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Exhibit 10.28
FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT
This First Amendment to Securities Purchase Agreement is made as of
September 30, 1997, between Principal Hospital Company, an Oregon corporation
(formerly known as Brim, Inc.) (the "Company"), Leeway & Co. ("Leeway").
The Company and Leeway are parties to a Securities Purchase Agreement,
dated as of December 17, 1996 (the "Securities Purchase Agreement"). All
capitalized terms used and not otherwise defined herein shall have the
respective meanings given such terms in the Securities Purchase Agreement.
The Company is proposing to merge (the "Merger") with Province
Healthcare Company, a Delaware corporation ("Province"), in order to change its
name and jurisdiction of incorporation and to make certain other changes to the
Company's authorized capitalization. Province has filed a Registration Statement
on Form S-1 under the Securities Act of 1933, as amended, with the Securities
and Exchange Commission for the initial public offering (the "IPO") of
Province's common stock.
Section 16 of the Securities Purchase Agreement provides that the terms
of the Securities Purchase Agreement may be amended and the observance of any
term of the Securities Purchase Agreement may be waived with the written consent
of the Company and the Required Holders.
1. In connection with the Merger, and in connection with and
contingent upon the consummation of the IPO, the parties
hereto wish to amend the Securities Purchase Agreement as
follows:
a. Section 7.1 and all subsections thereof shall be deleted in
their entirety and replaced with the following:
7.1 Financial Statements; Stockholder Reports. Each Subject
Entity will maintain a system of accounting in which full,
true and correct entries will be made of all dealings and
transactions in relation to its business and affairs in
accordance with generally accepted accounting principles. The
Company will furnish to each Major Holder promptly after the
sending or making available for filing of the same, copies of
all reports and financial statements which the Company shall
send or make available to the holders of its securities, and
all registration statements, proxy statements and all reports,
if any, which the Company shall file with the Securities and
Exchange Commission.
b. Section 12.36 shall be deleted in its entirety and replaced
with the following:
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12.36 Option Plan. The term "Option Plan" shall mean one or
more employee stock option plans to be adopted by the Company
together with any amendments thereto. Prior to the
consummation of a Qualifying Public Offering: (i) the Option
Plan shall not provide for the issuance of options to purchase
more than 5% of the outstanding Common Stock on a fully
diluted basis, after giving effect to the Closing and the
transactions contemplated by Section 6 of the Shareholders
Agreement as in effect on December 17, 1996; and (ii) ▇▇▇▇▇▇
▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ shall not be eligible to receive
option grants under the Option Plan.
2. Leeway hereby waives observance of Sections 8.3(a), 8.5, and
8.6 of the Securities Purchase Agreement in connection with
the consummation of the Merger. Leeway acknowledges and agrees
that, following the Merger, the Charter and By-laws of the
surviving corporation shall be as set forth in Exhibit A
attached hereto, and Leeway waives observance of Section 8.1
of the Securities Purchase Agreement with respect to any
differences between such Charter and By-laws and the Charter
and By-laws of Principal prior to the Merger.
3. Leeway hereby consents to the disclosure regarding it
contained in the Registration Statement on Form S-1 of
Province Healthcare Company filed with the Securities and
Exchange Commission on August 27, 1997 (the "Registration
Statement"). Leeway acknowledges that it was notified at
least 60 days in advance of the filing of the Registration
Statement, and hereby waives the requirement of written notice
thereof pursuant to Section 7.6 of the Securities Purchase
Agreement. Leeway further acknowledges that Leeway and its
attorneys and accountants have been afforded the opportunity
to participate in the preparation of the Registration
Statement as required pursuant to Section 7.6 of the
Securities Purchase Agreement. Leeway hereby waives its right
to obtain an opinion from Principal's counsel and a
"cold-comfort" letter from Principal's auditors in connection
with the Registration Statement.
4. Leeway hereby consents to the First Amendments to Senior
Management Agreements, each dated as of July 14, 1997, among
Principal, Golder, Thoma, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Fund IV, L.P., a
Delaware limited partnership ("GTCR") and each of ▇▇▇▇▇▇ ▇.
▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇. Leeway further consents to the
Amended and Restated Senior Management Agreements, each dated
as of September __, 1997, among Principal, GTCR and Messrs.
Rash and ▇▇▇▇. Leeway consents to the termination of the
Professional Services Agreement, dated as of December 17,
1996, between Principal and Golder, Thoma, Cressey, Rauner,
Inc. in connection with the IPO.
5. Leeway hereby waives observance of Section 8.9 of the
Securities Purchase Agreement in connection with the
distribution of Common Stock of Principal in May 1997 pursuant
to the three-for-one stock split of the Common Stock of
Principal, effected as a dividend.
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6. Leeway hereby waives observance of Section 9.2 of the
Securities Purchase Agreement in connection with the issuance
of Equity Securities of Province, successor by merger to
Principal, pursuant to the Merger.
7. All other provisions of the Securities Purchase Agreement
shall remain in full force and effect.
8. This First Amendment to Securities Purchase Agreement may be
executed simultaneously in two or more counterparts, any of
which need not contain the signatures of more than one party,
but all such counterparts taken together shall constitute one
and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to
Securities Purchase Agreement on the date first written above.
PRINCIPAL HOSPITAL COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Its: /s/ Chief Executive Officer
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LEEWAY & CO.
By State Street Bank & Trust Company
Its Partner
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its Assistant Secretary
