Underwriters
to purchase, severally and not jointly, up to the principal amount of Option Securities set
forth in Schedule I hereto at the same purchase price set forth in Schedule I hereto for the
Underwritten Securities. Said option may be exercised only to cover over-allotments in the
sale of the Underwritten Securities by the Underwriters. Said option may be exercised in
whole or in part at any time on or before the 12th day after the date of the Final
Prospectus upon written or telegraphic notice by the Representatives to the Company setting
forth the aggregate principal amount of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date, provided that such
settlement date shall be no later than the 12th day after the Closing Date. The aggregate
principal amount of Option Securities to be purchased by each Underwriter shall be the same
percentage of the total aggregate principal amount of the Option Securities to be purchased
by the several Underwriters as such Underwriter is purchasing of the Underwritten
Securities, subject to such adjustments as you in your absolute discretion shall make to
ensure that the Option Securities are not issued in minimum denominations of less than
$1,000 or whole multiples thereof.
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3. Delivery and Payment. Delivery of and payment for the Underwritten Securities and
the Option Securities (if the option provided for in Section 2(b) hereof shall have been exercised
on or before the third Business Day immediately preceding the Closing Date) shall be made on the
date and at the time specified in Schedule I hereto or at such time on such later date not more
than three Business Days after the foregoing date as the Representatives shall designate, which
date and time may be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the Securities being
herein called the “Closing Date”). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or upon the order of the Company by
wire transfer payable in same-day funds to an account specified by the Company. Delivery of the
Underwritten Securities and the Option Securities shall be made through the facilities of The
Depository Trust Company unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the third Business Day
immediately preceding the Closing Date, the Company will deliver the Option Securities (at the
expense of the Company) to the Representatives, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the
date specified by the Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against payment by the
several Underwriters through the Representatives of the purchase price thereof to or upon the order
of the Company by wire transfer payable in same-day funds to an account specified by the Company.
If settlement for the Option Securities occurs after the Closing Date, the Company will deliver to
the Representatives on the settlement date for the Option Securities, and the obligation of the
Underwriters to purchase the Option Securities shall be conditioned upon receipt of, supplemental
opinions, certificates and letters confirming as of such date the opinions, certificates and
letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several Underwriters propose
to offer the Securities for sale to the public as set forth in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not
file any amendment of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) unless the Company has furnished you a copy for
your review prior to filing and will not file any such proposed amendment or supplement to
which you reasonably object. The Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed in a form approved by the Representatives
with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the Representatives (i) when the Final
Prospectus, and any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the
Securities, any amendment to the
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Registration Statement shall have been filed or become effective, (iii) of any request
by the Commission or its staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the Final Prospectus or for any
additional information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of any notice objecting to its use or the
institution or threatening of any proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the institution or threatening of any proceeding
for such purpose. The Company will use its reasonable best efforts to prevent the issuance
of any such stop order or the occurrence of any such suspension or objection to the use of
the Registration Statement and, upon such issuance, occurrence or notice of objection, to
obtain as soon as possible the withdrawal of such stop order or relief from such occurrence
or objection, including, if necessary, by filing an amendment to the Registration Statement
or a new registration statement and using its reasonable best efforts to have such amendment
or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of
final terms of the Securities and the offering thereof, in the form approved by you and
attached as Schedule IV hereto and to file such term sheet pursuant to Rule 433(d) within
the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule
424(b), any event occurs as a result of which the Disclosure Package would include any
untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made or the
circumstances then prevailing not misleading, the Company will (i) notify promptly the
Representatives so that any use of the Disclosure Package may cease until it is amended or
supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or
omission; and (iii) supply any amendment or supplement to you in such quantities as you may
reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the circumstances
under which they were made at such time not misleading, or if it shall be necessary to amend
the Registration Statement, file a new registration statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder,
including in connection with use or delivery of the Final Prospectus, the Company promptly
will (i) notify the Representatives of any such event, (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment
or supplement or new registration statement which will correct such statement or omission or
effect such compliance, (iii) use its reasonable best efforts to have any amendment to the
Registration Statement or new registration
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statement declared effective as soon as practicable in order to avoid any disruption in
use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such
quantities as you may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security
holders and to the Representatives an earnings statement or statements of the Company and
its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The Company will furnish to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits thereto) and
to each other Underwriter a copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the
Act (including in circumstances where such requirement may be satisfied pursuant to Rule
172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer
Free Writing Prospectus and any supplement thereto as the Representatives may reasonably
request.
(g) The Company will arrange, if necessary, for the qualification of the Securities for
sale under the laws of such jurisdictions as the Representatives may designate and will
maintain such qualifications in effect so long as required for the distribution of the
Securities; provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) The Company agrees that, unless it has or shall have obtained the prior written
consent of the Representatives, and each Underwriter, severally and not jointly, agrees with
the Company that, unless it has or shall have obtained, as the case may be, the prior
written consent of the Company, it has not made and will not make any offer relating to the
Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the
Company with the Commission or retained by the Company under Rule 433, other than the free
writing prospectus containing the information contained in the final term sheet prepared and
filed pursuant to Section 5(b) hereto; provided that the prior written consent of
the parties hereto shall be deemed to have been given in respect of the Free Writing
Prospectuses included in Schedule III hereto and any electronic road show. Any such free
writing prospectus consented to by the Representatives or the Company is hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has
treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be,
with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the Commission, legending and record
keeping.
(i) The Company will not for a period of 90 days following the Execution Time (the
“Lock-up Period”), without the prior written consent of Citigroup, directly or
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indirectly, offer, sell, contract to sell, pledge, otherwise dispose of, enter into any
transaction which is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company of, file (or participate in the filing of) a
registration statement with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Exchange Act in respect of, any shares of capital stock of the Company
or any securities convertible into, or exercisable or exchangeable for, shares of capital
stock of the Company (other than the Securities), or publicly announce an intention to
effect any such transaction; provided, however, that (i) the Company may
issue and sell Common Stock or securities convertible into or exchangeable for Common Stock
pursuant to any employee stock option plan, restricted stock plan, stock ownership plan,
retirement plan, severance plan or dividend reinvestment plan or agreement of the Company
described in the Final Prospectus and in effect at the Execution Time, (ii) the Company may
issue Common Stock issuable upon the conversion of securities or the exercise of warrants
outstanding at the Execution Time and described in the Preliminary Prospectus and Final
Prospectus and (iii) the Company may issue Common Stock with a market value on the date of
issuance of up to an aggregate of $100.0 million as all or a portion of the consideration in
connection with one or more acquisitions of unaffiliated entities or assets or businesses
from unaffiliated entities; provided, however, that in the case of clause
(iii), each recipient of such Common Stock shall have, prior to any such insurance, entered
into a written lock-up agreement that is identical in all material respects with this clause
(i) with respect to the then remaining Lock-up Period.
(j) The Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(k) The Company will reserve and keep available at all times, free of preemptive
rights, the full number of shares of Common Stock issuable upon conversion of the
Securities.
(l) Between the date hereof and the Closing Date, the Company will not do or authorize
any act or thing that would result in an adjustment of the conversion price.
(m) The Company agrees to pay the costs and expenses relating to the following matters:
(i) the preparation, printing or reproduction and filing with the Commission of the
Registration Statement (including financial statements and exhibits thereto), each
Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus or any
other document relating to the offering, and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Registration Statement, each
Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and
all amendments or supplements to any of them, as may, in each case, be reasonably requested
for use in connection with the offering and
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sale of the Securities; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any stamp or transfer taxes in
connection with the original issuance and sale of the Securities; (iv) the printing (or
reproduction) and delivery of this Agreement, any blue sky memorandum and all other
agreements or documents printed (or reproduced) and delivered in connection with the
offering of the Securities; (v) the registration of the Securities under the Exchange Act
and the listing of the Securities on the Nasdaq Global Market; (vi) any registration or
qualification of the Securities for offer and sale under the securities or blue sky laws of
the several states (including filing fees and the reasonable fees and expenses of counsel
for the Underwriters relating to such registration and qualification); (vii) any filings
required to be made with the NASD (including filing fees and the reasonable fees and
expenses of counsel for the Underwriters relating to such filings); (viii) the
transportation and other expenses incurred by or on behalf of Company representatives in
connection with presentations to prospective purchasers of the Securities; (ix) the fees and
expenses of the Company’s accountants and the fees and expenses of counsel (including local
and special counsel) for the Company; and (x) all other costs and expenses incident to the
performance by the Company of its obligations hereunder. The Company agrees to pay the fees
required by the Commission relating to the Securities within the time required by Rule
456(b)(1) and otherwise in accordance with Rules 456(b) and 457(r).
(n) The Company agrees to pay the fees required by the Commission relating to the
Securities within the time required by Rule 456(b)(1) and otherwise in accordance with Rules
456(b) and 457(r).
6. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be,
shall be subject to the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to
Section 3 hereof, to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and
within the time period required by Rule 424(b); the final term sheet contemplated by Section
5(b) hereto and any other material required to be filed by the Company pursuant to Rule
433(d) under the Act shall have been filed with the Commission within the applicable time
periods prescribed for such filings by Rule 433; and no stop order suspending the
effectiveness of the Registration Statement or any notice objecting to its use shall have
been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Xxxxxxxxxx LLP, counsel for the
Company, to have furnished to the Representatives their opinion, dated the Closing Date and
addressed to the Representatives, to the effect set forth in Exhibit A hereto.
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(c) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, LLP,
special regulatory counsel for the Company, to furnish to the Representatives its opinion,
dated the Closing Date and addressed to the Representatives, substantially to the effect set
forth in Exhibit B hereto.
(d) The Representatives shall have received from (i) Xxxxxx Xxxxxx & Xxxxxxx
LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date
and addressed to the Representatives, with respect to the issuance and sale of the
Securities, the Registration Statement, the Disclosure Package and the Final Prospectus
(together with any supplement thereto) and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel to the
Underwriters, such opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the Indenture and the “Description of the Debentures” and
in each case such other related matters as the Representatives may reasonably require, and
the Company shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the
Company, signed by (x) the Chairman of the Board or the President and (y) the principal
financial or accounting officer of the Company, dated the Closing Date, to the effect that:
(i) the representations and warranties of the Company in this Agreement are
true and correct in all material respects on and as of the Closing Date with the
same effect as if made on the Closing Date (except to the extent such representation
is qualified as to materiality, in which case such representation and warranty shall
be true and correct in all respects), and the Company has complied in all material
respects with all the agreements and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement
or any notice objecting to its use has been issued and no proceedings for that
purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the
Disclosure Package and the Final Prospectus (exclusive of any supplement thereto),
there has been no material adverse change in the condition (financial or otherwise),
results of operations, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused Ernst & Young LLP to have furnished to
the Representatives, at the Execution Time and at the Closing Date, letters (which may refer
to letters previously delivered to one or more of the
-16-
Representatives), dated respectively as of the Execution Time and as of the Closing
Date, in form and substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange Act and the
respective applicable rules and regulations adopted by the Commission thereunder and
confirming certain matters with respect to the audited and unaudited financial statements
and other financial and accounting information contained in the Disclosure Package and Final
Prospectus, and that they have performed a review of the unaudited interim financial
information of the Company for the three-month period ended March 31, 2007, and as at March
31, 2007, in accordance with Statement on Auditing Standards No. 100.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information
is given in the Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any
change, or any development involving a prospective change, in or affecting the condition
(financial or otherwise), results of operations, business or properties of the Company and
its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is,
in the sole judgment of Citigroup, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as contemplated by
the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and
the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the
rating of any of the Company’s debt securities by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice
given of any intended or potential decrease in any such rating or of a possible change in
any such rating that does not indicate the direction of the possible change.
(i) Prior to the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit C hereto from each person
listed on Schedule V hereto and addressed to the Representatives.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives
such further information, certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed
in writing.
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The documents required to be delivered by this Section 6 shall be delivered at the office of
counsel for the Company, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing
Date.
7. Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through Citigroup Global
Markets Inc. on demand for all expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law 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 a material fact contained in the registration
statement for the registration of the Securities as originally filed or in any amendment
thereof, or in any Preliminary Prospectus or any other preliminary prospectus relating to
the Securities, the Final Prospectus, any Issuer Free Writing Prospectus or the information
contained in the final term sheet required to be prepared and filed pursuant to Section 5(b)
hereto, or in any amendment thereof or supplement thereto, 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, in light of the circumstances under
which they were made, not misleading, and agrees to reimburse each such indemnified party,
as incurred, for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will 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
such untrue statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to the Company
by or on behalf of any Underwriter through the Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only
-18-
with reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through Citigroup specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth (i) in the last paragraph of the cover page
regarding delivery of the Securities and, under the heading “Underwriting”, (ii) the list of
Underwriters and their respective participation in the sale of the Securities, and (iii) the
fourth, eighth, ninth and tenth paragraphs in any Preliminary Prospectus and the Final
Prospectus constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or
any Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 8, notify the indemnifying
party in writing of the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to
the extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel (including local counsel) of the
indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified
party in any action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any separate counsel,
other than local counsel if not appointed by the indemnifying party retained by the
indemnified party or parties except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party’s election to appoint counsel (including local
counsel) to represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use
of counsel chosen by the indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ separate counsel
at the expense of the indemnifying party. It is understood and agreed that the indemnifying
party shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm
(in addition to any local counsel) for all indemnified parties. Any such separate firm for
any Underwriter, its Affiliates, its
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directors, officers, employees and agents and any control person shall be designated in
writing by Citigroup and any such separate firm for the Company, its directors, officers and
Affiliates and any control person shall be designated in writing by the Company. An
indemnifying party will not, without the prior written consent of the indemnified parties,
settle, compromise or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or consent (x)
includes an unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding and (y) does not include any statement as to or
any admission of fault, culpability or failure to act by or on behalf of any indemnified
party.
(d) In the event that the indemnity provided in paragraph (a), (b) or (c) of this
Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any
reason, the Company and the Underwriters severally agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending the same) (collectively “Losses”) to
which the Company and one or more of the Underwriters may be subject in such proportion as
is appropriate to reflect the relative benefits received by the Company on the one hand and
by the Underwriters on the other from the offering of the Securities; provided,
however, that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities) be responsible for
any amount in excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the Underwriters severally
shall contribute in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and of the Underwriters
on the other in connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the Company shall
be deemed to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information provided by
the Company on the one hand or the Underwriters on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d), 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. For
purposes of this Section 8, each person who controls
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an Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer and director of the Company
shall have the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the principal amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate principal amount of Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding five Business Days, as the Representatives
shall determine in order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute
discretion of Citigroup, by notice given to the Company prior to delivery of and payment for the
Securities, if at any time prior to such delivery and payment (i) trading in the Company’s Common
Stock shall have been suspended by the Commission or the Nasdaq Global Market or trading in
securities generally on the New York Stock Exchange or the American Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on either of such exchanges,
(ii) a banking moratorium shall have been declared either by Federal or New York State authorities
or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of Citigroup, impractical or
inadvisable to proceed with the offering or delivery of the Securities as contemplated by any
Preliminary Prospectus or the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its officers and of
the Underwriters set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter or the Company
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or any of the indemnified persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representative, will be mailed, delivered or telefaxed to the
Citigroup General Counsel (fax no.: (000) 000-0000) and confirmed to Citigroup at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel; with a copy to Xxxxxx Xxxxxx &
Xxxxxxx LLP, at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxx X.
Xxxxxxxxx, Esq. (fax no.: (000) 000-0000) and a copy to Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: A. Xxx Xxxxxxx, Esq. (fax no.: (000) 000-0000); or
if sent to the Company will be mailed, delivered or telefaxed to (000) 000-0000 and confirmed to it
at 000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000, Attention of Xxxxxxx X. Xxxxxxxxx III,
President and Chief Executive Officer; with a copy to Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxx, Esq. (fax no.: (000) 000-0000).
13. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and the indemnified persons referred to in Section 8 hereof, and no other person
will have any right or obligation hereunder.
14. No fiduciary duty. The Company hereby acknowledges that (a) the purchase and sale
of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriters and any affiliate through which it may be acting, on
the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the
Company and (c) the Company’s engagement of the Underwriters in connection with the
offering and the process leading up to the offering is as independent contractors and not in any
other capacity. Furthermore, the Company agrees that it is solely responsible for making its own
judgments in connection with the offering (irrespective of whether any of the Underwriters has
advised or is currently advising the Company on related or other matters). The Company agrees that
it will not claim that the Underwriters have rendered advisory services of any nature or respect,
or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
15. Integration. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
16. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
17. Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby.
-22-
18. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
19. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
20. Definitions. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies are authorized or obligated by law to
close in New York City.
“Citigroup” shall mean Citigroup Global Markets Inc.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Preliminary Prospectus used most recently prior
to the Execution Time, (ii) the Issuer Free Writing Prospectuses, if any, identified in
Schedule III hereto, (iii) the final term sheet prepared and filed pursuant to Section 5(b)
hereto, if any, and (iv) any other Free Writing Prospectus that the parties hereto shall
hereafter expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or becomes effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
“Final Prospectus” shall mean the prospectus relating to the Securities that was first
filed pursuant to Rule 424(b) after the Execution Time.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Hospital” means any acute care hospital owned or operated by the Company or any
subsidiary.
-23-
“Investment Company Act” shall mean the Investment Company Act of 1940, as amended, and
the rules and regulations of the Commission promulgated thereunder.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433.
“JCAHO” means the Joint Commission on Accreditation of Healthcare Organizations, or any
similar successor organization thereto.
“Preliminary Prospectus” shall mean any preliminary prospectus which is used prior to
the filing of the Final Prospectus.
“Registration Statement” shall mean the registration statement referred to in paragraph
1(a) above, including exhibits and financial statements and any prospectus relating to the
Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such
registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the
event any post-effective amendment thereto becomes effective prior to the Closing Date,
shall also mean such registration statement as so amended.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”,
“Rule 430B” and “Rule 433” refer to such rules under the Act.
“Third-Party Payor Programs” means all third-party payor programs in which the Company
and its subsidiaries currently participate, including, without limitation, Medicare,
Medicaid, Blue Cross and/or Blue Shield, managed care plans, other private insurance
programs and employee assistance programs.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Well-Known Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in
Rule 405.
-24-
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several Underwriters.
| Very truly yours, LIFEPOINT HOSPITALS, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx III | |||
| Name: | Xxxxxxx X. Xxxxxxxxx III | |||
| Title: | President and Chief Executive Officer | |||
| The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written. Citigroup Global Markets Inc. |
||||
By:
|
Citigroup Global Markets Inc. | |||
By:
|
/s/ Xxxxxxx Xxxxxxx
|
|||
| Title: Vice President | ||||
| For itself and the other several Underwriters named in Schedule II to the foregoing Agreement. | ||||
-25-
SCHEDULE I
Underwriting Agreement dated May 22, 2007
Registration Statement No. 333-143121
Representative: Citigroup Global Markets Inc.
Title, Purchase Price and Description of Securities:
Title: 31/2% Convertible Senior Subordinated Notes due 2014
Principal amount of Underwritten Securities: $500,000,000
Purchase price (include accrued
interest or amortization, if any): $488,750,000
Sinking fund provisions: None.
Redemption provisions: No call for life.
Principal Amount of Option Securities: $75,000,000
Closing Date, Time and Location: May 29, 2007 at 10:00 a.m. at Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Type of Offering: Non-Delayed
Date referred to in Section 5(i) after which the Company may offer or sell securities issued by the
Company without the consent of the Representative(s): August 20, 2007
SCHEDULE II
| Principal Amount of | ||||
| Underwritten Securities | ||||
| Underwriters | to be Purchased | |||
Citigroup Global Markets Inc. |
300,000,000 | |||
UBS Securities LLC |
75,000,000 | |||
Banc of America Securities LLC |
50,000,000 | |||
Deutsche Bank Securities Inc. |
50,000,000 | |||
Xxxxxxx Xxxxx & Associates, Inc. |
25,000,000 | |||
Total |
$ | 500,000,000 | ||
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package
None
SCHEDULE IV
| Term Sheet dated May 22, 2007 | Filed pursuant to Rule 433 | |
| To preliminary prospectus dated May 21, 2007 | File No. 333-143121 |
FINAL PRICING TERMS
| The issuer | LifePoint Hospitals, Inc. (NASDAQ GS: LPNT). |
||||
| Securities offered | 3.5% Convertible Senior Subordinated Notes due 2014. |
||||
| Aggregate principal amount offered |
$500,000,000. |
||||
| Over-allotment option | $ 75,000,000. |
||||
| Maturity date | May 15, 2014. |
||||
| Interest | 3.5% per annum, accruing from the settlement date. |
||||
| Interest payment dates | Each May 15 and November 15, beginning November 15, 2007. |
||||
| Price to public | 100%. |
||||
| Proceeds to the issuer | 97.75%. |
||||
| NASDAQ closing price on May 22, 2007 | $37.94 per share. |
||||
| Conversion premium | 36.50% above reference price. |
||||
| Conversion price | $51.79 (approximately) per share of common stock,
subject to adjustment. |
||||
| Free convertibility period | At the option of the holder, holders may convert their
notes, in multiples of $1,000 in principal amount, at
any time on or after March 15, 2014 through the
scheduled trading day immediately preceding the maturity
date. |
||||
| Conversion rate | 19.3095 shares of common stock per $1,000 principal
amount of notes, subject to adjustment. |
||||
| Trade date | May 22, 2007. |
||||
| Settlement date | May 29, 2007. |
||||
| CUSIP | 53219L AH2 |
||||
| Sole book-running manager | Citigroup Global Markets Inc. |
||||
| Co-managers | UBS Securities LLC, Banc of America Securities LLC,
Deutsche Bank Securities Inc. and Xxxxxxx Xxxxx &
Associates, Inc. |
||||
| Use of Proceeds: | The issuer intends to use the net proceeds of the
offering to repay the amounts outstanding under its
revolving credit facility, which may be reborrowed, and
a portion of amounts outstanding under its term loan
facility. |
||||
| Adjustment to conversion rate upon fundamental change | The number of additional shares to be added to the
conversion rate (subject to certain exceptions) in the
event of a make-whole change of |
||||
control will be
determined by reference to the table below, based on the
conversion date and the “applicable price” in connection
with such transaction. |
|||||
The “applicable price” in connection with a make-whole
change of control means: (i) if the consideration
(excluding cash payment for fractional shares or
pursuant to statutory appraisal rights) paid to holders
of the issuer’s common stock in connection with such
transaction consists exclusively of cash, the amount of
such cash per share of the issuer’s common stock; and
(ii) in all other cases, the average of the closing sale
prices per share of the issuer’s common stock for the
five consecutive trading days immediately preceding the
related conversion date. |
|||||
The applicable prices set forth in the first row of the
table below (i.e., the column headers) will be adjusted
as of any date on which the conversion rate of the notes
is adjusted. The adjusted applicable prices will equal
the applicable prices in effect immediately prior to
such adjustment, multiplied by a fraction, the numerator
of which is the conversion rate in effect immediately
prior to the adjustment giving rise to the applicable
price adjustment and the denominator of which is the
conversion rate as so adjusted. The increase of the
additional shares to the conversion rate will be subject
to adjustment in the same manner as the conversion rate
as set forth under the caption “Description of
Notes—Conversion Rate Adjustments” in the prospectus
for the offering. |
|||||
The following table sets forth the applicable price and
number of additional shares to be added to the
conversion rate per $1,000 principal amount of the notes
in the event of a make-whole change of control: |
|||||
| Applicable price | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Conversion Date | $37.94 | $40.00 | $50.00 | $55.00 | $60.00 | $65.00 | $75.00 | $90.00 | $110.00 | $150.00 | $200.00 | ||||||||||||||||||||||||||||||||||||||||||||||
May 29, 2007 |
7.0479 | 6.3299 | 4.0165 | 3.3085 | 2.7829 | 2.3744 | 1.8087 | 1.3142 | 0.9628 | 0.6430 | 0.4659 | ||||||||||||||||||||||||||||||||||||||||||||||
May 15, 2008 |
7.0479 | 6.1778 | 3.7920 | 3.0776 | 2.5515 | 2.1464 | 1.6030 | 1.1389 | 0.8233 | 0.5484 | 0.3987 | ||||||||||||||||||||||||||||||||||||||||||||||
May 15, 2009 |
7.0479 | 5.9928 | 3.4948 | 2.7678 | 2.2377 | 1.8354 | 1.3252 | 0.9037 | 0.6396 | 0.4238 | 0.3099 | ||||||||||||||||||||||||||||||||||||||||||||||
May 15, 2010 |
7.0479 | 5.8299 | 3.2101 | 2.4605 | 1.9233 | 1.5503 | 1.0611 | 0.6994 | 0.4874 | 0.3242 | 0.2386 | ||||||||||||||||||||||||||||||||||||||||||||||
May 15, 2011 |
7.0479 | 5.7308 | 2.9701 | 2.2068 | 1.6724 | 1.3029 | 0.8645 | 0.5536 | 0.3886 | 0.2658 | 0.1977 | ||||||||||||||||||||||||||||||||||||||||||||||
May 15, 2012 |
7.0479 | 5.5775 | 2.5799 | 1.7992 | 1.2872 | 0.9374 | 0.5630 | 0.3492 | 0.2484 | 0.1751 | 0.1311 | ||||||||||||||||||||||||||||||||||||||||||||||
May 15, 2013 |
7.0479 | 5.3973 | 1.9494 | 1.1175 | 0.6339 | 0.3519 | 0.1399 | 0.0770 | 0.0599 | 0.0439 | 0.0329 | ||||||||||||||||||||||||||||||||||||||||||||||
May 14, 2014 |
7.0479 | 5.6905 | 0.6905 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||||||||||||
The exact applicable price and conversion date may not be set forth in the table above, in
which case:
| • | If the actual applicable price is between two applicable price amounts in the table or the conversion date is between two dates in the table, the increase in the conversion rate will be determined by straight-line interpolation between the numbers set forth for the higher and lower applicable price amounts, and/or the two dates, based on a 365- or 366-day year, as applicable. | ||
| • | If the actual applicable price is equal to or in excess of $200.00 per share (subject to adjustment) the issuer will not increase the conversion rate applicable to the converted note. | ||
| • | If the actual applicable price is equal to or less than $37.94 per share (the last bid price of the issuer’s common stock on the date of the prospectus) (subject to adjustment), the issuer will not increase the conversion rate applicable to the converted note. |
Notwithstanding the foregoing, in no event will the issuer increase the conversion rate as
described above to the extent the increase will cause the conversion rate to exceed 26.3574 per
$1,000 principal amount of notes, subject to adjustment in the same manner as the conversion rate
as set forth under the caption “Description of Notes—Conversion Rate Adjustments” in the
prospectus for the offering.
The issuer has filed a registration statement (including a preliminary prospectus, dated May 21,
2007) with the SEC for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents the issuer has filed
with the SEC for more complete information about the issuer and this offering. You may get these
documents for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, copies may
be obtained from Citi, Brooklyn Army Terminal, 000 00xx Xxxxxx, 0xx Xxxxx, Xxxxxxxx, XX 00000,
(000) 000-0000.
Any disclaimers or other notices that may appear below are not applicable to this communication and
should be disregarded. Such disclaimers or other notices were automatically generated as a result
of this communication being sent via Bloomberg or another email system.
SCHEDULE V
Executive Officers and Directors:
Xxxxxxx X. Xxxxxxxxx III
Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxx, Xx.
Xxxxxxx X. Xxxxx
XxXxxx Xxxxx, Xx.
Xxxxxxx X. Xxxxx
Xxxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxx X. Xxxxxx, Xx. D.D.S.
Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxx, Xx.
Xxxxxxx X. Xxxxx
XxXxxx Xxxxx, Xx.
Xxxxxxx X. Xxxxx
Xxxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxx X. Xxxxxx, Xx. D.D.S.
