EXHIBIT 1.1
$200,000,000 Principal Amount
LifePoint Hospitals, Inc.
4 1/2% Convertible Subordinated Notes
due 2009
PURCHASE AGREEMENT
May 17, 2002
PURCHASE AGREEMENT
May 17, 2002
UBS WARBURG LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES, INC.
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BANC OF AMERICA SECURITIES LLC
FLEET SECURITIES, INC.
as Initial Purchasers
c/o UBS Warburg LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
LifePoint Hospitals, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the initial purchasers named in Schedule A hereto
(the "Initial Purchasers") $200,000,000 aggregate principal amount of its 4 1/2%
Convertible Subordinated Notes due 2009 (the "Firm Notes"). In addition, the
Company proposes to grant to the Initial Purchasers the option to purchase from
the Company up to an additional $50,000,000 aggregate principal amount of the
Company's 4 1/2% Convertible Subordinated Notes due 2009 (the "Additional
Notes"). The Firm Notes and the Additional Notes are hereinafter collectively
sometimes referred to as the "Notes."
The Notes are to be issued pursuant to an indenture (the "Indenture") to
be dated as of May 17, 2002 between the Company and National City Bank, as
trustee (the "Trustee"). The Notes will be convertible in accordance with their
terms and the terms of the Indenture into shares of the common stock (the
"Common Stock") of the Company, par value $.01 per share (the "Shares").
The Notes and the Shares will be offered without being registered under
the Securities Act of 1933, as amended (the "Securities Act"), to "qualified
institutional buyers" in compliance with the exemption from registration
provided by Rule 144A under the Securities Act ("Rule 144A") and in offshore
transactions in reliance on Regulation S under the Securities Act ("Regulation
S").
The Initial Purchasers and their respective direct and indirect
transferees will be entitled to the benefits of a Registration Rights Agreement
to be entered into at or prior to the time of purchase (as defined herein)
between the Company and the Initial Purchasers (the "Registration Rights
Agreement").
In connection with the sale of the Notes, the Company will prepare a
final offering memorandum (the "Memorandum") including or incorporating by
reference, among other things, a description of the terms of the Notes and the
Shares, the terms of the offering and a description of the Company. As used
herein, the term "Memorandum" shall include in each case the documents
incorporated by reference therein. The terms "supplement", "amendment" and
"amend" as used herein with respect to the Memorandum shall include all
documents deemed to be incorporated by reference in the Memorandum that are
filed subsequent to the date of such Memorandum with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
The Company and the Initial Purchasers agree as follows:
1. Sale and Purchase. Upon the basis of the warranties and
representations and subject to the other terms and conditions herein set forth,
the Company agrees to sell to each Initial Purchaser, and each Initial Purchaser
agrees to purchase from the Company, the aggregate principal amount of Firm
Notes set forth opposite the name of such Initial Purchaser in Schedule A hereto
at a purchase price of 97.25% of the principal amount thereof.
In addition, the Company hereby grants to the Initial Purchasers the
one-time option to purchase, and upon the basis of the representations and
warranties and subject to the other terms and conditions herein set forth, the
Initial Purchasers shall have the one-time right to purchase from the Company,
all or a portion of the Additional Notes, at a purchase price of 97.25% of the
principal amount thereof, plus accrued interest, if any, from the time of
purchase (as hereinafter defined) to the additional time of purchase (as
hereinafter defined). This option may be exercised by you at any time (but not
more than once) on or before the thirtieth day following the date hereof, by
written notice to the Company. Such notice shall set forth the aggregate initial
principal amount of Additional Notes as to which the option is being exercised
and the date and time when the Additional Notes are to be delivered (such date
and time being herein referred to as the "additional time of purchase");
provided, however, that the additional time of purchase shall not be earlier
than (i) the time of purchase or (ii) the second business day(1) after the date
on which the option shall have been exercised nor later than the fourth business
day after the date on which the option shall have been exercised.
2. Payment and Delivery. Payment of the purchase price for the Firm
Notes shall be made to the Company by Federal (same day) funds, against delivery
of the Firm Notes to you, at the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP in New York,
New York, or at such other place as may be agreed upon by the parties hereto,
for the account of the Initial Purchasers. Such payment and delivery shall be
made at 10:00 A.M., eastern standard time, on May 22, 2002 (unless another time
shall be agreed to by you and the Company). The time at which such payment and
delivery are actually made is herein sometimes called the "time of purchase."
Payment of the purchase price for the Additional Notes shall be made at
the additional time of purchase in the same manner and at the same office and
time of day as the payment for the Firm Notes.
Certificates for the Notes shall be in definitive form or global form,
as specified by you, and registered in the names and in such denominations as
you shall request in writing not later than one full business day prior to the
time of purchase or the additional time of purchase, as the case may be. For the
purpose of expediting the checking of the certificates for the Notes by you, the
Company agrees to make such certificates available to you for such purpose at
least one
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(1) As used herein "business day" shall mean a day on which the Nasdaq
National Market is open for trading.
full business day preceding the time of purchase or the additional time of
purchase, as the case may be.
3. Representations and Warranties of the Company. The Company
represents and warrants to the Initial Purchasers that:
(a) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Memorandum
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder and (ii) the Memorandum, as amended or supplemented, as
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph do not apply to statements or omissions in Memorandum
based upon information furnished to the Company in writing by or on
behalf of the Initial Purchasers expressly for use therein;
(b) As of March 31, 2002, the Company had an authorized and
outstanding capitalization as set forth under the column heading
entitled "Actual" in the section of the Memorandum entitled
"Capitalization" and, as adjusted to give effect to the offering of the
Firm Notes and the application of the net proceeds therefrom as
described in the "Use of Proceeds" section of the Memorandum, the
Company would, as of March 31, 2002, have had an authorized and
outstanding capitalization as set forth under the column heading
entitled "As Adjusted" in the section of the Memorandum entitled
"Capitalization"; all of the issued and outstanding shares of capital
stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable and free of statutory or
contractual preemptive rights or other similar rights of any
securityholder of the Company;
(c) The Company has no subsidiaries (as defined in the
Securities Act) except as listed in an exhibit to a document
incorporated by reference in the Memorandum (as so listed, the
"Subsidiaries"); each of the Company and the Subsidiaries has been duly
incorporated or formed and is validly existing as a corporation, limited
liability company, limited partnership or general partnership under the
laws of the jurisdiction of its incorporation or formation, with all
requisite corporate, limited liability company or partnership power and
authority to own its properties and conduct its business as described in
the Memorandum; all of the issued shares of capital stock or the
interests of each Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable and, except as disclosed or
incorporated by reference in the Memorandum, are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims (other than security interests granted under a senior
credit facility, as disclosed in the Memorandum;
(d) The Company and each of its Subsidiaries are duly
qualified to do business as foreign corporations, foreign limited
liability companies, foreign limited partnerships or foreign general
partnerships and are in good standing in each jurisdiction in which the
conduct of their respective businesses or their ownership or leasing of
property requires such qualification, except to the extent that the
failure, individually or in the aggregate, to be so qualified or be in
good standing would not have a material adverse effect on the
operations, business, prospects or condition of the Company and its
Subsidiaries, taken as a whole (a "Material Adverse Effect"); and the
Company and each
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of the Subsidiaries are in compliance in all respects with the laws,
orders, rules, regulations and directives issued or administered by such
jurisdictions, except where the failure to be in compliance would not
have a Material Adverse Effect;
(e) Neither the Company nor any of the Subsidiaries is in
breach of, or in default under (nor has any event occurred which with
notice, lapse of time, or both would constitute a breach of, or default
under), its respective charter or by-laws, or any license, indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence
of indebtedness, or any lease, contract or other agreement or instrument
(collectively, the "Agreements and Instruments") to which the Company or
any of the Subsidiaries is a party or by which any of them or their
respective properties may be bound or affected, or under any federal,
state, local or foreign law, regulation or rule or any decree, judgment
or order applicable to the Company or any of the Subsidiaries, except
for such breaches, defaults or violations that would not result in a
Material Adverse Effect; and the execution, delivery and performance of
this Agreement, the Registration Rights Agreement, the Indenture and the
Notes and consummation of the transactions contemplated hereby and
thereby, including the issuance of the Notes and the issuance of the
Shares upon conversion of the Notes, will not conflict with, or result
in any breach of or constitute a default under (nor constitute any event
which with notice, lapse of time, or both would constitute a breach of,
or default under), (x) any provisions of the charter or by-laws of the
Company or any of the Subsidiaries or (y) under any provision of any
license, indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any lease, contract or
other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected, or (z) under any federal, state,
local or foreign law, regulation or rule or any decree, judgment or
order applicable to the Company or any of the Subsidiaries, except, in
the case of (y) above, for such breaches, defaults or violations that
would not result in a Material Adverse Effect;
(f) The Indenture has been duly authorized by the Company
and when executed and delivered by the Company and the other parties
thereto will be a legal, valid and binding agreement of the Company,
enforceable in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, including, without
limitation, all laws relating to fraudulent transfers, reorganization,
moratorium or similar laws affecting creditors' rights generally and
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law);
(g) The Registration Rights Agreement has been duly
authorized by the Company and when executed and delivered by the Company
and the other parties thereto will be a legal, valid and binding
agreement of the Company, enforceable in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, including, without limitation, all laws relating to
fraudulent transfers, reorganization, moratorium or similar laws
affecting creditors' rights generally and general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law);
(h) The Notes have been duly authorized by the Company and
when executed and delivered by the Company and duly authenticated in
accordance with the terms of the Indenture and delivered to and paid for
by the Initial Purchasers in accordance with the terms hereof will
constitute legal, valid and binding obligations of
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the Company, enforceable in accordance with their terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
including, without limitation, all laws relating to fraudulent
transfers, reorganization, moratorium or similar laws affecting
creditors' rights generally and general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at
law), and will be entitled to the benefits of the Indenture and the
Registration Rights Agreement; the Shares initially issuable upon
conversion of the Notes have been duly authorized and validly reserved
for issuance upon conversion of the Notes, and upon conversion of the
Notes in accordance with their terms and the terms of the Indenture will
be issued free of statutory and contractual preemptive rights and are
sufficient in number to meet the current conversion requirements, and
such Shares, when so issued upon such conversion in accordance with the
terms of the Indenture, will be duly and validly issued and fully paid
and nonassessable;
(i) This Agreement has been duly authorized, executed and
delivered by the Company;
(j) The terms of the Notes, the Registration Rights
Agreement, the Indenture and the capital stock of the Company, including
the Shares, conform in all material respects to the description thereof
contained in the Memorandum;
(k) No approval, authorization, consent or order of or
filing with any national, state or local governmental or regulatory
commission, board, body, authority or agency is required in connection
with the issuance and sale by the Company of the Notes and the Shares as
contemplated hereby other than (i) as may be required under the
securities or blue sky laws of the various jurisdictions in which the
Notes and the Shares are being offered by the Initial Purchasers and
(ii) as may be required by Federal and state securities laws with
respect to the Company's obligations under the Registration Rights
Agreement;
(l) Ernst & Young LLP, whose reports on the consolidated
financial statements of the Company and the Subsidiaries are included or
incorporated by reference in the Memorandum, are independent public
accountants with respect to the Company as required by the Securities
Act and the applicable published rules and regulations thereunder;
(m) Each of the Company and the Subsidiaries has all
necessary licenses, authorizations, consents and approvals
(collectively, "Consents") and has made all necessary filings required
under any federal, state, local or foreign law, regulation or rule
("Filings") and has obtained all necessary Consents from other persons,
in order to conduct its respective business, except where the failure to
have any such Consent or to have made any such Filing would not have a
Material Adverse Effect; neither the Company nor any of its Subsidiaries
is in violation of, or in default under, any such Consent or any
federal, state, local or foreign law, regulation or rule or any decree,
order or judgment applicable to the Company or any of the Subsidiaries,
other than any violation or default which would not have a Material
Adverse Effect;
(n) Except as described or incorporated by reference in the
Memorandum, there are no actions, suits or proceedings pending or, to
the knowledge of the Company, threatened against the Company or any of
the Subsidiaries or any of their respective properties, at law or in
equity, or before or by any federal, state, local or
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foreign governmental or regulatory commission, board, body, authority or
agency which would result in a judgment, decree or order having a
Material Adverse Effect;
(o) Except as would not have a Material Adverse Effect, the
Company and each Subsidiary have filed on a timely basis all necessary
federal, state and foreign income, franchise and other tax returns
(other than returns being contested in good faith) and have paid all
taxes shown thereon as due (other than those being contested in good
faith or which are currently payable without penalty or interest), and
the Company has no knowledge of any tax deficiency which has been or
might be asserted against the Company or any Subsidiary which would have
a Material Adverse Effect; all material tax liabilities are adequately
provided for within the financial statements of the Company in
accordance with generally accepted accounting principles ("GAAP");
(p) The Company and the Subsidiaries maintain insurance of
the types and in the amounts reasonably believed to be adequate for
their business, all of which insurance is in full force and effect;
(q) Neither the Company nor the Subsidiaries are involved in
any labor dispute or disturbance nor, to the knowledge of the Company,
is any such dispute or disturbance imminent, except, in each case, for
disputes or disturbances which would not, individually or in the
aggregate, have a Material Adverse Effect;
(r) Except as described or incorporated by reference in the
Memorandum, the Company and each Subsidiary owns or possesses such
licenses or other rights to use all patents, patent applications,
trademarks, trademark applications, service marks, service mark
applications, trade names, copyrights, manufacturing processes,
formulae, trade secrets, know-how, franchises, and other material
intangible property and assets (collectively, "Intellectual Property")
necessary to the conduct of their respective businesses as conducted and
as proposed to be conducted as described or incorporated by reference in
the Memorandum, except where the failure to do so would not have a
Material Adverse Effect; the Company has no knowledge that it or any
Subsidiary lacks or will be unable to obtain any rights or licenses to
use any of the Intellectual Property necessary to conduct the business
now conducted or proposed to be conducted by it as described or
incorporated by reference in the Memorandum, except as described or
incorporated by reference in the Memorandum and except where the failure
to have or obtain such rights or licenses would not have a Material
Adverse Effect; to the extent required the Memorandum fairly and
accurately describes the rights of the Company and the Subsidiaries with
respect to the Intellectual Property; neither the Company nor any
Subsidiary has received any written notice of infringement or of
conflict with rights or claims of others with respect to any
Intellectual Property which infringement or conflict would have a
Material Adverse Effect; the Company is not aware of any patents of
others which are infringed by the Company or any Subsidiaries in such a
manner as would have a Material Adverse Effect, except as described or
incorporated by reference into the Memorandum;
(s) The audited financial statements and related notes
thereto of the Company included or incorporated by reference in the
Memorandum present fairly in all material respects the consolidated
financial position of the Company and its Subsidiaries as of the dates
indicated and the results of operations and cash flows of the Company
and
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its Subsidiaries for the periods specified; such financial statements
have been prepared in conformity with GAAP applied on a consistent basis
during the periods involved;
(t) Subsequent to the respective dates as of which
information is given in the Memorandum, and except as may be otherwise
stated or incorporated by reference in the Memorandum at the time of
execution of this Agreement, there has not been (A) any material and
unfavorable change, financial or otherwise, in the business, properties,
prospects, regulatory environment, results of operations or condition
(financial or otherwise) of the Company and its Subsidiaries, taken as a
whole, (B) any transaction entered into by the Company or any of its
Subsidiaries, which is material to the Company and its Subsidiaries,
taken as a whole, or (C) any obligation, contingent or otherwise,
directly or indirectly, incurred by the Company or any of its
Subsidiaries which is material to the Company and its Subsidiaries,
taken as a whole, or (D) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company or any change
in the authorized or outstanding capital stock of the Company (other
than pursuant to the exercise of options or warrants disclosed or
incorporated by reference in the Memorandum as outstanding or as a
result of the transactions contemplated hereby);
(u) The Company and the Subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except, in the case of (i), (ii) and/or (iii) above, where
such noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals would not have a
Material Adverse Effect;
(v) When the Notes are issued pursuant to this Agreement,
the Notes will not be of the same class (within the meaning of Rule
144A) as securities that are listed on a national securities exchange
registered pursuant to Section 6 of the Exchange Act or quoted in a U.S.
automated inter-dealer quotation system;
(w) Neither the Company nor any affiliate (as defined in
Rule 501(b) of Regulation D under the Securities Act, an "Affiliate") of
the Company has directly, or through any agent, (i) sold, offered for
sale, solicited offers to buy or otherwise negotiated in respect of, any
security (as defined in the Securities Act) which is or will be
integrated with the sale of the Notes in a manner that would require the
registration under the Securities Act of the Notes or (ii) offered,
solicited offers to buy or sold the Notes by any form of general
solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities
Act;
(x) None of the Company, its Affiliates or any person acting
on its or their behalf has engaged or will engage in any directed
selling efforts (within the meaning of Regulation S) with respect to the
Notes, and the Company and its Affiliates and any person acting on its
or their behalf have complied and will comply with the offering
restrictions requirement of Regulation S;
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(y) Assuming the compliance by the Initial Purchasers, their
affiliates and all persons acting on their behalf, of the
representations and warranties contained in Section 4 of this Agreement,
it is not necessary in connection with the offer, sale and delivery of
the Notes to the Initial Purchasers pursuant to this Agreement to
register the Notes under the Securities Act or to qualify the Indenture
under the Trust Indenture Act of 1939, as amended;
(z) The Company is not and, after giving effect to the
offering and sale of the Notes and the application of the proceeds
thereof as described in the Memorandum will not be, required to register
as an "investment company" as defined in the Investment Company Act of
1940, as amended; and
(aa) Except for the Registration Rights Agreement and
agreements fully performed by the Company, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to register any securities
with the SEC.
In addition, any certificate signed by any officer of the Company and
delivered to the Initial Purchasers or counsel for the Initial Purchasers in
connection with the offering of the Shares shall be deemed to be a
representation and warranty by the Company, as to matters covered thereby, to
the Initial Purchasers.
4. Representations and Warranties of the Initial Purchasers. The
Initial Purchasers propose to offer the Notes for sale upon the terms and
conditions set forth in this Agreement and the Memorandum, and each of the
Initial Purchasers hereby represents and warrants to and agrees with the Company
that:
(a) It will offer and sell the Notes only: (i) to persons
that it reasonably believes are "qualified institutional buyers"
("QIBs") within the meaning of Rule 144A in transactions meeting the
conditions of Rule 144A and (ii) outside the United States to persons
other than U.S. persons (as defined in Regulation S) in compliance with
Regulation S and that, in each case, in purchasing such Notes, are
deemed to have represented and agreed as provided in the Memorandum
under the caption "Notice to Investors";
(b) It is a QIB within the meaning of Rule 144A;
(c) It has not and will not directly or indirectly, solicit
offers in the United States for, or offer or sell, the Notes by any form
of general solicitation, general advertising (as such terms are used in
Regulation D) or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act; and
(d) With respect to offers and sales outside the United
States:
(i) It understands that no action has been or will
be taken in any jurisdiction by the Company that would permit a
public offering of the Notes, or possession or distribution of
the Memorandum or any other offering or publicity material
relating to the Notes, in any country or jurisdiction where
action for that purpose is required;
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(ii) The Notes have not been registered under the
Securities Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons
except in accordance with Rule 144A or Regulation S or pursuant
to another exemption from the registration requirements of the
Securities Act; and
(iii) It has offered the Notes and will offer and sell
the Notes (A) as part of their distribution at any time and (B)
otherwise until one year after the later of the commencement of
the offering and the time of purchase (or the additional time of
purchase, if later) (the "Distribution Compliance Period"), only
in accordance with Rule 903 of Regulation S or as otherwise
permitted in this Section 4; accordingly, neither it, its
Affiliates nor any persons acting on its or their behalf have
engaged or will engage in any directed selling efforts (within
the meaning of Regulation S) with respect to the Notes, and it,
its Affiliates and such persons have complied and will comply
with the offering restrictions requirements of Regulation S,
including, during the Distribution Compliance Period:
(1) no such offer or sale will be made to a
U.S. person or for the account or
benefit of a U.S. person (other than the
Initial Purchasers);
(2) it will not engage in hedging
transactions involving the Notes or the
Shares unless in compliance with the
Securities Act and will include in any
information provided to publishers of
publicly available databases a statement
that the Notes are subject to
restrictions under Regulation S and Rule
144A; and
(3) it, its Affiliates and any person acting
on its or their behalf, if selling Notes
to a dealer or a person receiving a
selling concession, fee or other
remuneration in respect of the Notes,
will send a confirmation or other notice
to the purchaser stating that the
purchaser is subject to the same
restrictions on offers and sales as set
forth in this Section 4.
5. Certain Covenants of the Company. The Company hereby agrees
that:
(a) The Company will prepare the Memorandum in a form
approved by the Initial Purchasers and will make no amendment or
supplement to the Memorandum which shall reasonably be disapproved by
the Initial Purchasers promptly after reasonable notice thereof;
(b) Promptly from time to time, the Company will take such
action as the Initial Purchasers may reasonably request to qualify the
Notes and the Shares for offering and sale under the securities laws of
such jurisdictions as the Initial Purchasers may request and will comply
with such laws so as to permit the continuance of sales and
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dealing therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Notes; provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation, to file a general consent to service of process or subject
itself to any tax in any such jurisdiction where it is not now so
qualified or subject;
(c) The Company will furnish the Initial Purchasers with as
many copies of the Memorandum, any documents incorporated by reference
therein and any amendment or supplement thereto as the Initial
Purchasers may from time to time reasonably request, and if, at any time
prior to the completion of the resale of the Notes by the Initial
Purchasers, any event shall have occurred as a result of which the
Memorandum as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Memorandum is
delivered, not misleading, or, if for any other reason it shall be
necessary or desirable during such same period to amend or supplement
the Memorandum, the Company will notify the Initial Purchasers and upon
the request of the Initial Purchasers will prepare and furnish without
charge to the Initial Purchasers and to any dealer in securities
specified by the Initial Purchasers as many copies as the Initial
Purchasers may from time to time reasonably request of an amended
Memorandum or a supplement to the Memorandum which will correct such
statement or omission or effect such compliance;
(d) During the period beginning from the date hereof and
continuing until the date 90 days after the date of the Final
Memorandum, the Company will not, without the prior written consent of
UBS Warburg LLC, issue, offer, sell, contract to sell, pledge grant any
option to sell or otherwise dispose of, directly or indirectly, any
shares of Common Stock, any securities substantially similar to the
Notes or Common Stock or any securities that are convertible into or
exchangeable for shares of Common Stock or warrants or other rights to
purchase shares of Common Stock or file or cause to be declared
effective (other than as set forth in the Registration Rights Agreement)
a registration statement under the Act relating to the offer and sale of
any shares of Common Stock or securities convertible into or exercisable
or exchangeable for Common Stock or other rights to purchase Common
Stock or any other securities of the Company that are substantially
similar to the Notes or Common Stock (other than (i) the issuance of the
Notes; (ii) the issuance of the Shares upon conversion of the Notes;
(iii) the issuance of shares of Common Stock upon conversion or exercise
of convertible or exercisable or exchangeable securities or options or
warrants outstanding as of the date of this Agreement; and (iv) the
issuance of shares of Common Stock or options pursuant to employee stock
option, employee benefit plan, non-employee director stock option plan,
or employee stock purchase plans existing on, or upon exercise of
warrants outstanding as of, the date of this Agreement);
(e) At any time when the Company is not subject to Section
13 or 15(d) of the Exchange Act and so long as any of the Notes (or
Shares issued upon conversion thereof) are "restricted securities"
within the meaning of Rule 144(a)(3) under the Act, for the benefit of
holders from time to time of the Notes, the Company will furnish at its
expense, upon request, to holders of Notes and prospective purchasers of
Notes information satisfying the requirements of subsection (d)(4)(i) of
Rule 144A;
(f) The Company will use its reasonable best efforts to
cause the Notes to be eligible for trading in PORTAL;
10
(g) For so long as the Notes remain outstanding, the Company
will furnish to the Initial Purchasers copies of all reports or other
communications (financial or other) furnished to stockholders of the
Company, and will deliver to the Initial Purchasers (i) as soon as they
are available, copies of any reports and financial statements furnished
to or filed by the Company with the Commission or any securities
exchange on which the Notes or any class of securities of the Company is
listed; and (ii) such additional information concerning the business and
financial condition of the Company as the Initial Purchasers may from
time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders
generally or to the Commission);
(h) The Company will use the net proceeds received by it
from the sale of the Notes pursuant to this Agreement in the manner
specified in the Memorandum under the caption "Use of Proceeds";
(i) The Company will reserve and keep available at all
times, free of preemptive rights, Shares for the purpose of enabling the
Company to satisfy any obligations to issue Shares upon conversion of
the Notes;
(j) The Company will use its reasonable best efforts to
list, as promptly as practicable but in no event later than the time
that the registration statement is declared effective in accordance with
the Registration Rights Agreement, and subject to notice of issuance,
the Shares on the Nasdaq National Market;
(k) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company
will pay or cause to be paid all expenses incident to the performance of
its obligations under this Agreement, including, without limitation, (i)
the fees, disbursements and expenses of the Company's counsel and the
Company's accountants in connection with the issuance and sale of the
Notes and all other fees and expenses in connection with the preparation
of the Memorandum and all amendments and supplements thereto, including
all printing costs associated therewith, and the furnishing of copies
thereof to the Initial Purchasers and to dealers (including costs of
mailing and shipment), (ii) all costs related to the preparation,
issuance, execution, authentication and delivery of the Notes and the
Shares, (iii) all costs related to the transfer and delivery of the
Notes to the Initial Purchasers, including any transfer or other taxes
payable thereon, (iv) the word processing and/or printing charges and
expenses of counsel to the Initial Purchasers (but not including their
fees for professional services) of this Agreement, the Registration
Rights Agreement and the Indenture, and the reproduction and/or printing
and furnishing of copies thereof to the Initial Purchasers and to
dealers (including costs of mailing and shipment), (v) all expenses in
connection with the qualification of the Notes and the Shares for
offering and sale under state laws and the cost of printing and
furnishing of copies of any blue sky or legal investment memorandum to
the Initial Purchasers and to dealers (including filing fees and the
reasonable fees and disbursements of counsel for the Initial Purchasers
in connection with such qualification and in connection with such blue
sky or legal investment memorandum), (vi) any fees payable to investment
rating agencies with respect to the rating of the Notes, (vii) the costs
and charges of the Trustee and any transfer agent, registrar or
depositary, (viii) the fees and expenses, if any, incurred in connection
with the admission of the Notes for trading in PORTAL or any appropriate
market system, (ix) the costs and expenses of the Company relating to
investor
11
presentations on any "road show" undertaken in connection with the
marketing of the offering of the Notes, including, without limitation,
expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection
with the road show presentations with the prior approval of the Company,
travel and lodging expenses of the representatives and officers of the
Company and any such consultants, and the cost of any aircraft chartered
in connection with the road show, and (x) all other cost and expenses
incident to the performance by the Company of its obligations hereunder
for which provision is not otherwise made in this Section 5(k);
provided, however, that, except as provided in this Section 5(k),
Section 6 and Section 9, the Initial Purchasers shall pay all of their
costs and expenses, including fees and disbursements of its counsel,
transfer taxes payable on resale of any of the Notes by it and any
advertising expenses connected with any offers it may make;
(l) Neither the Company nor any Affiliate will sell, offer
for sale or solicit offers to buy or otherwise negotiate in respect of
any security (as defined in the Securities Act) which could be
integrated with the sale of the Notes in a manner which would require
the registration under the Securities Act of the Notes;
(m) The Company will not solicit any offer to buy or offer
or sell the Notes or the Shares by means of any form of general
solicitation or general advertising (as those terms are used in
Regulation D) or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act;
(n) With respect to those Notes sold in reliance on
Regulation S, (i) none of the Company, any of its affiliates (as such
term is used in Regulation S) or any person acting on its or their
behalf (other than the Initial Purchasers) has engaged or will engage in
any directed selling efforts (within the meaning of Regulation S) and
(ii) each of the Company, any of its affiliates and any person acting on
its or their behalf (other than the Initial Purchasers) has complied and
will comply with the requirements of Regulation S and, during the
Distribution Compliance Period, will include in any information provided
to publishers of publicly available databases a statement that the Notes
are subject to restrictions under Regulation S and Rule 144A;
(o) During the period of two years after the time of
purchase or the additional time of purchase, if later, the Company will
not, and will not permit any of its affiliates (as defined in Rule 144
under the Securities Act ("Rule 144")) to resell any of the Notes or the
Shares which constitute "restricted securities" under Rule 144 except
pursuant to an effective registration statement under the Securities
Act; and
(p) The Company will not take any action prohibited by
Regulation M under the Exchange Act in connection with the distribution
of the Notes contemplated hereby.
6. Reimbursement of Initial Purchasers' Expenses. If the Firm Notes
are not delivered to an Initial Purchaser for any reason other than the default
by an Initial Purchaser in its obligations hereunder, the Company shall, in
addition to paying the amounts described in Section 5(k) hereof, reimburse each
Initial Purchaser (except for a defaulting Initial Purchaser) for all of its
out-of-pocket expenses, including the reasonable fees and disbursements of its
counsel.
12
7. Conditions of Each Initial Purchaser's Obligations. The several
obligations of the Initial Purchasers hereunder are subject to the accuracy in
all material respects of the representations and warranties on the part of the
Company on the date hereof and at the time of purchase as if made at the time of
purchase. The several obligations of the Initial Purchasers at the additional
time of purchase are subject to the accuracy in all material respects of the
representations and warranties on the part of the Company on the date hereof, at
the time of purchase (unless previously waived) and at the additional time of
purchase as if made at the time of purchase and the additional time of purchase,
as the case may be. Additionally, the several obligations of the Initial
Purchasers hereunder are subject to performance by the Company of its
obligations hereunder and to the following conditions:
(a) The Company shall have furnished to you at the time of
purchase and at the additional time of purchase, as the case may be, an
opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, PLLC, counsel for the Company,
to the effect set forth on Exhibit A hereto, addressed to the Initial
Purchasers and dated the date of the time of purchase or the date of the
additional time of purchase as the case may be, and in form satisfactory
to counsel for the Initial Purchasers;
(b) You shall have received on the date of this Agreement
and at the time of purchase and the additional time of purchase, as the
case may be, from Ernst & Young LLP customary comfort letters dated as
of the date of this Agreement, the date of the time of purchase and the
date of the additional time of purchase, as the case may be, and
addressed to the Initial Purchasers, in form and substance satisfactory
to counsel for the Initial Purchasers;
(c) You shall have received at the time of purchase and at
the additional time of purchase, as the case may be, the opinion of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the date
of the time of purchase or the date of the additional time of purchase,
as the case may be, in form and substance reasonably satisfactory to
you;
(d) At the time of purchase or the additional time of
purchase, as the case may be, the Memorandum shall not contain an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(e) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may be,
(i) no material and unfavorable change, financial or otherwise (other
than as stated or incorporated by reference in the Memorandum, at the
time of signing of this Agreement), in the operation, business,
prospects or condition of the Company and the Subsidiaries, taken as a
whole shall occur or become known and (ii) no transaction which is
material to the Company (other than as disclosed in the Memorandum at
the time of signing of this Agreement) shall have been entered into by
the Company or any of its Subsidiaries;
(f) The Company shall, at the time of purchase and the
additional time of purchase, as the case may be, deliver to you a
certificate dated such date of an executive officer of the Company to
the effect set forth in Sections 7(d), (e) and (k), that the
representations and warranties of the Company set forth in this
Agreement are true and correct as of such date, and that the Company has
complied with all of its agreements
13
and satisfied all of the conditions on its part to be performed or
satisfied on or before such date.
(g) You shall have received copies, duly executed by the
Company and the parties thereto, other than the Initial Purchasers, of
the Registration Rights Agreement and the Indenture;
(h) Each of the Company's officers listed on Schedule B and
each of the members of the Board of Directors of the Company shall have
entered into Lock-up Agreements in the form attached as Exhibit B hereto
on or prior to the date hereof, and each such Lock-up Agreement shall
have been delivered to you and shall be in full force and effect at the
time of purchase and the additional time of purchase, as the case may
be, it being understood that up to an aggregate of 150,000 shares of
Common Stock owned by such directors and officers as a group shall, to
the extent set forth in such Lock-up Agreements, be exempted from the
requirements thereof;
(i) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any
statement in the Memorandum as of the time of purchase and the
additional time of purchase, as the case may be, as you may reasonably
request;
(j) The Notes shall have been designated for trading on
PORTAL, subject only to notice of issuance at or prior to the time of
purchase; and
(k) Between the time of execution of this Agreement and the
time of purchase or additional time of purchase, as the case may be,
there shall not have occurred any downgrading, nor shall any public
notice have been given of (i) any intended or potential downgrading or
inclusion on a watchlist or (ii) any watch, review or possible change
that does not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company or any Subsidiary of the
Company by any "nationally recognized statistical rating organization,"
as that term is defined in Rule 436(g)(2) promulgated under the
Securities Act.
8. Termination: The several obligations of the Initial Purchasers
hereunder shall be subject to termination in the discretion of UBS Warburg LLC,
on behalf of the Initial Purchasers, if, (x) since the time of execution of this
Agreement or the earlier respective dates as of which information is given in
the Memorandum, there has been any material adverse change or any development
involving a prospective material adverse change in the business, properties,
management, financial condition, shareholders equity or results of operation of
the Company and its Subsidiaries taken as a whole, which would, in the judgment
of UBS Warburg LLC, make it impracticable or inadvisable to proceed with the
offering or the delivery of the Notes on the terms and in the manner
contemplated in the Memorandum, (y) there shall have occurred any downgrading,
or any public notice shall have been given of (i) any intended or potential
downgrading or (ii) any watch, review or possible change that does not indicate
an improvement, in the rating accorded any securities of or guaranteed by the
Company or any of its Subsidiaries by any "nationally recognized statistical
rating organization," as that term is defined in Rule 436(g)(2) promulgated
under the Securities Act or, (z) at any time prior to the time of purchase or,
with respect to the purchase of any Additional Notes, the additional time of
purchase, as the case may be, (i) trading in securities on the New York Stock
Exchange, the American Stock Exchange or the
14
Nasdaq National Market shall have been suspended or minimum prices shall have
been established on the New York Stock Exchange, the American Stock Exchange or
the Nasdaq National Market, (ii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance
services in the United States or (iii) there is an outbreak or escalation of
hostilities or acts of terrorism involving the United States or the declaration
by the United States of a national emergency or war or an occurrence of any
other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event in
the judgment of UBS Warburg LLC makes it impracticable or inadvisable to proceed
with the offering or the delivery of the Notes on the terms and in the manner
contemplated in the Memorandum.
If you elect to terminate this Agreement as provided in this Section 8,
the Company shall be notified as provided for herein.
If the sale to the Initial Purchasers of the Notes, as contemplated by
this Agreement, is not carried out by the Initial Purchasers for any reason
permitted under this Agreement or if such sale is not carried out because the
Company shall be unable to comply and does not comply with any of the terms of
this Agreement, the Company shall not be under any obligation or liability under
this Agreement (except to the extent provided in Sections 5(k), 6 and 9 hereof),
and the Initial Purchasers shall be under no obligation or liability to the
Company under this Agreement (except to the extent provided in Section 9
hereof).
9. Indemnity by the Company and the Initial Purchasers.
(a) The Company agrees to indemnify, defend and hold
harmless each Initial Purchaser, its directors and officers, and any
person who controls the Initial Purchaser within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act (each, an
"Initial Purchaser Indemnified Party"), from and against any loss,
damage, expense, liability or claim (including the reasonable cost of
investigation) which such Initial Purchaser Indemnified Party may incur
under the Securities Act, the Exchange Act or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained or incorporated by reference in the Memorandum, as amended or
supplemented, if applicable, or arises out of or is based upon any
omission or alleged omission 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, except insofar as any such loss,
damage, expense, liability or claim arises out of or is based upon any
untrue statement or omission or alleged untrue statement or omission of
a material fact contained in or omitted from and in conformity with
information furnished in writing by or on behalf of the Initial
Purchasers to the Company expressly for use therein, or (ii) any untrue
statement or alleged untrue statement of any material fact contained in
any audio or visual materials provided by the Company, including,
without limitation, slides, videos, films, tape recordings, used in
connection with the marketing of the Notes with the permission of the
Company.
(b) Each Initial Purchaser agrees, severally and not
jointly, to indemnify, defend and hold harmless the Company, its
directors and officers and any person who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (each, a "Company Indemnified Party") from and against any
loss, damage, expense, liability or claim (including the reasonable cost
of investigation) which such Company Indemnified Party may incur under
the Securities Act, the Exchange Act or otherwise, insofar as such loss,
damage, expense, liability or
15
claim arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in information furnished
in writing by or on behalf of such Initial Purchaser to the Company
expressly for use in the Memorandum or arises out of or is based upon
any omission or alleged omission 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, in connection with such
information.
(c) If any action, suit or proceeding (each, a "Proceeding")
is brought against any person in respect of which indemnity may be
sought pursuant to either subsection (a) or (b) of this Section 9, such
person (the "Indemnified Party") shall promptly notify the person
against whom such indemnity may be sought (the "Indemnifying Party") in
writing of the institution of such Proceeding and such Indemnifying
Party shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such Indemnified Party
and payment of all fees and expenses; provided, however, that the
omission to so notify such Indemnifying Party shall not relieve such
Indemnifying Party from any liability which it may have to such
Indemnified Party or otherwise. Such Indemnified Party shall have the
right to employ its own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Indemnified
Party unless the employment of such counsel shall have been authorized
in writing by such Indemnifying Party in connection with the defense of
such Proceeding or such Indemnifying Party shall not have employed
counsel to have charge of the defense of such Proceeding within 30 days
of the receipt of notice thereof or such Indemnified Party shall have
reasonably concluded upon written advice of counsel that there may be
defenses available to it that are different from, additional to, or in
conflict with those available to such Indemnifying Party (in which case
such Indemnifying Party shall not have the right to direct that portion
of the defense of such Proceeding on behalf of such Indemnified Party,
but such Indemnifying Party may employ counsel and participate in the
defense thereof but the fees and expenses of such counsel shall be at
the expense of such Indemnifying Party), in any of which events such
reasonable fees and expenses shall be borne by such Indemnifying Party
and paid as incurred (it being understood, however, that such
Indemnifying Party shall not be liable for the expenses of more than one
separate counsel in any one Proceeding or series of related Proceedings
together with reasonably necessary local counsel representing the
Indemnified Parties who are parties to such Proceeding). An Indemnifying
Party shall not be liable for any settlement of any such Proceeding
effected without its written consent, but if settled with the written
consent of such Indemnifying Party, such Indemnifying Party agrees to
indemnify and hold harmless an Indemnified Party from and against any
loss or liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an Indemnified Party shall have
requested an Indemnifying Party to reimburse such Indemnified Party for
fees and expenses of counsel as contemplated by the second sentence of
this paragraph, then such Indemnifying Party agrees that it shall be
liable for any settlement of any Proceeding effected without its written
consent if (i) such settlement is entered into more than 60 business
days after receipt by such Indemnifying Party of the aforesaid request,
(ii) such Indemnifying Party shall not have reimbursed such Indemnified
Party in accordance with such request prior to the date of such
settlement and (iii) such Indemnified Party shall have given such
Indemnifying Party at least 30 days' prior notice of its intention to
settle. An Indemnifying Party shall not, without the prior written
consent of any Indemnified Party, effect any settlement of any pending
or threatened Proceeding in respect of which such Indemnified Party is
or could have been a party and indemnity could have been sought
hereunder by such Indemnified Party, unless such settlement includes an
unconditional
16
release of such Indemnified Party from all liability on claims that are
the subject matter of such Proceeding and does not include an admission
of fault, culpability or a failure to act, by or on behalf of such
Indemnified Party.
(d) If the indemnification provided for in this Section 9 is
unavailable to an Indemnified Party under subsections (a) and (b) of
this Section 9 in respect of any losses, damages, expenses, liabilities
or claims referred to therein, then each applicable Indemnifying Party,
in lieu of indemnifying such Indemnified Party, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such
losses, damages, expenses, liabilities or claims (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Initial Purchasers on the other hand
from the offering of the Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company on the
one hand and of the Initial Purchasers on the other in connection with
the statements or omissions which resulted in such losses, damages,
expenses, liabilities or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Initial Purchasers on the other shall be deemed to be in
the same proportion as the total proceeds from the offering (net of
Initial Purchasers' discounts and commissions but before deducting
expenses) received by the Company bear to the discounts and commissions
received by the Initial Purchasers. The relative fault of the Company on
the one hand and of the Initial Purchasers on the other shall be
determined by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company or by
the Initial Purchasers and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result
of the losses, damages, expenses, liabilities and claims referred to
above shall be deemed to include any reasonable legal or other fees or
expenses reasonably incurred by such party in connection with
investigating or defending any Proceeding.
(e) The Company and each of the Initial Purchasers agree
that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation or by any other method
of allocation which does not take account of the equitable
considerations referred to in subsection (d) above. Notwithstanding the
provisions of this Section 9, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price
at which the Notes resold by it in the initial placement of such Notes
were offered to investors exceeds the amount of any damages which the
Initial Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 9 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in
this Section 9 and the covenants, warranties and representations of the
Company and the Initial Purchasers contained in this Agreement shall
remain in full force and effect (regardless, with respect to
representations and warranties of the Company, of any
17
investigation made by on behalf of the Initial Purchasers, their
directors or officers or any person who controls the Initial Purchasers
within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, or by or on behalf of the Company, its directors and
officers or any person who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act), and
shall survive any termination of this Agreement or the issuance and
delivery of the Notes. The Company and the Initial Purchasers agree
promptly to notify the other of the commencement of any litigation or
proceeding against it and, in the case of the Company, against any of
the Company's officers and directors, in connection with the issuance
and sale of the Notes, or in connection with the Memorandum.
10. Effectiveness. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
11. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by facsimile and, if to
the Initial Purchasers, shall be sufficient in all respects if delivered or sent
to UBS Warburg LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Syndicate Department, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to (for
informational purposes only): Attention: Legal Department, facsimile no. (212)
821-4042 and, if to the Company, shall be sufficient in all respects if
delivered or sent to the Company at the offices of the Company at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel,
facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇.
12. Governing Law and Construction. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES. THE SECTION HEADINGS IN THIS AGREEMENT
HAVE BEEN INSERTED AS A MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT A PART OF
THIS AGREEMENT.
13. Parties at Interest. The Agreement herein set forth has been and
is made solely for the benefit of the Initial Purchasers and the Company and the
controlling persons, directors and officers referred to in Section 9 hereof, and
their respective successors, assigns, executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from the Initial Purchasers) shall acquire or have any right under or
by virtue of this Agreement.
14. Counterparts. This Agreement may be signed by the parties in
ounterparts which together shall constitute one and the same agreement among
the parties. Delivery of an executed counterpart by facsimile shall be effective
as delivery of a manually executed counterpart thereof.
15. Submission to Jurisdiction. Except as set forth below, no
Proceeding may be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and the
Company hereby consents to the jurisdiction of such courts and personal service
with respect thereto. The Company hereby consents to personal jurisdiction,
service and venue in any court in which any Proceeding arising out of or in any
way relating to this Agreement is brought by any third party against the Initial
Purchasers. The Company hereby waives all right to trial by jury in any
Proceeding (whether based upon contract, tort or otherwise)
18
in any way arising out of or relating to this Agreement. The Company agrees that
a final judgment in any such Proceeding brought in any such court shall be
conclusive and binding thereupon and may be enforced in any other court in the
jurisdiction to which the Company is or may be subject by suit upon such
judgment.
16. Information Furnished by the Initial Purchasers. The statements
set forth in the last paragraph on the cover page of the Memorandum and in the
third, tenth, and twelfth paragraphs under the caption "Plan of Distribution" in
the Memorandum constitute the only information relating to the Initial
Purchasers furnished by or on behalf of the Initial Purchasers as such
information is referred to in Sections 3 and 9 hereof.
17. Miscellaneous. UBS Warburg LLC, an indirect, wholly owned
subsidiary of UBS AG, is not a bank and is separate from any affiliated bank,
including any U.S. branch or agency of UBS Warburg LLC. Because UBS Warburg LLC
is a separately incorporated entity, it is solely responsible for its own
contractual obligations and commitments, including obligations with respect to
sales and purchases of securities. Securities sold, offered or recommended by
UBS Warburg LLC are not deposits, are not insured by the Federal Deposit
Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
A lending affiliate of UBS Warburg LLC may have lending relationships
with issuers of securities underwritten or privately placed by UBS Warburg LLC.
To the extent required under the securities laws, prospectuses and other
disclosure documents for securities underwritten or privately placed by UBS
Warburg LLC will disclose the existence of any such lending relationships and
whether the proceeds of the issue will be used to repay debts owed to affiliates
of UBS Warburg LLC.
19
If the foregoing correctly sets forth the understanding between the
Company and the Initial Purchasers, please so indicate in the space provided
below for the purpose, whereupon this letter and your acceptance shall
constitute a binding agreement between the Company and the Initial Purchasers.
Very truly yours,
LIFEPOINT HOSPITALS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Title: Chairman of the Board and
-----------------------------------------
Chief Executive Officer
-----------------------------------------
Accepted and agreed to as of the date first above written:
UBS WARBURG LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES, INC.
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BANC OF AMERICA SECURITIES LLC
FLEET SECURITIES, INC.
By UBS WARBURG LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Managing Director
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By: /s/ ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
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Title: Executive Director
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SCHEDULE A
INITIAL PURCHASERS
Initial Purchaser Principal Amount
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UBS WARBURG LLC $ 70,000,000
CREDIT SUISSE FIRST BOSTON CORPORATION 26,000,000
DEUTSCHE BANK SECURITIES, INC. 26,000,000
▇▇▇▇▇▇ BROTHERS INC. 26,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC. 26,000,000
BANC OF AMERICA SECURITIES LLC 20,000,000
FLEET SECURITIES, INC. 6,000,000
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$200,000,000
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SCHEDULE B
OFFICERS
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EXHIBIT A
FORM OF OPINION OF
▇▇▇▇▇▇ LANDSDEN ▇▇▇▇▇▇ & ▇▇▇▇▇
Based upon and subject to the foregoing, we are of the opinion that:
(i) The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware and has the corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Offering Memorandum and to enter into and perform its
obligations under the Purchase Agreement, the Indenture and the Registration
Rights Agreement; and the Company is duly qualified to transact business as a
foreign corporation and is in good standing in the State of Tennessee.
(ii) Each Material Subsidiary is validly existing as a corporation, a
limited liability company or a limited partnership in good standing under the
state of its incorporation or organization, has the requisite corporate power
and authority (or, if a limited liability company or limited partnership,
analogous power and authority) to own, lease and operate its properties and to
conduct its business as described in the Offering Memorandum and is duly
qualified as a foreign corporation or foreign limited liability company to
transact business and is in good standing in the state(s) set forth opposite the
name of such Material Subsidiary on EXHIBIT A hereto, except where the failure
so to qualify or to be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Offering Memorandum, all of the
issued and outstanding capital stock, limited liability company interests or
limited partnership interests, as applicable, of each Material Subsidiary has
been duly authorized and validly issued, is fully paid and non-assessable and,
to our knowledge, except as described in the Offering Memorandum, is owned
directly or indirectly by the Company, free and clear of any security interest,
mortgage, pledge, lien or encumbrance, other than those under the Company's
existing credit facility. To our knowledge, the Company has no direct
subsidiaries other than LifePoint Hospitals Holdings, Inc., a Delaware
corporation.
(iii) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Offering Memorandum in the column entitled
"Actual" under the caption "Capitalization" (except for subsequent issuances, if
any, pursuant to the Purchase Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Offering Memorandum or pursuant to the
exercise of convertible securities or options referred to in the Offering
Memorandum); the shares of issued and outstanding capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital stock of the
Company was issued in violation of any statutory preemptive rights of any
stockholders of the Company.
(iv) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Registration Rights Agreement has been duly authorized by
the Company and constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms.
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(vi) The Indenture has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms.
(vii) The Notes are substantially in the form contemplated by the
Indenture, have been duly authorized by the Company and, when executed and
authenticated in accordance with the provisions of the Indenture and issued and
delivered against payment of the purchase price therefor as provided in the
Purchase Agreement, will constitute valid and binding obligations of the
Company, and will be entitled to the benefits of the Indenture.
(viii) The Shares initially issuable upon conversion of the Notes have
been duly authorized and reserved for the issuance upon conversion of the Notes,
and upon conversion of the Notes in accordance with their terms and the terms of
the Indenture will be issued free of statutory preemptive rights and are
initially sufficient in number to meet the conversion requirements of the Notes,
and such Shares, when so issued in accordance with the terms of the Indenture,
will be duly and validly issued and fully paid and nonassessable.
(ix) The documents filed by or on behalf of the Company incorporated
or deemed to be incorporated by reference in the Offering Memorandum (other than
the financial statements and supporting schedules included therein or omitted
therefrom, as to which we express no opinion), when they became effective or
were filed with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the 1933 Act or the 1934 Act, as
applicable, and the rules and regulations of the Commission thereunder.
(x) The execution, delivery and performance of the Purchase
Agreement, the Registration Rights Agreement, the Indenture and the Notes and
the consummation by the Company of the transactions contemplated thereby, the
issuance of the Notes and the issue of Shares upon conversion of the Notes, do
not and will not (a) result in any violation of any Federal or Tennessee statute
or the Delaware General Corporation Law or any rule or regulation issued
pursuant to any Federal or Tennessee statute or the Delaware General Corporation
Law or any order known to us issued by any court or governmental agency or body,
except for violations that would not result in a Material Adverse Effect, or (b)
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to, any of the agreements filed as "Material Contracts" (as
such term is used in paragraph 10 of Item 601 of Regulation S-K) as exhibits to
the Form 10-K of the Company filed with the Commission on April 1, 2002 for the
period ended December 31, 2001 and/or the Form 10-Q of the Company filed with
the Commission on May 7, 2002 for the period ended March 31, 2002, except for
breaches or defaults or liens, charges or encumbrances that, singly or in the
aggregate, would not result in a Material Adverse Effect.
(xi) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any Federal or Tennessee
governmental authority or agency, or under the Delaware General Corporation Law,
or pursuant to any court order known to us, is necessary or required for the
performance by the Company of its obligations, in connection with the offering,
issuance or sale of the Securities pursuant to the Purchase Agreement, the
Registration Rights Agreement, the Indenture and the Notes, or the consummation
of the transactions contemplated by the Purchase Agreement, the Registration
Rights Agreement, the Indenture and the Notes, except (a) such as have been
already obtained and are in full force and effect, (b) any filings under state
securities or Blue Sky laws in connection with the sale of the Notes (as to
which we express no opinion), (c) in connection with the registration of the
Notes (and underlying Shares and related Rights) pursuant to the Registration
Rights Agreement, (d)
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any filing, notice, approval or qualification under the laws or regulations of
any foreign jurisdiction in which the Notes may be offered or sold (as to which
we express no opinion), (e) the qualification of the Indenture under the Trust
Indenture Act of 1939, as amended and in effect on the date hereof (the "TIA"),
and (f) for such authorizations, approvals, consents, licenses, orders,
registrations, qualifications or decrees the failure to obtain which would not
have a Material Adverse Effect and would not materially and adversely affect the
consummation of the transactions contemplated by the Purchase Agreement, the
Registration Rights Agreement, the Indenture and the Notes.
(xii) Subject to compliance by the Initial Purchasers with the
representations and warranties set forth in Section 4 of the Purchase Agreement,
it is not necessary in connection with the offer, sale and delivery of the Notes
to the Initial Purchasers or in connection with the initial resale of the Notes
by the Initial Purchasers in the manner contemplated by the Purchase Agreement
and the Offering Memorandum to register the Notes under the Securities Act or to
qualify the Indenture under the TIA.
(xiii) The statements made in the Offering Memorandum under the caption
"Description of Notes" insofar as it purports to constitute a summary of the
terms of the Registration Rights Agreement, the Indenture and the Notes,
constitutes accurate summaries of the terms of the Registration Rights
Agreement, the Indenture and the Notes in all material respects.
(xiv) The Company is not, and upon the issuance and sale of the Notes
as herein contemplated, the application of the net proceeds therefrom as
described in the Offering Memorandum will not be, an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined in the
1940 Act.
(xv) The Rights under the Company's Shareholders Rights Plan to which
the holders of the Shares will be entitled upon the conversion of the Notes have
been duly authorized and, to the extent that the Shares are issued and delivered
by the Company upon conversion of the Notes, will be validly issued.
(xvi) The statements made in the Offering Memorandum under the caption
"Description of Capital Stock," insofar as they purport to constitute summaries
of legal matters or the terms of contracts or indentures, constitute accurate
summaries of such legal matters or the terms of such contracts or indentures in
all material respects. To the best of our knowledge, there are no statutes or
regulations that would be required to be described in the Offering Memorandum if
the Offering Memorandum were a registration statement filed by the Company under
the Securities Act that are not so described.
(xvii) To our knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments to
which the Company or any of the Material Subsidiaries is a party that would be
required to be described in the Offering Memorandum if the Offering Memorandum
were a registration statement filed by the Company under the Securities Act that
are not so described, and the descriptions thereof or thereto are correct in all
material respects.
(xviii) The statements made in the Offering Memorandum under the caption
"Certain United States federal income tax considerations - Special Tax Rules
Applicable to Non-U.S. Holders", insofar as they purport to constitute summaries
of United States federal tax law
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and regulations or legal conclusions with respect thereto, constitute accurate
summaries, in all material respects, of the matters described therein.
(xix) The statements in the Offering Memorandum under the captions
"Risk Factors - Our revenues may decline if federal or state programs reduce our
Medicare or Medicaid payments or managed care companies reduce our
reimbursements," "Risk Factors - We may be subject to allegations that we failed
to comply with governmental regulation which could result in sanctions that
reduce our revenue and profitability," "Business - Government Regulation" and
"Business - Payment," insofar as they purport to constitute summaries of the
terms of applicable law, rules and regulations or contracts, constitute accurate
summaries of such statutes, rules and regulations or contracts in all material
respects.
Except as described in the Offering Memorandum or on EXHIBIT B attached
hereto or for those matters arising in the ordinary course of business, to our
knowledge, there are no actions, suits or proceedings pending or threatened
against the Company or any of the Material Subsidiaries or any of their
respective properties, at law or in equity, before or by any federal, state,
local or foreign governmental court or body which can reasonably be expected to
result in a Material Adverse Effect.
In addition, we have participated in conferences with representatives of the
Company, representatives of the independent certified public accountants for the
Company, and representatives of the Initial Purchasers, at which the contents of
the Offering Memorandum and related matters were discussed and, although we have
not undertaken to determine independently, nor do we pass upon or assume any
responsibility, explicitly or implicitly, for the accuracy, completeness or
fairness of the statements contained in the Offering Memorandum, on the basis of
and subject to the foregoing, no facts have come to our attention that cause us
to believe that the Offering Memorandum (except for financial statements,
including the notes thereto, schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which we make no
statement and express no belief), as of its date and as of the "time of
purchase" and the "additional time of purchase" (if applicable), contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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EXHIBIT B
FORM OF LOCK-UP AGREEMENT
[Date]
UBS Warburg LLC
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
consummation of the transactions contemplated by the Purchase Agreement (the
"Purchase Agreement") dated as of May __, 2002 between LifePoint Hospitals,
Inc., a Delaware corporation (the "Company"), and you as the Initial Purchasers
named therein, relating to an offering without registration under the Securities
Act of 1933, as amended (the "Act"), in reliance on Rule 144A, Regulation S and
Regulation D under the Act, of ___% Convertible Subordinated Notes due _____
(the "Notes"), of the Company.
I agree that I will not, for a period of 90 days after the date of this
Agreement without the prior written consent of UBS Warburg LLC, offer, sell,
contract to sell, pledge or otherwise dispose of, or contract to dispose of, any
(i) shares of common stock, par value $0.01 per share (the "Common Stock"), of
the Company, (ii) any securities convertible into or exercisable or exchangeable
for such Common Stock, or (iii) any Notes or any securities substantially
similar to the Notes or the Common Stock, or publicly announce an intention to
effect any such transaction; provided, that the undersigned may make gifts or
transfers of shares of Common Stock to, or for the benefit of, family members,
charitable institutions, and trusts, limited partnerships or other entities
created for estate planning purposes, the principal beneficiaries of which are
family members or charitable institutions, subject to the condition that any
such family member or charitable institution or other holder shall execute an
agreement stating that such transferee is receiving and holding the Common Stock
subject to the provisions of this agreement; and provided, further, that up to
an aggregate of * of my shares of the Common Stock shall be exempt from the
requirements hereof.
If for any reason the Purchase Agreement shall be terminated prior to
the time of purchase (as defined in the Purchase Agreement), the agreement set
forth above shall likewise be terminated.
Yours very truly,
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Name:
Title:
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* Total of exempt shares under all Lock-up Agreements combined not to exceed
150,000 shares.
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