Exhibit 99(b)
ZERO-COUPON CONVERTIBLE SENIOR SUBORDINATED NOTES
DUE 2022
REGISTRATION RIGHTS AGREEMENT
Dated as of January 28, 2002
by and among
Health Management Associates, Inc.
and
Credit Suisse First Boston Corporation
Salomon Smith Barney Inc.
This Registration Rights Agreement (this "Agreement") is made and
entered into as of January 28, 2002 by and among Health Management Associates,
Inc., a Delaware corporation (the "Company"), Credit Suisse First Boston
Corporation, Salomon Smith Barney Inc. and the several Persons listed on
Schedule I hereto (each an "Initial Purchaser" and, collectively, the "Initial
Purchasers"), each of whom has agreed to purchase the Company's Zero-Coupon
Convertible Senior Subordinated Notes due 2022 (the "Notes") pursuant to the
Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
January 22, 2002, (the "Purchase Agreement"), by and among the Company and the
Initial Purchasers. In order to induce the Initial Purchasers to purchase the
Notes, the Company has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchasers pursuant to Section 9 of the Purchase
Agreement. Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them in the Indenture, dated January 28, 2002, between
the Company and First Union National Bank as Trustee, relating to the Notes (the
"Indenture").
The parties hereby agree as follows:
SECTION 1. Definitions.
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Amendment Effectiveness Deadline: As defined in Section 3(b) hereof.
Applicable Conversion Price as of any date of determination means the
Applicable Principal Amount per $1,000 principal amount at maturity of Notes as
of such date of determination divided by the Conversion Rate in effect as of
such date of determination or, if no Notes are then outstanding, the Conversion
Rate that would be in effect were Notes then outstanding.
Applicable Principal Amount as of any date of determination, with
respect to each $1,000 principal amount at maturity of Notes means the sum of
the initial issue price of such Notes ($839.78) plus accrued original issue
discount with respect to such Notes through such date of determination or, if no
Notes are then outstanding, such sum calculated as if such Notes were then
outstanding.
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Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a day on which banking institutions in the City of New York are
authorized or obligated by law or executive order to close.
Closing Date: The date hereof.
Common Stock: Class A Common Stock, par value $0.01 per share, of the
Company.
Commission: The Securities and Exchange Commission.
Conversion Rate: has the meaning assigned to that term in the
Indenture.
Damages Accrual Period: As defined in Section 4 hereof.
Damages Payment Date: Each of January 28 and July 27.
Deferral Notice: As defined in Section 5(a)(vi) hereof.
Deferral Period: As defined in Section 5(a)(vi) hereof.
Effectiveness Deadline: As defined in Section 3(a) hereof.
Effectiveness Period means the period of two years from the date the
Shelf Registration Statement is declared effective or such shorter period that
will terminate upon the earliest of the following: (A) when all the Notes
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement, (B) when all shares of Common Stock issued upon
conversion of any such Notes that had not been sold pursuant to the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement and (C) when, in the written opinion of counsel to the Company, all
outstanding Registrable Securities held by persons which are not affiliates of
the Company may be resold without registration under the Securities Act pursuant
to Rule 144(k) under the Securities Act or any successor provision thereto.
Event: As defined in Section 4 hereof.
Event Date: As defined in Section 4 hereof.
Event Termination Date: As defined in Section 4 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exempt Resales: The transactions in which the Initial Purchasers
propose to sell the Notes to certain "qualified institutional buyers," as such
term is defined in Rule 144A under the Act.
Filing Deadline: As defined in Section 3(a) hereof.
Holders: As defined in Section 2 hereof.
Liquidated Damages: As defined in Section 4 hereof.
Material Event: As defined in Section 5(vi) hereof.
Notes: The Company's Zero-Coupon Convertible Senior Subordinated
Notes due 2022 being issued pursuant to the Purchase Agreement.
Notice and Questionnaire: means a written notice delivered to the
Company containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Exhibit A to the Offering
Memorandum of the Company issued on January 22, 2002 relating to the Notes.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, all material incorporated by reference into
such Prospectus and any information previously omitted in reliance upon Rule
430A of the Act.
Rule 144: Rule 144 promulgated under the Act.
Shelf Registration Statement: As defined in Section 3 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
Registrable Securities: The Notes and the shares of Common Stock into
which the Notes are convertible, upon original issuance thereof, and at all
times subsequent thereto, until, in the case of any such Notes or shares of
Common Stock, (a) the date on which such Notes or shares of Common Stock have
been disposed of in accordance with a Shelf Registration Statement, (b) the date
on which such Notes or shares of Common Stock are distributed to the public
pursuant to Rule 144 or are saleable pursuant to Rule 144 (or similar provisions
then in effect) under the Act or
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(c) the date on which such Notes or shares of Common Stock cease to be
outstanding.
SECTION 2. Holders.
A Person is deemed to be a holder of Registrable Securities (each, a
"Holder") whenever such Person owns Registrable Securities.
SECTION 3. Shelf Registration.
(a) Shelf Registration. As soon as practicable after the Closing Date
but in no event later than 90 days after the Closing Date (such 90th day,
"Filing Deadline"), the Company shall file with the Commission a shelf
registration statement pursuant to Rule 415 under the Act (the "Shelf
Registration Statement"), relating to all Registrable Securities, and shall use
its reasonable efforts to cause such Shelf Registration Statement to become
effective on or prior to 150 days after the Closing Date (such 150th day, the
"Effectiveness Deadline").
The Company shall use its best efforts to keep any Shelf Registration
Statement required by this Section 3(a) continuously effective, supplemented and
amended as required by and subject to the provisions of Section 5(a) hereof to
the extent necessary to ensure that it is available for sales of Registrable
Securities by the Holders thereof entitled to the benefit of this Section 3(a),
and to ensure that it conforms with the requirements of this Agreement, the Act
and the policies, rules and regulations of the Commission as announced from time
to time, for the Effectiveness Period.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. Each Holder of Registrable Securities agrees that
if such Holder wishes to sell Registrable Securities pursuant to a Shelf
Registration Statement and related Prospectus, it will do so only in accordance
with this Section 3(b) and Section 5(a)(vi). Each Holder of Registrable
Securities wishing to sell Registrable Securities pursuant to a Shelf
Registration Statement and related Prospectus agrees to deliver a Notice and
Questionnaire and, if requested, the information specified in Item 508 of
Regulation S-K, to the Company at least three (3) Business Days prior to any
intended distribution of Registrable Securities under the Shelf Registration
Statement. From and after the date the Shelf Registration Statement is declared
effective, the Company shall, as promptly as is practicable after the date a
Notice and Questionnaire and, if requested, the information specified in Item
508 of Regulation S-K, is delivered, and in any event within five (5) Business
Days after such date, (i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement or prepare and, if
required by applicable law, file a supplement to the related Prospectus or a
supplement or amendment to any document incorporated therein by reference or
file
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any other required document so that the Holder delivering such Notice and
Questionnaire is named as a selling security holder in the Shelf Registration
Statement and the related Prospectus in such a manner as to permit such Holder
to deliver such Prospectus to purchasers of the Registrable Securities in
accordance with applicable law and, if the Company shall file a post-effective
amendment to the Shelf Registration Statement, use its reasonable efforts to
cause such post-effective amendment to be declared effective under the
Securities Act as promptly as is practicable, but in any event by the date (the
"Amendment Effectiveness Deadline") that is thirty (30) days after the date such
post-effective amendment is required by this clause to be filed; (ii) provide
such Holder copies of any documents filed pursuant to Section 3(b)(i); and (iii)
notify such Holder as promptly as practicable after the effectiveness under the
Securities Act of any post-effective amendment filed pursuant to Section
3(b)(i); provided, that if such Notice and Questionnaire or information
specified in Item 508 of Regulation S-K is delivered during a Deferral Period,
the Company shall so inform the Holder delivering such Notice and Questionnaire
and shall take the actions set forth in clauses (i), (ii) and (iii) above upon
expiration of the Deferral Period in accordance with Section 5(vi), provided,
further, that if under applicable law the Company has more than one option as to
the type or manner of making any such filing, it will make the required filing
or filings in the manner or of a type that is reasonably expected to result in
the earliest availability of the Prospectus for effecting resales of Registrable
Securities. Notwithstanding anything contained herein to the contrary, the
Company shall be under no obligation to name any Holder that has not delivered a
Notice and Questionnaire to the Company as a selling security holder in any
Registration Statement or related Prospectus; provided, however, that any Holder
that has delivered a Notice and Questionnaire to the Company pursuant to the
provisions of Section 3(b) of this Agreement (whether or not such Holder has
delivered a Notice and Questionnaire to the Company by the time the Registration
Statement was declared effective) shall be named as a selling security holder in
the Registration Statement or related Prospectus in accordance with the
requirements of this Section 3(b).
SECTION 4. Liquidated Damages.
The parties hereto agree that the Holders of Registrable Securities
will suffer damages, and that it would not be feasible to ascertain the extent
of such damages with precision, if (i) the Shelf Registration Statement is not
filed with the Commission on or prior to the Filing Deadline, (ii) such Shelf
Registration Statement has not been declared effective by the Commission on or
prior to the Effectiveness Deadline, (iii) the Company has failed to perform its
obligations set forth in Section 3(b) hereof within the time period required
therein, (iv) the aggregate duration of Deferral Periods in any period exceeds
the number of days permitted in respect of such period pursuant to Section
5(a)(vi) hereof or (v) the number of Deferral Periods in any period exceeds the
number permitted in respect of such period pursuant to
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Section 5(a)(vi) (each of the events of a type described in any of the foregoing
clauses (i) through (v) are individually referred to herein as an "Event," and
the Filing Deadline in the case of clause (i), the Effectiveness Deadline in the
case of clause (ii), the date by which the Company is required to perform its
obligations set forth in Section 3(b) in the case of clause (iii) (including the
filing of any post-effective amendment prior to the Amendment Effectiveness
Deadline), the date on which the aggregate duration of Deferral Periods in any
period exceeds the number of days permitted by Section 5(a)(vi) hereof in the
case of clause (iv), and the date of the commencement of a Deferral Period that
causes the limit on the number of Deferral Periods in any period under Section
5(a)(vi) hereof to be exceeded in the case of clause (v), being referred to
herein as an "Event Date"). Events shall be deemed to continue until the "Event
Termination Date," which shall be the following dates with respect to the
respective types of Events: the date the Shelf Registration Statement is filed
in the case of an Event of the type described in clause (i), the date the Shelf
Registration Statement is declared effective under the Securities Act in the
case of an Event of the type described in clause (ii), the date the Company
performs its obligations set forth in Section 3(b) in case of an Event of the
type described in clause (iii), termination of the Deferral Period that caused
the limit on the aggregate duration of Deferral Periods in a period set forth in
Section 5(a)(vi) to be exceeded in the case of the commencement of an Event of
the type described in clause (iv), and termination of the Deferral Period the
commencement of which caused the number of Deferral Periods in a period
permitted by Section 5(a)(vi) to be exceeded in the case of an Event of the type
described in clause (v).
Accordingly, commencing on (and including) any Event Date and ending on
(but excluding) the next date on which there are no Events that have occurred
and are continuing (a "Damages Accrual Period"), the Company agrees to pay, as
liquidated damages and not as a penalty, an amount (the "Liquidated Damages
Amount"), payable on the Damages Payment Dates to Holders of Registrable
Securities, accruing, for each portion of such Damages Accrual Period beginning
on and including a Damages Payment Date (or, in respect of the first time that
the Liquidated Damages Amount is to be paid to Holders on a Damages Payment Date
as a result of the occurrence of any particular Event, from the Event Date) and
ending on but excluding the first to occur of (A) the date of the end of the
Damages Accrual Period or (B) the next Damages Payment Date, at a rate per annum
equal to one-quarter of one percent (0.25%) for the first 90-day period from the
Event Date, and thereafter at a rate per annum equal to one-half of one percent
(0.5%) of the aggregate Applicable Principal Amount of such Notes and the
aggregate Applicable Conversion Price of such shares of Common Stock, as the
case may be, in each case determined as of the Business Day immediately
preceding the next Damages Payment Date; provided, that any Liquidated Damages
Amount accrued with respect to any Notes or portion thereof called for
redemption on a redemption date or converted into Common Stock on a conversion
date prior to the Damages Payment Date, shall, in any such event, be paid
instead to the Holder who submitted such
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Notes or portion thereof for redemption or conversion on the applicable
redemption date or conversion date, as the case may be, on such date (or
promptly following the conversion date, in the case of conversion).
Notwithstanding the foregoing, no Liquidated Damages Amount shall accrue as to
any Registrable Security from and after the earlier of (x) the date such
security is no longer a Registrable Security and (y) expiration of the
Effectiveness Period. The rate of accrual of the Liquidated Damages Amount with
respect to any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Events. Following the cure
of all Events requiring the payment by the Company of Liquidated Damages Amounts
to the Holders of Registrable Securities pursuant to this Section, the accrual
of Liquidated Damages Amounts will cease (without in any way limiting the effect
of any subsequent Event requiring the payment of a Liquidated Damages Amount by
the Company).
The Trustee shall be entitled, on behalf of Holders of Registrable
Securities, to seek any available remedy for the enforcement of this Agreement,
including for the payment of any Liquidated Damages Amount. Notwithstanding the
foregoing, the parties agree that the sole monetary damages payable for a
violation of the terms of this Agreement with respect to which liquidated
damages are expressly provided shall be such liquidated damages. Nothing shall
preclude a Holder of Registrable Securities from pursuing or obtaining specific
performance or other equitable relief with respect to this Agreement.
All of the Company's obligations set forth in this Section 4 that are
outstanding with respect to any Registrable Security at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement).
The parties hereto agree that the liquidated damages provided for in
this Section 4 constitute a reasonable estimate of the damages that may be
incurred by Holders of Registrable Security by reason of the failure of the
Shelf Registration Statement to be filed or declared effective or available for
effecting resales of Registrable Security in accordance with the provisions
hereof.
SECTION 5. Shelf Registration Procedures.
(a) Procedures. In connection with the Shelf Registration Statement,
the Company shall:
(i) use its reasonable best efforts to effect such
registration to permit the sale of the Registrable Securities being
sold in accordance with the intended method or methods of distribution
thereof (as indicated in the information furnished to the Company
pursuant to Section 3(b) hereof), and
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pursuant thereto the Company will prepare and file with the Commission
a Shelf Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the
sale of the Registrable Securities in accordance with the intended
method or methods of distribution thereof (including, without
limitation, one or more underwritten offerings) within the time
periods and otherwise in accordance with the provisions hereof. The
Company shall not be permitted to include in the Shelf Registration
Statement any securities other than the Registrable Securities.
(ii) use its best efforts to contact all Holders of Registrable
Securities and notify each Holder of its right to include its
Registrable Securities in such Shelf Registration Statement.
(iii) use its best efforts to keep such Shelf Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 of this Agreement.
Upon the occurrence of any event that would cause any such Shelf
Registration Statement or the Prospectus contained therein (A) to
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading
or (B) not to be effective and usable for resale of Registrable
Securities during the period required by this Agreement, the Company
shall file promptly an appropriate amendment to such Shelf Registration
Statement curing such defect, and, if Commission review is required,
use its best efforts to cause such amendment to be declared effective
as soon as practicable.
(iv) prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep such Shelf Registration Statement effective for the
applicable period set forth in Section 3 hereof, cause the Prospectus
to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with Rules 424, 430A and 462, as applicable, under the Act
in a timely manner; and comply with the provisions of the Act with
respect to the disposition of all Registrable Securities covered by
such Shelf Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Shelf Registration Statement or
supplement to the Prospectus;
(v) advise the Holders and underwriters, if any, promptly and,
if requested by such Persons, confirm such advice in writing, (A) when
the Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to any Shelf Registration Statement
or any post-
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effective amendment thereto, when the same has become effective or (B)
of any request by the Commission for amendments to the Shelf
Registration Statement or amendments or supplements to the Prospectus
or for additional information relating thereto. If at any time any
state securities commission or other regulatory authority shall issue
an order suspending the qualification or exemption from qualification
of the Registrable Securities under state securities or Blue Sky laws,
the Company shall use its best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(vi) Upon (A) the issuance by the Commission of a stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of proceedings with respect to the Shelf Registration
Statement under Section 8(d) or 8(e) of the Securities Act, (B) the
occurrence of any event or the existence of any fact (a "Material
Event") as a result of which any Shelf Registration Statement shall
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, or any Prospectus shall contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or (C) the occurrence or existence of any pending
corporate development that, in the discretion of the Company, makes it
appropriate to suspend the availability of the Shelf Registration
Statement and the related Prospectus, (i) in the case of clause (B)
above, subject to the next sentence, as promptly as practicable prepare
and file a post-effective amendment to such Shelf Registration
Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required document
that would be incorporated by reference into such Shelf Registration
Statement and Prospectus so that such Shelf Registration Statement does
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, and such Prospectus does not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Shelf Registration Statement, subject to
the next sentence, use all reasonable efforts to cause it to be
declared effective as promptly as is reasonably practicable, and (ii)
give notice to the Holders that the availability of the Shelf
Registration Statement is suspended (a "Deferral Notice") and, upon
receipt of any Deferral Notice, each Holder agrees not to sell any
Registrable Securities pursuant to the Registration Statement until
such Holder's receipt of copies of the supplemented or amended
Prospectus provided for in clause
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(i) above, or until it is advised in writing by the Company that the
Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by
reference in such Prospectus. The Company will use its reasonable
efforts to ensure that the use of the Prospectus may be resumed (x) in
the case of clause (A) above, as promptly as is practicable, (y) in
the case of clause (B) above, as soon as, in the sole judgment of the
Company, public disclosure of such Material Event would not be
prejudicial to or contrary to the interests of the Company or, if
necessary to avoid unreasonable burden or expense, as soon as
reasonably practicable thereafter and (z) in the case of clause (C)
above, as soon as, in the discretion of the Company, such suspension
is no longer appropriate. The period during which the availability of
the Shelf Registration Statement and any Prospectus is suspended (the
"Deferral Period") shall, without the Company incurring any obligation
to pay liquidated damages pursuant to Section 4, not exceed forty-five
(45) days in any three (3) month period and ninety (90) days in any
twelve (12) month period.
(vii) furnish to each Holder named in any Shelf Registration
Statement or Prospectus and underwriter, if any, in connection with
such sale before filing with the Commission, copies of any Shelf
Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Shelf Registration Statement or
Prospectus (including all documents incorporated by reference after the
initial filing of such Shelf Registration Statement), which documents
will be subject to the review and comment of such Persons in connection
with such sale, if any, for a period of at least five Business Days,
and the Company will not file any such Shelf Registration Statement or
Prospectus or any amendment or supplement to any such Shelf
Registration Statement or Prospectus (including all such documents
incorporated by reference) to which such Persons shall reasonably
object within five Business Days after the receipt thereof, after which
time any Person failing to object shall be deemed to have accepted the
form of the documents received. Any Person making a timely objection
shall be deemed to have reasonably objected to such filing if such
objection is made because such Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed,
contains an untrue statement of a material fact or omits to state any
material fact necessary to make the statements therein not misleading
or fails to comply with the applicable requirements of the Act;
(viii) promptly prior to the filing of any document that is to be
incorporated by reference into a Shelf Registration Statement or
Prospectus, provide copies of such document to the Holders, and
underwriters, if any, in connection with such sale, make the Company's
representatives available for discussion of such document and other
customary due diligence matters, and
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include such information in such document prior to the filing thereof
as such Holders may reasonably request;
(ix) make available at reasonable times for inspection by the
Holders and underwriters, if any, and any attorney or accountant
retained by such Holders, or underwriters, if any, all financial and
other records, pertinent corporate documents of the Company and cause
the Company's officers, directors and employees to supply all
information reasonably requested by any such Holder, underwriters, if
any, attorney or accountant in connection with such Shelf Registration
Statement or any post-effective amendment thereto subsequent to the
filing thereof and prior to its effectiveness; provided, however, that
such Persons shall first agree in writing with the Company that any
information that is reasonable and in good faith designated by the
Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such Persons, unless (A)
disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory
authorities, (B) disclosure of such information is required by law
(including any disclosure requirements pursuant to federal securities
laws in connection with the filing of such Registration Statement or
the use of any Prospectus), (C) such information becomes generally
available to the public other than as a result of a disclosure or
failure to safeguard such information by such Person or (D) such
information becomes available to such Person from a source other than
the Company and its subsidiaries and such source is not known, after
due inquiry, by such Person to be bound by a confidentiality
agreement; provided further, that the foregoing investigation shall be
coordinated on behalf of such Persons by one representative designated
by and on behalf of such Persons and any such confidential information
shall be available from such representative to such Persons so long as
any Person agrees to be bound by such confidentiality agreement;
(x) if requested by any Holders or underwriters, if any, in
connection with such sale, promptly include in any Shelf Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such Holders or
underwriters, if any, may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Registrable Securities; and make all required
filings of such Prospectus supplement or post-effective amendment as
soon as practicable after the Company is notified of the matters to be
included in such Prospectus supplement or post-effective amendment;
(xi) furnish to each Holder and underwriter, if any, without
charge, at least one copy of the Shelf Registration Statement, as first
filed with the
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Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(xii) deliver to each Holder and underwriter, if any, without
charge, as many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such Persons
reasonably may request; the Company hereby consents to the use (in
accordance with law) of the Prospectus and any amendment or supplement
thereto by each Holder and each underwriter, if any, in connection
with the offering and the sale of the Registrable Securities covered
by the Prospectus or any amendment or supplement thereto;
(xiii) upon the request of any Holder or underwriter, if any,
enter into such agreements (including underwriting agreements) and make
such representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition
of the Registrable Securities pursuant to any Shelf Registration
Statement contemplated by this Agreement as may be reasonably requested
by such Person in connection with any sale or resale pursuant to any
applicable Shelf Registration Statement and in such connection, the
Company shall:
(A) upon request of any Holder or underwriter, if
any, furnish (or in the case of paragraphs (2) and (3) below,
use its best efforts to cause to be furnished) to each Holder
or underwriter, if any, upon the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated such date, signed
on behalf of the Company by (x) the President or any
Vice President and (y) a principal financial or
accounting officer of the Company, confirming, as of
the date thereof, the matters set forth in Sections
6(v), 9(a) and 9(b) of the Purchase Agreement and
such other similar matters as the Holders may
reasonably request;
(2) opinions, dated the date of
effectiveness of the Shelf Registration Statement, of
counsel for the Company covering matters similar to
those set forth in paragraphs (e) and (f) of
Section 9 of the Purchase Agreement and such other
matters as the selling Holders may reasonably
request, and in any event including a statement to
the effect that such counsel has participated in
conferences with officers and other representatives
of the Company, representatives of the independent
public accountants for the Company and have
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considered the matters required to be stated therein
and the statements contained therein, although such
counsel has not independently verified the accuracy,
completeness or fairness of such statements; and that
such counsel advises that, on the basis of the
foregoing, no facts came to such counsel's attention
that caused such counsel to believe that the Shelf
Registration Statement, at the time such Shelf
Registration Statement or any post-effective
amendment thereto became effective, contained an
untrue statement of a material fact or omitted to
state a material fact required to be stated therein
or necessary to make the statements therein not
misleading, or that the Prospectus contained in such
Shelf Registration Statement as of its date,
contained an untrue statement of a material fact or
omitted 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. Without limiting the foregoing, such
counsel may state further that such counsel assumes
no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of
the financial statements, notes and schedules and
other financial data included in any Registration
Statement contemplated by this Agreement or the
related Prospectus; and
(3) a customary comfort letter, dated as of
the date of effectiveness of the Shelf Registration
Statement from the Company's independent accountants,
in the customary form and covering matters of the
type customarily covered in comfort letters to
underwriters in connection with underwritten
offerings, and affirming the matters set forth in the
comfort letters delivered pursuant to Section 9(h) of
the Purchase Agreement; and
(B) deliver such other documents and certificates as
may be reasonably requested by the Holders and underwriters,
if any, to evidence compliance with the matters set forth in
clause (A) above and with any customary conditions contained
in any agreement entered into by the Company pursuant to this
clause (xiii);
(xiv) prior to any public offering of Registrable Securities,
cooperate with the Holders, underwriters, if any, and their respective
counsel in connection with the registration and qualification of the
Registrable Securities under the securities or Blue Sky laws of such
jurisdictions as such Persons may request and do any and all other acts
or things necessary or
14
advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the applicable Registration
Statement; provided, however, that the Company shall not be required
to register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to the service
of process in suits or to taxation, other than as to matters and
transactions relating to the Shelf Registration Statement, in any
jurisdiction where it is not now so subject;
(xv) in connection with any sale of Registrable Securities that
will result in such securities no longer being Registrable Securities,
cooperate with the Holders to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold
and not bearing any restrictive legends; and to register such
Registrable Securities in such denominations and such names as the
Holders may request at least two Business Days prior to such sale of
Registrable Securities;
(xvi) (A) list all Shares of Common Stock covered by such Shelf
Registration Statement on any securities exchange on which the Common
Stock is then listed or (B) authorize for quotation on the National
Association of Securities Dealers Automated Quotation System ("NASDAQ")
or the National Market System of NASDAQ all Shares of Common Stock
covered by such Shelf Registration Statement if the Common Stock is
then so authorized for quotation.
(xvii) use its best efforts to cause the disposition of the
Registrable Securities covered by the Shelf Registration Statement to
be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
to consummate the disposition of such Registrable Securities, subject
to the proviso contained in clause (xiv) above;
(xviii) provide a CUSIP number for all Registrable Securities not
later than the effective date of a Shelf Registration Statement
covering such Registrable Securities and provide the Trustee under the
Indenture with printed certificates for the Registrable Securities
which are in a form eligible for deposit with the Depository Trust
Company;
(xix) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need
not be audited) covering a twelve-month period beginning after the
effective date of the Registration Statement (as such term is defined
in paragraph (c) of Rule 158 under the Act);
15
(xx) if underwritten, make appropriate officers of the Company
reasonably available to the underwriters for meetings with prospective
purchasers of the Registrable Securities and prepare and present to
potential investors customary "road show" material in a manner
consistent with other new issuances of other securities similar to the
Registrable Securities; and
(xxi) cause the Indenture to be qualified under the TIA not
later than the effective date of the Shelf Registration Statement
required by this Agreement and, in connection therewith, cooperate with
the Trustee and the Holders to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance
with the terms of the TIA; and execute and use its best efforts to
cause the Trustee to execute, all documents that may be required to
effect such changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so qualified
in a timely manner; and
(xxii) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13 or
Section 15(d) of the Exchange Act.
(b) Restrictions on Holders. Each Holder receiving a Deferral Notice
hereby agrees that it will either (i) destroy any Prospectuses, other than
permanent file copies, then in such Holder's possession which have been replaced
by the Company with more recently dated Prospectuses or (ii) deliver to the
Company (at the Company's expense) all copies, other than permanent file copies,
then in such Holder's possession of the Prospectus covering such Registrable
Securities that was current at the time of receipt of the Deferral Notice. The
time period regarding the effectiveness of the Shelf Registration Statement set
forth in Section 3 hereof, shall be extended by a number of days equal to the
number of days in the period from and including the date of delivery of the
Deferral Notice to the date of termination of the Deferral Period.
SECTION 6. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Shelf Registration Statement required by this Agreement becomes
effective, including without limitation: (i) all registration and filing fees
and expenses; (ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws; (iii) all expenses of printing (including
printing certificates for the Common Stock to be issued upon conversion of the
Notes and printing of Prospectuses), messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company and the
Holders of Registrable Securities; (v) all application and filing
16
fees in connection with listing the Common Stock on a national securities
exchange or automated quotation system pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified public accountants of
the Company (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with any Shelf Registration Statement required by
this Agreement, the Company will reimburse the Initial Purchasers and the
Holders selling Registrable Securities pursuant to the "Plan of Distribution"
contained in the Shelf Registration Statement, for the reasonable fees (not to
exceed $10,000) and disbursements of not more than one counsel, who shall be
Davis Polk & Wardwell, unless another firm shall be chosen by the Holders of a
majority in principal amount at maturity of the Registrable Securities for whose
benefit such Shelf Registration Statement is being prepared.
SECTION 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Holder, its
directors, its officers and each Person, if any, who controls such Holder
(within the meaning of Section 15 of the Act and Section 20 of the Exchange
Act), from and against any and all losses, claims, damages, liabilities,
judgments, (including without limitation, any legal or other expenses incurred
in connection with investigating or defending any matter, including any action
that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Shelf Registration Statement, preliminary
prospectus or Prospectus (or any amendment or supplement thereto) provided by
the Company to any Holder or any prospective purchaser of registered Notes or
registered shares of Common Stock or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or judgments are caused by an untrue statement or
omission or alleged untrue statement or omission that is based upon information
relating to any of the Holders furnished in writing to the Company by any of the
Holders.
(b) Each Holder of Registrable Securities agrees, severally and not
jointly, to indemnify and hold harmless the Company and its directors and
officers, and each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) the Company, to the same extent
as the foregoing indemnity from the Company set forth in Section 7(a) above, but
only with reference to
17
information relating to such Holder furnished in writing to the Company by such
Holder expressly for use in any Registration Statement. In no event shall any
Holder, its directors, its officers or any Person, if any, who controls such
Holder be liable or responsible for any amount in excess of the amount by which
the total amount received by such Holder with respect to its sale of Registrable
Securities pursuant to a Shelf Registration Statement exceeds (i) the amount
paid by such Holder for such Registrable Securities and (ii) the amount of any
damages that such Holder, its directors, its officers or any Person, if any, who
controls such Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying person") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) and 7(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 7(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by a majority of the
Holders, in the case of the parties indemnified pursuant to Section 7(a), and by
the Company, in the case of parties indemnified pursuant to Section 7(b). The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims,
18
damages, liabilities and judgments by reason of any settlement of any action
effected with its written consent. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action 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 the indemnified party.
(d) To the extent that the indemnification provided for in this
Section 7 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
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, claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company, on
the one hand, and the Holders, on the other hand, from their sale of Registrable
Securities or (ii) if the allocation provided by clause 7(d)(i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 7(d)(i) above but also the relative
fault of the Company on the one hand, and of the Holders, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company, on the one hand,
and of the Holders, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand, or by the Holders, on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the Holders 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 in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action that
could have given rise to such losses, claims, damages, liabilities or judgments.
Notwithstanding the provisions of this Section 7,
19
no Holder shall be required to contribute, in the aggregate, any amount in
excess of the amount by which the total received by such Holder with respect to
the sale of its Registrable Securities pursuant to a Registration Statement
exceeds (i) the amount paid by such Holder for such Registrable Securities and
(ii) the amount of any damages which such Holder 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 7(d) are several in
proportion to the respective principal amount at maturity of Registrable
Securities held by each of the Holders hereunder and not joint.
SECTION 8. Rule 144A and Rule 144.
The Company agrees with each Holder, for so long as any Registrable
Securities remain outstanding and during any period in which the Company (i) is
not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon
request of any Holder of Registrable Securities, to any Holder or beneficial
owner of Registrable Securities in connection with any sale thereof and any
prospective purchaser of Registrable Securities designated by such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under the Act in
order to permit resales of such Registrable Securities pursuant to Rule 144A,
and (ii) is subject to Section 13 or 15(d) of the Exchange Act, to make all
filings required thereby in a timely manner in order to permit resales of such
Registrable Securities pursuant to Rule 144.
SECTION 9. Underwritten Registrations.
(a) If any of the Registrable Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in the
principal amount at maturity of such Registrable Securities included in such
offering, subject to the consent of the Company (which will not be unreasonably
withheld or delayed).
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (i) agrees to sell its Registrable
Securities on the basis reasonably provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
20
(b) Each Holder of Registrable Securities agrees, if requested
(pursuant to a timely written notice) by the managing underwriters in an
underwritten offering made pursuant to a Shelf Registration Statement, not to
effect any private sale or distribution (including a sale pursuant to Rule
144(k) and Rule 144A, but excluding non-public sales to any of its affiliates,
officers, directors, employees and controlling persons) of any of the Notes, in
the case of an underwritten offering of the Notes, or the Common Stock, in the
case of an underwritten offering of shares of Common Stock constituting
Registrable Securities, during the period beginning 10 days prior to, and ending
90 days after, the closing date of such underwritten offering.
The foregoing provisions of Section 9(b) shall not apply to any Holder
of Registrable Securities if such Holder is prevented by applicable statute or
regulation from entering into any such agreement.
(c) If any of the Registrable Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the underwriters, their
controlling persons and their respective officers, directors, employees,
representatives and agents shall be entitled to indemnity (substantially similar
to the indemnity set forth in Section 7 of the Agreement) from the Company and
the Holders, which indemnity may be set forth in an underwriting agreement.
SECTION 10. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under Section 3 hereof may result in
material irreparable injury to the Initial Purchasers or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchasers or any Holder may obtain such relief as may be required
to specifically enforce the Company's obligations under Section 3 hereof. The
Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not previously
entered into any agreement (which has not expired or been terminated) granting
any registration rights with respect to its securities to any Person, except for
that certain Registration Agreement dated as of September 2, 1988, whereby
certain of the Company's executive officers and Robert A. Knox, a director of
the Company, have certain demand registration rights and "piggyback"
registration rights, at the Company's expense, with respect to registration
under the Securities Act of all their shares of Common Stock. The rights granted
to the Holders hereunder do not in any way
21
conflict with and are not inconsistent with the rights granted to the holders of
the Company's securities under any agreement in effect on the date hereof.
(c) No Piggybacks on Shelf Registration Statement. With the exception
of registration rights granted in the Registration Agreement as disclosed in
Section 10(b) hereof, the Company shall not grant to any of its security holders
(other than the holders of Registrable Securities in such capacity) the right to
include any of its securities in any Shelf Registration Statement provided for
in this Agreement other than the Registrable Securities.
(d) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section 4
hereof and this Section 10(d)(i), the Company has obtained the written consent
of Holders of all outstanding Registrable Securities and (ii) in the case of all
other provisions hereof, the Company has obtained the written consent of Holders
of a majority of the outstanding principal amount at maturity of Registrable
Securities (excluding Registrable Securities held by the Company or its
Affiliates).
(e) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(f) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
(ii) if to the Company: Health Management Associates, Inc.
5811 Pelican Bay Boulevard, Suite 500
Naples, FL 34108-2710
Telecopier No.: (941) 596-1426
Attention: Timothy R. Parry
With a copy to: Harter, Secrest & Emery LLP
1600 Bausch & Lomb Place
Rochester, NY 14604-2070
Telecopier No.: (585) 232-2152
22
Attention: Craig S. Wittlin
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(g) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Registrable Securities; provided, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms hereof or of the Purchase
Agreement or the Indenture. If any transferee of any Holder shall acquire
Registrable Securities in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement, including the restrictions on resale
set forth in this Agreement and, if applicable, the Purchase Agreement, and such
Person shall be entitled to receive the benefits hereof.
(h) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAW RULES THEREOF.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
23
(l) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
HEALTH MANAGEMENT ASSOCIATES, INC.
By: /s/ Robert E. Farnham
----------------------------------
Name: Robert E. Farnham
Title: Senior Vice President and
Chief Financial Officer
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Benjamin C. Adams
------------------------------------
Name: Benjamin C. Adams
Title: Director
SALOMON SMITH BARNEY INC.
By: /s/ Richard Landgarten
------------------------------------
Name: Richard Landgarten
Title: Managing Director
SCHEDULE I
Initial Purchasers
Credit Suisse First Boston Corporation
Salomon Smith Barney Inc.
Banc of America Securities LLC
First Union Securities Inc.
J.P. Morgan Securities Inc.