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Exhibit 1.1
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IASIS HEALTHCARE CORPORATION
(a Delaware corporation)
__________ Shares of Common Stock
U.S. PURCHASE AGREEMENT
Dated: _______________, 2001
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TABLE OF CONTENTS
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U.S. PURCHASE AGREEMENT...........................................................................................1
SECTION 1. Representations and Warranties............................................................4
(a) Representations and Warranties by the Company.....................................................4
(i) Compliance with Registration Requirements.................................................4
(ii) Independent Accountants...................................................................5
(iii) Financial Statements......................................................................5
(iv) No Material Adverse Change in Business....................................................6
(v) Good Standing of the Company..............................................................6
(vi) Good Standing of Subsidiaries.............................................................6
(vii) Capitalization............................................................................7
(viii) Authorization of Agreement...............................................................7
(ix) Authorization and Description of Securities...............................................7
(x) Absence of Defaults and Conflicts.........................................................8
(xi) Absence of Labor Dispute..................................................................9
(xii) Absence of Proceedings....................................................................9
(xiii) Exhibits.................................................................................9
(xiv) Possession of Intellectual Property.......................................................9
(xv) Absence of Further Requirements...........................................................9
(xvi) Possession of Licenses and Permits.......................................................10
(xvii) Accounts Receivable.....................................................................10
(xvii) Compliance with Social Security Act and Other Federal Enforcement Initiatives...........11
(xix) Regulatory Filing........................................................................12
(xx) Title to Property........................................................................12
(xxi) Investment Company.......................................................................12
(xxii) Environmental Laws......................................................................12
(xxiii) Registration Rights.....................................................................13
(xxiv) Insurance...............................................................................13
(xxv) Tax Return and Payment of Taxes.........................................................13
(xxvi) No Stabilization or Manipulation........................................................14
(xxvi) Related Party Transactions..............................................................14
(xxviii) Statistical and Market Data.............................................................14
(xxix) Accounting and Other Controls...........................................................14
(b) Officer's Certificates...........................................................................14
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing..........................................15
(a) Initial Securities...............................................................................15
(b) Option Securities................................................................................15
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(c) Payment..........................................................................................15
(d) Denominations; Registration......................................................................16
(e) Appointment of Qualified Independent Underwriter.................................................16
SECTION 3. Covenants of the Company.................................................................16
(a) Compliance with Securities Regulations and Commission Requests...................................16
(b) Filing of Amendments.............................................................................17
(c) Delivery of Registration Statements..............................................................17
(d) Delivery of Prospectuses.........................................................................17
(e) Continued Compliance with Securities Laws........................................................17
(f) Blue Sky Qualifications..........................................................................18
(g) Rule 158.........................................................................................18
(h) Use of Proceeds..................................................................................18
(i) Listing..........................................................................................18
(j) Restriction on Sale of Securities................................................................18
(k) Reporting Requirements...........................................................................19
(l) Compliance with NASD Rules.......................................................................19
(m) Compliance with Rule 463.........................................................................19
SECTION 4. Payment of Expenses......................................................................19
(a) Expenses.........................................................................................19
(b) Termination of Agreement.........................................................................20
SECTION 5. Conditions of U.S. Underwriters' Obligations.............................................20
(a) Effectiveness of Registration Statement..........................................................20
(b) Opinions of Counsel for Company..................................................................20
(c) Opinion of Counsel for U.S. Underwriters.........................................................21
(d) Officer's Certificate............................................................................21
(e) Accountant's Comfort Letters.....................................................................21
(f) Bring-down Comfort Letters.......................................................................22
(g) Approval of Listing..............................................................................22
(h) No Objection.....................................................................................22
(i) Lock-up Agreement................................................................................22
(j) Purchase of Initial International Securities.....................................................22
(k) Recapitalization.................................................................................22
(l) Conditions to Purchase of U.S. Option Securities.................................................22
(m) Additional Documents.............................................................................23
(n) Termination of Agreement.........................................................................23
SECTION 6. Indemnification..........................................................................23
(a) Indemnification of U.S. Underwriters.............................................................23
(b) Indemnification of Company, Directors and Officers...............................................25
(c) Actions Against Parties; Notification............................................................25
(d) Settlement without Consent if Failure to Reimburse...............................................26
(e) Indemnification for Reserved Securities..........................................................26
SECTION 7. Contribution.............................................................................27
SECTION 8. Representations, Warranties and Agreements to Survive Delivery...........................28
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SECTION 9. Termination Agreement....................................................................28
(a) Termination; General.............................................................................28
(b) Liabilities......................................................................................29
SECTION 10. Default by One or More of the U.S. Underwriters..........................................29
SECTION 11. Notices..................................................................................29
SECTION 12. Parties..................................................................................30
SECTION 13. Governing Law and Time...................................................................30
SECTION 14. Effect of Headings.......................................................................30
SCHEDULES
SCHEDULE A - LIST OF UNDERWRITERS.........................................................SCH A-1
SCHEDULE B - PRICING INFORMATION..........................................................SCH B-1
SCHEDULE C - LIST OF PERSONS SUBJECT TO LOCK-UP...........................................SCH C-1
EXHIBITS
EXHIBIT A-1 Form of Opinion of Skadden, Arps..........................................A-1
EXHIBIT A-2 Form of Opinion of ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇......................................A-2
EXHIBIT A-3 Form of Opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Green................................A-3
Exhibit B Form of Lock-up Letter....................................................B-1
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IASIS HEALTHCARE CORPORATION
(a Delaware corporation)
_________ Shares of Common Stock
(Par Value $0.01 Per Share)
U.S. PURCHASE AGREEMENT
, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Banc of America Securities LLC
CIBC World Markets Corp.
Deutsche Banc Alex. ▇▇▇▇▇ Inc.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇▇▇ & Company, Inc.
SunTrust Equitable Securities Corporation
as U.S. Representatives of the several U.S. Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
IASIS Healthcare Corporation, a Delaware corporation (the "Company"),
confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other U.S. Underwriters
named in Schedule A hereto (collectively, the "U.S. Underwriters," which term
shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., Banc of
America Securities LLC, CIBC World Markets Corp., Deutsche Banc Alex. ▇▇▇▇▇
Inc., ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇▇▇▇ & Company, Inc. and SunTrust Equitable
Securities Corporation are acting as representatives (in such capacity, the
"U.S. Representatives"), with respect to the issue and sale by the Company and
the purchase by the U.S. Underwriters, acting severally and not jointly, of the
respective numbers of shares of Common Stock, par value $0.01 per share, of the
Company ("Common Stock") set forth in said Schedule A, and with respect to the
grant by the Company to the U.S. Underwriters, acting severally and not jointly,
of the option
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described in Section 2(b) hereof to purchase all or any part of additional
shares of Common Stock to cover over-allotments, if any. The aforesaid shares
of Common Stock (the "Initial U.S. Securities") to be purchased by the U.S.
Underwriters and all or any part of the shares of Common Stock subject to the
option described in Section 2(b) hereof (the "U.S. Option Securities") are
hereinafter called, collectively, the "U.S. Securities."
It is understood that the Company is concurrently entering into an
agreement, dated the date hereof (the "International Purchase Agreement"),
providing for the offering by the Company of an aggregate of shares of Common
Stock (the "Initial International Securities") through arrangements with certain
underwriters outside the United States and Canada (the "International Managers")
for which ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, Bank of America International Limited,
CIBC World Markets plc, Deutsche Bank AG London, ▇▇▇▇▇▇ Brothers International
(Europe), ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ International Limited, ▇▇▇▇▇▇▇▇▇ International
Limited and SunTrust Equitable Securities Corporation are acting as lead
managers (the "Lead Managers") and the grant by the Company to the International
Managers, acting severally and not jointly, of an option to purchase all or any
part of the International Managers' pro rata portion of up to ____________
additional shares of Common Stock solely to cover overallotments, if any (the
"International Option Securities" and, together with the U.S. Option Securities,
the "Option Securities"). The Initial International Securities and the
International Option Securities are hereinafter called the "International
Securities." It is understood that the Company is not obligated to sell, and the
U.S. Underwriters are not obligated to purchase, any Initial U.S. Securities
unless all the Initial International Securities are contemporaneously purchased
by the International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters," the Initial U.S. Securities and the
Initial International Securities are hereinafter collectively called the
"Initial Securities," and the U.S. Securities and the International Securities
are hereinafter collectively called the "Securities."
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the Underwriters under the
direction of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated (in such capacity, the "Global Coordinator").
The Company understands that the U.S. Underwriters propose to make a
public offering of the U.S. Securities as soon as the U.S. Representatives deem
advisable after this Agreement has been executed and delivered.
The Company and the U.S. Underwriters agree that up to shares of the
Initial U.S. Securities to be purchased by the U.S. Underwriters and up to
shares of the Initial International Securities to be purchased by the
International Managers (collectively, the "Reserved Securities") shall be
reserved for sale by the Underwriters to certain eligible employees and persons
having business and other relationships with the Company ("Reserved Share
Invitees"), as part of the distribution of the Securities by the Underwriters,
subject to the terms of this Agreement, the applicable rules, regulations and
interpretations of the National Association of Securities Dealers, Inc. and all
other applicable laws, rules and regulations. To
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the extent that such Reserved Securities are not orally confirmed for purchase
by such Reserved Share Invitees by the end of the first business day after the
date of this Agreement, such Reserved Securities may be offered to the public as
part of the public offering contemplated hereby.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-54086) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations. Two forms of prospectus are to be used in connection
with the offering and sale of the Securities: one relating to the U.S.
Securities (the "Form of U.S. Prospectus") and one relating to the International
Securities (the "Form of International Prospectus"). The Form of International
Prospectus is identical to the Form of U.S. Prospectus, except for the front
cover and back cover pages and the information under the caption "Underwriting."
The information included in any such prospectus that was omitted from such
registration statement at the time it became effective but that is deemed to be
part of such registration statement at the time it became effective pursuant to
paragraph (b) of Rule 430A is referred to as "Rule 430A Information." Each Form
of U.S. Prospectus and Form of International Prospectus used before such
registration statement became effective, and any prospectus that omitted the
Rule 430A Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto and
schedules thereto at the time it became effective and including the Rule 430A
Information, is herein called the "Registration Statement." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final Form of U.S. Prospectus and the final Form of International
Prospectus in the forms first furnished to the Underwriters for use in
connection with the offering of the Securities are herein called the "U.S.
Prospectus" and the "International Prospectus," respectively, and collectively,
the "Prospectuses." For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the U.S. Prospectus, the
International Prospectus or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
Prior to the Closing Time, the Company (1) will have effected a
________-for-1 stock split of the Common Stock, (2) will have amended its
certificate of incorporation to, among other things, increase the number of
authorized shares of Common Stock and (3) will have entered into an agreement
and plan of reorganization with JLL Healthcare, LLC, in each case as described
in the Prospectuses (collectively, the "Recapitalization").
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SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each U.S. Underwriter as of the date hereof, as of
the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each U.S.
Underwriter, as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and, to the
knowledge of the Company, no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission, and
any request on the part of the Commission for additional information
from the Company or any of its attorneys or accountants has been
complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any U.S. Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments
and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and 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 not misleading, and
the Prospectuses, any preliminary prospectuses and any supplement
thereto or prospectus wrapper prepared in connection therewith, at
their respective times of issuance and at the Closing Time, complied
and will comply in all material respects with any applicable laws or
regulations of foreign jurisdictions in which the Prospectuses and such
preliminary prospectuses, as amended or supplemented, if applicable,
are distributed in connection with the offer and sale of Reserved
Securities. Neither of the Prospectuses nor any amendments or
supplements thereto (including any prospectus wrapper), at the time the
Prospectuses or any amendments or supplements thereto were issued and
at the Closing Time (and, if any U.S. Option Securities are purchased,
at the Date of Delivery), included or will include an untrue statement
of a material fact or omitted or will 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. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the U.S.
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any U.S. Underwriter through
▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration Statement or the
U.S. Prospectus.
Each preliminary prospectus and the prospectuses filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectuses
delivered to the Underwriters for use in connection with this offering
was identical to the
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electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(ii) Independent Accountants. The accountants who certified
the Company's financial statements and supporting schedules included in
the Registration Statement are independent public accountants with
respect to the Company as required by the 1933 Act and the 1933 Act
Regulations. To the knowledge of the Company, the accountants who
certified the ▇▇▇▇▇ Hospitals' financial statements and supporting
schedules included in the Registration Statements were independent
public accountants with respect to the ▇▇▇▇▇ Hospitals as required by
the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statements. The consolidated and combined
financial statements of the Company included in the Registration
Statement and the Prospectuses, together with the related schedules and
notes, present fairly, in all material respects, the consolidated and
combined financial position of the Company and its consolidated
subsidiaries at the dates indicated and the consolidated and combined
statement of operations, stockholders' equity (deficit) and cash flows
of the Company and its consolidated subsidiaries for the periods
specified; such financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved, except as set forth
in the notes to the financial statements. The supporting schedules, if
any, included in the Registration Statement present fairly, in all
material respects, in accordance with GAAP the information required to
be stated therein. To the knowledge of the Company, the combined
financial statements of the ▇▇▇▇▇ Hospitals included in the
Registration Statement and the Prospectuses present fairly, in all
material respects, the financial position of the ▇▇▇▇▇ Hospitals at the
dates indicated and the statements of income and changes in ownership
equity and cash flows of the ▇▇▇▇▇ Hospitals for the twelve months
ended May 31, 1999, 1998 and 1997 and the three months ended August 31,
1999 and 1998 and the combined statements of operations for the nine
and twelve months ended August 31, 1999 and the fifteen days ending
October 15, 1999; such financial statements and data have been prepared
in accordance with GAAP applied on a consistent basis throughout the
periods involved, except as set forth in the notes to the financial
statements. The selected financial data and the summary financial
information included in the Prospectuses present fairly, in all
material respects, the information shown therein and have been compiled
on a basis consistent with that of the audited financial statements
included in the Registration Statement. The pro forma financial
statements and the related notes thereto, and the other pro forma and
as adjusted information, included in the Registration Statement and the
Prospectuses present fairly, in all material respects, the information
shown therein, have been prepared in accordance with the Commission's
rules and guidelines with respect to pro forma financial statements and
have been properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein. To the knowledge of
the Company, the historical financial data of the Management Company
included in the pro forma financial statements included in the
Registration Statement present fairly, in all material respects, the
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information shown therein in accordance with GAAP applied on a
consistent basis throughout the periods involved. There are no
historical or pro forma financial statements of any entity which are
required by Regulation S-X to be included in the Registration Statement
and the Prospectuses which are not included as required.
(iv) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, 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 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, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries 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.
(v) 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 Prospectuses 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 to be so qualified or to
be in good standing would not result in a Material Adverse Effect.
(vi) Good Standing of Subsidiaries. Each subsidiary of the
Company (each a "Subsidiary" and, collectively, the "Subsidiaries") has
been duly organized or formed, as the case may be, and is validly
existing as a corporation, limited liability company or limited
partnership, as the case may be, in good standing under the laws of the
jurisdiction of its incorporation or formation, has all requisite
organizational power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectuses
and is duly qualified as a foreign corporation, limited liability
company or limited partnership, to transact business and is in good
standing in each 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 to be so qualified or to
be in good standing would not reasonably be expected to result in a
Material Adverse Effect; except as otherwise disclosed in Exhibit 21 to
the Registration Statement, all the issued and outstanding capital
stock, membership interests or partnership interests, as the case may
be, of each such Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity other
than the pledge of the shares of the Subsidiaries in connection with
the Company's existing credit facility as disclosed in the
Prospectuses; none of the outstanding shares of capital stock,
membership interests or limited partnership interests
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of any Subsidiary was issued in violation of the preemptive or similar
rights of any securityholder of such Subsidiary arising by operation of
law, under the organizational documents of such Subsidiary or under any
agreement to which such Subsidiary is a party or by which it is bound.
Except to the extent disclosed in the Registration Statement and the
Prospectuses, each of the hospitals described in the Prospectuses as
owned or leased by the Company is owned or leased and operated by a
Subsidiary of which the Company directly or indirectly owns 100% of the
outstanding ownership interests. Except as disclosed in the
Prospectuses, there are no encumbrances or restrictions on the ability
of any Subsidiary (i) to pay any dividends or make any distributions on
such Subsidiary's capital stock, (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.
(vii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectuses in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement and the
International Purchase Agreement, pursuant to reservations, agreements
or employee benefit plans referred to in the Prospectuses or pursuant
to the exercise of options referred to in the Prospectuses). 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;
all necessary action has been taken by the board of directors and
securityholders of the Company with respect to the authorization and
issuance of all outstanding shares of the Company's capital stock; 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 arising by operation of law, under the
charter or bylaws of the Company or under any agreement to which the
Company is a party or by which it is bound. Except as disclosed in the
Prospectuses, there are no outstanding options or warrants to purchase,
or any preemptive rights or other rights to subscribe for or to
purchase, any securities or obligations convertible into, or any
contracts or commitments to issue or sell, shares of the Company's
capital stock or any such options, warrants, rights, convertible
securities or obligations. The description of the Company's stock
option and purchase plans and the options or other rights granted and
exercised thereunder set forth in the Prospectuses accurately and
fairly describe, in all material respects, the information required to
be shown with respect to such plans, arrangements, options and rights.
(viii) Authorization of Agreement. This Agreement and the
International Purchase Agreement have been duly authorized, executed
and delivered by the Company.
(ix) Authorization and Description of Securities. The
Securities to be purchased by the U.S. Underwriters and the
International Managers from the Company have been duly authorized for
issuance and sale to the U.S. Underwriters pursuant to this Agreement
and the International Managers pursuant to the International Purchase
Agreement, respectively, and, when issued and delivered by the Company
pursuant to this Agreement and the International Purchase Agreement,
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respectively, against payment of the consideration set forth herein and
the International Purchase Agreement, respectively, will be validly
issued, fully paid and non-assessable; the Common Stock conforms to the
description under "Description of Our Capital Stock" contained in the
Prospectuses and such description conforms to the rights set forth in
the Company's Amended and Restated Certificate of Incorporation and
Amended and Restated By-Laws; no holder of the Securities will be
subject to personal liability by reason of being such a holder; and the
issuance of the Securities is not subject to the preemptive or other
similar rights of any securityholder of the Company arising by
operation of law, under the charter or bylaws of the Company or under
any agreement to which the Company is a party or by which it is bound.
The consummation of the Recapitalization has been duly authorized by
the Company's board of directors and securityholders, and no other
corporate proceedings on the part of the Company are needed to
authorize the Recapitalization. The issuance of shares of Common Stock
in connection with the Agreement and Plan of Reorganization, dated as
of February ___, 2001, between the Company and JLL Healthcare, LLC,
does not need to be registered under the Securities Act and will not be
"integrated" with the issuance of the U.S. Securities or the
International Securities.
(x) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws (or,
with respect to limited partnerships or limited liability companies,
its partnership agreements or operating agreements) 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 violations
or defaults that would not reasonably be expected to result in a
Material Adverse Effect; and the execution, delivery and performance of
this Agreement and the International Purchase Agreement and the
consummation of the transactions contemplated in this Agreement, the
International Purchase Agreement and in the Registration Statement
(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the
Prospectuses under the caption "Use of Proceeds" and the completion of
the Recapitalization) and compliance by the Company with its
obligations under this Agreement and the International Purchase
Agreement have been duly authorized by all necessary corporate action
and, after giving effect to the use of proceeds as contemplated in the
Prospectuses under the caption "Use of Proceeds," 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 subsidiary pursuant to, the Agreements and Instruments
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not reasonably be expected to result in a
Material Adverse Effect), nor will such action result in any violation
of the provisions of the charter 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
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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.
(xi) Absence of Labor Disputes. No labor dispute with the
employees of the Company or any subsidiary or physicians on the medical
staffs of any of their hospitals exists or, to the knowledge of the
Company, is imminent.
(xii) Absence of Proceedings. 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 (other
than any sealed "qui tam" actions or any similar actions of which the
Company has no knowledge), or, to the knowledge of the Company,
threatened, against or affecting the Company or any subsidiary, which
is required to be disclosed in the Registration Statement (other than
as disclosed therein), or which would reasonably be expected to result
in a Material Adverse Effect, or which would reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement and the
International Purchase Agreement or the performance by the Company of
its obligations hereunder or thereunder; the aggregate of all 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 Registration
Statement, including ordinary routine litigation incidental to the
business, would not reasonably be expected to result in a Material
Adverse Effect.
(xiii) Exhibits. There are no contracts or documents which are
required to be filed as exhibits to the Registration Statement which
have not been filed as required.
(xiv) 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 conduct its business as now being conducted and as described in the
Prospectuses, 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 subsidiaries therein, except for
such infringements or conflicts (if the subject of any unfavorable
decision, ruling or finding) or invalidities or inadequacies which
would not, singly or in the aggregate, reasonably be expected to result
in a Material Adverse Effect.
(xv) 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
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Company of its obligations hereunder, in connection with the offering,
issuance or sale of the Securities under this Agreement and the
International Purchase Agreement, the consummation of the
Recapitalization or the consummation of the transactions contemplated
by this Agreement and the International Purchase Agreement, except (i)
such as have been already obtained under the 1933 Act or the 1933 Act
Regulations or as may be required under foreign or state securities or
blue sky laws and (ii) such as have been obtained under the laws and
regulations of jurisdictions (if any) outside the United States in
which the Reserved Securities are offered.
(xvi) Possession of Licenses and Permits. The Company and its
Subsidiaries possess such permits, licenses, provider numbers,
certificates, approvals (including, without limitation, certificate of
need approvals), consents, orders, certifications (including, without
limitation, certification under the Medicare and Medicaid programs),
accreditations (including, without limitation, accreditation by the
Joint Commission on Accreditation of Healthcare Organizations) and
other authorizations (collectively, "Governmental Licenses") issued by,
and have made all declarations and filings with, the appropriate
federal, state, local or foreign regulatory agencies or bodies
necessary to conduct its business as now being conducted and as
described in the Prospectuses (including, without limitation,
Governmental Licenses 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 of its subsidiaries that participate in the Medicare and/or
Medicaid programs, to receive reimbursement thereunder), except where
the failure to possess such Government Licenses or to make such
declarations and filings would not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect would not
reasonably be expected to result in a Material Adverse Effect; and
neither the Company nor any of its subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would reasonably be
expected to result in a Material Adverse Effect. All of the hospitals
operated by the Company and its subsidiaries are "providers of
services" as defined in the Social Security Act and the regulations
promulgated thereunder and are eligible to participate in the Medicare
and Medicaid programs.
(xvii) Accounts Receivable. The accounts receivable of the
Company and its Subsidiaries, as reflected in its Company's Condensed
and Consolidated Balance Sheet as of December 31, 2000 (the "Balance
Sheet"), relating to Medicare, Medicaid, private insurance companies,
health maintenance organizations, preferred provider organizations,
managed care organizations and other third party payors are valid and
existing, and represent monies due for services performed and for goods
sold or delivered. The
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Company believes that the accounts receivable amount reflected on the
Balance Sheet, net of discounts, write-offs, contractual adjustments
and allowances for doubtful accounts, is recorded in accordance with
GAAP. The preparation of the Company's financial statements, including
the establishment of contractual adjustments and allowance for doubtful
accounts, requires management to make estimates and assumptions. Under
reimbursement agreements or arrangements with some payors, payments are
subject to retroactive adjustments. The Company records retroactive
adjustment on an estimated basis in the period the related services are
rendered and are adjusted in future periods, if necessary, when final
settlements are determined.
(xviii) Compliance with Social Security Act and Other Federal
Enforcement Initiatives. None of the Company or its Subsidiaries has
engaged in, nor, to the knowledge of the Company or its Subsidiaries,
have any officers, directors, stockholders, employees or other agents
of the Company or its Subsidiaries (during the course of their
employment with the Company or as an agent of the Company) or the
hospitals operated by them engaged in, any activities which are
prohibited under Federal Medicare and Medicaid statutes including, but
not limited to, 42 U.S.C. Sections 1320a-7 (Program Exclusion),
l320a-7a (Civil Monetary Penalties), 1320a-7b (the Anti-kickback
Statute), 42 U.S.C. Section 1395nn and 1396b (the "▇▇▇▇▇" law,
prohibiting certain self-referrals), or any other federal law generally
applicable to companies operating in the healthcare industry,
including, but not limited to, the Federal TRICARE statute, 10 U.S.C.
Section 1071 et seq., the Federal Civil False Claims Act, 31 U.S.C.
Sections 3729-32, Federal Criminal False Claims Act, 18 U.S.C.
Section 287, False Statements Relating to Health Care Matters, 18
U.S.C. Section 1035, Health Care Fraud, 18 U.S.C. Section 1347, or the
Federal Food, Drug & Cosmetics Act, 21 U.S.C. Section 360aaa, or any
regulations promulgated in final form pursuant to such statutes, or
related state or local statutes or regulations or any rules of
professional conduct, including but not limited to the following: (i)
knowingly and willfully making or causing to be made a false statement
or representation of a material fact in any applications for any
benefit or payment under the Medicare or Medicaid program or from any
third party (where applicable federal or state law prohibits such
payments to third parties); (ii) knowingly and willfully making or
causing to be made any false statement or representation of a material
fact for use in determining rights to any benefit or payment under the
Medicare or Medicaid program or from any third party (where applicable
federal or state law prohibits such payments to third parties); (iii)
failing to disclose knowledge by a claimant of the occurrence of any
event affecting the initial or continued right to any benefit or
payment under the Medicare or Medicaid program or from any third party
(where applicable federal or state law prohibits such payments to third
parties) on its own behalf or on behalf of another, with intent to
secure such benefit or payment fraudulently; (iv) knowingly and
willfully offering, paying, soliciting or receiving any remuneration
(including any kickback, bribe or rebate), directly or indirectly,
overtly or covertly, in cash or in kind (a) in return for referring an
individual to a person for the furnishing or arranging for the
furnishing of any item or service for which payment may be made in
whole or in part by Medicare or Medicaid or any third party (where
applicable federal or state law prohibits such payments to third
parties), or (b) in return for purchasing, leasing or ordering or
arranging for or recommending the purchasing, leasing
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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); and (v) knowingly and willfully referring an individual
to a person with which they have ownership or certain other financial
arrangements (where applicable federal law prohibits such referrals),
except for any such activities which are specifically described in the
Prospectus or which would not, singly or in the aggregate, reasonably
be expected to result in a Material Adverse Effect.
(xix) Regulatory Filing. None of the Company or any of its
Subsidiaries or, to the knowledge of the Company and its Subsidiaries,
any of the hospitals operated by any of them 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 file would not, singly or in the aggregate, reasonably
be expected to result in a Material Adverse Effect. All such filings or
submissions were in compliance with applicable laws when filed and no
deficiencies have been asserted by any regulatory commission, agency or
authority with respect to any such filings or submissions, except for
any such failures to be in compliance or deficiencies which would not,
singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
(xx) 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 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 Prospectuses or (b) do not, singly or in
the aggregate, affect the value of such property or interfere with the
use made or proposed to be made of such property by the Company or any
of its subsidiaries in a manner that would reasonably be expected to
result in a Material Adverse Effect, 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 Prospectuses, are in
full force and effect, and neither the Company nor any subsidiary has
any notice of any 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,
except where the failure to be in full force and effect or such claim
would not reasonably be expected to have a Material Adverse Effect.
(xxi) Investment Company Act. The Company is not and after
giving effect to the offering and sale of the Securities and the
application of the net proceeds therefrom as described in the
Prospectuses 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.
(xxii) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is in
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violation of any federal, state, or local 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) to the knowledge of the Company, 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 would 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.
(xxiii) Registration Rights. There are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or, except as
disclosed in the Registration Statement, otherwise registered by the
Company under the 1933 Act.
(xxiv) Insurance. The Company and its Subsidiaries are insured
by insurers of recognized financial responsibility against such losses
and risks and in such amounts as the Company believes to be prudent and
customary in the healthcare industry; neither the Company nor any of
its Subsidiaries has been refused any material insurance coverage
sought or applied for since September 30, 2000; and neither the Company
nor any of its Subsidiaries has any reason to believe that it will not
be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as
may be necessary to continue its operations except where the failure to
renew or maintain such coverage would not reasonably be expected to
result in a Material Adverse Effect.
(xxv) Tax Return and Payment of Taxes. The Company and its
Subsidiaries have timely filed all federal, state, local and foreign
tax returns that are required to be filed or have duly requested
extensions thereof and all such tax returns are true, correct and
complete, except to the extent that any failure to file or request an
extension, or any incorrectness would not reasonably be expected to
result in a Material Adverse Effect. The Company and its Subsidiaries
have timely paid all taxes shown as due on such filed tax returns
(including any related assessments, fines or penalties), except to the
extent that any such taxes are being contested in good faith and by
appropriate proceedings, or to the extent that any failure to pay would
not reasonably be expected to result in a
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Material Adverse Effect; and adequate charges, accruals and reserves
have been provided for in the financial statements referred to in
Section 1(a)(iii) above in accordance with GAAP in respect of all
Federal, state, local and foreign taxes for all periods as to which the
tax liability of the Company and its Subsidiaries has not been finally
determined or remains open to examination by applicable taxing
authorities except (A) for taxes incurred after the date of the
financial statements referred to in Section 1(a)(iii) or (B) where the
failure to provide for such charges, accruals and reserves would not
reasonably be expected to result in a Material Adverse Effect. The
Company is not a "United States real property holding corporation"
within the meaning of Section 897(c)(2) of the Internal Revenue Code of
1986, as amended (the "Code").
(xxvi) No Stabilization or Manipulation. None of the Company
or any of its Subsidiaries or, to the best of their knowledge, any of
their directors, officers or affiliates has taken or will take,
directly or indirectly, any action designed to, or that could be
reasonably expected to, cause or result in stabilization or
manipulation of the price of the Securities in violation of Regulation
M under the Securities Exchange Act of 1934, as amended (the "1934
Act").
(xxvii) Related Party Transactions. Except as disclosed in the
Prospectuses, there are no transactions among the Company or any of its
Subsidiaries, on the one hand, and any of the Company's executive
officers, directors or 5% shareholders, or any of the members of the
families of or entities related to any of them, on the other hand, that
would be required to be so disclosed under the 1933 Act, the 1933 Act
Regulations or Form S-1.
(xxviii) Statistical and Market Data. The statistical and
market-related data included in the Prospectuses are derived from
sources which the Company reasonably and in good faith believes to be
accurate, reasonable and reliable in all material respects and the
statistical and market-related data included in the Prospectuses agrees
with the sources from which it was derived in all material respects.
(xxix) Accounting and Other Controls. The Company has
established a system of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions were, are and will
be executed in accordance with management's general or specific
authorization; (ii) transactions were, are and will be recorded as
necessary to permit preparation of financial statements in conformity
with GAAP and to maintain accountability for assets: (iii) access to
assets was, is and will be permitted only in accordance with a
management's general or specific authorizations; and (iv) the recorded
accountability for assets was, is and will be compared with existing
assets at reasonable intervals and appropriate action was, is and will
be taken with respect to any differences.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its Subsidiaries delivered to the Global Coordinator, the
U.S. Representatives or to counsel for the U.S. Underwriters shall be deemed a
representation and warranty by the Company to each U.S. Underwriter as to the
matters covered thereby.
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SECTION 2. Sale and Delivery to U.S. Underwriters; Closing.
(a) Initial Securities. 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 U.S. Underwriter, severally and not
jointly, and each U.S. Underwriter, severally and not jointly, agrees to
purchase from the Company, at the price per share set forth in Schedule B, the
number of Initial U.S. Securities set forth in Schedule A opposite the name of
such U.S. Underwriter, plus any additional number of Initial U.S. Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the U.S. Underwriters,
severally and not jointly, to purchase up to an additional _____ shares of
Common Stock at the price per share set forth in Schedule B, less an amount per
share equal to any dividends or distributions declared by the Company and
payable on the Initial U.S. Securities but not payable on the U.S. Option
Securities. The option hereby granted will expire 30 days after the date hereof
and may be exercised in whole or in part on one or more occasions from time to
time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial U.S. Securities
upon notice by the Global Coordinator to the Company setting forth the number of
U.S. Option Securities as to which the several U.S. Underwriters are then
exercising the option and the time and date of payment and delivery for such
U.S. Option Securities. Any such time and date of delivery for the U.S. Option
Securities (a "Date of Delivery") shall be determined by the Global Coordinator,
but shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter defined. If
the option is exercised as to all or any portion of the U.S. Option Securities,
each of the U.S. Underwriters, acting severally and not jointly, will purchase
that proportion of the total number of U.S. Option Securities then being
purchased which the number of Initial U.S. Securities set forth in Schedule A
opposite the name of such U.S. Underwriter bears to the total number of Initial
U.S. Securities, subject in each case to such adjustments as the Global
Coordinator in its discretion shall make to eliminate any sales or purchases of
fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Fried,
Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
or at such other place as shall be agreed upon by the Global Coordinator and the
Company, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs
after 4:30 P.M. (Eastern time) on any given day) business day after the date
hereof (unless postponed in accordance with the provisions of Section 10), or
such other time not later than ten business days after such date as shall be
agreed upon by the Global Coordinator and the Company (such time and date of
payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the U.S. Option Securities
are purchased by the U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Global Coordinator and the Company, on each Date of Delivery as specified in the
notice from the Global Coordinator to the Company.
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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 U.S. Representatives for the respective accounts of the U.S. Underwriters of
certificates for the U.S. Securities to be purchased by them. It is understood
that each U.S. Underwriter has authorized the U.S. Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial U.S. Securities and the U.S. Option Securities, if any,
which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as
representative of the U.S. Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Initial U.S. Securities or the U.S.
Option Securities, if any, to be purchased by any U.S. Underwriter whose funds
have not been received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such U.S. Underwriter from
its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial U.S.
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Representatives may
request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
U.S. Securities and the U.S. Option Securities, if any, will be made available
for examination and packaging by the U.S. Representatives in The City of New
York not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
(e) Appointment of Qualified Independent Underwriter. The Company
hereby confirms its engagement of ▇▇▇▇▇▇▇ ▇▇▇▇▇ as, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ hereby
confirms its agreement with the Company to render services as, a "qualified
independent underwriter" within the meaning of Rule 2720 of the Conduct Rules of
the National Association of Securities Dealers, Inc. with respect to the
offering and sale of the U.S. Securities. ▇▇▇▇▇▇▇ ▇▇▇▇▇, solely in its capacity
as qualified independent underwriter and not otherwise, is referred to herein as
the "Independent Underwriter."
SECTION 3. Covenants of the Company. The Company covenants with each
U.S. Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A and will notify the Global Coordinator
immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectuses or any amended
Prospectuses shall have been filed, (ii) of the receipt of any comments
from the Commission regarding the Registration Statement or the
Prospectuses or the offering of the Securities, (iii) of any request by
the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectuses or for additional
information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings
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for any of such purposes. The Company will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file
such prospectus. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global
Coordinator notice of its intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b)) or
any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectuses, will furnish the Global Coordinator with copies of any
such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such
document to which the Global Coordinator or counsel for the U.S.
Underwriters shall object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the U.S. Representatives and counsel for
the U.S. Underwriters, without charge, one copy of the manually signed
and as many conformed copies as the U.S. Underwriters may reasonably
request, of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated
by reference therein) and signed copies of all consents and
certificates of experts. The copies of the Registration Statement and
each amendment thereto furnished to the U.S. Underwriters will be
identical in text to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to
each U.S. Underwriter, without charge, as many copies of each
preliminary prospectus as such U.S. Underwriter reasonably requested,
and the Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to each U.S.
Underwriter, without charge, during the period when the U.S. Prospectus
is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the U.S. Prospectus (as amended or supplemented) as
such U.S. Underwriter may reasonably request. The U.S. Prospectus and
any amendments or supplements thereto furnished to the U.S.
Underwriters will be identical in text to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations so as to
permit the completion of the distribution of the Securities as
contemplated in this Agreement, the International Purchase Agreement
and in the Prospectuses. If at any time when a prospectus is required
by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result
of which it is necessary, in the opinion of counsel for the U.S.
Underwriters or for the Company, to amend the
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Registration Statement or amend or supplement any Prospectus in order
that the Prospectuses will not include any untrue statements 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 existing at the time it is delivered to a purchaser, or
if it shall be necessary, in the opinion of such counsel, at any such
time to amend the Registration Statement or amend or supplement any
Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or
to make the Registration Statement or the Prospectuses comply with such
requirements, and the Company will furnish to the U.S. Underwriters
such number of copies of such amendment or supplement as the U.S.
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the U.S. Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions (domestic or foreign) as the
Global Coordinator may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement; 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. In each jurisdiction in which the
Securities have been so qualified, the Company will file such
statements and reports as may be required by the laws of such
jurisdiction to continue such qualification of the Securities in effect
for a period as required by the relevant jurisdiction of the
Registration Statement and any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified
in the Prospectuses under "Use of Proceeds."
(i) Listing. The Company will use its best efforts to effect
the listing of the Common Stock (including the Securities) on the New
York Stock Exchange.
(j) Restriction on Sale of Securities. During a period of 180
days from the date of the Prospectuses, the Company will not, without
the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, (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
share of Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock or file
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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 the 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 Securities to be sold hereunder or under the
International Purchase Agreement, (B) any shares of Common Stock issued
by the Company upon the exercise of an option outstanding on the date
hereof and referred to in the Prospectuses, or (C) any shares of Common
Stock issued or options to purchase Common Stock granted pursuant to
existing employee benefit plans of the Company referred to in the
Prospectuses.
(k) Reporting Requirements. The Company, during the period
when the Prospectuses are required to be delivered under the 1933 Act
or the 1934 Act, 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 rules and regulations of the Commission
thereunder.
(l) Compliance with NASD Rules. The Company hereby agrees that
it will ensure that the Reserved Securities will be restricted as
required by the National Association of Securities Dealers, Inc. (the
"NASD") or the NASD rules from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of this
Agreement. The Underwriters will notify the Company as to which persons
will need to be so restricted. At the request of the Underwriters, the
Company will direct the transfer agent to place a stop transfer
restriction upon such securities for such period of time. Should the
Company release, or seek to release, from such restrictions any of the
Reserved Securities, the Company agrees to reimburse the Underwriters
for any reasonable expenses (including, without limitation, legal
expenses) they incur in connection with such release.
(m) Compliance with Rule 463. The Company will comply with the
requirements of Rule 463 of the 1933 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,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters and the
transfer of the Securities between the U.S. Underwriters and the International
Managers, (iv) the fees and disbursements of the Company's counsel, accountants
and other advisors, (v) the qualification of the Securities under securities
laws in accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters
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in connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, and of the Prospectuses
and any amendments or supplements thereto, (vii) the preparation, printing and
delivery to the Underwriters of copies of the Blue Sky Survey and any supplement
thereto, (viii) the fees and expenses of the transfer agent and registrar for
the Securities, (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review by
the NASD of the terms of the sale of the Securities, (x) the fees and expenses
incurred in connection with the listing of the Securities on the New York Stock
Exchange, (xi) all costs and expenses of the Underwriters, including the fees
and disbursements of counsel for the Underwriters, in connection with matters
related to the Reserved Securities which are designated by the Company for sale
to Reserved Share Invitees and (xii) the expenses of the Independent
Underwriter.
(b) Termination of Agreement. If this Agreement is terminated by the
U.S. Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the U.S. Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the U.S. Underwriters.
SECTION 5. Conditions of U.S. Underwriters' Obligations. The
obligations of the several U.S. Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company 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) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the U.S. Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the
Commission in accordance with Rule 424(b) (or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A).
(b) Opinions of Counsel for Company. At Closing Time, the U.S.
Representatives shall have received the favorable opinions, dated as of
Closing Time, of each of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC and ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Green, P.C., counsel for
the Company, in form and substance satisfactory to counsel for the U.S.
Underwriters, together with signed or reproduced copies of such letter
for each of the other U.S. Underwriters to the effect set forth in
Exhibits ▇-▇, ▇-▇ and A-3 hereto and to such further effect as counsel
to the U.S. Underwriters may reasonably request.
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(c) Opinion of Counsel for U.S. Underwriters. At Closing Time,
the U.S. Representatives shall have received the favorable opinion,
dated as of Closing Time, of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the U.S. Underwriters, together with signed or reproduced
copies of such letter for each of the other U.S. Underwriters with
respect to the matters set forth in clauses (i), (ii), (v), (vi)
(solely as to preemptive or other similar rights arising by operation
of law or under the charter or by-laws of the Company), (viii) through
(x), inclusive, (xii), (xiv) (solely as to the information in the
Prospectus under "Description of Our Capital Stock--Common Stock") and
the penultimate paragraph of Exhibit A hereto. 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 U.S.
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 its
subsidiaries and certificates of public officials.
(d) Officers' Certificates.
(i) At Closing Time, there shall not have been, since
the date hereof or since the respective dates as of which information
is given in the Prospectuses, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business, and the U.S. Representatives shall have received a
certificate of the Chief Executive Officer of the Company and of the
chief financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1(a)
hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement
has been issued and, to the knowledge of such persons, no proceedings
for that purpose have been instituted or are pending or are
contemplated by the Commission.
(ii) At Closing Time, the U.S. Representatives shall
have received a certificate of an officer of the Company with respect
to certain financial matters.
(e) Accountant's Comfort Letters. At the time of the execution
of this Agreement, the U.S. Representatives shall have received from
each of Ernst & Young LLP and KPMG LLP a letter dated such date, in
form and substance reasonably satisfactory to the U.S. Representatives,
together with signed or reproduced copies of such letter for each of
the other U.S. Underwriters containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectuses.
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(f) Bring-down Comfort Letters. At Closing Time, the
Representatives shall have received from each of Ernst & Young LLP and
KPMG LLP a letter, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letters furnished pursuant to
subsection (e) of this Section, except that the specified date referred
to shall be a date not more than three business days prior to Closing
Time.
(g) Approval of Listing. At Closing Time, the Securities shall
have been approved for listing on the New York Stock Exchange, subject
only to official notice of issuance.
(h) No Objection. The NASD has confirmed that it has not
raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements with respect to the offering.
(i) Lock-up Agreements. At the date of this Agreement, the
U.S. Representatives shall have received an agreement substantially in
the form of Exhibit B hereto signed by the persons listed on Schedule C
hereto.
(j) Purchase of Initial International Securities.
Contemporaneously with the purchase by the U.S. Underwriters of the
Initial U.S. Securities under this Agreement, the International
Managers shall have purchased the Initial International Securities
under the International Purchase Agreement.
(k) Recapitalization. Prior to the purchase of the Securities
by the Underwriters, the Recapitalization shall have been consummated.
(l) Conditions to Purchase of U.S. Option Securities. In the
event that the U.S. Underwriters exercise their option provided in
Section 2(b) hereof to purchase all or any portion of the U.S. Option
Securities, the representations and warranties of the Company contained
herein and the statements in any certificates furnished by the Company
or any subsidiary of the Company hereunder shall be true and correct as
of each Date of Delivery and, at the relevant Date of Delivery, the
U.S. Representatives shall have received:
(i) Officers' Certificate. A certificate, dated such Date
of Delivery, of the Chief Executive Officer of the
Company and of the chief financial or chief
accounting officer of the Company confirming that the
certificate delivered at the Closing Time pursuant to
Section 5(d) hereof remains true and correct as of
such Date of Delivery.
(ii) Opinions of Counsel for the Company. The favorable
opinions of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC and ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Green
P.C., counsel for the Company, each in form and
substance satisfactory to counsel for the U.S.
Underwriters, dated such Date of Delivery, relating
to the U.S. Option Securities to be purchased on
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such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(b)
hereof.
(iii) Opinion of Counsel for U.S. Underwriters. The
favorable opinion of Fried, Frank, Harris, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the U.S. Underwriters, dated
such Date of Delivery, relating to the U.S. Option
Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(iv) Bring-down Comfort Letters. A letter from each of
Ernst & Young LLP and KPMG LLP in form and substance
satisfactory to the U.S. Representatives and dated
such Date of Delivery, substantially in the same form
and substance as the letter furnished to the U.S.
Representatives pursuant to Section 5(f) hereof,
except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date
not more than five days prior to such Date of
Delivery.
(m) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the U.S. Underwriters 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
Securities 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 Securities as
herein contemplated shall be satisfactory in form and substance to the
U.S. Representatives and counsel for the U.S. Underwriters.
(n) Termination of Agreement. If any condition specified in
this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of U.S. Option Securities on a Date of Delivery which is after
the Closing Time, the obligations of the several U.S. Underwriters to
purchase the relevant Option Securities, may be terminated by the U.S.
Representatives by notice to the Company at any time at or prior to
Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of U.S. Underwriters. (1) The Company agrees to
indemnify and hold harmless each U.S. Underwriter and each person, if any, who
controls any U.S. Underwriter 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
Registration Statement (or any amendment thereto), including the Rule
430A Information or the omission or alleged omission therefrom of a
material fact
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required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectuses (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material
fact necessary in 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, arising out of (A) the violation of
any applicable laws or regulations of foreign jurisdictions where
Reserved Securities have been offered and (B) any untrue statement or
alleged untrue statement of a material fact included in the supplement
or prospectus wrapper material distributed in any jurisdiction outside
the United States in connection with the reservation and sale of the
Reserved Securities to Reserved Share Invitees or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein, when considered in conjunction with the
Prospectuses or preliminary prospectuses, not misleading;
(iii) 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 or in
connection with any violation of the nature referred to in Section
6(a)(1)(ii)(A) hereof; provided that (subject to Section 6(d) below)
any such settlement is effected with the written consent of the
Company; and
(iv) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇
▇▇▇▇▇), 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 or in connection with any
violation of the nature referred to in Section 6(a)(1)(ii)(A) hereof,
to the extent that any such expense is not paid under (i), (ii) or
(iii) 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
U.S. Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information or any
preliminary prospectus or the U.S. Prospectus (or any amendment or supplement
thereto); and provided, further, that the Company will not be liable to any U.S.
Underwriter with respect to any such untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary prospectus to
the extent that the Company shall sustain the burden of proving that any such
loss, liability, claim, damage or expense resulted from the fact that the U.S.
Underwriter sold U.S. Securities to a person to whom such U.S. Underwriter
failed to send or
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give, at or prior to the written confirmation of the sale of such U.S.
Securities, a copy of the U.S. Prospectus (as amended or supplemented) if the
Company has previously furnished copies thereof to the U.S. Underwriter
(sufficiently in advance of the Closing Time to allow for distribution of the
U.S. Prospectus in a timely manner) and complied with its obligations under
Sections 3(b), 3(c) and 3(d) hereof and the loss, liability, claim, damage or
expense of the Underwriter resulted from an untrue statement or omission or
alleged untrue statement or omission of a material fact contained in or omitted
from such preliminary prospectus (as amended or supplemented) which was
corrected in the U.S. Prospectus (as amended or supplemented).
(2) In addition to and without limitation of the Company's
obligation to indemnify ▇▇▇▇▇▇▇ ▇▇▇▇▇ as an Underwriter, the Company also agrees
to indemnify and hold harmless the Independent Underwriter and each person, if
any, who controls the Independent Underwriter within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, from and against any and all
loss, liability, claim, damage and expense whatsoever, as incurred, incurred as
a result of the Independent Underwriter's participation as a "qualified
independent underwriter" within the meaning of Rule 2720 of the Conduct Rules of
the National Association of Securities Dealers, Inc. in connection with the
offering of the U.S. Securities.
(b) Indemnification of Company, Directors and Officers. Each U.S.
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, 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)(1) of this Section, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information or any preliminary U.S. prospectus or the U.S. Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such U.S. Underwriter through ▇▇▇▇▇▇▇
▇▇▇▇▇ expressly for use in the Registration Statement (or any amendment thereto)
or such preliminary prospectus or the U.S. Prospectus (or any amendment or
supplement thereto).
(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 6(a)(1) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in
the case of parties indemnified pursuant to Section 6(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 indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any
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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;
provided, that, if indemnity is sought pursuant to Section 6(a)(2), then, in
addition to the fees and expenses of such counsel for the indemnified parties,
the indemnifying party shall be liable for the reasonable fees and expenses of
not more than one counsel (in addition to any local counsel) separate from its
own counsel and that of the other indemnified parties for the Independent
Underwriter in its capacity as a "qualified independent underwriter" and all
persons, if any, who control the Independent Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act 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 if, in the
reasonable judgment of the Independent Underwriter, there may exist a conflict
of interest between the Independent Underwriter and the other indemnified
parties. Any such separate counsel for the Independent Underwriter and such
control persons of the Independent Underwriter shall be designated in writing by
the Independent Underwriter. 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 6 or Section 7 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 6(a)(1)(iii) 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.
(e) Indemnification for Reserved Securities. In connection with the
offer and sale of the Reserved Securities, the Company agrees, promptly upon a
request in writing, to indemnify and hold harmless the Underwriters from and
against any and all losses, liabilities, claims, damages and expenses incurred
by them as a result of the failure of Reserved Share Invitees to pay for and
accept delivery of Reserved Securities which, by the end of the first business
day following the date of this Agreement, were subject to a properly confirmed
agreement to purchase.
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SECTION 7. Contribution. If the indemnification provided for in Section
6 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 U.S. Underwriters on the other hand from the offering of the
Securities 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 U.S.
Underwriters on the other hand in connection with the statements or omissions,
or in connection with any violation of the nature referred to in Section
6(a)(1)(ii)(A) hereof, 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
U.S. Underwriters on the other hand in connection with the offering of the U.S.
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the U.S.
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the U.S.
Underwriters, in each case as set forth on the cover of the U.S. Prospectus bear
to the aggregate initial public offering price of the U.S. Securities as set
forth on such cover.
The relative fault of the Company on the one hand and the U.S.
Underwriters 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 relates to information
supplied by the Company or by the U.S. Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission or any violation of the nature referred to in Section
6(a)(1)(ii)(A) hereof.
The Company and the U.S. Underwriters agree that ▇▇▇▇▇▇▇ ▇▇▇▇▇ will not
receive any additional benefits hereunder for serving as the Independent
Underwriter in connection with the offering and sale of the U.S. Securities.
The Company and the U.S. Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the U.S. Underwriters 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 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 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 7, no U.S. Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the U.S.
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Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such U.S. Underwriter has
otherwise been required to pay by reason of any 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a
U.S. Underwriter 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 U.S.
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, 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 U.S.
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial U.S. Securities set forth
opposite their respective names in Schedule A hereto and not joint.
SECTION 8. 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 its
subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any U.S.
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the U.S. Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The U.S. Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (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 U.S. Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
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 or the international
financial markets, 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 U.S.
Representatives, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, 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 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 NASD or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities.
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(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, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the U.S. Underwriters. If one or
more of the U.S. Underwriters shall fail at Closing Time or a Date of Delivery
to purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the U.S. Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting U.S. Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the U.S.
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the number of U.S. Securities to be purchased on such date, each of
the non-defaulting U.S. Underwriters 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 U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of U.S. Securities to be purchased on such date, this Agreement
or, with respect to any Date of Delivery which occurs after the Closing
Time, the obligation of the U.S. Underwriters to purchase and of the
Company to sell the Option Securities to be purchased and sold on such
Date of Delivery shall terminate without liability on the part of any
non-defaulting U.S. Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting U.S. Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
U.S. Underwriters to purchase and the Company to sell the relevant U.S. Option
Securities, as the case may be, either the U.S. Representatives or the Company
shall have the right to postpone the Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "U.S. Underwriter"
includes any person substituted for a U.S. Underwriter under this Section 10.
SECTION 11. 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 U.S.
Underwriters shall be directed to the U.S. Representatives at North Tower, World
Financial Center, New York, New York 10281-1201, attention of ▇▇▇▇▇ ▇▇▇▇▇▇; and
notices to the Company shall be directed to it at 113 Seaboard
▇▇
▇▇
▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇,
General Counsel and Secretary.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
and be binding upon the U.S. Underwriters and 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 U.S.
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 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 U.S. Underwriters and 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 Securities from any U.S.
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. 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 14. 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.
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35
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 U.S. Underwriters and the Company in accordance with its terms.
Very truly yours,
IASIS HEALTHCARE CORPORATION
By: ______________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
BANC OF AMERICA SECURITIES LLC
CIBC WORLD MARKETS CORP.
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
SUNTRUST EQUITABLE SECURITIES CORPORATION
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: ___________________________________
Authorized Signatory
For themselves and as U.S. Representatives of the
other U.S. Underwriters named in Schedule A hereto.
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36
SCHEDULE A
Number of
Initial U.S.
Name of U.S. Underwriter Securities
------------------------ ----------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.........................................
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.........................................
Banc of America Securities LLC...................................
CIBC World Markets Corp..........................................
Deutsche Banc Alex. ▇▇▇▇▇ Inc....................................
▇▇▇▇▇▇ Brothers Inc..............................................
▇▇▇▇▇▇▇▇▇ & Company, Inc.........................................
SunTrust Equitable Securities Corporation........................
Total............................................................
37
SCHEDULE B
IASIS HEALTHCARE CORPORATION
Shares of Common Stock
(Par Value $0.01 Per Share)
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall be $ .
2. The purchase price per share for the U.S. Securities to be
paid by the several U.S. Underwriters shall be $ , being an amount
equal to the initial public offering price set forth above less $
per share; provided that the purchase price per share for any U.S.
Option Securities purchased upon the exercise of the over-allotment
option described in Section 2(b) shall be reduced by an amount per
share equal to any dividends or distributions declared by the Company
and payable on the Initial U.S. Securities but not payable on the U.S.
Option Securities.
38
SCHEDULE C
LIST OF PERSONS SUBJECT TO LOCK-UP
39
Exhibit A-1
FORM OF OPINION OF
SKADDEN, ARPS, SLATE, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
40
Exhibit A-2
FORM OF OPINION OF
▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
41
EXHIBIT A-3
FORM OF OPINION OF
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & GREEN, P.C.
42
Exhibit B
____________, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Banc of America Securities LLC
CIBC World Markets Corp.
Deutsche Banc Alex. ▇▇▇▇▇ Inc.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇▇▇ & Company, Inc.
SunTrust Equitable Securities Corporation
as U.S. Representatives of the several
U.S. Underwriters
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
Bank of America International Limited
CIBC World Markets plc
Deutsche Bank AG London
▇▇▇▇▇▇ Brothers International (Europe)
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ International Limited
▇▇▇▇▇▇▇▇▇ International Limited
SunTrust Equitable Securities Corporation
As Representatives of the Several
International Managers
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Proposed Public Offering by IASIS Healthcare Corporation
Dear Sirs:
The undersigned, a stockholder, optionholder, director, and/or officer
of IASIS Healthcare Corporation, a Delaware corporation (the "Company"),
understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and certain other underwriters propose to enter
into a U.S. Purchase Agreement (the "U.S. Purchase Agreement") with the Company
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ International and the other International Managers propose to
enter into an International Purchase Agreement (the "International Purchase
Agreement") with the Company, providing for the public offering of shares (the
"Securities") of the Company's common stock, par value $0.01 per share (the
"Common Stock"). In recognition of the benefit that such an offering will confer
upon the undersigned as a stockholder and/or director and/or officer of the
Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with each
underwriter to be named in the U.S. Purchase Agreement and the International
Purchase Agreement that, during a period of 180 days from the date of the U.S.
Purchase Agreement, the
43
undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇,
directly or indirectly, (i) 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 for the sale of, or otherwise dispose of or
transfer any shares of the Company's Common Stock or any securities convertible
into or exchangeable or exercisable for Common Stock, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, or file any registration
statement under the Securities Act of 1933, as amended, 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 the Common Stock, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities, in
cash or otherwise; provided, however, that nothing contained herein shall
prohibit the exercise of stock options by the undersigned or other purchases of
Common Stock by the undersigned under stock option plans or other incentive
arrangements for employees and directors previously approved by the Company's
Board of Directors and described in the Prospectuses (it being understood that
shares of Common Stock acquired upon exercise of such options or otherwise
pursuant to such plans may not be sold until expiration of this letter
agreement); and provided, further, that the undersigned may make a bona fide
gift or pledge of shares of Common Stock without the prior written consent of
▇▇▇▇▇▇▇ ▇▇▇▇▇ if the donee or pledgee, as the case may be, agrees in writing
prior to the making of such gift or pledge to be bound by all the terms of this
agreement and such writing is delivered to ▇▇▇▇▇▇▇ ▇▇▇▇▇ as promptly as
practicable (but no later than five days after said gift or pledge).
Very truly yours,
Signature:
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Print Name:
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