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EXHIBIT 1.3
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HEALTHTRUST, INC. - THE HOSPITAL COMPANY
(A DELAWARE CORPORATION)
$200,000,000
10 1/4% SUBORDINATED NOTES DUE 2004
PURCHASE AGREEMENT
Dated: APRIL 28, 1994
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HEALTHTRUST, INC. - THE HOSPITAL COMPANY
(a Delaware corporation)
$200,000,000
10 1/4% Subordinated Notes due 2004
PURCHASE AGREEMENT
April 28, 1994
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
140 Broadway
New York, New York 10005
Ladies and Gentlemen:
Healthtrust, Inc. - The Hospital Company, a Delaware
corporation (the "Company"), proposes to issue and sell to the underwriters
named in Schedule A (collectively, the "Underwriters") $200,000,000 aggregate
principal amount of its 10 1/4% Subordinated Notes due 2004 (the "Securities").
Such Securities are to be sold to each Underwriter, acting severally and not
jointly, in such amounts as are set forth in Schedule A opposite the name of
such Underwriter. The Securities are to be issued pursuant to an indenture
dated as of March 30, 1993 (the "Indenture") between the Company and The First
National Bank of Boston, as trustee (the "Trustee"). The Securities and the
Indenture are more fully described in the Prospectus referred to below.
The principal amount and certain terms of the Securities, and
the purchase price of the Securities to be paid by the Underwriters, shall be
agreed upon by the Company and the Underwriters, and such agreement shall be
set forth in a separate written instrument substantially in the form of Exhibit
A hereto (the "Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form of written
telecommunication between the Company and the Underwriters and shall specify
such applicable information as is indicated in Exhibit A hereto. The offering
of the Securities will be governed by this Agreement, as supplemented by the
Price Determination Agreement. From and
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after the date of the execution and delivery of the Price Determination
Agreement, this Agreement shall be deemed to incorporate, and all references
herein to "this Agreement" or "herein" shall be deemed to include, the Price
Determination Agreement.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 33-52403) covering the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses, and either (A) has prepared and
proposes to file, prior to the effective date of such registration statement,
an amendment to such registration statement, including a final prospectus, or
(B) if the Company has elected to rely upon Rule 430A ("Rule 430A") of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), will prepare and file a prospectus, in accordance with the
provisions of Rule 430A and Rule 424(b) ("Rule 424(b)") of the 1933 Act
Regulations, promptly after execution and delivery of the Price Determination
Agreement. The information, if any, included in such prospectus that was
omitted from the prospectus included in such registration statement at the time
it becomes effective but that is deemed, pursuant to Rule 430A(b), to be part
of such registration statement at the time it becomes effective is referred to
herein as the "Rule 430A Information". Each prospectus used before the time
such registration statement becomes effective and any prospectus that omits the
Rule 430A Information that is used after such effectiveness and prior to the
execution and delivery of the Price Determination Agreement, is herein called a
"preliminary prospectus". Such registration statement, including the exhibits
thereto, as amended at the time it becomes effective and including, if
applicable, the Rule 430A Information, is herein called the "Registration
Statement", and the prospectus included in the Registration Statement at the
time it becomes effective is herein called the "Prospectus", except that, if
the final prospectus first furnished to the Underwriters after the execution of
the Price Determination Agreement for use in connection with the offering of
the Securities differs from the prospectus included in the Registration
Statement at the time it becomes effective (whether or not such prospectus is
required to be filed pursuant to Rule 424(b)), the term "Prospectus" shall
refer to the final prospectus first furnished to the Underwriters for such use.
The Company understands that the Underwriters propose to make
a public offering of the Securities as soon
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as you deem advisable after the Registration Statement becomes effective, the
Price Determination Agreement has been executed and delivered and the Indenture
has been qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act").
The parties hereto further acknowledge that for purposes of
this Agreement, the "Company" and the "Company's Subsidiaries" shall refer to
the Company and the Company's subsidiaries on the date of this Agreement.
Section 1. Representations and Warranties. (a) The
Company represents and warrants to and agrees with each of the Underwriters
that:
(i) When the Registration Statement shall become
effective, if the Company has elected to rely upon Rule 430A, on the
date of the Price Determination Agreement, on the effective or issue
date of each amendment or supplement to the Registration Statement or
the Prospectus, and at the Closing Time referred to below, (A) the
Registration Statement and any amendments and supplements thereto will
comply in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations; (B) neither the Registration Statement
nor any amendment or supplement thereto will contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and (C) neither the Prospectus nor any amendment or
supplement thereto will include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. Notwithstanding the foregoing, this
representation and warranty does not apply to statements or omissions
from the Registration Statement or the Prospectus made in reliance
upon and in conformity with information furnished or confirmed in
writing to the Company by or on behalf of any Underwriter expressly
for use in the Registration Statement or the Prospectus or to the
Statement of Eligibility of the Trustee on form T-1 filed with the
Commission as part of the Registration Statement.
(ii) This Agreement has been duly authorized, executed and
delivered by the Company.
(iii) The consolidated financial statements of the Company
included in the Registration Statement present fairly the consolidated
financial position of
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the Company and the Company's Subsidiaries (as hereinafter defined) as
of the dates indicated and the consolidated statements of operations,
stockholders' equity and cash flows of the Company and the Company's
Subsidiaries for the periods specified. Except as otherwise stated in
the Registration Statement, such financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved. The
financial statement schedules, if any, included in the Registration
Statement present fairly the information required to be stated
therein. The pro forma financial statements and other pro forma
financial information included in the Prospectus present fairly the
information shown therein, have been prepared in all material respects
in accordance with the Commission's rules and guidelines with respect
to pro forma financial statements, have been properly compiled on the
pro forma bases described therein, and, in the opinion of the Company,
the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein.
(iv) To the Company's knowledge, the consolidated financial
statements of EPIC Holdings, Inc. ("EPIC") and EPIC's subsidiaries
(including the financial statements of EPIC Healthcare Group, Inc.
("EPIC Group"), EPIC's wholly-owned subsidiary) included in the
Registration Statement present fairly the consolidated financial
position of EPIC and EPIC's Subsidiaries (as hereinafter defined) as
of the dates indicated and the consolidated statements of operations,
stockholders' equity (deficit) and cash flows of EPIC and EPIC's
Subsidiaries for the periods specified. To the Company's knowledge,
except as otherwise stated in the Registration Statement, such
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved.
(v) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware
with corporate power under such laws to own, lease and operate its
properties and conduct its business as described in the Prospectus;
and the Company is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in
which it owns or leases property of a nature, or transacts
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business of a type, that would make such qualification necessary,
except to the extent that the failure to so qualify or be in good
standing would not have a material adverse effect on the Company and
the Company's Subsidiaries, considered as one enterprise.
(vi) To the Company's knowledge, EPIC is a corporation duly
incorporated, validly existing and in good standing under the laws of
the State of Delaware with corporate power under such laws to own,
lease and operate its properties and conduct its business as described
in the Prospectus; and EPIC is duly qualified to transact business as
a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be
in good standing would not have a material adverse effect on EPIC and
EPIC's Subsidiaries, considered as one enterprise.
(vii) Each of the Company's subsidiaries (collectively, the
"Company's Subsidiaries") is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of
its incorporation with corporate power under such laws to own, lease
and operate its properties and conduct its business as described in
the Prospectus; and each of the Company's Subsidiaries is duly
qualified to transact business as a foreign corporation and is in good
standing in each other jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make
such qualification necessary, except to the extent that the failure to
so qualify or be in good standing would not have a material adverse
effect on the Company and the Company's Subsidiaries, considered as
one enterprise. Except as set forth in the Registration Statement,
all of the outstanding shares of capital stock of each of the
Company's Subsidiaries have been duly authorized and validly issued
and are fully paid and non-assessable, and are owned by the Company,
directly or through one or more Subsidiaries, free and clear of any
pledge, lien, perfected security interest, claim or encumbrance of any
kind or, to the knowledge of the Company, any unperfected security
interest.
(viii) To the Company's knowledge, each of EPIC's subsidiaries
(collectively, "EPIC's Subsidiaries") is a corporation duly
incorporated, validly existing and in good standing under the laws of
the jurisdiction of its
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incorporation with corporate power under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus; and each of EPIC's Subsidiaries is duly qualified to
transact business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse
effect on EPIC and EPIC's Subsidiaries, considered as one enterprise.
To the Company's knowledge, except as set forth in the Registration
Statement, all of the outstanding shares of capital stock of each of
EPIC's Subsidiaries have been duly authorized and validly issued and
are fully paid and non-assessable, and except as set forth in the
Disclosure Schedule (as hereinafter defined), are owned by EPIC,
directly or through one or more Subsidiaries, free and clear of any
pledge, lien, perfected security interest, claim or encumbrance of any
kind or, to the knowledge of the Company, any unperfected security
interest.
(ix) The Indenture has been duly authorized by the Company,
will be substantially in the form heretofore delivered to you and,
when duly executed and delivered by the Company and, assuming due
authentication by the Trustee, will constitute a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or other similar
laws affecting enforcement of creditors' rights generally and except
as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law); and the Indenture conforms in all material respects
to the description thereof contained in the Prospectus.
(x) The Securities have been duly authorized by the Company.
When executed, authenticated, issued and delivered in the manner
provided for in the Indenture and sold and paid for as provided in
this Agreement, the Securities will constitute valid and binding
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 or other similar laws affecting enforcement
of creditors' rights generally and except
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as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or law); and the Securities conform in all material respect to
the description thereof contained in the Prospectus.
(xi) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid and non-assessable.
(xii) To the Company's knowledge, all of the outstanding
shares of capital stock of EPIC have been duly authorized and validly
issued and are fully paid and non-assessable and none of the
outstanding shares of Common Stock of EPIC was issued in violation of
the preemptive or other similar rights of any stockholder of EPIC
arising by operation of law, under the charter and bylaws of EPIC or
under any agreement to which EPIC or any of EPIC's Subsidiaries is a
party.
(xiii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein or contemplated thereby, there has not been
any material adverse change in the condition (financial or otherwise),
earnings or business affairs of the Company and the Company's
Subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business.
(xiv) To the Company's knowledge, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein or contemplated
thereby, there has not been (A) any change in the condition (financial
or otherwise), earnings or business affairs of EPIC or EPIC's
Subsidiaries that would be material and adverse to the Company, its
Subsidiaries, EPIC and EPIC's Subsidiaries, considered as one
enterprise (the "Combined Company"), whether or not arising in the
ordinary course of business, or (B) any dividend or distribution of
any kind declared, paid or made by EPIC on its capital stock.
(xv) Neither the Company nor any of the Company's
Subsidiaries is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which it is a party or by which it is bound
or to which any of its properties is
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subject, except as disclosed in the Prospectus and except for such
defaults that would not have a material adverse effect on the
condition (financial or otherwise), earnings or business affairs of
the Company and the Company's Subsidiaries, considered as one
enterprise. The execution and delivery of this Agreement and the
Indenture by the Company, the issuance and delivery of the Securities,
the consummation by the Company of the transactions contemplated in
this Agreement and the consummation of the Acquisition, the sale of
the Offered Shares, the Tender Offers, the Debt Redemption, 1994
Credit Agreement and the transactions described in the ESOP Agreement
(all as defined in the Registration Statement) and compliance by the
Company with the terms of this Agreement and the Indenture have been
duly authorized by all necessary corporate action on the part of the
Company and do not and will not result in any violation of the charter
or by-laws of the Company or any of the Company's Subsidiaries, and do
not and will not conflict with, or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien or encumbrance upon any
property or assets of the Company or any of the Company's Subsidiaries
under (A) any indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company or any of the
Company's Subsidiaries is a party or by which it is bound or to which
any of its properties is subject (assuming that the amendment to the
Credit Agreement dated as of September 29, 1992 among the Company and
the financial institutions named therein is effective at the time of
the Acquisition), or (B) any existing applicable law (including any
environmental law), rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court having jurisdiction
over the Company or any of the Company's Subsidiaries or any of their
respective properties, in each case, except as disclosed in the
Prospectus and except for such conflicts, breaches or defaults or
liens or encumbrances that would not have a material adverse effect on
the condition (financial or otherwise), earnings or business affairs
of the Company and the Company's Subsidiaries, considered as one
enterprise.
(xvi) To the Company's knowledge, neither EPIC nor any of
EPIC's Subsidiaries is in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
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other agreement or instrument to which it is a party or by which it is
bound or to which any of its properties is subject, except as
disclosed in the Prospectus and except for such defaults that would
not have a material adverse effect on the condition (financial or
otherwise), earnings or business affairs of EPIC and EPIC's
Subsidiaries, considered as one enterprise. To the Company's
knowledge, the consummation by EPIC of the transactions contemplated
in this Agreement and in the ESOP Agreement and the consummation of
the Acquisition and the Tender Offers have been duly authorized by
all necessary corporate action on the part of EPIC and the
consummation of the foregoing and the Debt Redemption do not and will
not result in any violation of the charter or by-laws of EPIC or any
of EPIC's Subsidiaries, and do not and will not conflict with, or
result in a breach of any of the terms or provisions of, or constitute
a default under, or result in the creation or imposition of any lien
or encumbrance upon any property or assets of EPIC or any of EPIC's
Subsidiaries under (A) any indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which EPIC or any of EPIC's
Subsidiaries is a party or by which it is bound or to which any of its
properties is subject, or (B) any existing applicable law (including
any environmental law), rule, regulation, judgment, order or decree of
any government, governmental instrumentality or court having
jurisdiction over EPIC or any of EPIC's Subsidiaries or any of their
respective properties, in each case, except as disclosed in the
Prospectus and except for such conflicts, breaches or defaults or
liens or encumbrances that would not have a material adverse effect on
the condition (financial or otherwise), earnings or business affairs
of the Combined Company.
(xvii) Except as disclosed in the Registration Statement, no
authorization, approval, consent or license of any government,
governmental instrumentality or court (other than under the 1933 Act
and the 1933 Act Regulations, the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations") and the securities or blue sky laws of the various
states) is required for the valid issuance, sale and delivery of the
Securities, for the execution, delivery or performance of the
Indenture by the Company or for the consummation by the Company of the
transactions described in the Prospectus under the caption "The
Acquisition and the Financing Plan".
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(xviii) Except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, now pending or, to the knowledge of the
Company, threatened against or affecting the Company or any of the
Company's Subsidiaries that is required to be disclosed in the
Prospectus or that could reasonably be expected to result in any
material adverse change in the condition (financial or otherwise),
earnings or business affairs of the Company and the Company's
Subsidiaries, considered as one enterprise, or that could reasonably
be expected to materially and adversely affect the consummation of the
transactions contemplated in this Agreement and described in the
Registration Statement under the caption "The Acquisition and the
Financing Plan".
(xix) To the Company's knowledge, except as disclosed in the
Prospectus, there is no action, suit or proceeding before or by any
government, governmental instrumentality or court, now pending or, to
the knowledge of the Company, threatened against or affecting EPIC or
any of EPIC's Subsidiaries that is required to be disclosed in the
Prospectus or that could reasonably be expected to result in any
material adverse change in the condition (financial or otherwise),
earnings or business affairs of the Combined Company, or that could
reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in this Agreement and
described in the Registration Statement under the caption "The
Acquisition and the Financing Plan".
(xx) In the Company's judgment, there are no contracts or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described and filed as required.
(xxi) Each of the Company and the Company's Subsidiaries own
or possess all governmental licenses, permits, certificates
(including, without limitation, certificate of need approvals and
certification under the Medicare program), consents, orders, approvals
and other authorizations (collectively, "Governmental Licenses")
necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as presently conducted, except
where the failure to possess such Governmental Licenses could
reasonably be expected to not have a material adverse
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effect on the condition (financial or otherwise), earnings or business
affairs of the Company and the Company's Subsidiaries, considered as
one enterprise, and neither the Company nor any of the Company's
Subsidiaries has received any notice of proceedings relating to
revocation or modification of any such Governmental Licenses that, in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, could reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), earnings or business
affairs of the Company and the Company's Subsidiaries, considered as
one enterprise. All of the hospitals operated by the Company and the
Company's Subsidiaries are "providers of services" as defined in the
Social Security Act and the regulations promulgated thereunder, and
are eligible to participate in the Medicare program, except as would
not have a material adverse effect on the condition (financial or
other), earnings or business affairs of the Company and the Company's
Subsidiaries, taken as one enterprise.
(xxii) To the Company's knowledge, each of EPIC and EPIC's
Subsidiaries own or possess all governmental licenses, permits,
certificates (including, without limitation, certificate of need
approvals and certification under the Medicare program), consents,
orders, approvals and other authorizations (collectively,
"Governmental Licenses") necessary to own or lease, as the case may
be, and to operate its properties and to carry on its business as
presently conducted, except where the failure to possess such
Governmental Licenses could reasonably be expected to not have a
material adverse effect on the condition (financial or otherwise),
earnings or business affairs of the Combined Company, and neither EPIC
nor any of EPIC's Subsidiaries has received any notice of proceedings
relating to revocation or modification of any such Governmental
Licenses that, in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could reasonably be expected to have a
material adverse effect on the condition (financial or otherwise),
earnings or business affairs of the Combined Company. To the
Company's knowledge, all of the hospitals operated by EPIC and EPIC's
Subsidiaries are "providers of services" as defined in the Social
Security Act and the regulations promulgated thereunder, and are
eligible to participate in the Medicare program, except as would not
have a material adverse effect on the condition (financial or other),
earnings or business affairs of the Combined Company.
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(xxiii) The Company has not taken and will not take, directly
or indirectly, any action designed to cause or result in stabilization
or manipulation of the price of the Securities; and the Company has
not distributed and will not distribute any prospectus (as such term
is defined in the 1933 Act and the 1933 Act Regulations) in connection
with the offering and sale of the Securities other than any
preliminary prospectus filed with the Commission or the Prospectus or
other material permitted by the 1933 Act or the 1933 Act Regulations.
(xxiv) Except as disclosed in the Prospectus, all United
States federal income tax returns of the Company and the Company's
Subsidiaries required by law to be filed have been filed and all taxes
shown by such returns or otherwise assessed, which are due and
payable, have been paid, except tax assessments, if any, as are being
contested in good faith and as to which adequate reserves have been
provided, in each case except as would not have a material adverse
effect on the condition (financial or otherwise), earnings or business
affairs of the Company and the Company's Subsidiaries, considered as
one enterprise. Except as disclosed in the Prospectus, all other
franchise and income tax returns of the Company and the Company's
Subsidiaries required to be filed pursuant to applicable foreign,
state or local law have been filed, except insofar as the failure to
file such returns would not have a material adverse effect on the
condition (financial or otherwise), earnings or business affairs of
the Company and the Company's Subsidiaries, considered as one
enterprise, and all taxes shown on such returns or otherwise assessed
which are due and payable have been paid, except for such taxes, if
any, as are being contested in good faith and as to which adequate
reserves have been provided. To the best of the Company's knowledge,
the charges, accruals and reserves on the books of the Company and the
Company's Subsidiaries in respect of any income and corporate
franchise tax liability for any years not finally determined are
adequate to meet any assessments or reassessments for additional
income or corporate franchise tax for any years not finally
determined, except as disclosed in the Prospectus and except to the
extent of any inadequacy that would not have a material adverse effect
on the condition (financial or otherwise), earnings or business
affairs of the Company and the Company's Subsidiaries, considered as
one enterprise.
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(xxv) To the Company's knowledge, except as disclosed in the
Prospectus, all United States federal income tax returns of EPIC and
EPIC's Subsidiaries required by law to be filed have been filed and
all taxes shown by such returns or otherwise assessed, which are due
and payable, have been paid, except tax assessments, if any, as are
being contested in good faith and as to which adequate reserves have
been provided, in each case except as would not have a material
adverse effect on the condition (financial or otherwise), earnings or
business affairs of the Combined Company. To the Company's knowledge,
except as disclosed in the Prospectus, all other franchise and income
tax returns of EPIC and EPIC's Subsidiaries required to be filed
pursuant to applicable foreign, state or local law have been filed,
except insofar as the failure to file such returns would not have a
material adverse effect on the condition (financial or otherwise),
earnings or business affairs of the Combined Company, and all taxes
shown on such returns or otherwise assessed which are due and payable
have been paid, except for such taxes, if any, as are being contested
in good faith and as to which adequate reserves have been provided, in
each case except as would not have a material adverse effect on the
condition (financial or otherwise), earnings or business affairs of
the Combined Company. To the Company's knowledge, the charges,
accruals and reserves on the books of EPIC and EPIC's Subsidiaries in
respect of any income and corporate franchise tax liability for any
years not finally determined are adequate to meet any assessments or
reassessments for additional income or corporate franchise tax for
any years not finally determined, except as disclosed in the
Prospectus and except to the extent of any inadequacy that would not
have a material adverse effect on the condition (financial or
otherwise), earnings or business affairs of the Combined Company.
(xxvi) To the Company's knowledge, EPIC's Employee Stock
Ownership Plan (the "EPIC ESOP") and the trust created pursuant to the
Trust Agreement for the EPIC ESOP between EPIC Group and U.S. Trust
Company of California, N.A., as trustee under the EPIC ESOP (the "EPIC
Trustee"), dated as of September 30, 1988 (the "EPIC ESOP Trust"),
meet all applicable requirements of qualification and exemption from
taxation under Sections 401(a) and 501(a), respectively, of the
Internal Revenue Code of 1986, as amended (the "Code"), except as
would not have a material adverse effect on
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the condition (financial or other), earnings or business affairs of
the Combined Company.
(xxvii) To the Company's knowledge, the EPIC ESOP constitutes
an "employee stock ownership plan," as defined in Section 4975(e)(7)
of the Code and the Treasury Regulations promulgated thereunder, and
as defined in Section 407(d)(6) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA").
(xxviii) To the Company's knowledge, each of the loans to the
EPIC ESOP Trust pursuant to the EPIC ESOP Loan Agreement and the
Substitute EPIC ESOP Loan Agreement, each between EPIC Group and the
EPIC ESOP Trustee and dated as of September 30, 1988 and July 30,
1991, respectively (collectively, the "ESOP Loan Agreements"), and
each of the pledges of shares of EPIC Group Common Stock, par value
$.01 per share (the "EPIC Group Common Stock"), by the EPIC ESOP Trust
pursuant to the Pledge Agreement and the Amendment to the Pledge
Agreement, each between EPIC Group and the EPIC ESOP Trustee and dated
as of September 30, 1988 and July 30, 1991, respectively
(collectively, the "EPIC ESOP Pledge Agreements"), satisfies the
requirements of Section 4975(d)(3) of the Code and Section 408(b)(3)
of ERISA, and will not subject EPIC to a tax imposed under Section
4975 of the Code or a civil penalty assessed under Section 502(i) of
ERISA, in each case except as would not have a material adverse effect
on the condition (financial or other), earnings or business affairs of
the Combined Company.
(xxix) To the Company's knowledge, the EPIC Common Stock is a
"qualifying employer security," within the meaning of Section
4975(e)(8) of the Code and Section 407(d)(5) of ERISA, except as would
not have a material adverse effect on the condition (financial or
other), earnings or business affairs of the Combined Company.
(xxx) To the Company's knowledge, the sales of shares of EPIC
Group Common Stock to the EPIC ESOP Trust pursuant to the Subscription
Agreement between EPIC Group and the EPIC ESOP Trustee (the "EPIC ESOP
Subscription Agreement"), satisfies the requirements of Section
4975(d)(13) of the Code and Section 408(e) of ERISA, and will not
subject EPIC to a tax imposed under Section 4975 of the Code or a
civil penalty assessed under Section 502(i) of ERISA, in each case
except as would not have a material adverse effect on the condition
(financial or other), earnings or business affairs of the Combined
Company.
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(xxxi) To the Company's knowledge, and except as disclosed in
the Prospectus, no opinion, correspondence or other communication,
whether written or otherwise, has been received by EPIC or any of its
agents, affiliates, associates, officers or directors, or any
fiduciary of the EPIC ESOP, from the United States Department of
Labor, the Internal Revenue Service or any other Federal or state
governmental or regulatory agency, body or authority, to the effect
that either of the loans to the EPIC ESOP Trust pursuant to the EPIC
ESOP Loan Agreements, either of the pledges of shares of EPIC Group
Common Stock by the EPIC ESOP Trust pursuant to the EPIC ESOP Pledge
Agreements or the sales of shares of EPIC Group Common Stock to the
EPIC ESOP Trust pursuant to the EPIC ESOP Subscription Agreement may
or will constitute a violation of or result in any liability under
ERISA or the Code, in each case except as would not have a material
adverse effect on the condition (financial or other), earnings or
business affairs of the Combined Company.
(xxxii) None of the transactions contemplated by the ESOP
Agreement should constitute a material violation of or result in any
material liability under ERISA or the Code (including, without
limitation, any tax under Section 4978B of the Code), except as would
not have a material adverse effect on the condition (financial or
other), earnings or business affairs of the Combined Company.
(b) Any certificate signed by any officer of the Company and
delivered to you or to Davis Polk & Wardwell as counsel for the Underwriters
pursuant to this Agreement or at the Closing contemplated hereby shall be
deemed a representation and warranty by the Company to each Underwriter as to
the matters covered thereby.
(c) Representations and warranties in this Agreement which are
given "to the Company's knowledge" are based solely upon (i) the Company's
actual knowledge and (ii) the representations and warranties of EPIC set forth
in the Merger Agreement, dated as of January 9, 1994, among the Company,
Odyssey Acquisition Corp. and EPIC (the "Merger Agreement"). For purposes of
this Agreement, "Disclosure Schedule" means the disclosure schedule of EPIC
relating to the Merger Agreement.
Section 2. Sale and Delivery to the Underwriters; Closing.
(a) On the basis of the representations and warranties
herein contained, and subject to the terms and conditions herein set forth,
the Company agrees to sell to
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each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price to be agreed upon by the
Underwriters and the Company in accordance with Section 2(b) or 2(c) and set
forth in the Price Determination Agreement, the principal amount of Securities
set forth opposite the name of such Underwriter in Schedule A. If the Company
elects to rely on Rule 430A, Schedule A may be attached to the Price
Determination Agreement.
(b) If the Company has elected not to rely upon Rule
430A, the initial public offering price of the Securities, the purchase price
of the Securities to be paid by the several Underwriters and certain other
principal terms of the Securities shall be agreed upon and set forth in the
Price Determination Agreement, dated the date hereof, and an amendment to the
Registration Statement containing such per share price information will be
filed before the Registration Statement becomes effective.
(c) If the Company has elected to rely upon Rule 430A,
the initial public offering price of the Securities, the purchase price of the
Securities to be paid by the several Underwriters and certain other principal
terms of the Securities shall be agreed upon and set forth in the Price
Determination Agreement. In the event that the Price Determination Agreement
has not been executed by the close of business on the fourth business day
following the date on which the Registration Statement becomes effective, this
Agreement shall terminate forthwith, without liability of any party to any
other party except that Sections 6 and 7 shall remain in effect.
(d) Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of Dewey
Ballantine, 1301 Avenue of the Americas, New York, New York 10019, or at such
other place as shall be agreed upon by the Company and you, at 10:00 A.M.
either (i) on the fifth full business day after the effective date of the
Registration Statement, or (ii) if the Company has elected to rely upon Rule
430A, the fifth full business day after execution of the Price Determination
Agreement (unless, in either case, postponed pursuant to Section 10), or at
such other time not more than ten full business days thereafter as you and the
Company shall determine (such date and time of payment and delivery being
herein called the "Closing Time"). Payment shall be made to the Company by
certified or official bank check or checks in New York Clearing House funds
payable to the order of the Company against delivery to the respective accounts
of the several Underwriters of certificates for the Securities.
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(e) Certificates for the Securities shall be in such
denominations ($1,000 or an integral multiple thereof) and registered in such
names as you may request in writing at least two full business days before the
Closing Time. The certificates for the Securities, which may be in temporary
form, will be made available in New York City for examination and packaging by
you not later than 10:00 A.M. on the business day prior to the Closing Time.
(f) It is understood that the obligations of the Company
to sell the Securities being sold by it hereunder are subject to the
consummation of the Acquisition (as defined in the Registration Statement). If
the Acquisition is not consummated, this Agreement may be terminated by the
Company upon notice to the Underwriters at or prior to the Closing Time, and
such Termination shall be without liability of any party to any other party
except as provided in Section 4 herein. Notwithstanding any such termination,
the provisions of Sections 6 and 7 herein shall remain in effect.
Section 3. Certain Covenants of the Company. The Company
covenants with each Underwriter as follows:
(a) The Company will use its best efforts to cause the
Registration Statement to become effective and, if the Company elects
to rely upon Rule 430A and subject to Section 3(b), will comply in all
material respects with the requirements of Rule 430A and will notify
you promptly, (i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, shall have
become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission to amend
the Registration Statement or amend or supplement the Prospectus or
for additional information and (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for any of such
purposes. The Company will make every reasonable effort to prevent
the issuance of any such stop order or of any order preventing or
suspending such use and, if any such order is issued, to obtain the
lifting thereof at the earliest possible moment.
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(b) The Company will not at any time file or make any
amendment to the Registration Statement, or any amendment or
supplement (i) if the Company has not elected to rely upon Rule 430A,
to the Prospectus or (ii) if the Company has elected to rely upon Rule
430A, to either the prospectus included in the Registration Statement
at the time it becomes effective or to the Prospectus, of which you
shall not have previously been advised and furnished a copy or to
which you or Davis Polk & Wardwell as counsel for the Underwriters
shall have promptly and reasonably objected in writing.
(c) The Company has furnished or will furnish to you and
Davis Polk & Wardwell as counsel for the Underwriters, without charge,
as many signed copies (as reasonably requested) of the Registration
Statement as originally filed and of all amendments thereto, whether
filed before or after the Registration Statement becomes effective,
copies of all exhibits and documents filed therewith and signed copies
of all consents and certificates of experts, as you may reasonably
request and has furnished or will furnish to you, for each other
Underwriter, one conformed copy of the Registration Statement as
originally filed and each amendment thereto (without exhibits).
(d) The Company will deliver to each Underwriter, without
charge, from time to time until the effective date of the Registration
Statement (or, if the Company has elected to rely upon Rule 430A,
until the time the Price Determination Agreement is executed and
delivered), as many copies of each preliminary prospectus as such
Underwriter may reasonably request, and the Company hereby consents to
the use of such copies for purposes permitted by the 1933 Act. The
Company will deliver to each Underwriter, without charge, as soon as
the Registration Statement shall have become effective (or, if the
Company has elected to rely upon Rule 430A, as soon as practicable
after the Price Determination Agreement has been executed and
delivered) and thereafter from time to time as requested during the
period when the Prospectus is required to be delivered under the 1933
Act, such number of copies of the Prospectus (as supplemented or
amended) as such Underwriter may reasonably request.
(e) The Company will comply in all material respects with
the 1933 Act and the 1933 Act Regulations, the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the Commission
thereunder and the 1939 Act and the 1939 Act
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Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Prospectus.
If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities any event shall
occur or condition exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or counsel for the Company, to
amend the Registration Statement or amend or supplement the Prospectus
in order that the Prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or
if it shall be necessary, in the opinion of either such counsel, at
any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly
prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such untrue
statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements.
(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions
as the Company and you may mutually agree upon and to maintain such
qualifications in effect for a period of not less than one year from
the effective date of the Registration Statement; provided, however,
that neither the Company nor any of the Company's Subsidiaries shall
be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. The Company will file such statements
and reports as may be required by the laws of each such jurisdiction
to maintain the qualification of the Securities as above provided.
(g) The Company will make generally available to its
security holders as soon as practicable, but not later than 60 days
after the close of the period covered thereby, an earnings statement
of the Company (in form complying with the provisions of Rule 158 of
the 1933 Act Regulations), covering a period of 12 months beginning
after the effective date of the
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Registration Statement but not later than the first day of the
Company's fiscal quarter next following such effective date.
(h) If the Company has elected to rely upon Rule 430A, it
will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule
424(b) was received for filing by the Commission and, in the event
that it was not, it will promptly file such prospectus.
(i) The Company, with respect to the offering of the
Securities, has complied and will comply with all of the provisions of
Florida H.B. 1771, codified as Section 517.075 of the Florida
Statutes, and all regulations promulgated thereunder relating to
issuers doing business with Cuba.
Section 4. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including (a) the printing and filing of the Registration Statement (including
financial statements and exhibits), as originally filed and as amended, the
preliminary prospectus or prospectuses and the Prospectus and any amendments or
supplements thereto, and the cost of furnishing copies thereof to the
Underwriters, (b) the printing and distribution of this Agreement (including
the Price Determination Agreement), the Indenture, the certificates for the
Securities and the Blue Sky Survey, (c) the delivery of the certificates for
the Securities to the Underwriters, (d) the fees and disbursements of the
Company's counsel and accountants, (e) the qualification of the Securities
under the applicable securities laws in accordance with Section 3(f) and any
filing for review of the offering with the National Association of Securities
Dealers, Inc., including filing fees and reasonable fees and disbursements of
Davis Polk & Wardwell as counsel for the Underwriters, in connection with such
qualification of the Securities and the Blue Sky Survey, (f) any fees charged
by the rating agencies for rating the Securities, and (g) the fees and expenses
of the Trustee, including the fees and disbursements of counsel for the
Trustee, in connection with the Indenture and the Securities.
If this Agreement is terminated by you in accordance with the
provisions of Section 5, 9(a)(i) or 11, or by the Company in accordance with
the provisions of Section 2(f), the Company shall reimburse the Underwriters
for all their reasonable out-of-pocket expenses, including
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the reasonable fees and disbursements of Davis Polk & Wardwell as counsel for
the Underwriters.
Section 5. Conditions of Underwriters' Obligations. In
addition to the execution and delivery of the Price Determination Agreement,
the obligations of the several Underwriters to purchase and pay for the
Securities that they have respectively agreed to purchase hereunder are subject
to the accuracy of the representations and warranties of the Company contained
herein (including those contained in the Price Determination Agreement) or in
certificates of the Company's officers delivered pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder, and to
the following further conditions:
(a) The Registration Statement shall have become
effective not later than 5:30 P.M. on the date of this Agreement or,
with your consent, at a later time and date not later, however, than
5:30 P.M. on the first business day following the date hereof, or at
such later time or on such later date as you may agree to in writing;
and at the Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act
and no proceedings for that purpose shall have been instituted or
shall be pending or, to your knowledge or the knowledge of the
Company, shall have been threatened by the Commission, and any request
on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of Davis Polk &
Wardwell as counsel for the Underwriters. If the Company has elected
to rely upon Rule 430A, a prospectus containing the Rule 430A
Information shall have been filed with the Commission in accordance
with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance
with the requirements of Rule 430A).
(b) At the Closing Time, you shall have received a signed
opinion of Dewey Ballantine, counsel for the Company, dated as of the
Closing Time, in form and substance reasonably satisfactory to Davis
Polk & Wardwell as counsel for the Underwriters, to the effect that:
(i) This Agreement has been duly authorized,
executed and delivered by the Company.
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(ii) The Company is a corporation duly
incorporated, validly existing and in good standing under the
laws of the State of Delaware with corporate power under such
laws to own, lease and operate its properties and conduct its
business as described in the Prospectus.
(iii) The Indenture has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee,
constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting
enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law).
(iv) The Securities have been duly authorized by
the Company and, assuming that the Securities have been duly
authenticated by the Trustee in the manner described in its
certificate delivered to you today (which fact such counsel
need not determine by an inspection of the Securities), the
Securities have been duly executed, issued and delivered by
the Company and constitute valid and binding 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 or other similar laws
affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles
of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(v) The Indenture has been duly qualified under
the 1939 Act.
(vi) The Securities and the Indenture conform in
all material respects to the descriptions thereof contained in
the Prospectus.
(vii) To the knowledge of such counsel, no
authorization, approval, consent or license of any government,
governmental instrumentality or court (other than under the
1933 Act and the 1933 Act
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Regulations, the 1939 Act and 1939 Act Regulations, the Trust
Indenture Act and the securities or blue sky laws of the
various states), is required for the valid issuance, sale and
delivery of the Securities for the execution, delivery or
performance of the Indenture by the Company.
(viii) Such counsel has been informed by the
Commission that the Registration Statement is effective under
the 1933 Act; any required filing of the Prospectus or any
supplement thereto pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b);
and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been
instituted or are pending or have been threatened by the
Commission under the 1933 Act.
(ix) The Registration Statement (including the
Rule 430A Information, if applicable), the Prospectus and each
amendment or supplement to the Registration Statement and the
Prospectus, as of their respective effective or issue dates
(in each case, except for the financial statements, supporting
schedules and other financial or statistical data included
therein or omitted therefrom and the Statement of Eligibility
of the Trustee on Form T-1 as to which such counsel need
express no opinion), comply as to form in all material
respects to the requirements of the 1933 Act and the 1933 Act
Regulations.
(x) The Company is not an investment company under the
Investment Company Act of 1940.
(xi) The transactions contemplated in the Prospectuses
under the heading "The Acquisition and the Financing Plan", to
the extent described therein, have been duly authorized by the
Company; to the knowledge of such counsel, all of the
necessary consents to consummate such transactions have been
obtained (other than the consent of EPIC and its Subsidiaries
with respect to the Debt Redemption and other than as
disclosed in the Registration Statement), except where the
failure to obtain such consents would not have a material
adverse effect on the consummation of the Acquisition and the
Financing Plan; to the
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knowledge of such counsel, there has not been any violation on
the part of the Company of any of the terms of such consents
which violation would materially and adversely affect the
consummation of the Acquisition and the Financing Plan; and to
the knowledge of such counsel, except as disclosed in the
Registration Statement there is no pending or, threatened
legal or governmental proceedings with respect to any of the
consents or the transactions described in the Prospectus under
the caption "The Acquisition and the Financing Plan" that, if
the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the consummation of
the Acquisition and the Financing Plan.
In addition, such opinion shall state that such
counsel has participated in the preparation of the Registration
Statement and Prospectus and in conferences with officers and other
representatives of the Company, and your representatives and your
counsel at which the contents of the Registration Statement, the
Prospectus and related matters were discussed and, although such
counsel need not undertake to determine independently nor pass upon or
assume any responsibility, explicitly or implicitly, for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus on the basis of and subject
to the foregoing, no facts have come to the attention of such counsel
to lead such counsel to believe (A) that the Registration Statement
(including the Rule 430A Information, if applicable) or any amendment
thereto (except for the financial statements, supporting schedules and
other financial or statistical data included therein or omitted
therefrom including without limitation the pro forma financial
information, and except for the information set forth under the
caption "EPIC Management's Discussion and Analysis of Financial
Condition and Results of Operations," and the Statement of Eligibility
of the Trustee on Form T-1, as to which such counsel need express no
opinion), as of the date the Registration Statement or any such
amendment became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or (B) that the Prospectus or any amendment or supplement
thereto (except for the financial statements, supporting schedules and
other financial or statistical data included therein or omitted
therefrom including without limitation the pro
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forma financial information, and except for the information set forth
under the caption "EPIC Management's Discussion and Analysis of
Financial Condition and Results of Operations," and the Statement of
Eligibility of the Trustee on Form T-1, as to which such counsel need
express no opinion), at the time the Prospectus was issued, at the
time any such amended or supplemented Prospectus was issued or at the
Closing Time, 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.
Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company and the Company's Subsidiaries and
certificates of public officials.
(c) At the Closing Time, you shall have received a signed
opinion of Philip D. Wheeler, General Counsel for the Company, dated as of the
Closing Time, together with reproduced copies of such opinion for each of the
other U.S. Underwriters, in form and substance reasonably satisfactory to Davis
Polk & Wardwell as counsel to the Underwriters, to the effect that:
(i) The Company is duly qualified to transact
business as a foreign corporation and is in good standing in
each jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure
to so qualify or be in good standing would not have a material
adverse effect on the Company and the Company's Subsidiaries,
considered as one enterprise.
(ii) Each of the Company's Subsidiaries is a
corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its
incorporation with corporate power under such laws to own,
lease and operate its properties and conduct its business as
described in the Prospectus, or except to the extent that the
failure to be in good standing would not have a material
adverse effect on the Company and the Company's Subsidiaries,
considered as one enterprise.
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(iii) Each of the Company's Subsidiaries is duly
qualified to transact business as a foreign corporation and is
in good standing in each other jurisdiction in which it owns
or leases property of a nature, or transacts business of a
type, that would make such qualification necessary, except to
the extent that the failure to so qualify or be in good
standing would not have a material adverse effect on the
Company and the Company's Subsidiaries, considered as one
enterprise.
(iv) The Securities have been duly authorized by
the Company and assuming that the Securities have been
authenticated by the Trustee in the manner described in its
certificate delivered to you today (which fact such counsel
need not determine by an inspection of the Securities), the
Securities have been duly executed, issued and delivered by
the Company and constitute valid and binding 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 or other similar laws
affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles
of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(v) All of the outstanding shares of capital
stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable.
(vi) Based solely on an examination of relevant
minute books and stock records, except as disclosed in the
Prospectus, all of the outstanding shares of capital stock of
each of the Company's Subsidiaries have been duly authorized
and validly issued and are fully paid and non-assessable.
(vii) Such counsel does not know of any statutes or
regulations, or any pending or threatened legal or
governmental proceedings, required to be described in the
Prospectus that are not described as required, nor of any
contracts or documents of a character required to be described
in the Registration Statement or the Prospectus or to be filed
as exhibits to the
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Registration Statement that are not described or filed as
required.
(viii) The statements made in the Prospectus under
"Reimbursement and Regulation", to the extent that they
constitute matters of law or legal conclusions, have been
reviewed by such counsel and fairly present the information
disclosed therein in all material respects.
(ix) The execution and delivery of this Agreement
and the Indenture by the Company, the issuance and delivery of
the Securities by the Company, the consummation by the Company
of the Acquisition, the Common Stock Offering, the Tender
Offers, the Debt Redemption, the 1994 Credit Agreement and the
transactions described in the ESOP Agreement and compliance by
the Company with the terms of this Agreement and the Indenture
have been duly authorized by all necessary corporate action on
the part of the Company and do not and will not result in any
violation of the charter or by-laws of the Company or any of
the Company's Subsidiaries, and, to the knowledge of such
counsel, do not and will not conflict with, or constitute a
breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any
lien or encumbrance upon any property or assets of the Company
or any of the Company's Subsidiaries under (A) any indenture,
mortgage or loan agreement or any other agreement or
instrument to which the Company or any of the Company's
Subsidiaries is a party or by which it may be bound or to
which any of their respective properties may be subject, (B)
any existing applicable law, rule or regulation (other than
the securities or blue sky laws of the various states, as to
which such counsel need express no opinion), or (C) any
judgment, order or decree of any government, governmental
instrumentality or court having jurisdiction over the Company
or any of the Company's Subsidiaries or any of their
respective properties, in each case, except as disclosed in
the Prospectus, and except for such conflicts, breaches or
defaults or liens or encumbrances that would not have a
material adverse effect on the Company and the Company's
Subsidiaries, considered as one enterprise. Such counsel need
express no opinion, however, as to whether the execution,
delivery and performance by the Company of this Agreement or
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the consummation by the Company of the Acquisition, the Common
Stock Offering, the Tender Offers, the Debt Redemption, the
1994 Credit Agreement and the transactions described in the
ESOP Agreement will constitute a violation of, or default
under, any financial covenant or financial ratios contained in
any of the agreements referred to in the preceding sentence.
In addition, such opinion shall state that such
counsel has participated in the preparation of the Registration
Statement and Prospectus and in conferences with officers and other
representatives of the Company, and your representatives and your
counsel at which the contents of the Registration Statement, the
Prospectus and related matters were discussed and, although such
counsel need not undertake to determine independently nor pass upon or
assume any responsibility, explicitly or implicitly, for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, on the basis of and subject
to the foregoing, no facts have come to the attention of such counsel
to lead such counsel to believe (A) that the Registration Statement
(including the Rule 430A Information, if applicable) or any amendment
thereto (except for the financial statements, supporting schedules and
other financial or statistical data included therein or omitted
therefrom including without limitation the pro forma financial
information, and except for the information set forth under the
caption "EPIC Management's Discussion and Analysis of Financial
Condition and Results of Operations," and the Statement of Eligibility
of the Trustee on Form T-1, as to which such counsel need express no
opinion), as of the date the Registration Statement or any such
amendment became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or (B) that the Prospectus or any amendment or supplement
thereto (except for the financial statements, supporting schedules and
other financial or statistical data included therein or omitted
therefrom including without limitation the pro forma financial
information, and except for the information set forth under the
caption "EPIC Management's Discussion and Analysis of Financial
Condition and Results of Operations," and the Statement of Eligibility
of the Trustee on Form T-1, as to which such counsel need express no
opinion), at the time the Prospectus was issued, at the time any such
amended or
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supplemented prospectus was issued or at the Closing Time, 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.
Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and the
Company's Subsidiaries and certificates of public officials.
(d) At the Closing Time, you shall have received a signed
opinion of Stanley F. Baldwin, Esq., general counsel for EPIC, dated
as of the Closing Time, together with reproduced copies of such
opinion for each of the other U.S. Underwriters, in form and
substance reasonably satisfactory to Davis Polk & Wardwell as counsel
to the U.S. Underwriters, substantially to the effect set forth in
Section 7.02(g) of the Merger Agreement. The parties hereto
acknowledge and agree that no personal liability to Stanley F. Baldwin
shall attach to the rendering of such opinion.
Such counsel may state that, insofar as such opinion
involves factual matters, he has relied, to the extent he deems
proper, upon certificates of officers of EPIC and EPIC's Subsidiaries
and certificates of public officials.
(e) At the Closing Time, you shall have received a signed
opinion of Johnson & Gibbs, P.C. (or its successor), counsel for EPIC,
dated as of the Closing Time, together with reproduced copies of such
opinion for each of the other U.S. Underwriters, in form and
substance reasonably satisfactory to Davis Polk & Wardwell as counsel
to the U.S. Underwriters, substantially in the form and to the effect
set forth in Section 7.02(f) of the Merger Agreement and to the effect
that:
such firm has represented EPIC in connection with the
transactions contemplated by the Merger Agreement and,
although such firm has not verified, is not passing upon and
does not assume any responsibility for, the accuracy,
completeness or fairness of any statements contained in the
Registration Statement or the Prospectus, on the
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basis of the knowledge of such firm in connection with such
representation (relying as to materiality to a large extent
upon the opinions of officers and other representatives of
EPIC, without independent check or verification), no fact has
come to their attention that has led them to believe that the
section of the Prospectuses under the heading "EPIC
Management's Discussion and Analysis of Financial Condition
and Results of Operations" contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated in such section or necessary to make the statements
in such section, in light of the circumstances under which
they were made, not misleading. In making the foregoing
statements in this paragraph, such firm expresses no opinion,
belief or comment with respect to any financial data or
information included or incorporated by reference in the
aforementioned section of the Prospectuses. Such firm may
advise you that it has not participated in any respect in
connection with the preparation of such Prospectuses, the
Registration Statements with respect thereto or the Forms 10-K
or 10-Q of EPIC from which the information contained in the
sections referred to above has been derived.
(f) At the Closing Time, you shall have received signed
opinions of Dewey Ballantine and Johnson & Gibbs, P.C. (or its
successor), dated as of the Closing Time, together with reproduced
copies of such opinion for each of the other Underwriters, in form and
substance reasonably satisfactory to Davis Polk & Wardwell as counsel
to the U.S. Underwriters, to the effect that neither of (i) the
discharge of that portion of the principal amount of EPIC's loans to
the EPIC ESOP Trust that exceeds the fair market value of the shares
of the EPIC Common Stock transferred by the EPIC Trustee to EPIC, or
(ii) the transfer by the EPIC Trustee to EPIC of shares of EPIC Common
Stock unallocated under the EPIC ESOP in satisfaction of EPIC's loans
to the ESOP Trust, each as contemplated by the Registration Statement,
should constitute a violation of or result in any liability under
ERISA or the Code.
Each such counsel may (i) assume for purposes of such
opinion, based on the understanding of such counsel that the Trustee
has retained and received the advice of independent counsel and
financial advisors, that the Trustee has complied with the applicable
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fiduciary requirements of ERISA and the Code and that the ESOP has
received no less than adequate consideration for such shares of EPIC
Common Stock, and (ii) state that, insofar as such opinion involves
factual matters, it has relied, to the extent they deem proper, upon
certificates of officers of EPIC and its Subsidiaries and certificates
of public officials.
(g) At the Closing Time, you shall have received the
favorable opinion of Davis Polk & Wardwell as counsel for the
Underwriters, dated as of the Closing Time, together with reproduced
copies of such opinion for each of the other Underwriters, to the
effect that the opinions delivered pursuant to Sections 5(b), (c), (d)
and (e) appear on their face to be appropriately responsive to the
requirements of this Agreement except, specifying the same, to the
extent waived by you, and with respect to the incorporation and legal
existence of the Company, the Securities, this Agreement, the
Indenture, the Registration Statement, the transactions contemplated
under the captions "The Acquisition and Financing Plan" in the
Registration Statement, the Prospectus and such other related matters
as you may require. In giving such opinion such counsel may rely, as
to all matters governed by the laws of jurisdictions other than the
law of the State of New York, the federal law of the United States and
the corporate law of the State of Delaware, upon the opinions of
counsel satisfactory to you. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to
the extent they deem proper, upon certificates of officers of the
Company, the Company's Subsidiaries, EPIC and EPIC's Subsidiaries and
certificates of public officials.
(h) At the Closing Time, (i) the Registration Statement
and the Prospectus, as they may then be amended or supplemented, shall
conform in all material respects to the requirements of the 1933 Act
and the 1933 Act Regulations and the 1939 Act and the 1939 Act
Regulations, the Company shall have complied in all material respects
with Rule 430A (if it shall have elected to rely thereon), the
Registration Statement, as it may then be amended or supplemented,
shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements in the Registration Statement not misleading, and
the Prospectus, as it may then be amended or supplemented, shall not
contain an untrue statement of a material fact or omit to state a
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material fact required to be stated therein or necessary to make the
statements in the Prospectus, in light of the circumstances under
which they were made, not misleading, (ii) there shall not have been,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse
change, or any development involving a prospective material adverse
change, in the condition (financial or otherwise), earnings or
business affairs of the Company and the Company's Subsidiaries,
considered as one enterprise, or of EPIC and EPIC's Subsidiaries,
considered as one enterprise, whether or not arising in the ordinary
course of business, (iii) no action, suit or proceeding at law or in
equity shall be pending or, to the knowledge of the Company,
threatened against the Company, any of the Company's Subsidiaries,
EPIC or any of EPIC's Subsidiaries that would be required to be set
forth in the Prospectus other than as set forth therein and no
proceedings shall be pending or, to the knowledge of the Company,
threatened against the Company, any of the Company's Subsidiaries,
EPIC or any of EPIC's Subsidiaries before or by any federal, state or
other commission, board or administrative agency wherein an
unfavorable decision, ruling or finding could reasonably be expected
to materially adversely affect the condition (financial or otherwise),
earnings or business affairs of the Company and the Company's
Subsidiaries, considered as one enterprise, or of EPIC and EPIC's
Subsidiaries, considered as one enterprise, other than as set forth in
the Prospectus, (iv) the Company shall have complied in all material
respects with all agreements and satisfied in all material respects
all conditions on its part to be performed or satisfied at or prior to
the Closing Time and (v) the other representations and warranties of
the Company set forth in Section 1(a) shall be accurate as though
expressly made at and as of the Closing Time. At the Closing Time,
you shall have received a certificate of the President or a Vice
President and the Treasurer or the Controller of the Company, dated as
of the Closing Time, to such effect, but in the case of clauses (ii)
and (iii) above, only with respect to the Company and the Company's
Subsidiaries.
(i) At the Closing Time, you shall have received a
certificate of the chief executive officer or chief financial officer
of EPIC, dated as of the Closing Time, to the effect set forth in
Section 7.02(a) of the Merger Agreement.
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(j) On the date of this Agreement and at the Closing
Time, Ernst & Young, independent public accountants with respect to
the Company, shall have furnished to you letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to you,
containing statements and information of the type customarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in
the Registration Statement and the Prospectus;
(k) On the date of this Agreement and at the Closing
Time, Ernst & Young, independent public accountants with respect to
EPIC, shall have furnished to you letters, dated the respective dates
of delivery thereof, in form and substance satisfactory to you,
containing statements and information of the type customarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements of EPIC and certain financial information
contained or incorporated by reference in the Registration Statement
and the Prospectus; and
(l) At the Closing Time, counsel for the Underwriters
shall have been furnished with all such documents, certificates and
opinions as they may reasonably request for the purpose of enabling
them to pass upon the issuance and sale of the Securities as
contemplated in this Agreement and the matters referred to in Section
5(d) and in order to evidence the accuracy and completeness of any of
the representations, warranties or statements of the Company, the
performance of any of the covenants of the Company, or the fulfillment
of any of the conditions herein contained; and all proceedings taken
by the Company at or prior to the Closing Time in connection with the
authorization, issuance and sale of the Securities as contemplated in
this Agreement shall be reasonably satisfactory in form and substance
to you and to Davis Polk & Wardwell as counsel for the Underwriters.
(m) At the Closing Time, the Company shall have
consummated the Acquisition and, after giving effect to the
Acquisition, is not in default under the 1992 Credit Agreement or any
amendment thereto. The Company shall have provided to you and Davis
Polk & Wardwell as counsel for the U.S. Underwriters copies of all
documents with respect to the consummation of the Acquisition as you
or Davis Polk & Wardwell may reasonably request.
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If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement to be fulfilled,
this Agreement may be terminated by you upon notice to the Company at any time
at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4
herein. Notwithstanding any such termination, the provisions of Sections 6 and
7 herein shall remain in effect.
Section 6. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act as
follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of an untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including the
Rule 430A Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of an untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to the last sentence of Section 6(c), fees and
disbursements of counsel chosen by you to represent the Underwriters),
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged
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untrue statement or omission, to the extent that any such expense is
not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information furnished or confirmed in writing to the Company by
any Underwriter expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); and provided further that the foregoing indemnification with respect
to any untrue statement contained in or any omission from a preliminary
prospectus shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such losses,
claims, damages, liabilities, or expenses purchased any of the Securities if a
copy of the Prospectus (or the Prospectus as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if such is
required by law, at or prior to the written confirmation of the sale of such
Securities to such person and the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage, liability
or expense.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
Section 6(a), as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with information
furnished or confirmed in writing to the Company by such Underwriter expressly
for use in the Registration Statement (or any amendment thereto), including the
Rule 430A Information, if applicable, or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced
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against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. In no event shall the indemnifying party or parties be liable for the
fees and expenses of more than one counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
Section 7. Contribution. In order to provide for just and
equitable contribution in circumstances under which the indemnity provided for
in Section 6 is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity incurred by
the Company and one or more of the Underwriters, as incurred, in such
proportions that (a) the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus bears to the initial public offering price
appearing thereon and (b) the Company is responsible for the balance; provided
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the Company.
Section 8. Representations, Warranties and Agreements to
Survive Delivery. The representations, warranties, indemnities, agreements and
other statements of the Company, the Underwriters or their respective officers
set forth in or made pursuant to this Agreement will remain operative and in
full force and effect regardless of any investigation made by or on behalf of
the Company or any Underwriter or controlling person and will survive delivery
of and payment for the Securities.
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Section 9. Termination of Agreement. (a) You may terminate
this Agreement, by notice to the Company, at any time at or prior to the
Closing Time (i) if there has been, since the respective dates as of which
information is given in the Registration Statement, any material adverse
change, or any development involving a prospective material adverse change, in
the condition (financial or otherwise), earnings or business affairs of the
Company and the Company's Subsidiaries, considered as one enterprise, or of
EPIC and EPIC's Subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or any
outbreak of hostilities or escalation of existing hostilities or other calamity
or crisis the effect of which is such as to make it, in your reasonable
judgment, impracticable to market the Securities or enforce contracts for the
sale of the Securities, or (iii) if trading in any securities of the Company
has been suspended by the Commission, or if trading generally on the New York
Stock Exchange or in the over-the-counter market has been suspended, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by such exchange or by order of the Commission
or any other governmental authority, or (iv) if a banking moratorium has been
declared by either federal or New York authorities.
(b) If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party, except to the extent provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 6 and 7 shall remain in effect.
(c) This Agreement may also terminate pursuant to the
provisions of Section 2(c), with the effect stated in such Section.
Section 10. Default by One or More of the Underwriters. If
one or more of the Underwriters shall fail at the Closing Time to purchase the
Securities that it or they are obligated to purchase pursuant to this Agreement
(the "Defaulted Securities"), you shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms set forth in this Agreement; if, however, you have not completed such
arrangements within such 24-hour period, then:
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(a) if the number of Defaulted Securities does
not exceed 10% of the aggregate principal amount of Securities to be
purchased pursuant to this Agreement, the non-defaulting Underwriters
shall be obligated to purchase the full amount thereof in the
proportions that their respective Securities underwriting obligation
proportions bear to the underwriting obligation proportions of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds
10% of the aggregate principal amount of Securities to be purchased
pursuant to this Agreement, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either you or the Company shall have the right
to postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
Section 11. Default by the Company. If the Company shall
fail at the Closing Time to sell and deliver the aggregate principal amount of
Securities that it is obligated to sell, then this Agreement shall terminate
without any liability on the part of any non-defaulting party except to the
extent provided in Section 4 and except that the provisions of Section 6 and 7
shall remain in effect.
No action taken pursuant to this Section shall relieve the
Company from liability, if any, in respect of such default.
Section 12. Notices. All notices and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered, mailed or transmitted by any standard form of
telecommunication (notices transmitted by telecopier to be promptly confirmed
in writing). Notices to the Underwriters shall be directed to you c/o
Donaldson, Lufkin & Jenrette Securities Corporation, 140 Broadway, New York,
New York 10005, attention of Thomas G. McGonagle; and notices to the Company
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shall be directed to it at 4525 Harding Road, Nashville, Tennessee 37205
(telecopier no.: (615) 298-6377), attention of Philip D. Wheeler, Esq.
Section 13. Parties. This Agreement is made solely for the
benefit of the several Underwriters and the Company and, to the extent
expressed, any person controlling the Company or any of the Underwriters, and
the directors of the Company, its officers who have signed the Registration
Statement, and their respective executors, administrators, successors and
assigns and, subject to the provisions of Section 10, no other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, as such purchaser,
from any of the several Underwriters of the Securities. All of the obligations
of the Underwriters hereunder are several and not joint.
Section 14. Governing Law and Time. This Agreement shall be
governed by the laws of the State of New York. Specified times of the day
refer to New York City time.
Section 15. Counterparts. This Agreement may be executed in
one or more counterparts and, when a counterpart has been executed by each
party, all such counterparts taken together shall constitute one and the same
agreement.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon
this instrument will become a binding agreement among the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
HEALTHTRUST, INC. - THE HOSPITAL
COMPANY
By______________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
DONALDSON, LUFKIN & JENRETTE SECURITIES
CORPORATION
By___________________________________
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By___________________________________
Name:
Title:
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Exhibit A
HEALTHTRUST, INC. - THE HOSPITAL COMPANY
(A Delaware corporation)
$200,000,000
10 1/4% Subordinated Notes due 2004
PRICE DETERMINATION AGREEMENT
April 28, 1994
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
140 Broadway
New York, New York 10005
Ladies and Gentlemen:
Reference is made to the Purchase Agreement dated April 28,
1994 (the "Purchase Agreement") among Healthtrust, Inc. - The Hospital
Company, a Delaware corporation (the "Company"), and Donaldson, Lufkin &
Jenrette Securities Corporation, Merrill Lynch & Co. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated as the several Underwriters named in Schedule A
thereto or hereto (the "Underwriters"). The Purchase Agreement provides for
the purchase by the Underwriters from the Company, subject to the terms and
conditions set forth therein, of $200,000,000 aggregate principal amount of the
Company's 10 1/4% Subordinated Notes due 2004 (the "Securities"). This
Agreement is the Price Determination Agreement referred to in the Purchase
Agreement.
Pursuant to Section 2 of the Purchase Agreement, the
undersigned agree with the Underwriters as follows:
1. The initial public offering price of the Securities
shall be 100% of the principal amount thereof.
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2. The purchase price of the Securities to be paid by
the several Underwriters shall be 97 1/2% of the principal amount
thereof.
3. The interest rate to be borne by the Securities shall
be 10 1/4% per annum.
The Company represents and warrants to each of the
Underwriters that the representations and warranties of the Company set forth
in Section 1(a) of the Purchase Agreement are accurate as though expressly made
at and as of the date hereof.
As contemplated by Section 2 of the Purchase Agreement,
attached as Schedule A is a completed list of the several Underwriters, which
shall be a part of this Agreement and the Purchase Agreement.
This Agreement shall be governed by the laws of the State of
New York.
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If the foregoing is in accordance with the understanding of
the Underwriters of the agreement between the Underwriters and the Company,
please sign and return to the Company a counterpart hereof, whereupon this
instrument along with all counterparts and together with the Purchase Agreement
shall be a binding agreement among the Underwriters and the Company in
accordance with its terms and the terms of the Purchase Agreement.
ery truly yours,
HEALTHTRUST, INC. -
THE HOSPITAL COMPANY
By______________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
DONALDSON, LUFKIN & JENRETTE SECURITIES
CORPORATION
By_____________________________
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By_____________________________
Name:
Title:
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SCHEDULE A
Principal Amount
of Securities
Underwriter to be Purchased
----------- ----------------
Donaldson, Lufkin & Jenrette Securities
Corporation . . . . . . . . . . . . . . . . $100,000,000
-----------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . . . . . . 100,000,000
-----------
Total. . . . . . . . . . . . . $200,000,000
==========