EXHIBIT 1.1
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PROVINCE HEALTHCARE COMPANY
(a Delaware corporation)
4 1/4% Convertible Subordinated Notes due 2008
PURCHASE AGREEMENT
Dated: October 4, 2001
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Table of Contents
Page
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SECTION 1. Representations and Warranties by the Company...................................................2
(a) Representations and Warranties..................................................................2
(i) Similar Offerings...................................................................3
(ii) Offering Memorandum.................................................................3
(iii) Incorporated Documents..............................................................3
(iv) Independent Accountants.............................................................3
(v) Financial Statements................................................................3
(vi) No Material Adverse Change in Business..............................................4
(vii) Good Standing of the Company........................................................4
(viii) Corporate Subsidiaries..............................................................4
(ix) Partnerships........................................................................5
(x) Limited Liability Companies.........................................................5
(xi) Actions of Subsidiaries.............................................................6
(xii) Capitalization; Authorization of Conversion Shares..................................6
(xiii) Authorization of Agreement..........................................................7
(xiv) Authorization of the Registration Rights Agreement..................................7
(xv) Authorization of the Indenture......................................................7
(xvi) Authorization of the Notes..........................................................7
(xvii) Description of the Registration Rights Agreement, the Notes, the Conversion
Shares and the Indenture............................................................8
(xviii) Absence of Defaults and Conflicts...................................................8
(xix) Absence of Labor Dispute............................................................9
(xx) Absence of Proceedings..............................................................9
(xxi) Possession of Intellectual Property.................................................9
(xxii) Absence of Further Requirements.....................................................9
(xxiii) Possession of Licenses and Permits.................................................10
(xxiv) Accounts Receivable................................................................10
(xxv) Actions with Respect to Medicare and Medicaid......................................10
(xxvi) Regulatory Filings.................................................................11
(xxvii) Title to Property..................................................................11
(xxviii) Investment Company Act.............................................................12
(xxix) Environmental Laws.................................................................12
(xxx) Insurance..........................................................................13
(xxxi) Registration Rights................................................................13
(xxxii) Internal Accounting Controls.......................................................13
(xxxiii) Rule 144A Eligibility..............................................................13
(xxxiv) No General Solicitation............................................................13
(xxxv) No Registration Required...........................................................14
(b) Officer's Certificates.........................................................................14
SECTION 2. Sale and Delivery to Initial Purchasers; Closing...............................................14
(a) Firm Notes.....................................................................................14
(b) Option Notes...................................................................................14
(c) Payment........................................................................................15
(d) Qualified Institutional Buyer..................................................................15
(e) Denominations; Registration....................................................................15
SECTION 3. Covenants of the Company.......................................................................16
(a) Offering Memorandum............................................................................16
(b) Notice and Effect of Material Events...........................................................16
(c) Amendment to Offering Memorandum and Supplements...............................................16
(d) Qualification of Notes for Offer and Sale......................................................16
(e) Rating of Notes................................................................................17
(f) DTC............................................................................................17
(g) Use of Proceeds................................................................................17
(h) Restriction on Sale of Common Stock............................................................17
(i) PORTAL Designation.............................................................................18
(j) Legend.........................................................................................18
(k) Investment Company Act.........................................................................18
(l) No Stabilization or Manipulation...............................................................18
(m) Registration Rights Agreement..................................................................18
(n) Reservation of Common Stock....................................................................18
(o) Nasdaq Listing.................................................................................18
(p) Reporting Requirements.........................................................................19
SECTION 4. Payment of Expenses............................................................................19
(a) Expenses.......................................................................................19
(b) Termination of Agreement.......................................................................19
SECTION 5. Conditions of Initial Purchasers' Obligations..................................................19
(a) Opinion of Counsel for Company.................................................................20
(b) Opinion of Counsel for Initial Purchasers......................................................20
(c) Officers' Certificate..........................................................................20
(d) Accountants' Comfort Letter....................................................................20
(e) Bring-down Comfort Letter......................................................................20
(f) Maintenance of Rating..........................................................................21
(g) PORTAL.........................................................................................21
(h) Indenture......................................................................................21
(i) Registration Rights Agreement..................................................................21
(j) Lock-up Agreement..............................................................................21
(k) Additional Documents...........................................................................21
(l) Termination of Agreement.......................................................................22
SECTION 6. Subsequent Offers and Resales of the Notes.....................................................22
(a) Offer and Sale Procedures......................................................................22
(i) Offers and Sales Only to Qualified Institutional Buyers............................22
(ii) No General Solicitation............................................................22
(iii) Purchases by Non-Bank Fiduciaries..................................................22
(iv) Subsequent Purchaser Notification..................................................22
(v) Minimum Principal Amount...........................................................23
(vi) Restrictions on Transfer...........................................................23
(b) Covenants of the Company.......................................................................23
(i) Integration........................................................................23
ii
(ii) Rule 144A Information..............................................................23
(iii) Restriction on Repurchases.........................................................24
SECTION 7. Indemnification................................................................................24
(a) Indemnification of Initial Purchasers..........................................................24
(b) Indemnification of Company, Directors and Officers.............................................25
(c) Actions Against Parties; Notification..........................................................25
(d) Settlement Without Consent if Failure to Reimburse.............................................25
SECTION 8. Contribution...................................................................................26
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.................................27
SECTION 10. Termination of Agreement.......................................................................27
(a) Termination; General...........................................................................27
(b) Liabilities....................................................................................28
SECTION 11. Default by One or More of the Initial Purchasers...............................................28
SECTION 12. Notices ...................................................................................28
SECTION 13. Parties ...................................................................................29
SECTION 14. GOVERNING LAW AND TIME.........................................................................29
SECTION 15. Effect of Headings.............................................................................29
SCHEDULES
Schedule A - List of Initial Purchasers............................................................Sch A-1
Schedule B - Pricing Information...................................................................Sch B-1
Schedule C - List of Subsidiaries..................................................................Sch C-1
Schedule D - List of Persons and Entities Subject to Lock-Up.......................................Sch D-1
EXHIBITS
Exhibit A - Form of Registration Rights Agreement......................................................A-1
Exhibit B - Form of Opinion of Company's Counsel.......................................................B-1
Exhibit C - Form of Lock-Up Letter.....................................................................C-1
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PROVINCE HEALTHCARE COMPANY
(a Delaware corporation)
$150,000,000
4 1/4% Convertible Subordinated Notes due 2008
PURCHASE AGREEMENT
October 4 2001
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
First Union Securities, Inc.
UBS Warburg LLC
Banc of America Securities LLC
as Representatives of the several Initial Purchasers
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Province Healthcare Company, a Delaware corporation (the "Company"), confirms
its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx") and each of the other Initial Purchasers named
in Schedule A hereto (collectively, the "Initial Purchasers", which term shall
also include any initial purchaser substituted as hereinafter provided in
Section 11 hereof), for whom Xxxxxxx Xxxxx, First Union Securities, Inc., UBS
Warburg LLC and Banc of America Securities LLC are acting as representatives
(in such capacity, the "Representatives"), with respect to the issue and sale
by the Company and the purchase by the Initial Purchasers, acting severally and
not jointly, of the respective principal amounts set forth in said Schedule A
of $150,000,000 aggregate principal amount of the Company's 4 1/4% Convertible
Subordinated Notes due 2008 (the "Firm Notes") and with respect to the grant by
the Company to the Initial Purchasers, acting severally and not jointly, of the
option described in Section 2(b) hereof (the "Option") to purchase all or any
part of an additional $22,500,000 principal amount of the Company's 4 1/4%
Convertible Subordinated Notes due 2008 to cover over-allotments, if any (the
"Option Notes" and, together with the Firm Notes, the "Notes"). The Notes are
to be issued pursuant to an indenture dated as of October 10, 2001 (the
"Indenture") between the Company and National City Bank, as trustee (the
"Trustee"). Notes issued in book-entry form will be issued to Cede & Co. as
nominee of The Depository Trust Company ("DTC") pursuant to a letter agreement,
to be dated as of the First Delivery Date (as defined in Section 2(c)) (the
"DTC Agreement"), among the Company, the Trustee and DTC.
The Notes will be convertible into fully paid, nonassessable shares of
common stock of the Company, par value $0.01 per share (the "Common Stock"), on
the terms, and subject to the
conditions, set forth in the Indenture. As used herein, "Conversion Shares"
means the shares of Common Stock into which the Notes are convertible.
The Company understands that the Initial Purchasers propose to make an
offering of the Notes on the terms and in the manner set forth herein and
agrees that the Initial Purchasers may resell, subject to the conditions set
forth herein, all or a portion of the Notes to purchasers ("Subsequent
Purchasers") at any time after the date of this Agreement. The Notes are to be
offered and sold through the Initial Purchasers without being registered under
the Securities Act of 1933, as amended (the "1933 Act"), in reliance upon
exemptions therefrom. Pursuant to the terms of the Notes and the Indenture,
investors that acquire Notes may only resell or otherwise transfer such Notes
if such Notes are hereafter registered under the 1933 Act or if an exemption
from the registration requirements of the 1933 Act is available (including the
exemption afforded by Rule 144A ("Rule 144A") of the rules and regulations
promulgated under the 1933 Act by the Securities and Exchange Commission (the
"Commission")).
The holders of the Notes will be entitled to the benefits of a
registration rights agreement among the parties hereto, substantially in the
form attached hereto as Exhibit A, with such changes as shall be agreed to by
the parties hereto (the "Registration Rights Agreement"), pursuant to which the
Company will file a registration statement (the "Registration Statement") with
the Commission registering resales of the Notes and the Conversion Shares under
the 1933 Act.
The Company has prepared and will deliver to each Initial Purchaser,
on the date hereof or within three business days, copies of a final offering
memorandum dated October 4 2001 (the "Final Offering Memorandum"), for use by
such Initial Purchaser in connection with its solicitation of purchases of, or
offering of, the Notes. "Offering Memorandum" means, with respect to any date
or time referred to in this Agreement, the most recent offering memorandum
(whether the Final Offering Memorandum or any amendment or supplement to such
document), including exhibits thereto and any documents incorporated therein by
reference, which has been prepared and delivered by the Company to the Initial
Purchasers in connection with their solicitation of purchases of, or offering
of, the Notes.
All references in this Agreement to financial statements and schedules
and other information which is "contained", "included" or "stated" in the
Offering Memorandum (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which are incorporated by reference in the Offering Memorandum; and
all references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 (the "1934 Act") which is incorporated by
reference in the Offering Memorandum.
SECTION 1. Representations and Warranties by the
Company.
(a) Representations and Warranties. The Company
represents and warrants to each Initial Purchaser as of the date hereof and as
of each Delivery Date (as defined in Section 2(b) hereof), and agrees with each
Initial Purchaser, as follows:
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(i) Similar Offerings. Neither the Company nor any of
its affiliates, as such term is defined in Rule 501(b) under the 1933
Act (each, an "Affiliate"), has, directly or indirectly, solicited any
offer to buy, sold or offered to sell or otherwise negotiated in
respect of, or will solicit any offer to buy or offer to sell or
otherwise negotiate in respect of, in the United States or to any
United States citizen or resident, any security which is or would be
integrated with the sale of the Notes in a manner that would require
the issuance of Notes to be registered under the 1933 Act.
(ii) Offering Memorandum. The Offering Memorandum does
not, and at each Delivery Date will not, include an 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 that this
representation, warranty and agreement shall not apply to statements
in or omissions from the Offering Memorandum made in reliance upon and
in conformity with information furnished to the Company in writing by
any Initial Purchaser through the Representatives expressly for use in
the Offering Memorandum.
(iii) Incorporated Documents. The documents incorporated
or deemed to be incorporated by reference in the Offering Memorandum,
when they became effective or at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the 1933 Act and the rules and
regulations of the Commission thereunder (the "1933 Act Regulations")
or the 1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations"), as applicable, and, when read
together with the other information in the Offering Memorandum, at the
date of the Offering Memorandum and at the First Delivery Date (and,
if any Option Notes are purchased, at the Option Delivery Date), did
not and will not contain 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, in light of the
circumstances under which they were made, not misleading.
(iv) Independent Accountants. The accountants who
certified the financial statements and supporting schedules included
or incorporated by reference in the Offering Memorandum are
independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(v) Financial Statements. The financial statements
incorporated by reference in the Offering Memorandum, together with
the related schedules and notes, present fairly the financial position
of the Company and its consolidated subsidiaries at the dates
indicated and the statements of income, stockholders' equity and cash
flows of the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Offering Memorandum present fairly
in accordance with GAAP the information required to be stated therein.
The selected financial data included in the Offering Memorandum
present fairly the information shown therein and have been compiled on
a basis consistent with that of the audited financial statements
included in the Offering Memorandum.
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(vi) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Offering
Memorandum, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of the Company
and its Subsidiaries (as defined below) considered as one enterprise,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"), (B) there have been no transactions entered into by
the Company or any of its Subsidiaries (as defined below), other than
those in the ordinary course of business, which are material with
respect to the Company and its Subsidiaries (as defined below)
considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(vii) Good Standing of the Company. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Offering Memorandum and to
enter into and perform its obligations under this Agreement; and the
Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(viii) Corporate Subsidiaries. All of the consolidated
corporations, partnerships (including, without limitation, general,
limited and limited liability partnerships) and limited liability
companies in which the Company has a direct or indirect ownership
interest are listed in Schedule C to this Agreement (collectively, the
"Subsidiaries"). Each Subsidiary that is a corporation (a "Corporate
Subsidiary") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Offering Memorandum. Each Corporate Subsidiary is duly qualified and
in good standing as a foreign corporation authorized to do business in
each other jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except
where the failure to be so qualified would not have a Material Adverse
Effect. All of the outstanding shares of capital stock of each
Corporate Subsidiary have been duly authorized and validly issued, are
fully paid and non-assessable, were not issued in violation of or
subject to any preemptive or similar rights, and, except as set forth
on Schedule C, are owned by the Company directly, or indirectly
through one of the other Subsidiaries, free and clear of all security
interests, liens, encumbrances and equities and claims; and no
options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations into
shares of capital stock or ownership interests in any Corporate
Subsidiary are outstanding.
(ix) Partnerships. Each Subsidiary that is a partnership
(a "Partnership") has been duly organized, is validly existing as a
partnership in good standing under the laws of its jurisdiction of
organization and has the partnership power and authority to own, lease
and operate its properties and to conduct its business as described in
the Offering
4
Memorandum. Each Partnership is duly qualified and in good standing as
a foreign partnership authorized to do business in each other
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the
failure to be so qualified would not have a Material Adverse Effect.
The capital contributions with respect to the outstanding units of
each Partnership have been made to the Partnership. Except as set
forth in Schedule C, the general and limited partnership interests
therein held directly or indirectly by the Company are owned free and
clear of all security interests, liens, encumbrances and equities and
claims; and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert
any obligations into ownership interests in any Partnership are
outstanding. Each partnership agreement pursuant to which the Company
or a Subsidiary holds an interest in a Partnership is in full force
and effect and constitutes the legal, valid and binding agreement of
the parties thereto, enforceable against such parties in accordance
with the terms thereof, except as enforcement thereof may be limited
by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally. There has been no material
breach of or default under, and no event which with notice or lapse of
time would constitute a material breach of or default under, such
partnership agreements by the Company or any Subsidiary or, to the
Company's knowledge, any other party to such agreements.
(x) Limited Liability Companies. Each Subsidiary that is
a limited liability company (an "LLC") has been duly organized, is
validly existing as a limited liability company in good standing under
the laws of its jurisdiction of organization and has the power and
authority to own, lease and operate its properties and to conduct its
business as described in the Offering Memorandum. Each LLC is duly
qualified and in good standing as a foreign limited liability company
authorized to do business in each other jurisdiction in which the
nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect. The capital
contributions with respect to the outstanding membership interests of
each LLC have been made to each such LLC. All outstanding membership
interests in the LLCs were issued and sold in compliance with the
applicable operating agreements of such LLCs and all applicable
federal and state securities laws, and, except as set forth in
Schedule C, the membership interests therein held directly or
indirectly by the Company are owned free and clear of all security
interests, liens, encumbrances and equities and claims; and no
options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations into
ownership interests in any LLC are outstanding. Each operating
agreement pursuant to which the Company or a Subsidiary holds a
membership interest in an LLC is in full force and effect and
constitutes the legal, valid and binding agreement of the parties
thereto, enforceable against such parties in accordance with the terms
thereof, except as enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of
creditors' rights generally. There has been no material breach of or
default under, and no event which with notice or lapse of time would
constitute a material breach of or default under, such operating
agreements by the Company or any Subsidiary or, to the Company's
knowledge, any other party to such agreements.
5
(xi) Actions of Subsidiaries. Except to the extent
disclosed in the Offering Memorandum, each of the hospitals described
in the Offering Memorandum as owned or leased by the Company is owned
or leased and operated by a Subsidiary in which the Company directly
or indirectly owns at least 80% of the outstanding ownership
interests. Except as disclosed in the Offering Memorandum, there are
no encumbrances or restrictions on the ability of any Subsidiary (i)
to pay any dividends or make any distributions on such Corporate
Subsidiary's capital stock, such Partnership's partnership interests
or such LLC's membership interests or to pay any indebtedness owed to
the Company or any other Subsidiary, (ii) to make any loans or
advances to, or investments in, the Company or any other Subsidiary,
or (iii) to transfer any of its property or assets to the Company or
any other Subsidiary.
(xii) Capitalization; Authorization of Conversion Shares.
The authorized, issued and outstanding capital stock of the Company is
as set forth in the Offering Memorandum in the column entitled
"Actual" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Offering Memorandum or pursuant to the exercise of convertible
securities or options referred to in the Offering Memorandum). The
shares of issued and outstanding capital stock of the Company have
been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
The Conversion Shares have been duly and validly authorized
and reserved for issuance upon conversion of the Notes by all
necessary corporate action and such shares, when issued upon such
conversion, will be validly issued and will be fully paid and
non-assessable; no holder of Common Stock will be subject to personal
liability solely by reason of being such a holder and the issuance of
such shares upon such conversion will not be subject to the preemptive
or other similar rights of any securityholder of the Company.
(xiii) Authorization of Agreement. This Agreement has been
duly authorized, executed and delivered by the Company.
(xiv) Authorization of the Registration Rights Agreement.
The Registration Rights Agreement has been duly authorized by the
Company and, when executed and delivered by the Company and executed
by the Initial Purchasers, will constitute a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms except as (x) the enforceability thereof may
be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium
or other similar laws relating to or affecting enforcement of
creditor's rights generally, (y) the enforceability thereof may be
limited by general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and (z)
any rights to indemnity and contribution may be limited by federal and
state securities laws and public policy considerations.
6
(xv) Authorization of the Indenture. The Indenture has
been duly authorized by the Company and, when executed and delivered
by the Company and the Trustee, will constitute a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as (x) the enforceability 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 (y) the enforceability thereof may be
limited by general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xvi) Authorization of the Notes. The Notes have been duly
authorized and, at each Delivery Date, will have been duly executed by
the Company and, when authenticated, issued and delivered in the
manner provided for in the Indenture and delivered against payment of
the purchase price therefor as provided in this Agreement, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as
(x) the enforceability 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 (y) the
enforceability thereof may be limited by general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law), and will be in the form contemplated by, and
entitled to the benefits of, the Indenture and the Registration Rights
Agreement.
(xvii) Description of the Registration Rights Agreement,
the Notes, the Conversion Shares and the Indenture. The Registration
Rights Agreement, the Notes, the Conversion Shares and the Indenture
will conform in all material respects to the respective statements
relating thereto contained in the Offering Memorandum and will be in
substantially the respective forms previously delivered to the Initial
Purchasers.
(xviii) Absence of Defaults and Conflicts. Neither the
Company nor any of its Subsidiaries is in violation of its certificate
of incorporation or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which it
or any of them may be bound, or to which any of the property or assets
of the Company or any Subsidiary is subject (collectively, "Agreements
and Instruments") except for such defaults that would not result in a
Material Adverse Effect; and the execution, delivery and performance
of this Agreement, the Registration Rights Agreement, the Indenture
and the Notes and the consummation of the transactions contemplated
herein and in the Offering Memorandum (including the issuance and sale
of the Notes and the use of the proceeds from the sale of the Notes as
described in the Offering Memorandum under the caption "Use of
Proceeds") and compliance by the Company with its obligations
thereunder have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of,
or default or Repayment Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any
7
Subsidiary pursuant to, the Agreements and Instruments (except for
such conflicts, breaches or defaults or liens, charges or encumbrances
that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the certificate of
incorporation or by-laws of the Company or any Subsidiary or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any
Subsidiary or any of their assets, properties or operations. As used
herein, a "Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder's behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any Subsidiary. No event has occurred
nor has any circumstance arisen which, had the Notes been issued on
any given Delivery Date, would constitute an Event of Default (as such
term is defined in the Indenture).
(xix) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any Subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any Subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(xx) Absence of Proceedings. Except as disclosed in the
Offering Memorandum, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any
Subsidiary which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to affect the
properties or assets of the Company or any Subsidiary, such that it
might reasonably be expected to result in a Material Adverse Effect,
or which might be expected to affect the consummation of the
transactions contemplated in this Agreement, or the performance by the
Company of its obligations hereunder; the resolution of pending legal
or governmental proceedings to which the Company or any Subsidiary is
a party or of which any of their respective property or assets is the
subject which are not described in the Offering Memorandum, including
ordinary routine litigation incidental to the business, when
considered together, could not reasonably be expected to result in a
Material Adverse Effect.
(xxi) Possession of Intellectual Property. The Company and
its Subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property")
necessary to carry on the business now operated by them, and neither
the Company nor any of its Subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of any
facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or any of
its
8
Subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy would result in a Material Adverse Effect.
(xxii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance
or sale of the Notes or the Conversion Shares hereunder or the
consummation of the transactions contemplated by this Agreement and
the Indenture by the Company, except such as have been already
obtained.
(xxiii) Possession of Licenses and Permits. Each of the
Company and its Subsidiaries have operated and currently operate their
business in compliance with the requirements of all laws, rules,
regulations and orders applicable to the Company or such Subsidiaries
or their business, and has filed all notices, reports, documents or
other information required to be filed thereunder, except where the
failure to comply with such requirement could not reasonably be
expected to have a Material Adverse Effect. The Company and each of
its Subsidiaries hold all certificates, consents, exemptions, orders,
licenses, authorizations, accreditations, permits or other approvals
or rights from all governmental authorities, all self-regulatory
organizations, all governmental and private accrediting bodies and all
courts and other tribunals (collectively, "Permits") which are
necessary to own their properties and to conduct their businesses,
including, without limitation, such Permits as are required (i) under
such federal and state healthcare laws as are applicable to the
Company and its Subsidiaries and (ii) with respect to those facilities
operated by the Company or any Subsidiary of the Company that
participate in Medicare and/or Medicaid, to receive reimbursement
thereunder, except for such failures to have Permits which would not,
individually or in the aggregate, result in a Material Adverse Effect.
The Company and each of its Subsidiaries have fulfilled and performed
all of their material obligations with respect to such Permits, and no
event or change in condition has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof
or results in any other material impairment of the rights of the
holder of any such Permit, except as to such qualifications as may be
set forth in the Offering Memorandum and except for such failures
which would not, individually or in the aggregate, result in a
Material Adverse Effect. During the period for which financial
statements are included in the Offering Memorandum, denials by third
party payors of claims for reimbursement for services rendered by the
Company or any Subsidiary have not had a Material Adverse Effect, and
any such denials are either under appeal or the Company or such
Subsidiary has ceased seeking reimbursement for the services or
supplies to which they relate.
(xxiv) Accounts Receivable. The accounts receivable of the
Company and its Subsidiaries have been and will continue to be
adjusted to reflect reimbursement policies of third party payors such
as Medicare, Medicaid, Medical, Blue Cross/Blue Shield, private
insurance companies, health maintenance organizations, preferred
provider organizations, managed care systems and other third party
payors. The accounts receivable relating to such third party payors do
not and shall not exceed amounts the
9
Company and its Subsidiaries are entitled to receive, subject to
adjustments to reflect reimbursement policies of third party payors
and normal discounts in the ordinary course of business.
(xxv) Actions with Respect to Medicare and Medicaid. None
of the Company, its Subsidiaries nor any of their respective officers
or directors or, to the knowledge of the Company, any employee or
other agent of the Company or its Subsidiaries or any stockholder of
any Subsidiary, has engaged on behalf of the Company or its
Subsidiaries in any of the following: (A) 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); (B)
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); (C) 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; (D) 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 (1) 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 parties), or (2) 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); provided, however, that it
is agreed and understood that (x) from time to time the Company
settles, without admitting liability, claims made by governmental
authorities which allege conduct which may be deemed to violate clause
(A) or (B) above; (y) such settlements have not, individually or in
the aggregate, resulted in a Material Adverse Effect; and (z) such
claims and settlements do not constitute a breach of the
representations and warranties contained in this paragraph (xxv).
(xxvi) Regulatory Filings. Neither the Company nor any of
its Subsidiaries has failed to file with applicable regulatory
authorities any statement, report, information or form required by any
applicable law, regulation or order, except where the failure to be so
in compliance would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, all such filings or
submissions were in material compliance with applicable laws when
filed and no material deficiencies have been asserted by any
regulatory commission, agency or authority with respect to any such
filings or submissions.
(xxvii) Title to Property. The Company and its Subsidiaries
have good and marketable title to all real property owned by the
Company and its Subsidiaries and good
10
title to all other properties owned by them, in each case, free and
clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are
described in the Offering Memorandum (including, without limitation,
liens of the senior lenders pursuant to the Second Amended and
Restated Credit Agreement, dated as of September 10, 1999 (as
amended), between the Company and the other parties thereto) or (b) do
not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be
made of such property by the Company or any of its Subsidiaries; and
all of the leases and subleases material to the business of the
Company and its Subsidiaries, considered as one enterprise, and under
which the Company or any of its Subsidiaries holds properties
described in the Offering Memorandum, are in full force and effect,
and neither the Company nor any Subsidiary has any notice of any
material claim of any sort that has been asserted by anyone adverse to
the rights of the Company or any Subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of
the Company or such Subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(xxviii) Investment Company Act. The Company is not, and upon
the issuance and sale of the Notes as herein contemplated and the
application of the net proceeds therefrom as described in the Offering
Memorandum will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(xxix) Environmental Laws. Except as described in the
Offering Memorandum and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its Subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws
and regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials (collectively, "Environmental Laws"), (B) the
Company and its Subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are
each in compliance with their requirements, (C) there are no pending
or threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental
Law against the Company or any of its Subsidiaries and (D) there are
no events or circumstances that might reasonably be expected to form
the basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency,
against or affecting the Company or any of its Subsidiaries relating
to Hazardous Materials or any Environmental Laws.
11
(xxx) Insurance. The Company and its Subsidiaries carry or
are entitled to the benefits of insurance, with financially sound and
reputable insurers, in such amounts and covering such risks as is
generally maintained by companies engaged in the same or similar
business, and all such insurance is in full force and effect.
(xxxi) Registration Rights. Except as specified in (i) the
Registration Agreement, dated as of December 17, 1996, by and among
Brim, Inc., Principal Hospital Company, Golder, Thoma, Cresey, Xxxxxx
Fund IV, L.P., Leeway & Co., First Union Corporation of Virginia,
AmSouth Bancorporation and certain other stockholders named therein
and (ii) the Registration Rights Agreement, dated as of November 20,
2000, by and between the Company and Xxxxxxx Xxxxx, Credit Suisse
First Boston Corporation, UBS Warburg LLC, First Union Securities,
Inc. and Xxxxxxxxx Xxxxxxxx, Inc., there are no persons with
registration rights or other similar rights to have any securities
registered by the Company under the 1933 Act.
(xxxii) Internal Accounting Controls. The Company maintains
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.
(xxxiii) Rule 144A Eligibility. The Notes are eligible for
resale pursuant to Rule 144A and will not be, at each Delivery Date,
of the same class as securities listed on a national securities
exchange registered under Section 6 of the 1934 Act, or quoted in a
U.S. automated interdealer quotation system.
(xxxiv) No General Solicitation. None of the Company, its
Affiliates or any person acting on its or any of their behalf (other
than the Initial Purchasers, as to whom the Company makes no
representation) has engaged or will engage, in connection with the
offering of the Notes, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the 1933 Act.
(xxxv) No Registration Required. Subject to compliance by
the Initial Purchasers with the representations and warranties set
forth in Section 2 and the procedures set forth in Section 6 hereof,
it is not necessary in connection with the offer, sale and delivery of
the Notes to the Initial Purchasers and to each Subsequent Purchaser
in the manner contemplated by this Agreement and the Offering
Memorandum to register the Notes or the Conversion Shares under the
1933 Act or to qualify the Indenture under the Trust Indenture Act of
1939, as amended (the "1939 Act").
(b) Officer's Certificates. Any certificate signed by
any officer of the Company or any of the Subsidiaries delivered to the
Representatives or to counsel for the Initial
12
Purchasers shall be deemed a representation and warranty by the Company to each
Initial Purchaser as to the matters covered thereby.
SECTION 2. Sale and Delivery to Initial Purchasers;
Closing.
(a) Firm Notes. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Initial Purchaser, severally and not
jointly, and each Initial Purchaser, severally and not jointly, agrees to
purchase from the Company, at the price set forth in Schedule B, the aggregate
principal amount of Firm Notes set forth in Schedule A opposite the name of
such Initial Purchaser, plus any additional principal amount of Notes which
such Initial Purchaser may become obligated to purchase pursuant to the
provisions of Section 11 hereof.
(b) Option Notes. On the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants the Option to the Initial Purchasers to
purchase, severally and not jointly, the Option Notes at the same price as the
Initial Purchasers shall pay for the Firm Notes and the principal amount of the
Option Notes to be sold to each Initial Purchaser shall be that principal
amount which bears the same ratio to the aggregate principal amount of Option
Notes being purchased as the principal amount of Firm Notes set forth opposite
the name of such Initial Purchaser in Schedule A hereto, plus any additional
principal amount of Notes which such Initial Purchaser may become obligated to
purchase pursuant to the provisions of Section 11 hereof. The Option may be
exercised only to cover over-allotments in the sale of the Firm Notes by the
Initial Purchasers. The Option may be exercised from time to time and may be
exercised in whole or in part at any time not more than 30 days subsequent to
the date of this Agreement upon notice in writing or by facsimile by the
Representatives to the Company setting forth the amount (which shall be an
integral multiple of $1,000) of Option Notes as to which the Initial Purchasers
are exercising the Option.
The date for the delivery of and payment for the Option Notes, being
herein referred to as an "Option Delivery Date", which may be the First
Delivery Date (the First Delivery Date and the Option Delivery Date, if any,
being sometimes referred to as a "Delivery Date"), shall be determined by the
Initial Purchasers but shall not be later than seven full business days after
written notice of election to purchase Option Notes is given. Delivery of the
Option Notes shall be made to the Initial Purchasers against payment of the
purchase price by the Initial Purchasers.
(c) Payment. Payment of the purchase price for, and
delivery of certificates for, the Firm Notes shall be made at the office of
Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such
other place as shall be agreed upon by the Representatives and the Company, at
9:00 A.M. (eastern time) on October 10, 2001 (unless postponed in accordance
with the provisions of Section 11), or such other time not later than ten
business days after such date as shall be agreed upon by the Representatives
and the Company (such time and date of payment and delivery being herein called
the "First Delivery Date").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Initial Purchasers of
certificates for the Firm Notes to be purchased by
13
them. Each Initial Purchaser has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Firm Notes which it has agreed to purchase. Xxxxxxx Xxxxx,
individually and not as representative of the Initial Purchasers, may (but
shall not be obligated to) make payment of the purchase price for the Firm
Notes to be purchased by any Initial Purchaser whose funds have not been
received by the First Delivery Date, but such payment shall not relieve such
Initial Purchaser from its obligations hereunder.
Payment for the Option Notes, if any, shall be made to the Company by
wire transfer of immediately available funds to a bank account designated by
the Company. Xxxxxxx Xxxxx, individually and not as representative of the
Initial Purchasers, may (but shall not be obligated to) make payment of the
purchase price for the Option Notes to be purchased by any Initial Purchaser
whose funds have not been received by the Delivery Date but such payment shall
not relieve such Initial Purchaser from its obligations hereunder.
(d) Qualified Institutional Buyer. Each Initial
Purchaser severally and not jointly represents and warrants to, and agrees
with, the Company that it is a "qualified institutional buyer" within the
meaning of Rule 144A under the 1933 Act (a "Qualified Institutional Buyer") and
an "accredited investor" within the meaning of Rule 501(a) under the 1933 Act
(an "Accredited Investor").
(e) Denominations; Registration. Certificates for the
Notes shall be in such denominations ($1,000 or integral multiples thereof) and
registered in such names as the Representatives may request in writing at least
one full business day before such Delivery Date. The certificates representing
the Notes shall be registered in the name of Cede & Co. pursuant to the DTC
Agreement and shall be made available for examination and packaging by the
Initial Purchasers in The City of New York not later than 10:00 A.M. on the
last business day prior to such Delivery Date.
SECTION 3. Covenants of the Company. The Company
covenants with each Initial Purchaser as follows:
(a) Offering Memorandum. The Company, as promptly as
possible, will furnish to each Initial Purchaser, without charge, such number
of copies of the Final Offering Memorandum and any amendments and supplements
thereto and documents incorporated by reference therein as such Initial
Purchaser may reasonably request.
(b) Notice and Effect of Material Events. The Company
will immediately notify each Initial Purchaser, and confirm such notice in
writing, of (x) any filing made by the Company of information relating to the
offering of the Notes with any securities exchange or any other regulatory body
in the United States or any other jurisdiction, and (y) prior to the completion
of the placement of the Notes by the Initial Purchasers as evidenced by a
notice in writing from the Initial Purchasers to the Company, any material
changes in or affecting the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and the Subsidiaries
which (i) make any statement in the Offering Memorandum false or misleading or
(ii) are not disclosed in the Offering Memorandum. In such event or if during
such time any event shall occur as a result of which it is necessary, in the
reasonable opinion of
14
any of the Company, its counsel, the Initial Purchasers or counsel for the
Initial Purchasers, to amend or supplement the Final Offering Memorandum in
order that the Final Offering Memorandum not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances then
existing, the Company will forthwith amend or supplement the Final Offering
Memorandum by preparing and furnishing to each Initial Purchaser an amendment
or amendments of, or a supplement or supplements to, the Final Offering
Memorandum (in form and substance satisfactory in the reasonable opinion of
counsel for the Initial Purchasers) so that, as so amended or supplemented, the
Final Offering Memorandum will not include an 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 existing at the time it is delivered
to a Subsequent Purchaser, not misleading.
(c) Amendment to Offering Memorandum and Supplements.
The Company will advise each Initial Purchaser promptly of any proposal to
amend or supplement the Offering Memorandum and will not effect such amendment
or supplement without the consent of the Initial Purchasers. Neither the
consent of the Initial Purchasers, nor the Initial Purchaser's delivery of any
such amendment or supplement, shall constitute a waiver of any of the
conditions set forth in Section 5 hereof.
(d) Qualification of Notes for Offer and Sale. The
Company will use its best efforts, in cooperation with the Initial Purchasers,
to qualify the Notes for offering and sale under the applicable securities laws
of such jurisdictions as the Representatives may designate and will maintain
such qualifications in effect as long as required for the sale of the Notes;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
(e) Rating of Notes. The Company shall take all
reasonable action necessary to enable Standard & Poor's Ratings Services, a
division of McGraw Hill, Inc. ("S&P"), and Xxxxx'x Investors Service Inc.
("Moody's") to provide their credit ratings of the Notes.
(f) DTC. The Company will cooperate with the
Representatives and use its best efforts to permit the Notes to be eligible for
clearance and settlement through the facilities of DTC.
(g) Use of Proceeds. The Company will use the net
proceeds received by it from the sale of the Notes in the manner specified in
the Offering Memorandum under "Use of Proceeds".
(h) Restriction on Sale of Common Stock. During a period
of 90 days from the date of the Offering Memorandum, the Company will not, and
will cause its directors and officers not to, without the prior written consent
of Xxxxxxx Xxxxx, (i) directly or indirectly, offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase or otherwise transfer
or dispose of any shares of Common Stock or any securities convertible into or
exercisable or exchangeable
15
for Common Stock or file any registration statement under the 1933 Act with
respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of Common Stock, whether any
such swap or transaction described in clause (i) or (ii) above is to be settled
by delivery of Common Stock or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the Notes to be sold hereunder, (B)
(i) transfers by officers or directors of the Company of shares of Common Stock
or options to purchase Common Stock made as a bona fide gift or gifts, (ii)
transfers by officers or directors of the Company of shares of Common Stock or
options to purchase Common Stock made to any trust for the direct or indirect
benefit of an officer or director of the Company or the immediate family of an
officer or director of the Company, provided that the trustee of the trust
agrees to be bound by the restrictions set forth in the first sentence of this
Section 3(h), and provided further that any such transfer shall not involve a
disposition for value, and (iii) notwithstanding (i) or (ii) above, the sale or
transfer by an officer or director of the Company of a number of shares of
Common Stock beneficially held by such officer or director, which when
aggregated with those sold or transferred by the other officers and directors
of the Company, does not exceed 150,000 shares, (C) any shares of Common Stock
issued by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and referred to in the
Offering Memorandum, (D) any shares of Common Stock issued or options to
purchase Common Stock granted pursuant to existing reservations, agreements or
employee benefit plans of the Company referred to in the Offering Memorandum or
(E) any shares of Common Stock issued pursuant to any non-employee director
stock plan or dividend reinvestment plan.
(i) PORTAL Designation. The Company will use its best
efforts to permit the Notes to be designated PORTAL securities in accordance
with the rules and regulations adopted by the National Association of
Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market.
(j) Legend. Each of the Notes and the Conversion Shares
will bear, to the extent applicable, the legend contained in "Notice to
Investors" in the Offering Memorandum for the time period and upon the other
terms stated therein, except after the Notes or the Conversion Shares are
resold pursuant to a registration statement effective under the 1933 Act.
(k) Investment Company Act. The Company will take such
steps as shall be necessary to ensure that it shall not become an "investment
company" within the meaning of such term under the Investment Company Act, and
the rules and regulations of the Commission thereunder.
(l) No Stabilization or Manipulation. None of the
Company or any of its affiliates will take, directly or indirectly, any action
which is designed to stabilize or manipulate, or which constitutes or which
might reasonably be expected to cause or result in stabilization or
manipulation, of the price of any security of the Company in connection with
the offering of the Notes.
(m) Registration Rights Agreement. The Company will
execute and deliver the Registration Rights Agreement in form and substance
satisfactory to the Initial Purchasers.
16
(n) Reservation of Common Stock. The Company will
reserve and keep available at all times, free of preemptive rights, a
sufficient number of shares of Common Stock for the purpose of enabling the
Company to satisfy any obligations to issue Common Stock upon conversion of the
Notes.
(o) Nasdaq Listing. The Company will use its best
efforts to have the Conversion Shares approved by the Nasdaq National Market
("Nasdaq") for inclusion prior to the effectiveness of the Registration
Statement.
(p) Reporting Requirements. The Company, during the
period when the Offering Memorandum is required to be delivered pursuant to
Section 6(a)(vii) hereof, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by the
1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses
(a) Expenses. The Company will pay all expenses incident
to the performance of its obligations under this Agreement, the Notes, the
Indenture, including (i) the preparation, printing and any filing of the
Offering Memorandum (including financial statements and any schedules or
exhibits and any document incorporated therein by reference) and of each
amendment or supplement thereto, (ii) the preparation, printing and delivery to
the Initial Purchasers of this Agreement, any Agreement among Initial
Purchasers, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Notes, (iii) the preparation, issuance and delivery of the certificates for the
Notes to the Initial Purchasers, including any charges of DTC in connection
therewith, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the qualification of the Notes under
securities laws in accordance with the provisions of Section 3(d) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Initial Purchasers in connection therewith and in connection with the
preparation of the Blue Sky Survey, any supplement thereto and any Legal
Investment Survey, (vi) the fees and expenses of the Trustee, including the
fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Notes, (vii) any fees payable in connection with the rating
of the Notes, (viii) any fees and expenses payable in connection with the
initial and continued designation of the Notes as PORTAL securities under the
PORTAL Market Rules pursuant to NASD Rule 5322, (ix) the fees and expenses of
any transfer agent or registrar for the Conversion Shares, and (x) the fees and
expenses incurred in connection with the inclusion of the Conversion Shares in
Nasdaq.
(b) Termination of Agreement. If this Agreement is
terminated by the Representatives in accordance with the provisions of Section
5 or Section 10(a)(i) hereof, the Company shall reimburse the Initial
Purchasers for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Initial Purchasers.
17
SECTION 5. Conditions of Initial Purchasers'
Obligations. The obligations of the several Initial Purchasers hereunder are
subject to the accuracy, when made and on each Delivery Date, of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of the Subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Opinion of Counsel for Company. At such Delivery
Date, the Representatives shall have received the favorable opinion, dated as
of such Delivery Date, of Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, a Professional Limited
Liability Company, counsel for the Company, in form and substance satisfactory
to counsel for the Initial Purchasers, together with signed or reproduced
copies of such letter for each of the other Initial Purchasers to the effect
set forth in Exhibit B hereto and to such further effect as counsel to the
Initial Purchasers may reasonably request.
(b) Opinion of Counsel for Initial Purchasers. At such
Delivery Date, the Representatives shall have received the favorable opinion,
dated as of such Delivery Date, of Shearman & Sterling, counsel for the Initial
Purchasers, in form and substance satisfactory to the Initial Purchasers. In
giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York, the federal
law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Representatives.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Company and the Subsidiaries and certificates of public
officials.
(c) Officers' Certificate. At such Delivery Date, there
shall not have been, since the date hereof or since the respective dates as of
which information is given in the Offering Memorandum, any Material Adverse
Effect in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and the Subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, and
the Representatives shall have received a certificate of the President or a
Vice President of the Company and of the chief financial officer or chief
accounting officer of the Company, dated as of such Delivery Date, to the
effect that (i) there has been no such Material Adverse Effect, (ii) the
representations and warranties in Section 1 hereof are true and correct with
the same force and effect as though expressly made at and as of such Delivery
Date, and (iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to such
Delivery Date.
(d) Accountants' Comfort Letter. At the time of the
execution of this Agreement, the Representatives shall have received from Ernst
& Young LLP a letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Initial Purchasers containing statements and information of
the type ordinarily included in accountants' "comfort letters" to Initial
Purchasers with respect to the financial statements and certain financial
information contained in the Offering Memorandum.
18
(e) Bring-down Comfort Letter. At such Delivery Date,
the Representatives shall have received from Ernst & Young LLP a letter dated
as of such Delivery Date, to the effect that it reaffirms the statements made
in the letters furnished pursuant to subsection (d) of this Section, except
that the specified date referred to shall be a date not more than three
business days prior to such Delivery Date.
(f) Maintenance of Rating. At such Delivery Date, the
Notes shall be rated at least B- by S&P and B3 by Moody's, and the Company
shall have delivered to the Representatives a letter dated such Delivery Date,
from such rating agency, or other evidence satisfactory to the Representatives,
confirming that the Notes have such rating; and since the date of this
Agreement, there shall not have occurred a downgrading in the rating assigned
to the Notes or any of the Company's other debt securities by any "nationally
recognized statistical rating agency", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such
securities rating agency shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of the
Notes or any of the Company's other debt securities.
(g) PORTAL. At such Delivery Date, the Notes shall have
been designated for trading on PORTAL.
(h) Indenture. The Indenture shall have been duly
executed and delivered by the Company and the Trustee and the Notes shall have
been duly executed and delivered by the Company and duly authenticated by the
Trustee.
(i) Registration Rights Agreement. The Company and the
Initial Purchasers shall have executed and delivered the Registration Rights
Agreement (in form and substance satisfactory to the Initial Purchasers) and
the Registration Rights Agreement shall be in full force and effect.
(j) Lock-up Agreement. At the date of this Agreement,
the Representatives shall have received an agreement substantially in the form
of Exhibit C hereto signed by the persons listed on Schedule D thereto.
(k) Additional Documents. At such Delivery Date, counsel
for the Initial Purchasers shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to
pass upon the issuance and sale of the Notes as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Notes as
herein contemplated shall be reasonably satisfactory in form and substance to
the Representatives and counsel for the Initial Purchasers.
(l) Termination of Agreement. If any condition specified
in this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the Representatives by notice to
the Company at any time at or prior to such Delivery Date, and such termination
shall be without liability of any party to any other party except as provided
19
in Section 4 and except that Sections 1, 7, 8 and 9 shall survive any such
termination and remain in full force and effect.
SECTION 6. Subsequent Offers and Resales of the Notes.
(a) Offer and Sale Procedures. Each of the Initial
Purchasers and the Company hereby establishes and agrees to observe the
following procedures in connection with the offer and sale of the Notes:
(i) Offers and Sales Only to Qualified Institutional
Buyers. Offers and sales of the Notes shall only be made to persons
whom the offeror or seller reasonably believes to be Qualified
Institutional Buyers (as defined in Rule 144A under the 1933 Act).
Each Initial Purchaser agrees that it will not offer, sell or deliver
any of the Notes in any jurisdiction outside the United States except
under circumstances that will result in compliance with the applicable
laws thereof, and that it will take at its own expense whatever action
is required to permit its purchase and resale of the Notes in such
jurisdictions.
(ii) No General Solicitation. No general solicitation or
general advertising (within the meaning of Rule 502(c) under the 0000
Xxx) will be used in the United States in connection with the offering
or sale of the Notes.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a
non-bank Subsequent Purchaser of a Note acting as a fiduciary for one
or more third parties, each third party shall, in the judgment of the
applicable Initial Purchaser, be a Qualified Institutional Buyer or a
non-U.S. Person purchasing in an offshore transaction in accordance
with Regulation S.
(iv) Subsequent Purchaser Notification. Each Initial
Purchaser will take reasonable steps to inform, and cause each of its
Affiliates to take reasonable steps to inform, persons acquiring Notes
from such Initial Purchaser or Affiliate, as the case may be, that the
Notes (A) have not been and will not be registered under the 1933 Act,
(B) are being sold to them without registration under the 1933 Act in
reliance on Rule 144A or in accordance with another exemption from
registration under the 1933 Act, as the case may be, and (C) may not
be offered, sold or otherwise transferred except (1) to the Company,
(2) outside the United States in an offshore transaction in accordance
with Rule 904 of Regulation S, or (3) inside the United States only
pursuant to a registration statement that has been declared effective
under the 1933 Act or in accordance with (x) Rule 144A to a person
whom the seller reasonably believes is a Qualified Institutional Buyer
that is purchasing such Notes for its own account or for the account
of a Qualified Institutional Buyer to whom notice is given that the
offer, sale or transfer is being made in reliance on Rule 144A or (y)
pursuant to another available exemption from registration under the
1933 Act.
(v) Minimum Principal Amount. No sale of the Notes to
any one Subsequent Purchaser will be for less than U.S.$1,000
principal amount and no Note will be issued in a smaller principal
amount. If the Subsequent Purchaser is a non-bank fiduciary acting
20
on behalf of one or more third parties, each third party for whom it
is acting must purchase at least U.S.$1,000 principal amount of the
Notes.
(vi) Restrictions on Transfer. The transfer restrictions
and the other provisions set forth in the Offering Memorandum under
the heading "Notice to Investors", including the legend required
thereby, shall apply to the Notes except as otherwise agreed by the
Company and the Initial Purchasers.
(b) Covenants of the Company. The Company covenants with
each Initial Purchaser as follows:
(i) Integration. The Company agrees that it will not and
will cause its Affiliates not to solicit any offer to buy or make any
offer or sale of, or otherwise negotiate in respect of, securities of
the Company of any class if, as a result of the doctrine of
"integration" referred to in Rule 502 under the 1933 Act, such offer
or sale would render invalid (for the purpose of (i) the sale of the
Notes by the Company to the Initial Purchasers, (ii) the resale of the
Notes by the Initial Purchasers to Subsequent Purchasers or (iii) the
resale of the Notes by such Subsequent Purchasers to others) the
exemption from the registration requirements of the 1933 Act provided
by Section 4(2) thereof or by Rule 144A thereunder or otherwise.
(ii) Rule 144A Information. The Company agrees that, in
order to render the Notes eligible for resale pursuant to Rule 144A
under the 1933 Act, while any of the Notes remain outstanding, it will
make available, upon request, to any holder of Notes or prospective
purchasers of Notes the information specified in Rule 144A(d)(4),
unless the Company furnishes information to the Commission pursuant to
Section 13 or 15(d) of the 1934 Act (such information, whether made
available to holders or prospective purchasers or furnished to the
Commission, is herein referred to as "Additional Information").
(iii) Restriction on Repurchases. Except as provided in
the Indenture, until the expiration of two years after the original
issuance of the Notes, the Company will not, and will cause its
Affiliates not to, purchase or agree to purchase or otherwise acquire
any Notes which are "restricted securities" (as such term is defined
under Rule 144(a)(3) under the 1933 Act), whether as beneficial owner
or otherwise (except as agent acting as a securities broker on behalf
of and for the account of customers in the ordinary course of business
in unsolicited broker's transactions).
SECTION 7. Indemnification
(a) Indemnification of Initial Purchasers. The Company
agrees to indemnify and hold harmless each Initial Purchaser and each person,
if any, who controls any Initial Purchaser within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Final Offering Memorandum (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material
fact necessary in
21
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 7(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxxx
Xxxxx), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Initial Purchaser through Xxxxxxx Xxxxx expressly for use in the Offering
Memorandum (or any amendment thereto).
(b) Indemnification of Company, Directors and Officers.
Each Initial Purchaser severally agrees to indemnify and hold harmless the
Company and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section 7, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Offering Memorandum in reliance upon and in conformity with written
information furnished to the Company by such Initial Purchaser through Xxxxxxx
Xxxxx expressly for use in the Offering Memorandum.
(c) Actions Against Parties; Notification. Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 7(a) above, counsel to the indemnified parties shall be
selected by Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to
Section 7(b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the
22
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 7 or Section 8 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse.
If at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 7(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 8. Contribution. If the indemnification
provided for in Section 7 hereof is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party,
as incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Initial Purchasers on
the other hand from the offering of the Notes pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the Initial Purchasers on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Initial Purchasers on the other hand in connection with the offering of the
Notes pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Notes pursuant
to this Agreement (before deducting expenses) received by the Company and the
total underwriting discount received by the Initial Purchasers, bear to the
aggregate initial offering price of the Notes.
The relative fault of the Company on the one hand and the Initial
Purchasers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact
23
relates to information supplied by the Company or by the Initial Purchasers and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation (even if the Initial Purchasers were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 8. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 8 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Notes underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such Initial
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 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as such Initial
Purchaser, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company. The Initial Purchasers' respective
obligations to contribute pursuant to this Section 8 are several in proportion
to the principal amount of Firm Notes set forth opposite their respective names
in Schedule A hereto and not joint.
SECTION 9. Representations, Warranties and Agreements
to Survive Delivery. All representations, warranties and agreements contained
in this Agreement or in certificates of officers of the Company or any of the
Subsidiaries submitted pursuant hereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any Initial
Purchaser or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Notes to the Initial Purchasers.
SECTION 10. Termination of Agreement
(a) Termination; General. The Representatives may
terminate this Agreement, by notice to the Company, at any time at or prior to
the First Delivery Date (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given
in the Offering Memorandum, any material adverse change in the
24
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and the Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Notes or to enforce contracts for
the sale of the Notes, or (iii) if trading in any securities of the Company has
been suspended or materially limited by the Commission, or if trading generally
on the American Stock Exchange or the New York Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited or the Nasdaq National
Market, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (iv) if a banking moratorium has
been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated
pursuant to this Section, such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof, and provided
further that Sections 1, 7, 8 and 9 shall survive such termination and remain
in full force and effect.
SECTION 11. Default by One or More of the Initial
Purchasers. If one or more of the Initial Purchasers shall fail at any Delivery
Date to purchase the Notes which it or they are obligated to purchase under
this Agreement (the "Defaulted Notes"), the Representatives shall have the
right, but not the obligation, within 24 hours thereafter, to make arrangements
for one or more of the non-defaulting Initial Purchasers, or any other Initial
Purchasers, to purchase all, but not less than all, of the Defaulted Notes in
such amounts as may be agreed upon and upon the terms herein set forth; if,
however, the Representatives shall not have completed such arrangements within
such 24-hour period, then:
(a) if the number of Defaulted Notes does not exceed 10%
of the aggregate principal amount of the Notes to be purchased
hereunder, each of the non-defaulting Initial Purchasers shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Initial Purchasers, or
(b) if the number of Defaulted Notes exceeds 10% of the
aggregate principal amount of the Notes to be purchased hereunder,
this Agreement shall terminate without liability on the part of any
non-defaulting Initial Purchaser.
No action pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Company shall
have the right to postpone such Delivery Date for a period not exceeding seven
days in order to effect any required changes in the Offering
25
Memorandum or in any other documents or arrangements. As used herein, the term
"Initial Purchaser" includes any person substituted for an Initial Purchaser
under this Section 11.
SECTION 12. Notices. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Initial Purchasers shall be directed to the Representatives at
Xxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, attention
of Xxxx X. Xxxx; notices to the Company shall be directed to it at 000 Xxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000, attention of Xxxxxx X. Xxxx III,
Esq.
SECTION 13. Parties. This Agreement shall inure to the
benefit of and be binding upon the Initial Purchasers, the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Initial Purchasers and the Company and their respective successors and
the controlling persons and officers and directors referred to in Sections 7
and 8 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Initial Purchasers, the Company
and their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes from any Initial
Purchaser shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Initial Purchasers and the Company in accordance with its
terms.
Very truly yours,
PROVINCE HEALTHCARE COMPANY
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: President and
Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
FIRST UNION SECURITIES, INC.
UBS WARBURG LLC
BANC OF AMERICA SECURITIES LLC
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------------------------
Authorized Signatory
For themselves and as Representatives of the other Initial Purchasers named in
Schedule A hereto.
