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EXHIBIT 1.1
MATRIA HEALTHCARE, INC.
$125,000,000 11% Senior Notes due 2008
PURCHASE AGREEMENT
June 29, 2001
New York, New York
UBS Warburg LLC and
First Union Securities, Inc.
c/o UBS Warburg LLC
299 Park Avenue
New York, New York 10171
Ladies and Gentlemen:
Matria Healthcare, Inc., a Delaware corporation (the
"COMPANY") and each of the Guarantors (as defined herein), agree with you as
follows:
1. Issuance of Notes. The Company proposes to issue and
sell to UBS Warburg LLC and First Union Securities, Inc. (collectively, the
"INITIAL PURCHASERS") $125,000,000 aggregate principal amount of 11% Senior
Notes due 2008 (the "ORIGINAL NOTES"). The Original Notes will be issued
pursuant to an indenture (the "INDENTURE"), to be dated the Closing Date (as
defined herein), by and among the Company, the Guarantors and Wells Fargo Bank
Minnesota, National Association, as trustee (the "TRUSTEE"). The Company's
obligations under the Original Notes and the Indenture will be unconditionally
guaranteed (the "GUARANTEES") on an unsecured senior basis by the guarantors
denoted by asterisk in Schedule II hereto (the "GUARANTORS" and, collectively
with the Company, the "ISSUERS"). All references herein to the Original Notes
include the related Guarantees, unless the context otherwise requires. The
obligations of the Initial Purchasers are several and not joint.
The Original Notes will be offered and sold to the Initial
Purchasers pursuant to an exemption from the registration requirements under the
Securities Act of 1933, as amended (the "ACT"). The Issuers have prepared a
preliminary offering memorandum, dated June 14, 2001 (the "PRELIMINARY OFFERING
MEMORANDUM"), and a final offering memorandum dated the date hereof (the
"OFFERING MEMORANDUM") relating to the Company, the Guarantors and the Original
Notes.
The Initial Purchasers have advised the Company that the
Initial Purchasers intend, as soon as they deem practicable after this Purchase
Agreement (this "AGREEMENT") has been executed and delivered, to resell (the
"EXEMPT RESALES") the Original Notes purchased by the Initial Purchasers under
this Agreement in private sales exempt from registration under the Act on the
terms set forth in the Offering Memorandum, as amended or supplemented, solely
to (i) persons whom the Initial Purchasers reasonably believe to be "qualified
institutional buyers," as defined in Rule 144A under the Act ("QIBS"), and (ii)
other eligible purchasers pursuant to
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offers and sales that occur outside the United States within the meaning of
Regulation S promulgated under the Act ("REGULATION S"); the persons specified
in clauses (i) and (ii) are sometimes collectively referred to herein as the
"ELIGIBLE PURCHASERS."
Upon issuance of the Original Notes and until such time as the
same is no longer required under the applicable requirements of the Act, the
Original Notes shall bear the legend relating thereto set forth under "Notice to
Investors" in the Offering Memorandum.
Holders (including subsequent transferees) of the Original
Notes will have the registration rights set forth in the registration rights
agreement (the "REGISTRATION RIGHTS AGREEMENT") to be dated the Closing Date,
substantially in the form attached hereto as Exhibit A. Pursuant to the
Registration Rights Agreement, the Issuers will agree to (i) file with the
Securities and Exchange Commission (the "COMMISSION") under the circumstances
set forth in the Registration Rights Agreement, (a) a registration statement
under the Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating to a new
issue of debt securities (collectively with the Private Exchange Securities (as
defined in the Registration Rights Agreement) the "EXCHANGE NOTES" and, together
with the Original Notes, the "NOTES," which term includes the guarantees related
thereto) to be offered in exchange for the Original Notes (the "EXCHANGE OFFER")
and issued under the Indenture or an indenture substantially identical to the
Indenture and/or (b) under certain circumstances set forth in the Registration
Rights Agreement, a shelf registration statement pursuant to Rule 415 under the
Act (the "SHELF REGISTRATION STATEMENT" and, together with the Exchange Offer
Registration Statement, the "REGISTRATION STATEMENTS") relating to the resale by
certain holders of the Original Notes, and (ii) to use their reasonable best
efforts to cause such Registration Statements to be declared effective. This
Agreement, the Notes, the Guarantees, the Indenture and the Registration Rights
Agreement are hereinafter sometimes referred to collectively as the "NOTE
DOCUMENTS." As used herein, the term "INCORPORATED DOCUMENTS" means the
documents which at the time are incorporated by reference in the Preliminary
Offering Memorandum, the Offering Memorandum or any amendment or supplement
thereto, as the case may be. Any reference herein to the Preliminary Offering
Memorandum or the Offering Memorandum, as the case may be, shall be deemed to
refer to and include the Incorporated Documents as of the date thereof and any
reference to any amendment or supplement to the Preliminary Offering Memorandum
or the Offering Memorandum, as the case may be, shall be deemed to refer to and
include any document filed with the Commission after the date thereof and which
upon filing with the Commission becomes an Incorporated Document.
2. Agreements to Sell and Purchase. On the basis of the
representations, warranties and covenants of the Initial Purchasers contained in
this Agreement, the Issuers agree to issue and sell to the Initial Purchasers,
and on the basis of the representations, warranties and covenants of the Issuers
contained in this Agreement, and subject to the terms and conditions contained
in this Agreement, the Initial Purchasers, severally and not jointly, agree to
purchase from the Issuers the aggregate principal amount of Original Notes set
forth their respective names on Schedule I hereto. The purchase price for the
Original Notes shall be 91.00% of their principal amount.
3. Delivery and Payment. Delivery of, and payment of the
purchase price for, the Original Notes shall be made at 10:00 a.m., New York
City time, on July 9, 2001 (such date and time, the "CLOSING DATE") at the
offices of Dewey Ballantine LLP at 1301 Avenue of the Americas, New York, New
York 10019. The Closing Date and the location of delivery of and
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the form of payment for the Original Notes may be varied by mutual agreement
between the Initial Purchasers and the Company.
One or more of the Original Notes in global form registered in
such names as the Initial Purchasers may request upon at least one business
day's notice prior to the Closing Date and having an aggregate principal amount
corresponding to the aggregate principal amount of the Original Notes shall be
delivered by the Company to the Initial Purchasers (or as the Initial Purchasers
direct), against payment by the Initial Purchasers of the purchase price
therefor by means of transfer of immediately available funds to such account or
accounts specified by the Company in accordance with its obligations under
Sections 4(g) hereof on or prior to the Closing Date, or by such means as the
parties hereto shall agree prior to the Closing Date.
4. Agreements of the Issuers. The Issuers, jointly and
severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons
identified by the Initial Purchasers, without charge, with as many
copies of the Preliminary Offering Memorandum and the Offering
Memorandum, and any amendments or supplements thereto, as the Initial
Purchasers may reasonably request. The Issuers consent to the use of
the Preliminary Offering Memorandum and the Offering Memorandum, and
any amendments and supplements thereto required pursuant to this
Agreement, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to amend or supplement the Offering Memorandum,
or file any document with the Commission which upon filing will become
an Incorporated Document, prior to the Closing Date unless the Initial
Purchasers shall previously have been advised of such proposed
amendment or supplement, or filing, at least two business days prior to
the proposed use, or filing, and shall not have objected to such
amendment or supplement.
(c) If, prior to the time that the Initial Purchasers
have completed their distribution of the Original Notes, any event
shall occur that, in the judgment of the Issuers or in the judgment of
counsel to the Initial Purchasers, makes any statement of a material
fact in the Offering Memorandum, as then amended or supplemented,
untrue or that requires the making of any additions to or changes in
the Offering Memorandum in order to make the statements in the Offering
Memorandum, as then amended or supplemented, in the light of the
circumstances under which they are made, not misleading, or if it is
necessary to amend or supplement the Offering Memorandum to comply with
all applicable laws, the Issuers shall promptly notify the Initial
Purchasers of such event and (subject to Section 4(b)) prepare an
appropriate amendment or supplement to the Offering Memorandum so that
(i) the statements in the Offering Memorandum, as amended or
supplemented, will, in the light of the circumstances at the time that
the Offering Memorandum is delivered to prospective Eligible
Purchasers, not be misleading and (ii) the Offering Memorandum will
comply with applicable law.
(d) To cooperate with the Initial Purchasers and counsel
to the Initial Purchasers in connection with the qualification or
registration of the Original Notes under the securities laws of such
jurisdictions as the Initial Purchasers may request and to continue
such qualification in effect so long as required for the Exempt
Resales.
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Notwithstanding the foregoing, no Issuer shall be required to qualify
as a foreign corporation in any jurisdiction in which it is not so
qualified or to file a general consent to service of process in any
such jurisdiction or subject itself to taxation in excess of a nominal
dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if
requested by the Initial Purchasers, to confirm such advice in writing,
of the issuance by any securities commission of any stop order
suspending the qualification or exemption from qualification of any of
the Original Notes for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purpose by any securities
commission or other regulatory authority. The Issuers shall use their
reasonable best efforts to prevent the issuance of any stop order or
order suspending the qualification or exemption of any of the Original
Notes under any securities laws, and if at any time any securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption of any of the Original Notes
under any securities laws, the Issuers shall use their reasonable best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(f) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement becomes effective or is
terminated other than by reason of a default by the Initial Purchasers,
to pay all costs, expenses, fees, disbursements reasonably incurred and
stamp, documentary or similar taxes incident to and in connection with:
(i) the preparation, printing and distribution of the Preliminary
Offering Memorandum and the Offering Memorandum (including, without
limitation, financial statements) and all amendments and supplements
thereto, (ii) all expenses (including travel expenses and 50% of
expenses relating to chartered aircraft) of the Issuers in connection
with any meetings with prospective investors in the Original Notes,
(iii) the preparation, notarization (if necessary) and delivery of the
Note Documents and all other agreements, memoranda, correspondence and
documents prepared and delivered in connection with this Agreement and
with the Exempt Resales, (iv) the issuance, transfer and delivery by
the Company and the Guarantors of the Original Notes and the
Guarantees, respectively, to the Initial Purchasers, (v) the
qualification or registration of the Notes for offer and sale under the
securities laws of the several states of the United States or provinces
of Canada (including, without limitation, the cost of printing and
mailing preliminary and final "Blue Sky" or legal investment memoranda
and fees and disbursements of counsel (including local counsel) to the
Initial Purchasers relating thereto), (vi) the furnishing of such
copies of the Preliminary Offering Memorandum and the Offering
Memorandum, and all amendments and supplements thereto, as may be
reasonably requested for use in connection with Exempt Resales, (vii)
the preparation of certificates for the Notes, (viii) the application
for quotation of the Notes in The Portal Market ("PORTAL") of the
National Association of Securities Dealers, Inc. ("NASD"), including,
but not limited to, all listing fees and expenses, (ix) the approval of
the Notes by The Depository Trust Company ("DTC") for "book-entry"
transfer, (x) the rating of the Notes by rating agencies, (xi) the fees
and expenses of the Trustee and its counsel, and (xii) the performance
by the Issuers of their other obligations under the Note Documents.
(g) To use the proceeds from the sale of the Original
Notes in the manner described in the Offering Memorandum under the
caption "Use of Proceeds."
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(h) To do and perform all things required to be done and
performed under this Agreement by them prior to or after the Closing
Date and to satisfy all conditions precedent on their part to the
delivery of the Original Notes.
(i) Not to, and not to permit any of their subsidiaries
to, sell, offer for sale or solicit offers to buy any security (as
defined in the Act) that would be integrated with the sale of the
Original Notes in a manner that would require the registration under
the Act of the sale of the Original Notes to the Initial Purchasers or
any Eligible Purchasers.
(j) Not to and to use their reasonable best efforts to
cause their affiliates (as defined in Rule 144 under the Act) not to,
resell any of the Original Notes that have been reacquired by any of
them.
(k) Not to engage, not to allow any of their subsidiaries
to engage, and to use their reasonable best efforts to cause their
other affiliates and any person acting on their behalf (other than, in
any case, the Initial Purchasers and any of the affiliates of the
Initial Purchasers, as to whom the Issuers make no covenant) not to
engage, in any form of general solicitation or general advertising
(within the meaning of Regulation D under the Act) in connection with
any offer or sale of the Original Notes in the United States prior to
the effectiveness of a registration statement with respect to the
Notes.
(l) Not to engage, not to allow any of their subsidiaries
to engage, and to use their reasonable best efforts to cause their
other affiliates and any person acting on their behalf (other than, in
any case, the Initial Purchasers and any affiliates of the Initial
Purchasers, as to whom the Issuers make no covenant) not to engage, in
any directed selling effort with respect to the Original Notes, and to
comply with the offering restrictions requirement of Regulation S under
the Act. Terms used in this paragraph have the meanings given to them
by Regulation S.
(m) From and after the Closing Date, for so long as any
of the Notes remain outstanding and are "restricted securities" within
the meaning of Rule 144(a)(3) under the Act and during any period in
which the Company is not subject to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), to
make available upon request the information required by Rule 144A(d)(4)
under the Act to (i) any holder or beneficial owner of Notes in
connection with any sale of such Notes and (ii) any prospective
purchaser of such Notes from any such holder or beneficial owner
designated by the holder or beneficial owner. The Issuers will pay the
expenses of printing and distributing such documents.
(n) To comply in all material respects with all of their
agreements set forth in the Registration Rights Agreement.
(o) To comply in all material respects with all of their
obligations set forth in the representations letter of the Issuers to
DTC relating to the approval of the Notes by DTC for "book-entry"
transfer and to use their best efforts to obtain approval of the Notes
by DTC for "book-entry" transfer.
(p) To use their reasonable best efforts to effect the
inclusion of the Original Notes in Portal.
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(q) Prior to the Closing Date, to furnish without charge
to the Initial Purchasers, (i) as soon as they have been prepared, a
copy of any regularly prepared internal financial statements of the
Company and its Subsidiaries (as defined herein) for any period
subsequent to the period covered by the financial statements appearing
in or incorporated by reference in the Offering Memorandum, (ii) all
other reports and other communications (financial or otherwise) that
any of the Issuers mail or otherwise make available to their security
holders and (iii) such other information as the Initial Purchasers
shall reasonably request.
(r) Not to distribute prior to the Closing Date any
offering material in connection with the offer and sale of the Original
Notes other than the information contained in the Preliminary Offering
Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date
or, if earlier, until such time as the Original Notes are no longer
restricted securities (as defined in Rule 144 under the Act), not to be
or become a closed-end investment company required to be registered,
but not registered, under the Investment Company Act of 1940.
(t) In connection with the offering, until the Initial
Purchasers shall have notified the Company of the completion of the
resale of the Original Notes, not to, and not to permit any of their
affiliates (as such term is defined in Rule 501(b) of Regulation D
under the Act) to, either alone or with one or more other persons, bid
for or purchase any Original Notes for any account in which they or any
of their affiliates have a beneficial interest; and none of the Issuers
nor any of their affiliates will make bids or purchases for the purpose
of creating actual or apparent active trading in or of raising the
price of, the Original Notes.
5. Representations and Warranties. (a) The Issuers,
jointly and severally, represent and warrant to the Initial Purchasers that:
(i) Each of the Preliminary Offering Memorandum
and the Offering Memorandum has been prepared in connection
with the Exempt Resales. None of the Preliminary Offering
Memorandum, the Offering Memorandum or any supplement or
amendment thereto or any Incorporated Document contains any
untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Issuers
make no representation or warranty with respect to information
relating to the Initial Purchasers contained in or omitted
from the Preliminary Offering Memorandum or the Offering
Memorandum or any supplement or amendment thereto, in reliance
upon and in conformity with information furnished to the
Company in writing by or on behalf of the Initial Purchasers
expressly for inclusion in the Preliminary Offering
Memorandum, the Offering Memorandum, or any supplement or
amendment thereto or any Incorporated Document. No order
preventing the use of the Preliminary Offering Memorandum or
the Offering Memorandum, or any order asserting that any of
the transactions contemplated by this Agreement are subject to
the registration requirements of the Act, has been issued or,
to the knowledge of any Issuer, has been threatened.
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(ii) There are no securities of the Issuers that
are listed on a national securities exchange registered under
Section 6 of the Exchange Act or that are quoted in a United
States automated interdealer quotation system of the same
class as the Notes within the meaning of Rule 144A(d)(3) under
the Act.
(iii) As of the Closing Date, the Company shall
have an authorized capitalization as set forth under the
heading "Capitalization" in the Offering Memorandum. All of
the issued and outstanding shares of capital stock or other
equity interests of the Issuers have been duly authorized and
validly issued, are fully paid and nonassessable and were not
issued in violation of any preemptive or similar right.
Attached as Schedule II is a true and complete list of each
entity in which the Company has a direct or indirect majority
equity or voting interest, their jurisdictions of
incorporation or formation, their stockholders and percentage
equity ownership by the Company (all such entities, the
"SUBSIDIARIES"). All of the issued and outstanding shares of
capital stock or other equity interests of each of the
Subsidiaries have been duly and validly authorized and issued,
are fully paid and nonassessable, were not issued in violation
of any preemptive or similar right and, except as set forth in
the Offering Memorandum, are owned by the Company free and
clear of all Liens (as defined in the Indenture) (other than
those imposed by the Act or the securities or "Blue Sky" laws
of certain jurisdictions). Except as set forth in the Offering
Memorandum, there are no outstanding options, warrants or
other rights to acquire or purchase, or instruments
convertible into or exchangeable for, any shares of capital
stock of the Company or any Subsidiaries. No holder of any
securities of the Company or any Subsidiaries is entitled to
have such securities (other than the Notes) registered under
any registration statement contemplated by the Registration
Rights Agreement, except for the rights contemplated in the
Securities Purchase Agreement, dated May 10, 2001, among the
Company, Gainor Medical Management, LLC, a Georgia limited
liability company ("GAINOR MEDICAL"), Mark J. Gainor and SZ
Investments, LLC, a Florida limited liability company (the
"GAINOR REPURCHASE AGREEMENT").
(iv) Each of the Company and the Subsidiaries (a)
is a corporation, partnership or other entity duly organized
and validly existing under the laws of the jurisdiction of its
organization, (b) has all requisite corporate or other power
and authority, and has all governmental licenses,
authorizations, consents and approvals, necessary to own its
property and carry on its business as now being conducted,
except if the failure to obtain any such license,
authorization, consent and approval would not, individually or
in the aggregate, have a Material Adverse Effect (as defined
below) and (c) is qualified to do business and is in good
standing in all jurisdictions in which the nature of the
business conducted by it makes such qualification necessary
except to the extent that failure to be so qualified or in
good standing, individually or in the aggregate, would have a
Material Adverse Effect. A "MATERIAL ADVERSE EFFECT" means any
material adverse effect on the business, condition (financial
or other), results of operations, properties or prospects of
the Company and the Subsidiaries, taken as a whole.
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(v) Each of the Issuers has all requisite power
and authority to execute, deliver and perform all of its
obligations under the Note Documents to which it is a party
and to consummate the transactions contemplated thereby to be
consummated on its part and, without limitation, the Company
has all requisite corporate power and authority to issue, sell
and deliver the Notes and each Guarantor has all requisite
corporate power and authority to execute, deliver and perform
all its obligations under its Guarantee.
(vi) This Agreement has been duly and validly
authorized, executed and delivered by each Issuer.
(vii) The Indenture has been duly authorized and,
when duly executed and delivered by each Issuer (assuming the
due authorization, execution and delivery thereof by the
Trustee), will be a legally binding and valid obligation of
each Issuer, enforceable against each of them in accordance
with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general
principles of equity and the discretion of the court before
which any proceedings therefor may be brought; and no
qualification of the Indenture under the Trust Indenture Act
(as defined below) is required in connection with the offer
and sale of the Original Notes contemplated hereby or in
connection with the Exempt Resales.
(viii) The Original Notes have been duly authorized
and, when issued and delivered by the Company against payment
by the Initial Purchasers, and duly authenticated by the
Trustee, all in accordance with the terms of this Agreement
and the Indenture, will be legally binding and valid
obligations of the Company, entitled to the benefits of the
Indenture and enforceable against the Company in accordance
with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general
principles of equity and the discretion of the court before
which any proceedings therefor may be brought.
(ix) The Exchange Notes have been duly authorized
and, when issued and delivered by the Company pursuant to a
Registration Statement, and duly authenticated by the Trustee,
all in accordance with the terms of the Registration Rights
Agreement, the Exchange Offer and the Indenture, will be
legally binding and valid obligations of the Company, entitled
to the benefits of the Indenture and enforceable against the
Company in accordance with their terms, except that
enforceability of the Exchange Notes may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of
equity and the discretion of the court before which any
proceedings therefor may be brought.
(x) The Guarantees have been duly authorized
and, when the Original Notes are issued and delivered by the
Company against payment by the Initial Purchasers, and duly
authenticated by the Trustee, all in accordance with
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the terms of this Agreement and the Indenture, will be legally
binding and valid obligations of the Guarantors, enforceable
against each of them in accordance with their terms, except
that enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium
or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity and the
discretion of the court before which any proceedings therefor
may be brought.
(xi) The guarantees to be endorsed on the
Exchange Notes, when the Exchange Notes are issued and
delivered by the Company pursuant to a Registration Statement,
and duly authenticated by the Trustee, all in accordance with
the terms of the Registration Rights Agreement, the Exchange
Offer and the Indenture, will be legally binding and valid
obligations of the Guarantors, enforceable against each of
them in accordance with their terms, except that
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium
or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity and the
discretion of the court before which any proceedings therefor
may be brought.
(xii) The Registration Rights Agreement, when duly
executed and delivered by each of the Issuers (assuming the
due authorization, execution and delivery thereof by the
Initial Purchasers), will constitute a legally binding and
valid obligation of each of the Issuers, enforceable against
them in accordance with its terms, except that enforceability
may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws affecting
the enforcement of creditors' rights generally and by general
principles of equity and the discretion of the court before
which any proceedings therefor may be brought and except as
rights to indemnification and contribution under the
Registration Rights Agreement may be limited by federal or
state securities laws or principals of public policy.
(xiii) Neither the Company nor any Subsidiary is in
violation of its charter, bylaws or other constitutive
documents. Neither the Company nor any Subsidiary is (A) in
default (or, with notice or lapse of time or both, would be in
default) in the performance or observance of any obligation,
agreement, covenant or condition contained in any bond,
debenture, note, indenture, mortgage, deed of trust, loan or
credit agreement, lease, license, franchise agreement,
authorization, permit, certificate or other agreement or
instrument to which any of them is a party or by which any of
them is bound or to which any of their assets or properties is
subject (collectively, "AGREEMENTS AND INSTRUMENTS") or (B) in
violation of any law, statute, rule, regulation, judgment,
order or decree of any domestic or foreign court with
jurisdiction over any of them or any of their assets or
properties or other governmental or regulatory authority,
agency or other body, which, in the case of clauses (A) and
(B), individually or in the aggregate, would have a Material
Adverse Effect.
(xiv) None of the issuance, offer and sale of the
Original Notes, the execution, delivery and performance of the
Note Documents by the Issuers, as applicable, or the
consummation by the Issuers of the transactions contemplated
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by the Note Documents, as applicable, violate or will violate,
conflict with or constitute a breach of any of the terms or
provisions of or a default under (or an event that with notice
or the lapse of time, or both, would constitute a default), or
require consent under, or result in the creation or imposition
of a lien, charge or encumbrance on any property or assets of
the Company or any Subsidiary pursuant to, (i) the charter,
bylaws or other constitutive documents of the Company or any
Subsidiary, (ii) any law, statute, rule or regulation
applicable to the Company or any Subsidiary or their
respective assets or properties or (iii) any judgment, order
or decree of any domestic or foreign court or governmental
agency or authority having jurisdiction over the Company or
any Subsidiary or their respective assets or properties,
which, in the case of clauses (ii) and (iii), individually or
in the aggregate, would have a Material Adverse Effect.
Assuming the accuracy of the representations and warranties of
the Initial Purchasers in Section 5(b) of this Agreement, no
consent, approval, authorization or order of, or filing,
registration, qualification, license or permit of or with, any
court or governmental agency, body or administrative agency,
domestic or foreign, is required to be obtained or made by the
Company or any Subsidiary for the execution, delivery and
performance by the Company and the Subsidiaries of the Note
Documents to which they are party including the consummation
of any of the transactions contemplated thereby, except (x)
such as have been or will be obtained or made on or prior to
the Closing Date, (y) registration of the Exchange Offer or
resale of the Notes under the Act pursuant to the Registration
Rights Agreement and (z) qualification of the Indenture under
the Trust Indenture Act of 1939, as amended (the "TRUST
INDENTURE ACT"), in connection with the issuance of the
Exchange Notes. No consents or waivers from any other person
or entity are required for the execution, delivery and
performance of this Agreement or any of the other Note
Documents or the consummation of any of the transactions
contemplated thereby, other than such consents and waivers as
have been obtained or will be obtained prior to the Closing
Date and will be in full force and effect. Except as set forth
in the Offering Memorandum, there is (A) no statute, rule,
regulation or order that has been enacted, adopted or issued
or, to the knowledge of the Issuers, that has been proposed by
any governmental body or agency, domestic or foreign or (B) no
injunction, restraining order or order of any nature by a
federal or state court or foreign court of competent
jurisdiction to which the Company or any Subsidiary is or may
be subject that (a) in the case of clauses (A) and (B),
individually or in the aggregate, (1) would have a Material
Adverse Effect or (2) could reasonably be expected to
interfere with or adversely affect the issuance of the Notes
or the Guarantees in any jurisdiction or adversely affect the
consummation of the transactions contemplated by any of the
Note Documents or (b) is otherwise of a character that would
be required to be described in the Offering Memorandum if the
Offering Memorandum was a prospectus included in a
registration statement under the Act. Every request of any
securities authority or agency of any jurisdiction for
additional information with respect to the Notes that has been
received by the Company or any Subsidiary or their counsel
prior to the date hereof has been, or will prior to the
Closing Date be, complied with in all material respects.
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(xv) Except as set forth in the Offering
Memorandum, there is no action, suit or proceeding before or
by any court, arbitrator or governmental agency, body or
official, domestic or foreign, now pending or, to the
knowledge of the Issuers, threatened or contemplated, to which
the Company or any Subsidiary is or may be a party or to which
the business, assets or property of such person is or may be
subject, that (1) (a) would, individually or in the aggregate,
have a Material Adverse Effect or (b) could reasonably be
expected to interfere with or adversely affect the issuance of
the Notes in any jurisdiction or adversely affect the
consummation of the transactions contemplated by any of the
Note Documents or (2) is otherwise of a character that would
be required to be described in the Offering Memorandum if the
Offering Memorandum was a prospectus included in a
registration statement under the Act.
(xvi) Except as would not have a Material Adverse
Effect, no labor disturbance by the employees of the Company
or the Subsidiaries exists or, to the knowledge of the
Issuers, is imminent.
(xvii) Except as set forth in the Offering
Memorandum, the Company and each Subsidiary (A) is in
compliance with, or not subject to costs or liabilities under,
laws, regulations, rules of common law, orders and decrees, as
in effect as of the date hereof, and any present judgments and
injunctions issued or promulgated thereunder relating to
pollution or protection of public and employee health and
safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants applicable to it or its
business or operations or ownership or use of its property
("ENVIRONMENTAL LAWS"), other than noncompliance or such costs
or liabilities that, individually or in the aggregate, would
not have a Material Adverse Effect, and (B) possesses all
permits, licenses or other approvals required under applicable
Environmental Laws, except where the failure to possess any
such permit, license or other approval would not, either
individually or in the aggregate, have a Material Adverse
Effect. All currently pending and, to the knowledge of the
Issuers, threatened proceedings, notices of violation,
demands, notices of potential responsibility or liability,
suits and existing environmental conditions by any
governmental authority which the Company or the Subsidiaries
could reasonably expect to result in a Material Adverse Effect
are fully and accurately described in all material respects in
the Offering Memorandum. The Company and each Subsidiary
maintains a system of internal management controls sufficient
to provide reasonable assurance of compliance in all material
respects of its business facilities, real property and
operations with requirements of applicable Environmental Laws.
(xviii) The Company and each Subsidiary has (A) all
licenses, certificates, permits, authorizations, approvals,
franchises and other rights from, and has made all
declarations and filings with, all applicable authorities, all
self-regulatory authorities and all courts and other tribunals
(each, an "AUTHORIZATION") necessary to engage in the business
conducted by it in the manner described in the Offering
Memorandum, except where failure to hold such Authorizations
would not, individually or in the aggregate, have a Material
Adverse Effect and (B) no reason to believe that any
governmental body or agency, domestic or foreign, is
considering limiting, suspending or revoking any
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such Authorization, except where any such limitations,
suspensions or revocations would not, individually or in the
aggregate, have a Material Adverse Effect. All such
Authorizations are valid and in full force and effect and the
Company and each Subsidiary is in compliance in all material
respects with the terms and conditions of all such
Authorizations and with the rules and regulations of the
regulatory authorities having jurisdiction with respect to
such Authorizations, except for any invalidity, failure to be
in full force and effect or noncompliance with any
Authorization that would not, individually or in the
aggregate, have a Material Adverse Effect.
(xix) Each of the Company and the Subsidiaries has
the requisite provider number or other authorization to bill
the Medicare program and the respective Medicaid program in
the state or states in which such entity operates (to the
extent such entity participates in the Medicare program or
applicable state Medicaid programs), except where the failure
to have such provider number or other authorization would not,
individually or in the aggregate, have a Material Adverse
Effect. There is no action pending or, to the Company's
knowledge, threatened which could result in a revocation of
any such provider number or authorization or result in the
Company's or any Subsidiary's exclusion from the Medicare or
any state Medicaid programs, except where the failure to have
such provider number or other authorization would not,
individually or in the aggregate, have a Material Adverse
Effect. The Company's and each Subsidiary's business practices
do not violate any applicable provisions of federal or state
laws governing Medicare or any state Medicaid programs,
including, without limitation, Sections 1320a-7a and 1320a-7b
of Title 42 of the United States Code, the False Claims Act,
31 U.S.C.ss.ss. 3729-3733 and other health care laws
regulating provision of healthcare related goods or services,
in each case, in any manner that, individually or in the
aggregate would have a Material Adverse Effect. To the
Company's knowledge, no individual with an ownership or
control interest, as defined in 42 U.S.C.ss. 1320a-3(a)(3), in
the Company or any Subsidiary, or who is an officer, director
or managing employee as defined in 42 U.S.C.ss. 1320a-5(b), of
the Company or any Subsidiary is a person described in 42
U.S.C.ss. 1320a-7(b)(8)(B). The Company's and each
Subsidiary's business practices do not violate any federal or
state laws regarding physician ownership of (or financial
relationship with) and referral to entities providing
healthcare related goods or services, or laws requiring
disclosure of financial interests held by physicians in
entities to which they may refer patients for the provisions
of health care related goods or services in any manner that,
individually or in the aggregate, would have a Material
Adverse Effect.
(xx) The Company and each Subsidiary has good and
marketable title to all items of real property and personal
property owned by each of them, in each case free and clear of
any pledge, lien, encumbrance, security interest or other
defect or claim of any third party, except (i) such as do not
materially and adversely affect the value of such property and
do not interfere with the use made or proposed to be made of
such property by the Company or such Subsidiary to an extent
that such interference would have a Material Adverse Effect,
and (ii) liens described in the Offering Memorandum. Any real
property and buildings held under lease by the Company or any
such Subsidiary are held
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under valid, subsisting and enforceable leases, with such
exceptions as do not materially interfere with the use made or
proposed to be made of such property and buildings by the
Company or such Subsidiary.
(xxi) The Company and each Subsidiary owns,
possesses or can acquire on reasonable terms adequate patents,
patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names
(collectively, the "INTELLECTUAL PROPERTY") necessary to
conduct the businesses operated by it as described in the
Offering Memorandum, except where the failure to own, possess
or have the right to employ such Intellectual Property would
not have a Material Adverse Effect. Neither the Company nor
any Subsidiary has received any notice of infringement of or
conflict with (and neither knows of any such infringement or a
conflict with) asserted rights of others with respect to any
of the foregoing that, if such assertion of infringement or
conflict were sustained, would have a Material Adverse Effect.
The use of the Intellectual Property in connection with the
business and operations of the Company and the Subsidiaries
does not infringe on the rights of any person, except for such
infringement as would not have a Material Adverse Effect and
the Company has received no notice of, and otherwise has no
knowledge of, any threatened or existing action, suit,
proceeding or of claim by any person challenging the Company's
use of the Intellectual Property.
(xxii) All tax returns required to be filed by the
Company and each Subsidiary have been filed in all
jurisdictions where such returns are required to be filed; and
all taxes, including withholding taxes, value added and
franchise taxes, penalties and interest, assessments, fees and
other charges due or claimed to be due from such entities or
that are due and payable have been paid, other than those
being contested in good faith and for which reserves have been
provided in accordance with generally accepted accounting
principles or those currently payable without penalty or
interest and except where the failure to make such required
filings or payments would not, individually or in the
aggregate, have a Material Adverse Effect. To the knowledge of
the Issuers, there are no material proposed additional tax
assessments against any of the Company and the Subsidiaries or
their assets or property.
(xxiii) Neither the Company nor any of the
Subsidiaries has any liability for any prohibited transaction
or accumulated funding deficiency (within the meaning of
Section 412 of the Internal Revenue Code of 1986) or any
complete or partial withdrawal liability with respect to any
pension, profit sharing or other plan which is subject to the
Employee Retirement Income Security Act of 1974, as amended
("ERISA"), to which the Company or any Subsidiary makes or
ever has made a contribution and in which any employee of the
Company or any Subsidiary is or has ever been a participant.
With respect to such plans, the Company and each Subsidiary is
in compliance in all material respects with all applicable
provisions of ERISA.
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(xxiv) Neither the Company nor any Subsidiary is,
nor after the offering and sale of the Notes, will be, an
"investment company" or a company "controlled" by an
"investment company" incorporated in the United States within
the meaning of the Investment Company Act of 1940, as amended.
(xxv) The Company and each Subsidiary maintains a
system of internal accounting controls sufficient to provide
reasonable assurance that: (A) transactions are executed in
accordance with management's general or specific
authorizations; (B) transactions are recorded as necessary to
permit preparation of its financial statements in conformity
with generally accepted accounting principles and to maintain
accountability for assets; (C) access to assets is permitted
only in accordance with management's general or specific
authorization; and (D) the recorded accountability for its
assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(xxvi) The Company and each Subsidiary maintains
insurance covering its properties, assets, operations,
personnel and businesses, and such insurance is of such type
and in such amounts in accordance with customary industry
practice to protect the Company and the Subsidiaries and their
businesses.
(xxvii) Neither the Company nor any of its
affiliates (as defined in Rule 501(b) of Regulation D under
the Act) has (A) taken, directly or indirectly, any action
designed to, or that might reasonably be expected to, cause or
result in stabilization or manipulation of the price of any
security of the Issuers to facilitate the sale or resale of
the Original Notes or (B) sold, bid for, purchased or paid any
person any compensation for soliciting purchases of the
Original Notes in a manner that would require registration of
the Original Notes under the Act or paid or agreed to pay to
any person any compensation for soliciting another to purchase
any other securities of any Issuer in a manner that would
require registration of the Original Notes under the Act.
(xxviii) Neither the Company or any of its affiliates
(as defined in Regulation D under the Act) has, directly or
through any agent, sold, offered for sale, contracted to sell,
pledged, solicited offers to buy or otherwise disposed of or
negotiated in respect of, any security (as defined in the Act)
that is currently or will be integrated with the sale of the
Original Notes in a manner that would require the registration
of the Original Notes under the Act.
(xxix) None of the Issuers or any of their
affiliates, or any person acting on its or their behalf, is
engaged in any directed selling effort with respect to the
Original Notes, and each of them has complied with the
offering restrictions requirement of Regulation S under the
Act. The Issuers make no representation as to the Initial
Purchasers pursuant to this paragraph. Terms used in this
paragraph have the meaning given to them by Regulation S.
(xxx) No form of general solicitation or general
advertising (prohibited by the Act in connection with offers
or sales such as the Exempt Resales) was used by the Company
or any of its representatives in connection with the offer
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and sale of any of the Original Notes or in connection with
Exempt Resales, including, but not limited to, articles,
notices or other communications published in any newspaper,
magazine or similar medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been
invited by any general solicitation or general advertising.
None of the Company or any of its affiliates has entered into,
and none of the Company or any of its affiliates will enter
into, any contractual arrangement with respect to the
distribution of the Original Notes except for this Agreement.
The Issuers make no representation as to the Initial
Purchasers pursuant to this paragraph.
(xxxi) As of March 31, 2001, neither the Company
nor any Subsidiary had any material liabilities or
obligations, direct or contingent, that were not set forth in
the Company's consolidated balance sheet as of such date or in
the notes thereto set forth in the Offering Memorandum. Since
March 31, 2001, except as set forth or contemplated in the
Offering Memorandum, (a) neither the Company nor any
Subsidiary has (1) incurred any liabilities or obligations,
direct or contingent, that would, individually or in the
aggregate, have a Material Adverse Effect, or (2) entered into
any material transaction not in the ordinary course of
business, (b) there has not been any event or development in
respect of the business or condition (financial or other) of
the Company and the Subsidiaries that, individually or in the
aggregate, would have a Material Adverse Effect, (c) there has
been no dividend or distribution of any kind declared, paid or
made by the Company on any class of capital stock and (d)
there has not been any change in the long-term debt of the
Company or any of the Subsidiaries.
(xxxii) Neither the Company nor any Subsidiary (or
any agent thereof acting on their behalf) has taken, and none
of them will take, any action that might cause this Agreement
or the issuance or sale of the Notes to violate Regulations T,
U or X of the Board of Governors of the Federal Reserve
System, as in effect, or as the same may hereafter be in
effect, on the Closing Date.
(xxxiii) KPMG LLP is an independent accountant within
the meaning of the Act. The historical financial statements
and the notes thereto included in the Offering Memorandum
present fairly in all material respects the consolidated
financial position and results of operations of the Company
and the Subsidiaries at the respective dates and for the
respective periods indicated. Such financial statements have
been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the
periods presented (except as disclosed in the Offering
Memorandum). The other financial and statistical information
and data included in the Offering Memorandum are accurately
presented in all material respects and prepared on a basis
consistent with the financial statements and the books and
records of the Company and the Subsidiaries. There are no
financial statements (historical or pro forma) that are
required to be included or incorporated by reference in the
Offering Memorandum if the Offering Memorandum was a
prospectus included in a registration statement under the Act,
that are not so included or incorporated by reference as
required.
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(xxxiv) As of the date hereof (immediately prior to
and immediately following the issuance of the Notes on such
date) the Company and each Subsidiary is and will be Solvent.
No Issuer is contemplating either the filing of a petition by
it under any bankruptcy or insolvency laws or the liquidating
of all or a substantial portion of its property, and no Issuer
has knowledge of any person contemplating the filing of any
such petition against any Issuer. As used herein, "SOLVENT"
shall mean, for any person on a particular date, that on such
date (a) the fair value of the property of such person is
greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such person,
(b) the present fair salable value of the assets of such
person is not less than the amount that will be required to
pay the probable liability of such person on its debts as they
become absolute and matured, (c) such person does not intend
to, and does not believe that it will, incur debts and
liabilities beyond such person's ability to pay as such debts
and liabilities mature, (d) such person is not engaged in a
business or a transaction, and is not about to engage in a
business or a transaction, for which such person's property
would constitute an unreasonably small capital and (e) such
person is able to pay its debts as they become due and
payable.
(xxxv) Except as described in the section of the
Preliminary Offering Memorandum and the Offering Memorandum
entitled "Plan of Distribution" in the Offering Memorandum,
there are no contracts, agreements or understandings between
the Company or any Subsidiary and any other person other than
the Initial Purchasers that would give rise to a valid claim
against the Company, any Subsidiary or the Initial Purchasers
for a brokerage commission, finder's fee or like payment in
connection with the issuance, purchase and sale of the Notes.
(xxxvi) The statistical and market-related data
included in the Offering Memorandum are based on or derived
from sources that the Issuers believe to be reliable and
accurate in all material respects and represent their good
faith estimates that are made on the basis of data derived
from such sources.
Each certificate signed by any officer of the Issuers and
delivered to the Initial Purchasers or counsel for the Initial Purchasers
pursuant to, or in connection with, this Agreement shall be deemed to be a
representation and warranty by the Issuers to the Initial Purchasers as to the
matters covered by such certificate. The Issuers acknowledge that the Initial
Purchasers and, for purposes of the opinions to be delivered to the Initial
Purchasers pursuant to Section 8 of this Agreement, counsel to the Issuers and
counsel to the Initial Purchasers will rely upon the accuracy and truth of the
foregoing representations and the Issuers hereby consent to such reliance.
(b) Each Initial Purchaser acknowledges that it
is purchasing the Original Notes pursuant to a private sale exemption
from registration under the Act, and that the Original Notes have not
been registered under the 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 pursuant to an exemption from the registration requirements of
the Act. Each Initial Purchaser represents, warrants and covenants to
the Issuers that:
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(i) (A) Neither it nor any person acting on its
behalf, has or will solicit offers for, or offer or sell, the
Original Notes by any form of general solicitation or general
advertising (as those terms are used in Regulation D under the
Act) or in any manner involving a public offering within the
meaning of Section 4(2) of the Act and (B) it has and will
solicit offers for the Original Notes only from, and will
offer and sell the Original Notes only to (1) persons whom the
Initial Purchasers reasonably believe to be QIBs or, if any
such person is buying for one or more institutional accounts
for which such person is acting as fiduciary or agent, only
when such person has represented to the Initial Purchasers
that each such account is a QIB to whom notice has been given
that such sale or delivery is being made in reliance on Rule
144A, and, in each case, in reliance on the exemption from the
registration requirements of the Act pursuant to Rule 144A, or
(2) persons who are outside the United States and are other
than U.S. persons, in reliance on the exemption from the
registration requirements of the Act provided by Regulation S.
(ii) With respect to offers and sales outside the
United States, the Initial Purchasers have offered the
Original Notes and will offer and sell the Original Notes (1)
as part of their distribution at any time and (2) otherwise
until 40 days after the later of the commencement of the
offering of the Original Notes and the Closing Date, only in
accordance with Rule 903 of Regulation S or another exemption
from the registration requirements of the Act. Accordingly,
neither the Initial Purchasers nor any persons acting on their
behalf has engaged or will engage in any directed selling
efforts (within the meaning of Regulation S) with respect to
the Original Notes, and any such persons have complied and
will comply with the offering restrictions requirements of
Regulation S. Terms used in this Section 5(b)(ii) have the
meanings given to them by Regulation S.
(iii) Prior to the expiration of the 40-Day
Period, (i) they will not offer, sell or deliver the Original
Notes initially offered pursuant to Regulation S, within the
United States or to, or for the account or benefit of, U.S.
persons except pursuant to Rule 144A or another exemption from
the registration requirements under the Securities Act, and
(ii) they will send to each dealer or person receiving a
selling concession, fee or other remuneration in respect of
the Original Notes (whether or not such dealer or other person
is participating in the offering) a confirmation or other
notice stating that the dealer or person receiving a selling
concession, fee or other remuneration is subject to the same
restrictions during the 40-Day Period. Terms used above have
the meaning given to them by Regulation S.
(iv) Each Initial Purchaser will deliver the
Offering Memorandum to each account to which such Initial
Purchaser makes an Exempt Resale of Notes purchased by it from
the Company hereunder, provided that the Company has provided
the Initial Purchasers with adequate quantities of the
Offering Memorandum in a timely manner sufficient to permit
such delivery (it being understood that the Initial Purchasers
shall be under no obligation pursuant to this clause (iv) to
deliver an Offering Memorandum in respect of any sale of the
Notes made in connection with market making activities or
otherwise in
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connection with a sale of Notes not constituting a sale out of
an Initial Purchaser's unsold allotment).
(v) The Initial Purchasers shall not initially
offer or sell any notes to persons in the United Kingdom,
except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as
principal or agent)for the purposes of their businesses or
otherwise in circumstances which shall not result in an offer
to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995.The initial
purchasers shall comply with all applicable provisions of the
Financial Services Act 1986 with respect to anything done by
them in relation to the notes in, from or otherwise involving
the United Kingdom. The initial purchasers shall issue or pass
on in the United Kingdom any document received by them in
connection with the issuance of the notes only to a person of
a kind described in Article 11(3)of the Financial Services Act
1986 (Investment Advertisements) (Exemptions) Order 1996 (as
amended)or a person to whom the document may otherwise
lawfully be issued or passed on.
The Initial Purchasers understand that the Issuers and, for
purposes of the opinions to be delivered to them pursuant to Section 8 hereof,
counsel to the Issuers and counsel to the Initial Purchasers will rely upon the
accuracy and truth of the foregoing representations, and the Initial Purchasers
hereby consent to such reliance.
6. Indemnification. Each of the Issuers, jointly and
severally, agrees to indemnify and hold harmless each Initial Purchaser, each
person, if any, who controls any of the Initial Purchasers within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, the agents,
employees, officers and directors of each of the Initial Purchasers and the
agents, employees, officers and directors of any such controlling person from
and against any and all losses, liabilities, claims, damages and expenses
whatsoever (including, but not limited to, reasonable attorneys' fees and any
and all reasonable expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all reasonable amounts paid in settlement of any claim
or litigation) (collectively, "LOSSES") to which they or any of them may become
subject under the Act, the Exchange Act or otherwise insofar as such Losses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Preliminary
Offering Memorandum or the Offering Memorandum, or in any supplement thereto or
amendment thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Issuers will not be liable in any such
case to the extent, but only to the extent, that any such Loss arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission relating to an Initial Purchaser made therein in reliance
upon and in conformity with written information relating to such Initial
Purchaser furnished to the Company by or on behalf of such Initial Purchaser
expressly for use therein; provided, further, that the indemnification contained
in this paragraph (a) with respect to the Preliminary Offering Memorandum shall
not inure to the benefit of any Initial Purchaser (or to the benefit of any
other person entitled to indemnity pursuant to this paragraph (a)) on account of
any such Losses arising from the sale of the Original Notes by such Initial
Purchaser to any person if the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in the
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Preliminary Offering Memorandum was corrected in the Offering Memorandum and
such Initial Purchaser sold the Original Notes to that person without sending or
giving at or prior to the written confirmation of such sale, a copy of the
Offering Memorandum (as then amended or supplemented), if an Offering Memorandum
is required to be sent or given under the Act, if the Company has previously
furnished sufficient copies thereof to such Initial Purchaser. This indemnity
agreement will be in addition to any liability that the Issuers may otherwise
have, including, but not limited to, liability under this Agreement.
(b) Each Initial Purchaser agrees, severally and not
jointly, to indemnify and hold harmless each Issuer, each person, if any, who
controls any Issuer within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act, and each of their respective agents, employees, officers
and directors and the agents, employees, officers and directors of any such
controlling person from and against any Losses to which they or any of them may
become subject under the Act, the Exchange Act or otherwise insofar as such
Losses (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum or the Offering Memorandum, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
any such Loss arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission relating to an Initial
Purchaser made therein in reliance upon and in conformity with information
relating to such Initial Purchaser furnished in writing to the Company by or on
behalf of such Initial Purchasers expressly for use therein. This indemnity
agreement will be in addition to any liability that the Initial Purchasers may
otherwise have, including, but not limited to, liability under this Agreement.
(c) Promptly after receipt by an indemnified party under
subsection 6(a) or 6(b) above of notice of the commencement of any action, suit
or proceeding (collectively, an "ACTION"), such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have under this Section 6 except to the extent that it has been
prejudiced in any material respect by such failure). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement of such action, the indemnifying party will be entitled to
participate in such action, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense of such action with counsel
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such action, but the reasonable fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying parties (or such
indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them that are different from or additional to those
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available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such reasonable fees and expenses of counsel shall be borne by the indemnifying
parties. In no event shall the indemnifying party be liable for the fees and
expenses of more than one counsel (together with appropriate local counsel) at
any time for all indemnified parties in connection with any one action or
separate but substantially similar or related actions arising in the same
jurisdiction out of the same general allegations or circumstances. An
indemnifying party shall not be liable for any settlement of any claim or action
effected without its written consent which consent may not be unreasonably
withheld. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by paragraph (a) or (b)
of this Section 6, then the 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 45 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall have given
the indemnifying party at least 45 days prior notice of its intention to settle.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any 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 release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
7. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 6 of this
Agreement is for any reason held to be unavailable from the indemnifying party,
or is insufficient to hold harmless a party indemnified under Section 6 of this
Agreement, each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such aggregate Losses (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Issuers, on the one hand, and the Initial Purchasers, on the other hand,
from the offering of the Original Notes or (ii) if such allocation is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to above but also the relative fault of the
Issuers, on the one hand, and the Initial Purchasers, on the other hand, in
connection with the statements or omissions that resulted in such Losses, as
well as any other relevant equitable considerations. The relative benefits
received by the Issuers, on the one hand, and the Initial Purchasers, on the
other hand, shall be deemed to be in the same proportion as (x) the total
proceeds from the offering of Original Notes (net of discounts and commissions
but before deducting expenses) received by the Issuers are to (y) the total
discounts and commissions received by the Initial Purchasers as set forth in the
table on the cover page of the Offering Memorandum. The relative fault of the
Issuers, on the one hand, and the Initial Purchasers, 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 Issuers or the Initial
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission or alleged
statement or omission.
The Issuers and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation or by any other method of allocation that does not take
into account the equitable considerations
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referred to above. Notwithstanding the provisions of this Section 7, (i) in no
case shall the Initial Purchasers be required to contribute any amount in excess
of the amount by which the total discount and commissions applicable to the
Original Notes pursuant to this Agreement exceeds the amount of any damages that
the Initial Purchasers have otherwise been required to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission and (ii) 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. For purposes of this Section 7,
each person, if any, who controls the Initial Purchasers within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act shall have the same
rights to contribution as the Initial Purchasers, and each person, if any, who
controls any Issuer within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act and each director, officer, employee and agent of such
Issuer shall have the same rights to contribution such Issuer. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim for contribution
may be made against another party or parties under this Section 7, notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 7 or otherwise, except to the extent that it has been prejudiced in any
material respect by such failure; provided, however, that no additional notice
shall be required with respect to any action for which notice has been given
under Section 6 for purposes of indemnification. Anything in this section to the
contrary notwithstanding, no party shall be liable for contribution with respect
to any action or claim settled without its written consent, provided, however,
that such written consent was not unreasonably withheld.
8. Conditions of the Initial Purchasers' Obligations.
The obligations of the Initial Purchasers to purchase and pay for the Original
Notes, as provided for in this Agreement, shall be subject to satisfaction of
the following conditions prior to or concurrently with such purchase:
(a) All of the representations and warranties of the
Issuers contained in this Agreement shall be true and correct, or true
and correct in all material respects where such representations and
warranties are not qualified by materiality or Material Adverse Effect,
on the date of this Agreement and, in each case after giving effect to
the transactions contemplated hereby, on the Closing Date, except that
if a representation and warranty is made as of a specific date, and
such date is expressly referred to therein, such representation and
warranty shall be true and correct (or true and correct in all material
respects, as applicable) as of such date. The Issuers shall have
performed or complied with all of the agreements and covenants
contained in this Agreement and required to be performed or complied
with by them at or prior to the Closing Date.
(b) The Offering Memorandum shall have been printed and
copies distributed to the Initial Purchasers on the day of this
Agreement as instructed by the Initial Purchasers or at such later date
as the Initial Purchasers may determine. No stop order suspending the
qualification or exemption from qualification of the Original Notes in
any jurisdiction shall have been issued and no proceeding for that
purpose shall have been commenced or shall be pending or, to the
Issuers' knowledge, threatened. No stop order preventing the use of the
Preliminary Offering Memorandum or the Offering Memorandum, or any
amendment or supplement thereto, or any order asserting that any
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of the transactions contemplated by this Agreement are subject to the
registration requirements of the Act shall have been issued.
(c) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency that would, as of the Closing Date, prevent the
issuance of the Original Notes or consummation of the Exchange Offer;
except as disclosed in the Offering Memorandum, no action, suit or
proceeding shall have been commenced and be pending against or
affecting or, to the best knowledge of the Issuers, threatened against
any Issuer before any court or arbitrator or any governmental body,
agency or official that, if adversely determined, would have a Material
Adverse Effect.
(d) As of March 31, 2001, neither the Company nor any
Subsidiary had any material liabilities or obligations, direct or
contingent, that were not set forth in the Company's consolidated
balance sheet as of such date or in the notes thereto set forth in the
Offering Memorandum. Since March 31, 2001, except as set forth or
contemplated in the Offering Memorandum, (a) neither the Company nor
any Subsidiary has (1) incurred any liabilities or obligations, direct
or contingent, that, individually or in the aggregate, would have a
Material Adverse Effect, or (2) entered into any material transaction
not in the ordinary course of business, (b) there has not been any
event or development in respect of the business or condition (financial
or other) of the Company and the Subsidiaries that, individually or in
the aggregate, would have a Material Adverse Effect and (c) there has
been no dividend or distribution of any kind declared, paid or made by
the Company on any class of capital stock.
(e) The Initial Purchasers shall have received
certificates, dated the Closing Date, signed by two authorized officers
of each Issuer confirming, as of the Closing Date, to their knowledge,
the matters set forth in paragraphs (a), (b), (c) and (d) of this
Section 8. (f) The Initial Purchasers shall have received on the
Closing Date an opinion dated the Closing Date, addressed to the
Initial Purchasers, of Troutman Sanders LLP, counsel to the Issuers,
substantially in the form of Exhibit B hereto and in form and substance
reasonably satisfactory to the Initial Purchasers and counsel to the
Initial Purchasers.
(g) The Initial Purchasers shall have received on the
Closing Date an opinion dated the Closing Date, addressed to the
Initial Purchasers, of Roberta L. McCaw, Esq., Vice President and
General Counsel of the Company, substantially in the form of Exhibit C
hereto and in form and substance reasonably satisfactory to the Initial
Purchasers and counsel to the Initial Purchasers.
(h) The Initial Purchasers shall have received on the
Closing Date an opinion dated the Closing Date, addressed to the
Initial Purchasers, of Latham & Watkins Schon Nolte, special German
counsel to the Company, substantially in the form of Exhibit D hereto
and in form and substance reasonably satisfactory to the Initial
Purchasers and counsel to the Initial Purchasers.
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(i) The Initial Purchasers shall have received on the
Closing Date an opinion (satisfactory in form and substance to the
Initial Purchasers) dated the Closing Date of Dewey Ballantine LLP,
counsel to the Initial Purchasers.
(j) The Initial Purchasers shall have received a "comfort
letter" from KPMG LLP, independent public accountants for the Company,
dated the date of this Agreement, addressed to the Initial Purchasers
and in form reasonably satisfactory to the Initial Purchasers and
counsel to the Initial Purchasers. In addition, the Initial Purchasers
shall have received a "bring-down comfort letter" from KPMG LLP, dated
as of the Closing Date, addressed to the Initial Purchasers and in form
satisfactory to the Initial Purchasers and counsel to the Initial
Purchasers.
(k) The Issuers and the Trustee shall have executed and
delivered into the Indenture and the Initial Purchasers shall have
received copies, conformed as executed, thereof.
(l) The Company shall have received an executed
commitment letter relating to a new credit facility with First Union
National Bank, as lead arranger, as described in the Offering
Memorandum, and the Initial Purchasers shall have received
counterparts, conformed as executed, thereof.
(m) The Issuers shall have executed and delivered the
Registration Rights Agreement and the Initial Purchasers shall have
received counterparts, conformed as executed, thereof.
(n) The Company shall have notified the lenders under the
Company's existing credit facility of the Company's intention to pay
all of its obligations with respect thereto with a portion of the
proceeds of the Original Notes and to terminate such facility, and
simultaneously with the issuance of the Original Notes all such
obligations shall be paid in full and such facility shall be
terminated.
(o) The Company shall have purchased, on or before June
30, 2001, from Gainor Medical, 7,500 shares of the Company's Series A
Convertible Preferred Stock, par value $0.01 per share, and 15,000
shares of the Company's Series B Redeemable Preferred Stock, par value
$0.01 per share, for the aggregate purchase price of $18,931,351,
pursuant to the Gainor Repurchase Agreement. The Company shall have
retained the right to repurchase certain of the Company's securities
from Gainor Medical pursuant to Article III of the Gainor Repurchase
Agreement.
(p) All government authorizations required in connection
with the issue and sale of the Notes as contemplated under this
Agreement and the performance of the Issuers' obligations hereunder and
under Indenture and the Notes shall be in full force and effect.
(q) The Initial Purchasers shall have been furnished with
wiring instructions for the application of the proceeds of the Original
Notes in accordance with this Agreement and such other information as
it may reasonably request.
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(r) Dewey Ballantine LLP, counsel to the Initial
Purchasers, shall have been furnished with such documents as they may
reasonably request to enable them to review or pass upon the matters
referred to in this Section 8 and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions contained in this Agreement.
(s) The Original Notes shall be eligible for trading in
Portal upon issuance.
(t) All agreements set forth in the representation letter
of the Issuers to DTC relating to the approval of the Notes by DTC for
"book-entry" transfer shall have been complied with in all material
respects.
(u) The Company has delivered to the Initial Purchasers a
true and correct copy of each of the Note Documents, together with all
related agreements and all schedules and exhibits thereto, and there
shall have been no material amendments, alterations, modifications or
waivers of any of the provisions of any such documents since their
respective dates of execution, other than any such amendments,
alterations, modifications and waivers as to which the Initial
Purchasers have been advised in writing and which would be required to
be disclosed in the Offering Memorandum; and there exists no event or
condition which would constitute a default or an event of default under
any of the Note Documents. Each of the representations and warranties
set forth in the each of the Note Documents are true and correct.
(v) There shall not have been any announcement by any
"nationally recognized statistical rating organization," as defined for
purposes of Rule 436(g) under the Act, that (i) it is downgrading its
rating assigned to any class of securities of the Company or (ii) it is
reviewing its ratings assigned to any class of securities of the
Company with a view to possible downgrading, or with negative
implications, or direction not determined.
The documents required to be delivered by this Section 8 will
be delivered at the office of counsel for the Initial Purchasers on the Closing
Date.
9. Initial Purchasers' Information. The Issuers and the
Initial Purchasers severally acknowledge that the statements with respect to the
delivery of the Original Notes to the Initial Purchasers set forth in (i) the
last paragraph of the cover page and (ii) the fourth, eighth and ninth
paragraphs under the caption "Plan of Distribution" in the Preliminary Offering
Memorandum and the Offering Memorandum constitute the only information furnished
in writing by the Initial Purchasers expressly for use in the Preliminary
Offering Memorandum or the Offering Memorandum.
10. Survival of Representations and Agreements. All
representations and warranties, covenants and agreements contained in this
Agreement, including the agreements contained in Sections 4(f) and 11(d), the
indemnity agreements contained in Section 6 and the contribution agreements
contained in Section 7 shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Initial Purchasers
or any controlling persons thereof or by or on behalf of the Issuers or any
controlling person thereof, and shall survive delivery of and payment for the
Original Notes to and by the Initial Purchasers. The
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agreements contained in Sections 4(f), 6, 7, 9 and 11(d) shall survive the
termination of this Agreement, including pursuant to Section 11.
11. Effective Date of Agreement; Termination. (a) This
Agreement shall become effective upon execution and delivery of a counterpart
hereof by each of the parties hereto.
(b) The Initial Purchasers shall have the right to
terminate this Agreement at any time prior to the Closing Date by notice to the
Company from the Initial Purchasers, without liability (other than with respect
to Sections 6 and 7) on the Initial Purchasers' part to the Issuers if, on or
prior to such date, (i) the Issuers shall have failed, refused or been unable to
perform in any material respect any agreement on its part to be performed under
this Agreement when and as required, (ii) any other condition to the obligations
of the Initial Purchasers under this Agreement to be fulfilled by the Issuers
pursuant to Section 8 is not fulfilled when and as required and not waived in
writing by the Initial Purchasers, (iii) trading in securities generally on the
New York Stock Exchange, the American Stock Exchange or the Nasdaq National
Market shall have been suspended or materially limited, or minimum prices shall
have been established thereon by the Commission, or by such exchange or other
regulatory body or governmental authority having jurisdiction, (iv) a general
banking moratorium shall have been declared by federal or New York authorities,
(v) there is an outbreak or escalation of hostilities or other national or
international calamity, in any case involving the United States, on or after the
date of this Agreement, or if there has been a declaration by the United States
of a national emergency or war or other national or international calamity or
crisis (economic, political, financial or otherwise) which affects the U.S. and
international financial markets, making it, in the Initial Purchasers'
reasonable judgment, impracticable to proceed with the offering or delivery of
the Original Notes on the terms and in the manner contemplated in the Offering
Memorandum or (vi) there shall have been such a material adverse change or
material disruption in the financial, banking or capital markets generally
(including, without limitation, the markets for debt securities of companies
similar to the Company) or the effect (or potential effect if the financial
markets in the United States have not yet opened) of international conditions on
the financial markets in the United States shall be such as, in the Initial
Purchasers' judgment, to make it inadvisable or impracticable to proceed with
the offering or delivery of the Notes on the terms and in the manner
contemplated in the Offering Memorandum.
(c) Any notice of termination pursuant to this Section 11
shall be given at the address specified in Section 12 below by telephone, telex,
telephonic facsimile or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to
Section 11(b), or if the sale of the Notes provided for in this Agreement is not
consummated because of any refusal, inability or failure on the part of the
Issuers to satisfy any condition to the obligations of the Initial Purchasers
set forth in this Agreement to be satisfied on its part or because of any
refusal, inability or failure on the part of the Issuers to perform any
agreement in this Agreement or comply with any provision of this Agreement, the
Issuers will reimburse the Initial Purchasers for all of its reasonable
out-of-pocket expenses, (including, without limitation, the fees and expenses of
the Initial Purchasers' counsel) incurred in connection with this Agreement.
(e) If any one or more Initial Purchasers shall fail to
purchase and pay for any of the Original Notes agreed to be purchased by such
Initial Purchaser hereunder and such
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failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Initial Purchaser shall be
obligated to purchase the Original Notes which the defaulting Initial Purchaser
agreed to purchase but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Original Notes which the defaulting
Initial Purchaser agreed to purchase but failed to purchase exceeds 10% of the
aggregate principal amount of Original Notes set forth in Schedule I hereto, the
remaining Initial Purchaser shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Original Notes, and if such
nondefaulting Initial Purchaser does not purchase all the Original Notes, this
Agreement will terminate without liability to any nondefaulting Initial
Purchaser or the Company. In the event of a default by any Initial Purchaser as
set forth in this Section 11(e), the Closing Date shall be postponed for such
period, not to exceed five business days, as the Initial Purchasers shall
determine in order that the required changes in the Offering Memorandum or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Initial Purchaser of its liability, if
any, to the Company or any non-defaulting Initial Purchaser.
12. Notice. All communications with respect to or under
this Agreement, except as may be otherwise specifically provided in this
Agreement, shall be in writing and, if sent to the Initial Purchasers, shall be
mailed, delivered, or, telegraphed or telecopied and confirmed in writing to UBS
Warburg LLC, 299 Park Avenue, New York, New York 10171 (telephone: (212)
821-3000, fax: 203-719-1075), Attention: Syndicate Department, with a copy to
Dewey Ballantine LLP, 1301 Avenue of the Americas, New York, New York 10019,
Attention: Frederick W. Kanner, Esq.; and if sent to the Issuers, shall be
mailed, delivered or, telegraphed or telecopied and confirmed in writing to
Matria Healthcare, Inc., 1850 Parkway Place, 12th Floor, Marietta, Georgia
30067, Attention: Roberta L. McCaw, Esq., Vice President and General Counsel,
Telephone: (770) 767-4500, Facsimile: (770) 767-4605.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged by telecopier machine, if telecopied; and one business day after
being timely delivered to a next-day air courier.
13. Parties. This Agreement shall inure solely to the
benefit of, and shall be binding upon, the Initial Purchasers, the Issuers and
the controlling persons and agents referred to in Sections 6 and 7, and their
respective successors and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained. The
term "successors and assigns" shall not include a purchaser, in its capacity as
such, of Notes from the Initial Purchasers.
14. Construction. This Agreement shall be construed in
accordance with the internal laws of the State of New York.
15. Captions. The captions included in this Agreement are
included solely for convenience of reference and are not to be considered a part
of this Agreement.
16. Counterparts. This Agreement may be executed in
various counterparts that together shall constitute one and the same instrument.
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17. Submission to Jurisdiction. Except as set forth
below, no claim, counterclaim or dispute of any kind or nature arising out of or
in any way relating to this Agreement ("Claim") 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 each of the Issuers consents to the
jurisdiction of such courts and personal service with respect thereto. Each of
the Issuers hereby consents to personal jurisdiction, service and venue in any
court in which any Claim arising out of or in any way relating to this Agreement
is brought by any third party against any of the Initial Purchasers or any
indemnified party. Each of the Initial Purchasers and each of the Issuers (on
its behalf and, to the extent permitted by applicable law, on behalf of its
securityholders and affiliates) waives all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise) in
any way arising out of or relating to this Agreement. Each of the Issuers agrees
that a final judgment in any such action, proceeding or counterclaim brought in
any such court shall be conclusive and binding upon it and may be enforced in
any other courts in the jurisdiction of which such Issuer is or may be subject,
by suit upon such judgment.
18. 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 AG. First Union Securities,
Inc. is not a bank and is separate from any affiliated bank, including First
Union National Bank. Because each of UBS Warburg LLC and First Union Securities,
Inc. 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 and First Union Securities, Inc. 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 each of UBS Warburg LLC and First Union
Securities, Inc. may have lending relationships with issuers of securities
underwritten or privately placed by UBS Warburg LLC and First Union Securities,
Inc. To the extent required under the securities laws, prospectuses and other
disclosure documents for securities underwritten or privately placed by UBS
Warburg LLC and First Union Securities, Inc. will disclose the existence of any
such lending relationships and whether the proceeds of the issue will be used to
repay debts owed to the affiliates of UBS Warburg LLC and First Union
Securities, Inc.
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If the foregoing Purchase Agreement correctly sets forth the
understanding among the Company, the Guarantors 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 among the
Issuers and the Initial Purchasers.
MATRIA HEALTHCARE, INC.
By: /s/ PARKER H. PETIT
--------------------------------------------
Name: Parker H. Petit
Title: President and Chief Executive Officer
EACH OF THE GUARANTORS LISTED ON
SCHEDULE II ATTACHED HERETO
By: /s/ PARKER H. PETIT
--------------------------------------------
Name: Parker H. Petit
Title: Vice President
Confirmed and accepted as of
the date first above written:
UBS WARBURG LLC
FIRST UNION SECURITIES, INC.
By: UBS WARBURG LLC
By: /s/ SALVATORE GIANNITTI
------------------------------
Name: Salvatore Giannitti
Title: Managing Director
By: /s/ JOHN C. CROCKETT
------------------------------
Name: John C. Crockett
Title: Associate Director
29
SCHEDULE I
PRINCIPAL AMOUNT OF ORIGINAL
INITIAL PURCHASER NOTES
- ----------------- ----------------------------
UBS Warburg LLC $ 100,000,000
First Union Securities, Inc. 25,000,000
30
Footnote continued on next page.
SCHEDULE II
JURISDICTION OF % OWNED BY
SUBSIDIARY INCORPORATION STOCKHOLDER COMPANY
- ---------- ------------- ----------- ----------
Clinical-Management Systems, Inc.* Georgia Company 100%
Diabetes Acquisition, Inc. ("DAI")* Georgia Company 100%
Gainor Medical Acquisition Company ("GMA")* Georgia DAI 100%
Diabetes Management Solutions, Inc. (formerly Delaware GMA 100%
USCI Healthcare Management Solutions,
Inc.)*
Diabetes Self Care, Inc.* Virginia GMA 100%
Facet Technologies, LLC (formerly Gainor Georgia Company 100%
Medical North America, LLC)*
Gainor Medical Europe Limited United Kingdom DAI 100%
Gainor Medical International, LLC* Georgia DAI 100%
Matria Holding GmbH ("MHG") Germany DAI 65%
Company 35%
eu-Medical GmbH Germany MHG 100%
Dia Real GmbH & Co. KG Germany MHG 100%
Gainor Medical Direct, LLC ("GMD")* Georgia DAI 100%
A. R. Medical Supplies, Inc.* Florida GMD 100%
Matria Canada, Inc. New Brunswick Company 100%
Matria of New York, Inc.* New York Company 100%
Matria Healthcare Puerto Rico, Inc. Puerto Rico Company 51%
National Reproductive Medical Centers, Delaware Company 100%
Inc. ("NRMC")*
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Infertility Management Services, Inc.* Delaware NRMC 100%
PFCC Liquidation Corp. (formerly Pacific California NRMC 100%
Fertility Centers of California, Inc.)*
PFPC Liquidation Corp. (formerly Pacific California NRMC 100%
Fertility Parenting Center, Inc.)*
PFMG Liquidation Corp. (formerly Pacific California NRMC 100%
Fertility Medical Group, Inc.)*
Q Liquidation Corp. (formerly Quality Delaware Company 100%
Diagnostic Services, Inc.)*
Shared Care, Inc.* Georgia Company 100%
- ---------------------------------
* Guarantors
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EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
33
EXHIBIT B
FORM OF OPINION OF TROUTMAN SANDERS LLP
The opinion of Troutman Sanders LLP, counsel for the Issuers
(capitalized terms not otherwise defined herein shall have the meanings provided
in the Purchase Agreement, to which this is an Exhibit), to be delivered
pursuant to Section 8(f) of the Purchase Agreement shall be to the effect that:
(i) Each of the Company and the Subsidiaries
listed on Annex A hereto (such Subsidiaries being hereinafter
referred to collectively as the "Material Subsidiaries", as
such term is defined in that certain officer's certificate to
be attached to the opinion of Troutman Sanders LLP) (a) is a
corporation, partnership or other entity duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has all requisite
corporate or other power and authority necessary to own its
property and carry on its business as now being conducted, and
(c) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by
it makes such qualification necessary and where failure to be
so qualified and in good standing, individually or in the
aggregate, would have a Material Adverse Effect.
(ii) Each of the Company and the Material
Subsidiaries has all requisite power and authority to execute,
deliver and perform all of its obligations under the Note
Documents to which it is a party and to consummate the
transactions contemplated thereby to be consummated on its
part and, without limitation, the Company has all requisite
power and authority to issue, sell and deliver the Notes and
each Material Subsidiary has all requisite power and authority
to execute, deliver and perform all its obligations under its
Guarantee. Each of the Company and the Material Subsidiaries
has duly authorized the execution, delivery and performance
of, and has duly executed and delivered, each of the Note
Documents to which it is a party.
(iii) The Indenture, assuming the due
authorization, execution and delivery thereof by the Trustee,
is a legally binding and valid obligation of the Company and
each Material Subsidiary, enforceable against each of them in
accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws affecting
the enforcement of creditors' rights generally and by general
principles of equity and the discretion of the court before
which any proceedings therefor may be brought.
(iv) The Original Notes, when issued and
delivered by the Company against payment by the Initial
Purchasers and authenticated by the Trustee in accordance with
the terms of the Purchase Agreement and the Indenture, will be
legally binding and valid obligations of the Company, entitled
to the benefits of the Indenture and enforceable against the
Company in accordance with their terms,
34
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium
or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity and the
discretion of the court before which any proceedings therefor
may be brought.
(v) The Exchange Notes, when issued and
delivered by the Company and authenticated by the Trustee in
accordance with the terms of the Registration Rights
Agreement, the Exchange Offer and the Indenture, will be
legally binding and valid obligations of the Company, entitled
to the benefits of the Indenture and enforceable against the
Company in accordance with their terms, except that
enforceability of the Exchange Notes may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of
equity and the discretion of the court before which any
proceedings therefor may be brought.
(vi) The Guarantees issued by the Material
Subsidiaries, when the Original Notes are issued,
authenticated and delivered in accordance with the terms of
the Purchase Agreement and the Indenture, will be legally
binding and valid obligations of the respective Material
Subsidiaries, enforceable against each of them in accordance
with their terms, except that enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general
principles of equity and the discretion of the court before
which any proceedings therefor may be brought.
(vii) The guarantees to be endorsed on the
Exchange Notes, when the Exchange Notes are issued,
authenticated and delivered by the Company in accordance with
the terms of the Registration Rights Agreement, the Exchange
Offer and the Indenture, will be legally binding and valid
obligations of the Material Subsidiaries, enforceable against
each of them in accordance with their terms, except that
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium
or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity and the
discretion of the court before which any proceedings therefor
may be brought.
(viii) The Registration Rights Agreement, assuming
the due authorization, execution and delivery thereof by the
Initial Purchasers, is a legally binding and valid obligation
of the Company and the Material Subsidiaries, enforceable
against each of them in accordance with its terms, except that
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium
or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity and the
discretion of the court before which any proceedings therefor
may be brought and except as rights to indemnification and
contribution under the Registration Rights Agreement may be
limited by federal or state securities laws or principals of
public policy.
(ix) The Purchase Agreement, assuming the due
authorization, execution and delivery thereof by the Initial
Purchasers, is a legally binding and valid obligation
B-2
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of the Company and the Material Subsidiaries, enforceable
against each of them in accordance with its terms, except that
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium
or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity and the
discretion of the court before which any proceedings therefor
may be brought and except as rights to indemnification and
contribution under the Purchase Agreement may be limited by
federal or state securities laws or principals of public
policy.
(x) The execution, delivery and performance by
each of the Company and the Material Subsidiaries of the Note
Documents to which it is a party, including the consummation
of the offer and sale of the Original Notes, does not and will
not violate, conflict with or constitute a breach of any of
the terms or provisions of or a default under (or an event
that with notice or the lapse of time, or both, would
constitute a default), or require consent under, or result in
the creation or imposition of a lien, charge or encumbrance on
any property or assets of the Company or any Material
Subsidiary pursuant to, (i) the charter, bylaws or other
constitutive documents of the Company or any Material
Subsidiary, (ii) any of the Agreements and Instruments known
to such counsel, (iii) any law, statute, rule or regulation
applicable to the Company or any Material Subsidiary or their
respective assets or properties or (iv) any judgment, order or
decree of any domestic or foreign court or governmental agency
or authority having jurisdiction over the Company or any
Material Subsidiary or their respective assets or properties.
(xi) Assuming the accuracy of the representations
and warranties of the Initial Purchasers in Section 5(b) of
the Purchase Agreement, no consent, approval, authorization or
order of, or filing, registration, qualification, license or
permit of or with, any court or governmental agency, body or
administrative agency, domestic or foreign, is required to be
obtained or made by the Company or any Material Subsidiary for
the execution, delivery and performance by the Company and the
Material Subsidiaries of the Note Documents to which they are
party including the consummation of any of the transactions
contemplated thereby, except (i) such as have been or will be
obtained or made on or prior to the Closing Date, (ii)
registration of the Exchange Offer or resale of the Notes
under the Act pursuant to the Registration Rights Agreement
and (iii) qualification of the Indenture under the Trust
Indenture Act, in connection with the issuance of the Exchange
Notes. To the best of our knowledge, no consents or waivers
from any other person or entity are required for the
execution, delivery and performance of the Purchase Agreement
or any of the other Note Documents or the consummation of any
of the transactions contemplated thereby, other than such
consents and waivers as have been obtained or will be obtained
prior to the Closing Date and will be in full force and
effect.
(xii) To the best of our knowledge, (i) there does
not exist any judgment, order, injunction or other restraint
issued or filed with respect to the transactions contemplated
by the Note Documents or the performance by the Company and
any Material Subsidiary of their respective obligations under
the Note Documents or (ii) there are no legal or governmental
proceedings pending or threatened to which the Company or any
of the Material Subsidiaries is a party or to which any of the
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36
properties of the Company or any of the Material Subsidiaries
is subject other than proceedings summarized in the Offering
Memorandum or that would not, individually or in the
aggregate, have a Material Adverse Effect.
(xiii) Neither the Company nor any Material
Subsidiary is an "investment company" or a company
"controlled" by an "investment company" incorporated in the
United States within the meaning of the Investment Company Act
of 1940, as amended, or analogous foreign laws and
regulations.
(xiv) No registration under the Act of the
Original Notes or qualification of the Indenture under the
Trust Indenture Act is required for the sale of the Original
Notes to the Initial Purchasers as contemplated by the
Purchase Agreement or for the Exempt Resales, assuming in each
case that (A) the purchasers who buy the Original Notes in the
Exempt Resales are Eligible Purchasers and (B) the accuracy of
and compliance with the Initial Purchasers' representations,
warranties and covenants contained in Section 5(b) of the
Purchase Agreement.
(xv) To the best of our knowledge, neither the
Company nor any Material Subsidiary (or any agent thereof
acting on their behalf) has taken, and none of them will take,
any action that might cause the Purchase Agreement or the
issuance or sale of the Notes to violate Regulations T, U or X
of the Board of Governors of the Federal Reserve System or
analogous foreign laws and regulations, in each case as in
effect, or as the same may hereafter be in effect, on the
Closing Date.
(xvi) Each of the Indenture, the Notes, the
Guarantees and the other Note Documents conforms in all
material respects to the description thereof contained in the
Offering Memorandum.
(xvii) The statements under the captions
"Description of Notes" and "United States Federal Income Tax
Considerations" in the Offering Memorandum, insofar as such
statements constitute a summary of legal matters, documents or
proceedings referred to therein, fairly present in all
material respects such legal matters, documents and
proceedings.
(xviii) We are of the opinion that each document
incorporated by reference in the Offering Memorandum (except
for financial statements and schedules and other financial and
statistical data included therein as to which such counsel
need not express any opinion) complied as to form when filed
with the Commission in all material respects with the Exchange
Act and the rules and regulations of the Commission
thereunder.
We have participated in the preparation of the Offering
Memorandum. From time to time we have had discussions with officers, directors
and employees of, the Company and the Subsidiaries, the independent accountants
who examined the consolidated financial statements of the Company included in
the Offering Memorandum and the Initial Purchasers at which the contents of the
Offering Memorandum and related matters were discussed. We have not
independently verified and are not passing upon, and do not assume
responsibility for, the accuracy, completeness or fairness (except as set forth
in paragraph (xvi) and (xvii) above) of the information contained in the
Offering
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37
Memorandum. Based upon the participation and discussions described above,
however, no facts have come to our attention that cause us to believe that the
Offering Memorandum, as of its date or as of the date hereof, contained or
contains an untrue statement of a material fact, or omitted or omits 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 (it being
understood that we have not been requested to and do not make any comment with
respect to the financial statements and the notes thereto and the other
financial, statistical and accounting data included in the Offering Memorandum).
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ANNEX A
JURISDICTION OF
---------------
MATERIAL SUBSIDIARIES INCORPORATION
- --------------------- -------------
Diabetes Acquisition, Inc. Georgia
Gainor Medical Acquisition Company Georgia
Diabetes Management Solutions, Inc. (formerly USCI Healthcare
Management Solutions, Inc.) Delaware
Diabetes Self Care, Inc. Virginia
Facet Technologies, LLC (formerly Gainor Medical North America, LLC) Georgia
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EXHIBIT C
FORM OF OPINION OF VICE PRESIDENT AND GENERAL COUNSEL FOR THE
COMPANY
The opinion of Roberta L. McCaw, Esq., the Vice President and
General Counsel for the Company (capitalized terms not otherwise defined herein
shall have the meanings provided in the Purchase Agreement, to which this is an
Exhibit), to be delivered pursuant to Section 8(g) of the Purchase Agreement
shall be to the effect that:
(i) Each of the Company and the Other
Subsidiaries (a) is a corporation, partnership or other entity
duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has all
requisite corporate or other power and authority necessary to
own its property and carry on its business as now being
conducted, and (c) is qualified to do business and is in good
standing in all jurisdictions in which the nature of the
business conducted by it makes such qualification necessary
and where failure to be so qualified and in good standing,
individually or in the aggregate, would have a Material
Adverse Effect.
(ii) Each of the Issuers has all requisite power
and authority to execute, deliver and perform all of its
obligations under the Note Documents to which it is a party
and to consummate the transactions contemplated thereby to be
consummated on its part and, without limitation, the Company
has all requisite power and authority to issue, sell and
deliver the Notes and each Guarantor has all requisite power
and authority to execute, deliver and perform all its
obligations under its Guarantee. Each of the Issuers has duly
authorized the execution, delivery and performance of, and has
duly executed and delivered, each of the Note Documents to
which it is a party.
(iii) The Indenture, assuming the due
authorization, execution and delivery thereof by the Trustee,
is a legally binding and valid obligation of each Issuer,
enforceable against each of them in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium
or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity and the
discretion of the court before which any proceedings therefor
may be brought.
(iv) The Guarantees, when the Original Notes
are issued, authenticated and delivered in accordance with the
terms of the Purchase Agreement and the Indenture, will be
legally binding and valid obligations of the Guarantors,
enforceable against each of them in accordance with their
terms, except that enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of
equity and the discretion of the court before which any
proceedings therefor may be brought.
40
(v) The guarantees to be endorsed on the
Exchange Notes, when the Exchange Notes are issued,
authenticated and delivered by the Company in accordance with
the terms of the Registration Rights Agreement, the Exchange
Offer and the Indenture, will be legally binding and valid
obligations of the Guarantors enforceable against each of them
in accordance with their terms, except that enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar
laws affecting the enforcement of creditors' rights generally
and by general principles of equity and the discretion of the
court before which any proceedings therefor may be brought.
(vi) The Registration Rights Agreement, assuming
the due authorization, execution and delivery thereof by the
Initial Purchasers, is a legally binding and valid obligation
of the Issuers enforceable against each of them in accordance
with its terms, except that enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general
principles of equity and the discretion of the court before
which any proceedings therefor may be brought and except as
rights to indemnification and contribution under the
Registration Rights Agreement may be limited by federal or
state securities laws or principals of public policy.
(vii) The Purchase Agreement, assuming the due
authorization, execution and delivery thereof by the Initial
Purchasers, is a legally binding and valid obligation of the
Issuers enforceable against each of them in accordance with
its terms, except that enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general
principles of equity and the discretion of the court before
which any proceedings therefor may be brought and except as
rights to indemnification and contribution under the Purchase
Agreement may be limited by federal or state securities laws
or principals of public policy.
(viii) The execution, delivery and performance by
each of the Issuers of the Note Documents to which it is a
party, including the consummation of the offer and sale of the
Original Notes, does not and will not violate, conflict with
or constitute a breach of any of the terms or provisions of or
a default under (or an event that with notice or the lapse of
time, or both, would constitute a default), or require consent
under, or result in the creation or imposition of a lien,
charge or encumbrance on any property or assets of the Company
or any Other Subsidiary pursuant to, (i) the charter, bylaws
or other constitutive documents of the Company or any Other
Subsidiary, (ii) any of the Agreements and Instruments known
to such counsel, (iii) any law, statute, rule or regulation
applicable to the Company or any Other Subsidiary or their
respective assets or properties or (iv) any judgment, order or
decree of any domestic or foreign court or governmental agency
or authority having jurisdiction over the Company or any
Subsidiary or their respective assets or properties.
(ix) To such counsel's knowledge after reasonable
inquiry, except as would not individually or in the aggregate
have a Material Adverse Effect, neither the Company nor any
Subsidiary (a) is in violation of its charter, by-laws or
other
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organizational documents, (b) is in default (or with notice or
with lapse of time or both, would be in default) in the
performance or observance of any obligation, agreement,
covenant, or condition contained in any Agreement or
Instrument or (c) is in violation of any judgment, order or
decree of any court or regulatory authority, agency or other
body applicable to the Company or any of its Subsidiaries or
any of their assets or properties, (d) has knowledge that any
individual with an ownership or control interest, as defined
in 42 U.S.C.ss. 1320a-3(a)(3), in the Company or any
Subsidiary, or who is an officer, director or managing
employee, as defined in 42 U.S.C.ss.1320a-5(b), of the Company
or any Subsidiary, is a person described in 42 U.S.C.ss.
1320a-7(b)(8)(B), (e) is in violation of any federal or state
laws regarding physician ownership of (or financial
relationship with) and referral to entities providing
healthcare related goods or services, or laws requiring
disclosure of financial interests held by physicians in
entities to which they may refer patients for the provisions
of healthcare related goods or services, or (f) is in
violation of the Food, Drug and Cosmetic Act, Sections 301
through 397 of Title 21 of the United States Code.
(x) To such counsel's knowledge, after
reasonable inquiry, (A) the Company and each Subsidiary has
all Authorizations necessary to engage in the business
conducted by it, except where failure to hold such
Authorizations would not, individually or in the aggregate,
have a Material Adverse Effect and (B) no governmental body or
agency, domestic or foreign, is considering limiting,
suspending or revoking any such Authorization, except where
any such limitations, suspensions or revocations would not,
individually or in the aggregate, have a Material Adverse
Effect and (C) all such Authorizations are valid and in full
force and effect. Without limiting the foregoing, to such
counsel's knowledge, after reasonable inquiry, each of the
Company and the Subsidiaries has the requisite provider number
or other authorization to bill the Medicare program and the
respective Medicaid program in the state or states in which
such entity operates (to the extent such entity participates
in the Medicare program or applicable state Medicaid
programs), as a medicaid provider and there is no action
pending or, to such counsel's knowledge, threatened which
could result in a revocation of any such provider number or
authorization or result in the Company's or any Subsidiary's
exclusion from the Medicare or any state Medicaid programs.
(xi) There is no contract, agreement or other
document of a character that would be required to be described
in the Offering Memorandum if the Offering Memorandum was a
prospectus included in a registration statement under the Act
or to be filed as an exhibit to any Incorporated Document
which is not described or filed as would be required by the
Act or the Exchange Act.
(xii) The statements set forth under the headings
"Risk Factors--Risks Relating to Our Business--Government
regulation may adversely affect our business," "Risk
Factors--Risks Relating to Our Business--Government-sponsored
programs and third party payors may reduce payments to us,"
"Risk Factors--Risks Relating to Our Business--Health care
reform and federal budget legislation may reduce payment to us
or our customers that relate to matters of federal or state
health care law," "Business - Legal Proceedings" and
"Business--Government Regulation" in the
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Offering Memorandum, insofar as such statements constitute
summaries of the legal matters, documents and proceedings
referred to therein, fairly summarize the matters referred to
therein.
I have participated in the preparation of the Offering
Memorandum. From time to time I have had discussions with officers, directors
and employees of the Company and the Subsidiaries, the independent accountants
who examined the consolidated financial statements of the Company and their
subsidiaries included in the Offering Memorandum, and the Initial Purchasers at
which the contents of the Offering Memorandum and related matters were
discussed. Except as otherwise set forth above, I have not independently
verified and am not passing upon, and do not assume responsibility for, the
accuracy, completeness or fairness of the information contained in the Offering
Memorandum. Based upon the participation and discussions described above,
however, no facts have come to my attention that cause me to believe that the
Offering Memorandum, as of its date or as of the date hereof, contained or
contains an untrue statement of a material fact, or omitted or omits 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 (it being
understood that I have not been requested to and do not make any comment with
respect to the financial statements and the notes thereto and the other
financial, statistical and accounting data included in the Offering Memorandum).
For the purpose of this opinion, the term "Other Subsidiaries"
means the Subsidiaries, except Diabetes Acquisition, Inc, a Georgia corporation,
Gainor Medical Acquisition Company, a Georgia corporation, Diabetes Management
Solutions, Inc. (formerly USCI Healthcare Management Solutions, Inc.), a
Delaware corporation, Diabetes Self Care, Inc., a Virginia corporation, Facet
Technologies, LLC (formerly Gainor Medical North America, LLC, a Georgia
corporation, Matria Holding GmbH, eu-Medical GmbH and Dia Real GmbH.
As used in this opinion, "knowledge" and "to my knowledge"
means my current awareness of factual matters that I have gained in my capacity
as general counsel of the Company and that I recognize as relevant to this
opinion, and does not include any knowledge that might otherwise be imputed to
the Company or any of the Subsidiaries or any of their other employees.
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EXHIBIT D
FORM OF OPINION OF LATHAM & WATKINS SCHON NOLTE
The opinion of Latham & Watkins Schon Nolte, special German
counsel for the Company (capitalized terms not otherwise defined herein shall
have the meanings provided in the Purchase Agreement, to which this is an
Exhibit), to be delivered pursuant to Section 8(h) of the Purchase Agreement
shall be to the effect that:
(i) Matria Holding GmbH, eu-Medical GmbH and Dia
Real GmbH (collectively, the "German Corporations") have been
duly organised and are validly existing as corporations under
the laws of Germany with power and authority to own or lease
their respective properties and conduct their respective
businesses as described in the Offering Memorandum.
(ii) The share capital of the German Corporations
has been duly authorised and validly issued and is fully paid,
and is owned by the Company or a direct or indirect subsidiary
of the Company free and clear of all security interests,
mortgages, pledges, liens and encumbrances, and to the best of
our knowledge no options, warrants or other rights to
purchase, agreements or other obligations to issue or other
rights to convert any obligations to any shares in the German
Corporations have been issued or entered into by the German
Corporations.