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EXHIBIT 10.5
SUBSCRIPTION AGREEMENT
among
ARDENT HEALTH SERVICES, LLC
and
WELSH, CARSON, ANDERSON & STOWE IX, L.P.,
FFT PARTNERS II, L.P.,
BANCAMERICA CAPITAL INVESTORS I, L.P.
and
THE SEVERAL OTHER PURCHASERS LISTED ON ANNEX I HERETO
Dated as of September 25, 2001
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TABLE OF CONTENTS
PAGE
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I PURCHASE AND SALE OF ADDITIONAL UNITS
SECTION 1.01 The Right to Purchase Additional Units ............................. 2
SECTION 1.02 Issuance and Sale of Additional Units ............................... 3
SECTION 1.03 Subsequent Closing Dates ............................................ 4
SECTION 1.04 Termination of Agreement with Respect to BA ......................... 4
II REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 2.01 Formation and Qualifications......................................... 4
SECTION 2.02 Validity of Agreement and Transactions .............................. 4
SECTION 2.03 Membership Interests ................................................ 5
SECTION 2.04 Governmental Approvals .............................................. 5
SECTION 2.05 Offering of the Additional Units .................................... 5
SECTION 2.06 Legal Actions or Proceedings ........................................ 6
III REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
SECTION 3.01 Authorization ....................................................... 6
SECTION 3.02 Validity ............................................................ 6
SECTION 3.03 Investment Representations .......................................... 6
SECTION 3.04 Governmental Approvals .............................................. 7
IV CONDITIONS PRECEDENT
SECTION 4.01 Conditions Precedent to the Obligations of the Purchasers with
Respect to Each Subsequent Closing .................................. 7
SECTION 4.02 Conditions to the Obligations of the Company with Respect to
Each Subsequent Closing ............................................. 9
V COVENANTS
SECTION 5.01 Consents and Approvals ............................................. 10
SECTION 5.02 Compliance with Laws ................................................ 10
SECTION 5.03 Notice of Certain Events ............................................ 10
SECTION 5.04 Use of Proceeds ..................................................... 11
PAGE
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VI MISCELLANEOUS
SECTION 6.01 Expenses, Etc ....................................................... 11
SECTION 6.02 Survival of Agreements .............................................. 11
SECTION 6.03 Parties in Interest ................................................. 11
SECTION 6.04 Notices ............................................................. 11
SECTION 6.05 Entire Agreement; Modifications ..................................... 13
SECTION 6.06 Counterparts ........................................................ 13
SECTION 6.07 Assignment .......................................................... 13
SECTION 6.08 Governing Law ....................................................... 13
TESTIMONIUM
ii
INDEX TO ANNEXES AND SCHEDULES
Annex Description
I Purchasers, Initial Units Purchased and Maximum
Additional Units
II Form of Opinion of Reboul, MacMurray, Hewitt, Maynard &
Kristol
Schedule Description
2.01 Company Ownership of Stock or Other Interests
2.03 Membership Interests
iii
SUBSCRIPTION AGREEMENT dated as of September 25, 2001 among
ARDENT HEALTH SERVICES LLC, a Delaware limited liability company (the
"Company"), and Welsh, Carson, Anderson & Stowe IX, L.P. ("WCAS IX") and the
several purchasers listed on Annex I hereto (collectively, "WCAS"), FFT Partners
II, L.P. ("FFT"), and BANCAMERICA CAPITAL INVESTORS I, L.P. ("BA") (WCAS, FFT
and BA being hereinafter at times referred to individually as a "Purchaser" and
collectively as the "Purchasers").
WHEREAS, the Company has been formed to engage in the business
of owning medical/surgical hospitals and behavioral healthcare facilities and
acquiring additional hospitals and facilities and other businesses related
thereto (collectively, the "Business");
WHEREAS, each Purchaser (other than BA) has previously
executed and delivered the Ardent Health Services LLC Limited Liability Company
Agreement (as heretofore amended and as the same may be hereafter amended, the
"LLC Agreement") pursuant to which each Purchaser received membership interests
in the Company consisting of (i) common units ("Common Units"), and (ii) 8%
cumulative redeemable preferred units ("Preferred Units") (said Common Units,
together with the Preferred Units being hereinafter collectively called the
"Units"), as set forth opposite the name of such Purchaser under the headings
"Initial Number of Common Units" and "Initial Number of Preferred Units" on
Annex I hereto;
WHEREAS, BA has executed and delivered a Subscription
Agreement dated as of the date hereof (the "BA Subscription Agreement") pursuant
to which BA has agreed to sign the LLC Agreement and purchase the number of
Units, as set forth opposite the name of BA under the headings "Initial Number
of Common Units" and "Initial Number of Preferred Units" on Annex I hereto;
WHEREAS, from time to time prior to the Termination Date,
subject to the terms and conditions of Section 1.01 hereof, the Purchasers may
wish to purchase in the aggregate up to an additional 16,570,193 Common Units
and 16,570,193 Preferred Units to finance future acquisitions by the Company,
capital expenditures, operating expenses and other general corporate purposes;
and
WHEREAS, the Company wishes to issue, sell and deliver said
additional Units, all on the terms and subject to the conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF ADDITIONAL UNITS
SECTION 1.01 The Right to Purchase Additional Units. (a) An
aggregate of 16,570,193 Common Units ("Additional Common Units") and an
aggregate of 16,570,193 Preferred Units ("Additional Preferred Units," together
with the Additional Common Units, "Additional Units") shall be reserved for
issuance by the Company from time to time pursuant to this Section 1.01 to the
Purchasers.
(b) The maximum number of Additional Common Units and
Additional Preferred Units that may be purchased by each Purchaser on a
Subsequent Closing Date (as hereinafter defined) is set forth opposite the name
of such Purchaser on Annex I hereto under the heading "Maximum Number of
Additional Common Units" and/or "Maximum Number of Additional Preferred Units,"
as the case may be. It is understood that any purchase of Additional Units by
each Purchaser on a Subsequent Closing Date pursuant to this Section 1.01 shall
be made pro rata among the Purchasers in proportion to the maximum amounts
listed on Annex I hereto and that such purchase will be comprised of an equal
number of Additional Common Units and Additional Preferred Units for that
Purchaser.
(c) The aggregate number of Additional Common Units and
Additional Preferred Units available for purchase by the Purchasers on a
Subsequent Closing Date shall be reduced by the aggregate number of Additional
Common Units and Additional Preferred Units purchased on any previous Subsequent
Closing Date. On the date (the "Termination Date") that is the earlier to occur
of (i) such time as the Company shall have consummated an initial public
offering of its equity securities registered under the Securities Act of 1933,
as amended (the "Securities Act") (an "IPO") and (ii) a Change of Control (as
defined hereafter), the number, if any, of Additional Units available for
purchase hereunder, after taking into account all reductions thereof, shall no
longer be subject to any of the provisions of this Section 1.01.
As used in this Section 1.01, the term "Change of Control"
shall mean (i) a consolidation or merger of the Company with or into any other
unrelated business entity (other than a merger in which the Company is the
surviving business entity and which will not result in more than 50% of the
units (or other securities) of the Company outstanding being owned of record or
beneficially by persons other than the holders of such units or securities
immediately prior to such merger), (ii) a sale of all or substantially all of
the properties and assets of the Company, taken as a whole, in one transaction
or a series of related transactions, to any "person" or "group" other than the
Purchasers, or (iii) the acquisition by any "person" or "group" (other than the
Purchasers and their respective affiliates) of voting units (or other
securities) of the Company representing more than 50% of the voting power of all
outstanding voting units (or other securities), whether by way of merger or
consolidation or otherwise. The terms "person"
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and "group" shall have the meanings set forth in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), whether or not
applicable.
(d) At any time prior to the Termination Date, in the event
that the Company desires to finance (w) acquisitions of medical/surgical
hospitals or behavioral healthcare facilities, (x) capital expenditures for the
business of the Company, including without limitation additional acquisitions,
(y) operating expenses or (z) other general corporate purposes, the Company
shall, subject to the approval of its Board of Managers, on any such occasion,
notify the Purchasers that it desires financing. Such notice (a "Notice of
Financing Event") shall be in writing and shall specify (A) the terms and a
general description of the proposed acquisition, development or corporate
purpose intended to be financed by the Company, (B) the aggregate amount
required to finance such project, (C) the aggregate number of Additional Units
(the "Put Units") that would be required to be issued to each Purchaser to
finance such project and (D) the date on which the applicable acquisition or
other transaction is to be consummated.
(e) Within five business days after receipt of a Notice of
Financing Event pursuant to paragraph (d) above, WCAS IX may elect, at its sole
option, to require the Purchasers to purchase all or a portion of the Put Units
by the delivery by WCAS IX of a notice to the Company and each of the other
Purchasers (a "Purchase Notice") stating the number of Put Units to be purchased
by each Purchaser (which number may, in the aggregate, be less than all of the
Put Units) and the Subsequent Closing Date for the issuance and sale of the Put
Units. Upon receipt of a Purchase Notice, the Company shall be required to sell
such number of Put Units to the Purchasers, and each Purchaser shall be required
to purchase its pro rata portion of such number of Put Units, in accordance with
Section 1.02 below. It is understood and agreed that such number of Put Units
indicated in such Purchase Notice will be comprised of equal amounts of
Additional Common Units and Additional Preferred Units for each individual
Purchaser, and that each Purchaser will be allocated Put Units in accordance
with the pro rata allocation provisions described in Section 1.01(b) above.
(f) It is understood and agreed that WCAS IX shall be
entitled, in its sole discretion after consultation with the other Purchasers,
to deliver a Purchase Notice to the Company on behalf of the Purchasers to
purchase any remaining Additional Units pursuant to this Section 1.01 at any
time during the 20-day period prior to the Termination Date, whether or not the
Company shall have delivered a Notice of Financing Event.
SECTION 1.02 Issuance and Sale of Additional Units, (a) In the
event that WCAS IX shall have delivered a Purchase Notice to the Company as
specified in Section 1.01(e) or (f) above, subject to the other terms and
conditions of this Agreement, then, on the Subsequent Closing Date specified in
said Purchase Notice, the Company shall issue and sell to the Purchasers, and
the Purchasers shall purchase from the Company, as applicable, the number of
Additional Units specified in said Purchase Notice at a purchase price equal to
$3.43 per Additional Unit, and the Company shall cause Annex A to the LLC
Agreement to be revised to reflect the issuance of the Additional Units being
purchased by the Purchasers hereunder.
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(b) As payment in full for the Additional Units being
purchased by it hereunder, each Purchaser shall transfer by wire transfer to the
account or accounts designated by the Company on each Subsequent Closing Date an
amount equal to the applicable purchase price per Additional Unit referred to in
paragraph (a) above multiplied by the applicable number of Additional Units, as
the case may be, to be purchased by such Purchaser.
SECTION 1.03 Subsequent Closing Dates. Each closing of a sale
and purchase of Additional Units shall take place at the offices of Reboul,
MacMurray, Hewitt, Maynard & Kristol, 45 Rockefeller Plaza, New York, New York
10111 at 10 a.m., New York time, on such date (which shall not be a day on which
banking institutions in the State of New York are required or authorized to
close) as shall be specified in any Purchase Notice, or at such other date and
time as may be mutually agreed upon between the Purchasers and the Company (each
such closing being herein called a "Subsequent Closing" and each such date and
time being herein called a "Subsequent Closing Date").
SECTION 1.04 Termination of Agreement with Respect to BA.
Notwithstanding anything to the contrary contained herein, in the event that the
Company terminates the BA Subscription Agreement pursuant to Section 6 thereof,
then this Agreement shall, solely with respect to BA, automatically and without
any further action on the part of any party hereto, also terminate and be of no
further force or effect.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchasers as
follows:
SECTION 2.01 Formation and Qualifications. (a) The Company is
a limited liability company duly formed, validly existing and in good standing
under the laws of the State of Delaware and is duly licensed or qualified in
each jurisdiction in which the nature of its business or the ownership of its
properties makes such licensing or qualification necessary, except where the
failure to be so licensed or qualified would not have a material adverse effect
on its ability to carry on its business.
(b) Except as set forth in Schedule 2.01 hereto, the Company
does not own of record or beneficially, directly or indirectly, (i) any shares
of capital stock or securities convertible into capital stock of any corporation
or (ii) any participating interest in any other partnership, joint venture or
other non-corporate business enterprise.
SECTION 2.02 Validity of Agreement and Transactions.
(a) Each of (i) the execution and delivery by the Company of
this Agreement, (ii) the performance by the Company of its obligations
hereunder, (iii) and the contemplated sale,
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issuance and delivery by the Company of Additional Units will not violate any
provision of law, any order of any court or other agency of government, the
Company's LLC Agreement, any provision of any indenture, agreement or other
instrument to which the Company or any subsidiary is a party or by which it or
any of its properties or assets is bound or affected, or conflict with, result
in a breach of or constitute (with due notice or lapse of time or both) a
default under any such indenture, agreement or other instrument, or result in
the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company or any
subsidiary.
(b) When sold and paid for in accordance with this Agreement,
the Additional Units will be validly issued, fully paid and nonassessable units
of Common Units and Preferred Units, as the case may be. Neither the issuance,
sale and delivery of the Additional Units is subject to any preemptive rights of
holders of Units of the Company or to any right of first refusal or other
similar right in favor of any person or entity.
(c) This Agreement has been duly executed and delivered by the
Company and when executed by the other parties hereto will constitute the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement of remedies, to applicable
bankruptcy, insolvency, fraudulent conveyance and similar laws and to
limitations on the availability of equitable remedies.
SECTION 2.03 Membership Interests. Except as set forth on
Schedule 2.03 hereto or as contemplated by this Agreement or the LLC Agreement,
(i) no subscription, warrant, option, convertible security or other right
(contingent or other) to purchase or acquire any Additional Units or any
membership interests or other equity interests of the Company or of any
subsidiary is authorized or outstanding, (ii) there is not any commitment of the
Company or any subsidiary to issue any Additional Units, membership interests or
other equity interests, warrants, options or other such rights or to distribute
to holders of any class of the Company's or any subsidiary's membership
interests or other equity interests, any evidences of indebtedness or assets and
(iii) neither the Company nor any subsidiary has any obligation (contingent or
other) to purchase, redeem or otherwise acquire any Additional Units or
membership interests or other equity interests or any interest therein or to pay
any dividend or make any other distribution in respect thereof.
SECTION 2.04 Governmental Approvals. Subject to the accuracy
of the representations and warranties of the Purchasers set forth in Article III
hereof, no registration or filing with, or consent or approval of, or other
action by, any Federal, state or other governmental agency or instrumentality is
or will be necessary for the valid execution, delivery and performance by the
Company of this Agreement, or the issuance, sale and delivery by the Company of
the Additional Units.
SECTION 2.05 Offering of the Additional Units. Neither the
Company nor any person authorized or employed by the Company as agent, broker,
dealer or otherwise in
5
connection with the offering or sale of the Additional Units or any similar
securities of the Company has offered any such securities for sale to, or
solicited any offers to buy any such securities from, or otherwise approached or
negotiated with respect thereto with, any person or persons, under circumstances
that involved the use of any form of general advertising or solicitation as such
terms are defined in Regulation D of the Securities Act; and, assuming the
accuracy of the representations and warranties of the Purchasers set forth in
Article III hereof, neither the Company nor any person acting on the Company's
behalf has taken or will take any action (including, without limitation, any
offer, issuance or sale of any securities of the Company under circumstances
which would require the integration of such transactions with the sale of the
Additional Units under the Securities Act or the rules and regulations of the
Securities and Exchange Commission thereunder) which would subject the offering,
issuance or sale of the Additional units to the Purchasers to the registration
provisions of the Securities Act.
SECTION 2.06 Legal Actions or Proceedings. No legal action or
proceeding shall have been instituted or threatened seeking to restrain,
prohibit, invalidate or otherwise affect the consummation of the transactions
contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser represents and warrants to the Company,
severally and not jointly, as follows:
SECTION 3.01 Authorization. The execution, delivery and
performance by such Purchaser of this Agreement and the purchase and receipt by
such Purchaser of the Additional Units being purchased by it hereunder have been
duly authorized by all requisite action on the part of such Purchaser, and will
not violate any provision of law, any order of any court or other agency of
government applicable to such Purchaser, or any provision of any indenture,
agreement or other instrument by which such Purchaser or any of such Purchaser's
properties or assets are bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument.
SECTION 3.02 Validity. This Agreement has been duly executed
and delivered by such Purchaser and constitutes the legal, valid and binding
obligation of such Purchaser, enforceable against such Purchaser in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws from time to time in effect affecting the
enforcement of creditors' rights generally and to general equity principles.
SECTION 3.03 Investment Representations. (a) Such Purchaser is
acquiring the Additional Units for its own account, for investment, and not with
a view toward the resale or distribution thereof in violation of applicable law.
6
(b) Such Purchaser understands that it must bear the economic
risk of its investment for an indefinite period of time because the Additional
Units are not registered under the Securities Act or any applicable state
securities laws, and may not be resold unless subsequently registered under the
Securities Act and such other laws or unless an exemption from such registration
is available.
(c) Such Purchaser is able to fend for itself in the
transactions contemplated by this Agreement and has the ability to bear the
economic risks of its investment in the Additional Units being purchased by it
for an indefinite period of time. Such Purchaser has had the opportunity to ask
questions of, and receive answers from, officers of the Company with respect to
the business and financial condition of the Company and the terms and conditions
of the offering of the Additional Units and to obtain additional information
necessary to verify such information or can acquire it without unreasonable
effort or expense.
(d) Such Purchaser has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of its investment in the Additional Units. Such Purchaser is an
"accredited investor" as such term is defined in Rule 501 of Regulation D under
the Securities Act with respect to its purchase of the Additional Units, and
that if such Purchaser is a partnership, it has not been formed solely for the
purpose of purchasing the Additional Units it is purchasing hereunder (unless
each of the partners of such partnership is an accredited investor).
SECTION 3.04 Governmental Approvals. No registration or filing
with, or consent or approval of, or other action by, any Federal, state or other
governmental agency or instrumentality is or will be necessary by such Purchaser
for the valid execution, delivery and performance of this Agreement, other than,
if applicable, compliance with the requirements of the HSR Act.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.01 Conditions Precedent to the Obligations of the
Purchasers with Respect to Each Subsequent Closing. The obligation of each
Purchaser to purchase and pay for the Additional Units being purchased by it on
each Subsequent Closing Date is, at its option, subject to the satisfaction, on
or before such date, of the following conditions:
(a) Consummation of Each Prior Subsequent Closing. On each
prior Subsequent Closing Date, the Company shall have issued and sold the
Additional Securities being issued and sold on such Subsequent Closing Date.
(b) Preliminary Documentation. If applicable, a Notice of
Financing Event shall have been given and shall have been delivered to the
Additional Purchasers pursuant to
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Section 1.0(d).
(c) Opinion of Counsel. The Purchasers shall have received
from Reboul, MacMurray, Hewitt, Maynard & Kristol (or such other counsel
satisfactory to the Purchasers) an opinion dated such Subsequent Closing Date
confirming the opinion delivered by such counsel substantially in the form
annexed hereto as Annex II, with such other changes as may be required as a
result of the transactions contemplated by this Agreement.
(d) Representations and Warranties to Be True and Correct. The
representations and warranties of the Company set forth herein shall be true and
correct as of such Subsequent Closing Date and the Company shall have certified
to such effect to the Purchasers in writing.
(e) Performance. The Company shall have performed and complied
in all material respects with all agreements and conditions contained herein
required to be performed or complied with by it prior to or at such Subsequent
Closing Date, and the Company shall have certified to such effect to the
Purchasers in writing.
(f) No Material Adverse Change. Since the Subsequent Closing
Date next preceding such Subsequent Closing Date (or in the case of the first
Subsequent Closing Date, since the Initial Closing Date), there shall have been
no material adverse change in the properties, assets, condition (financial or
other), prospects, operating results or business of the Company and its
subsidiaries taken as a whole, and the Company shall have certified to such
effect to the Purchasers in writing.
(g) All Proceedings to Be Satisfactory. All proceedings to be
taken by the Company and all waivers and consents to be obtained by the Company
in connection with the transactions contemplated hereby and all documents
incident thereto shall be satisfactory in form and substance to the Purchasers
and their counsel, and the Purchasers and said counsel shall have received all
such counterpart originals or certified or other copies of such documents as
they may reasonably request.
(h) Supporting Documents. On or prior to such Subsequent
Closing Date the Purchasers and their counsel shall have received copies of the
following supporting documents:
(i) (x) copies of the Certificate of Formation of the
Company, and all amendments thereto, certified as of a recent
date by the Secretary of State of the State of Delaware, and
(y) a certificate of said Secretary dated as of a recent date
as to the due formation and good standing of the Company and
listing all documents of the Company on file with said
Secretary;
(ii) a certificate of the Secretary or an Assistant
Secretary of the Company dated the Subsequent Closing Date and
certifying (w) that attached thereto is a
8
true and complete copy of the Limited Liability Company
Agreement of the Company as in effect on the date of such
certification; (x) that attached thereto is a true and
complete copy of resolutions adopted by the Board of Managers
of the Company authorizing the execution, delivery and
performance of this Agreement and the issuance, sale and
delivery of the Additional Units, and that all such
resolutions are still in full force and effect and are all the
resolutions adopted in connection with the transactions
contemplated by this Agreement; (y) that the Certificate of
Formation of the Company has not been amended since the date
of the last amendment referred to in the certificate delivered
pursuant to clause (h)(i)(x) above; and (z) as to the
incumbency and specimen signature of each officer of the
Company executing this Agreement, and the certificates
representing the Additional Units and any certificate or
instrument furnished pursuant hereto, and a certification by
another officer of the Company as to the incumbency and
signature of the officer signing the certificate referred to
in this paragraph (ii); and
(iii) such additional supporting documents and other
information with respect to the operations and affairs of the
Company as the Purchasers or their counsel may reasonably
request.
All such documents shall be satisfactory in form and substance
to the Purchasers and their counsel.
In the event that the Certificate of Formation of the Company
and/or the LLC Agreement shall not have been amended since the previous
Subsequent Closing Date, the Company may, in lieu of furnishing such documents,
cause the certificate with respect thereto contemplated by paragraphs 4.01(h)(i)
and 4.01(h)(ii) above to be replaced by a certificate as to the fact that such
documents were previously furnished and as to the absence of any amendments
thereto.
(i) Consents. The Company shall have obtained all
consents required to be obtained pursuant to Section 5.01 hereof.
SECTION 4.02 Conditions to the Obligations of the Company with
Respect to Each Subsequent Closing. The obligations of the Company to issue and
sell the Additional Units on each Subsequent Closing Date are, at its option,
subject to the satisfaction, on or before such date, of the following
conditions:
(a) Consummation of Each Prior Subsequent Closing. On each
prior Subsequent Closing Date, the Purchasers shall have purchased and paid for
the Additional Units being issued and sold on such Subsequent Closing Date.
(b) Purchase Notice. A Purchase Notice shall have been given
pursuant to
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Section 1.01(e) or (f) above, as applicable.
(c) Representations and Warranties to Be True and Correct. The
representations and warranties contained in Article III hereof shall be true and
correct in all material respects on such Subsequent Closing Date with the same
effect as though such representations and warranties had been made on and as of
such date, and each Purchaser shall have certified to such effect to the Company
in writing.
(d) Performance. Each Purchaser shall have performed and
complied in all material respects with all agreements and conditions contained
herein required to be performed or complied with by it prior to or at such
Subsequent Closing Date, and each Purchaser shall have certified to such effect
to the Company in writing.
(e) All Proceedings to Be Satisfactory. All corporate or
partnership and other proceedings to be taken by each Purchaser and all waivers
and consents to be obtained by any Purchaser in connection with the transactions
contemplated hereby and all documents incident thereto shall be satisfactory in
form and substance to the Company and its counsel.
ARTICLE V
COVENANTS
SECTION 5.01 Consents and Approvals. Prior to each Subsequent
Closing Date the Company shall promptly apply for or otherwise seek and use its
best efforts to obtain all authorizations, consents, waivers and approvals
(whether by or from any person, entity, court or governmental agency or
authority) as may be required in connection with the consummation of this
Agreement and the transactions contemplated hereby.
SECTION 5.02 Compliance with Laws. The Company shall comply,
and shall cause each of its subsidiaries to comply, with all applicable laws,
rules, regulations and orders, the noncompliance with which could have a
material adverse effect on the properties, assets, condition (financial or
other), prospects, operating results or business of the Company and its
subsidiaries taken as a whole.
SECTION 5,03 Notice of Certain Events. (a) The Company shall
give the Purchasers prompt notice of (i) the occurrence, or failure to occur, of
any event that the Company believes would be likely to (x) cause any of the
representations or warranties of the Company contained in this Agreement to be
untrue or inaccurate in any material respect at any time from the date hereof,
(y) cause any covenant, condition or agreement contained in this Agreement not
to be complied with or satisfied in any material respect or (z) result in any
material adverse effect on the properties, assets, condition (financial or
other), prospects, operating results or business of the Company and its
subsidiaries taken as a whole, (ii) any failure of the Company, or any officer,
director, employee or agent thereof, to comply in any material respect with or
satisfy in
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any material respect any covenant, condition or agreement to be complied with or
satisfied by it hereunder, (iii) any event of default under any agreement with
respect to indebtedness for borrowed money or a purchase money obligation, and
any event which, upon notice or lapse of time or both, would constitute such an
event of default, that would permit the holder of such indebtedness or
obligation to accelerate the maturity thereof, (iv) any claim, action, suit or
proceeding at law or in equity or by or before any governmental instrumentality
or agency which, if adversely determined, would materially impair the ability of
the Company to carry on its business substantially as now or then conducted.
(b) For purposes of permitting the Purchasers to purchase any
Additional Shares prior to the Termination Date pursuant to Section 1.01(f)
hereof, the Company shall give the Purchasers notice of an IPO or a Change of
Control Event at least 20 days prior to the consummation of an IPO or Change of
Control Event.
SECTION 5.04 Use of Proceeds. The Company shall use the
proceeds from the sale of the Additional Units hereunder in accordance with the
applicable Notice of Financing Event.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 Expenses, Etc. The Company shall pay its own
expenses and all fees and expenses of the Purchasers incident to the
negotiation, preparation and execution of this Agreement, including the fees and
expenses of counsel, accountants or other advisors.
SECTION 6.02 Survival of Agreements. All covenants,
agreements, representations and warranties made herein shall survive the
execution and delivery of this Agreement and the issuance, sale and delivery of
the Additional Units pursuant hereto and all statements contained in any
certificate or other instrument delivered by the Company hereunder shall be
deemed to constitute representations and warranties made by the Company.
SECTION 6.03 Parties in Interest. All covenants and agreements
contained in this Agreement by or on behalf of any of the parties hereto shall
bind and inure to the benefit of the respective successors and assigns of the
parties hereto whether so expressed or not.
SECTION 6.04 Notices. Any notice or other communications
required or permitted hereunder shall be deemed to be sufficient if contained in
a written instrument delivered in person or by overnight courier or duly sent by
first class certified mail, postage prepaid, or by facsimile addressed to such
party at the address or facsimile number set forth below:
11
if to the Company, to:
Ardent Health Services LLC
102 Woodmont Boulevard
Suite 800
Nashville, TN 37205
Facsimile: (615) 843-3419
Attention: General Counsel
if to any party who is a member of WCAS, to such party at:
c/o Welsh, Carson, Anderson & Stowe
320 Park Avenue
Suite 2500
New York, NY 10022
Facsimile: (212) 893-9575
Attention: Mr. Russell L. Carson
with a copy to:
Reboul, MacMurray, Hewitt, Maynard & Kristol
45 Rockefeller Plaza
New York, NY 10011
Facsimile: (212) 841-5725
Attention: Othon A. Prounis, Esq.
if to FFT, to:
FFT Partners II, L.P.
The Mill
10 Glenville Street
Greenwich, CT 06831
Facsimile: (203) 532-8016
Attention: Mr. Carlos Ferrer
with a copy to:
Goodwin Procter LLP
Exchange Place
Boston, MA 02109
Facsimile: (617) 523-1231
Attention: Kevin M. Dennis, P.C.
12
if to BA, to:
BancAmerica Capital Investors I, L.P.
100 North Tryon Street, Suite 2500
Charlotte, NC 28255
Facsimile: (704) 386-8649
Attention: Mr. Walker L. Poole
or, in any case, at such other address or addresses as shall have been furnished
in writing by such party to the other parties hereto. All such notices,
requests, consents and other communications shall be deemed to have been
received (a) in the case of personal or courier delivery, on the date of such
delivery, (b) in the case of mailing, on the fifth business day following the
date of such, mailing and (c) in the case of facsimile, when received.
SECTION 6.05 Entire Agreement; Modifications. This Agreement
(including the Annexes and Schedules hereto) constitutes the entire agreement of
the parties with respect to the subject matter hereof and may not be amended or
modified nor any provisions waived except in a writing signed by each party
hereto.
SECTION 6.06 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 6.07 Assignment. This Agreement may not be assigned by
the Company or the Purchasers without the prior written consent of the Company
and each of the Purchasers.
SECTION 6.08 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
********
13
IN WITNESS WHEREOF, the Company and the Purchasers have
executed this Agreement as of the day and year first above written.
ARDENT HEALTH SERVICES LLC
By: /s/ David T. Vandewater
-------------------------------------
David T. Vandewater
President and Chief Executive Officer
PURCHASERS:
WELSH, CARSON, ANDERSON & STOWE IX, L.P.
By: WCAS IX Associates, L.L.C.,
General Partner
By: /s/ Jonathan M. Rather
--------------------------------------
Managing Member
John Almeida
Bruce K. Anderson
Russell L. Carson
John Clark
Anthony J. de Nicola
Michael Donovan
Michael Gerstmer
Eric J. Lee
D. Scott Mackesy
IRA - f/b/o James R. Matthews
Thomas E. McInerney
Scott McLellan
Robert A. Minicucci
Paul B. Queally
IRA - f/b/o Jonathan M. Rather
Lawrence B. Sorrel
Sanjay Swani
Sean Traynor
Patrick J. Welsh
Kenneth Melkus
Melkus Family Foundation
Lauren Evelyn Melkus Trust
By: /s/ Jonathan M. Rather
------------------------------------
Jonathan M. Rather,
Individually and as Attorney-in-Fact
WCAS HEALTHCARE PARTNERS, L.P.
By: WCAS HP Partners, General Partner
By: /s/ Jonathan M. Rather
--------------------------------------
Jonathan M. Rather
Attorney-in-Fact
FFT PARTNERS II, L.P.
By FFT GP II, LLC, General Partner
By: /s/ Carlos A. Ferrer
--------------------------------------
Name: Carlos A. Ferrer
Title: Member
BANCAMERICA CAPITAL INVESTORS I, L.P.
By: BancAmerica Capital Management I, L.P.,
its general partner
By: BACM I GP, LLC,
its general partner
By: /s/ Walker L. Poole
-------------------------------------
Walker L. Poole
Member
ANNEX I
[Intentionally Omitted]
ANNEX II
FORM OF OPINION OF REBOUL, MacMURRAY, HEWITT, MAYNARD & KRISTOL
September [ ], 2001
To FFT Partners II, L.P.
and BancAmerica Capital Investors I, L.P.
Ardent Health Services LLC
Dear Sirs:
We have acted as counsel for Ardent Health Services LLC, a
Delaware limited liability company (the "Company"), in connection with (i) the
formation of the Company as a limited liability company under the laws of the
State of Delaware, (ii) the execution and delivery of the Limited Liability
Company Agreement of the Company (the "Limited Liability Company Agreement") and
(iii) the private placement of the Company's membership interests to FFT
Partners II, L.P. ("FFT") and BancAmerica Capital Investors I, L.P.
("BancAmerica") pursuant to the Subscription Agreement among the Company and
Welsh, Carson, Anderson & Stowe IX, L.P. ("WCAS IX"), FFT, BancAmerica and the
several other purchasers listed on Annex I thereto (together with FFT, WCAS IX
and BancAmerica, the "Purchasers"), dated as of September 25, 2001 (the
"Subscription Agreement"). Except as otherwise defined herein, all capitalized
terms are used with the meanings provided in the Subscription Agreement.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such records,
documents and other instruments and certificates of the Company as we have
deemed necessary or appropriate for the purposes of this opinion, including (a)
executed counterparts of the Limited Liability Company Agreement, (b) the
completed and signed Subscription Agreement and (c) the Certificate of Formation
of the Company filed in the Office of the Secretary of State of the State of
Delaware on June [ ], 2001.
In rendering the opinions set forth below, we have assumed
that (i) the Limited Liability Company Agreement and the Subscription Agreement
have been duly authorized, executed and delivered by each of the Purchaser
signatories thereto, (ii) the signatures of the Purchasers on all documents
examined by us are genuine and (iii) the Company will be operated for the
purposes set forth in the Limited Liability Company Agreement and in accordance
with
the terms and provisions of the Limited Liability Company Agreement and the
Delaware Limited Liability Company Act (as referred to in paragraph (1) below).
In addition, we have relied, as to certain factual matters
relating to the Company, upon the representations, warranties and covenants as
set forth in the Limited Liability Company Agreement and the Subscription
Agreement, and as to certain factual matters relating to the Company and its
members, upon statements and certificates provided to us by the Company.
Based on and subject to the foregoing, we are of the opinion
as follows:
(1) The Company (i) has been duly and validly formed and is
validly existing as a limited liability company under the Delaware Limited
Liability Company Act, as set forth in Title 6, Chapter 18 of the Delaware Code
(the "Delaware Limited Liability Company Act"), (ii) has the requisite power and
authority to execute and deliver the Subscription Agreement and the Limited
Liability Company Agreement and perform its obligations thereunder, and (iii) is
in good standing as a limited liability company in the State of Delaware.
(2) The Certificate of Formation of the Company has been duly
filed with the Office of the Secretary of State of the State of Delaware and
contains all of the terms and provisions that are required by the Delaware
Limited Liability Company Act to be included therein.
(3) Each of the FFT and BancAmerica has become a member of
the Company in accordance with the Limited Liability Company Agreement and the
Delaware Limited Liability Company Act.
(4) The execution and delivery by the Company of each of the
Limited Liability Company Agreement and the Subscription Agreement do not, and
the performance thereof in accordance with their respective terms will not,
result in the violation of any law or regulation applicable to the Company or
any of its properties or assets, or, to our knowledge after due inquiry, do not,
and will not, (i) constitute a default under or conflict with any contract,
indenture, agreement, instrument, mortgage, judgment, decree, or order
applicable to the Company or (ii) result in the creation of any mortgage, lien,
encumbrance or charge upon any of its properties or assets.
(5) Each of the Limited Liability Company Agreement and the
Subscription Agreement has been duly and validly executed and delivered by the
Company, and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms.
(6) To our knowledge, there is no action, suit, arbitration,
governmental investigation, inquiry or proceeding (including, without
limitation, proceedings under any applicable federal or state bankruptcy,
insolvency or other similar law) by or before any court, arbitration panel,
agency or other governmental authority pending or threatened against the Company
which challenges or would challenge the validity or purpose of the Company or
could have a material adverse effect on the respective activities or assets of
the Company or on its
2
ability to perform its obligations under the Subscription Agreement or the
Limited Liability Company Agreement, as applicable.
The opinions expressed in paragraph (5) above, to the extent
they relate to the enforceability of any agreement or obligation, are subject to
applicable bankruptcy, reorganization, insolvency and similar laws affecting
creditors' rights generally and to moratorium laws from time to time in effect,
and insofar as the same involve the enforceability of obligations other than for
the payment of money, to principles of equity applicable to the remedy of
specific performance.
We are admitted to practice in the State of New York, and we
express no opinion herein as to any matters governed by any laws other than the
laws of the State of New York, the limited liability company, limited
partnership and corporation laws of the State of Delaware, and the federal laws
of the United States.
Very truly yours,
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SCHEDULE 2.01
COMPANY OWNERSHIP OF STOCK OR OTHER INTERESTS
Behavioral Healthcare Corporation and its subsidiaries
Ardent Medical Services, Inc. and its subsidiaries
AHS Management Company
BHC Acquisition Corp.
SCHEDULE 2.03
MEMBERSHIP INTERESTS
The Company has reserved 12% of the outstanding Common Units
for grants under the Ardent Health Services LLC and its Subsidiaries
Option and Restricted Unit Purchase Plan.