Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Ardent Health Services - Form S-1 HTML 3.43M
2: EX-3.1 EX-3.1 Ardent Health - Certificate of Formation 1 48K
11: EX-3.10 EX-3.10 Ahs Kentucky Holdings Bylaws 16 103K
101: EX-3.100 EX-3.100 Certificate of Formation Lebanon Hospital 1 48K
102: EX-3.101 EX-3.101 Operating Agreement Lebanon Hospital 5 55K
103: EX-3.102 EX-3.102 Mesilla Valley Agreement & Certificate 24 89K
104: EX-3.103 EX-3.103 Mesilla Valley Articles of Incorporation 4 55K
105: EX-3.104 EX-3.104 Mesilla Valley Mental Health Bylaws 2 51K
106: EX-3.105 EX-3.105 Northern Indiana Hospital Certificate 1 48K
107: EX-3.106 EX-3.106 Northern Indiana Hospital Agreement 6 57K
108: EX-3.107 EX-3.107 Valle Vista Hospital Certificate 2 49K
109: EX-3.108 EX-3.108 Valle Vista LLC Operating Agreement 6 57K
110: EX-3.109 EX-3.109 Certificate of Formation Willow Springs 1 48K
12: EX-3.11 EX-3.11 Ahs Kentucky Hospitals Certficate 2 53K
111: EX-3.110 EX-3.110 Operating Agreement of Willow Springs 5 55K
13: EX-3.12 EX-3.12 Ahs Kentucky Hospitals Bylaws 16 103K
14: EX-3.13 EX-3.13 Ahs Louisiana Certificate of Incorporation 2 52K
15: EX-3.14 EX-3.14 Ahs Louisiana Holdings Bylaws 13 80K
16: EX-3.15 EX-3.15 Ahs Louisiana Hospitals Certificate 2 53K
17: EX-3.16 EX-3.16 Ahs Louisiana Hospitals Bylaws 16 102K
18: EX-3.17 EX-3.17 Charter of Ahs Management Company, Inc. 4 59K
19: EX-3.18 EX-3.18 Bylaws of Ahs Management Company, Inc. 2 50K
20: EX-3.19 EX-3.19 Ahs New Mexico Incorporation Certificate 5 58K
3: EX-3.2 EX-3.2 Ardent Health - Limited Liability Agreement 72 258K
21: EX-3.20 EX-3.20 Bylaws of Ahs New Mexico Holdings, Inc. 14 112K
22: EX-3.21 EX-3.21 Ahs Research & Review Certificate 3 53K
23: EX-3.22 EX-3.22 Ahs Research & Review Company Agreement 17 99K
24: EX-3.23 EX-3.23 Ahs Samaritan Hospital Articles 2 50K
25: EX-3.24 EX-3.24 Ahs Samaritan Operating Agreement 21 138K
26: EX-3.25 EX-3.25 Ahs S.E.D Medical Laboratories Articles 7 59K
27: EX-3.26 EX-3.26 Bylaws of Ahs S.E.D Medical Laboratories 2 52K
28: EX-3.27 EX-3.27 Ahs Summit Hospital Formation Certificate 1 48K
29: EX-3.28 EX-3.28 Ahs Summit Hospital Company Agreement 21 137K
30: EX-3.29 EX-3.29 Ardent Medical Services Incorporation 5 55K
4: EX-3.3 EX-3.3 Ardent Health - Incorporation Certificate 5 57K
31: EX-3.30 EX-3.30 Bylaws of Ardent Medical Services 14 102K
32: EX-3.31 EX-3.31 Behavioral Healthcare Corp Certificate 3 58K
33: EX-3.32 EX-3.32 Behavioral Healthcare Amended Bylaws 15 97K
34: EX-3.33 EX-3.33 Bhc Alhambra Hospital, Inc. Charter 3 56K
35: EX-3.34 EX-3.34 Bylaws of Bhc Alhambra Hospital, Inc. 2 50K
36: EX-3.35 EX-3.35 Charter of Bhc Belmont Pines Hospital 3 56K
37: EX-3.36 EX-3.36 Bylaws of Belmont Pines Hospital 2 50K
38: EX-3.37 EX-3.37 Articles of Incorporation Bhc Cedar Vista 3 51K
39: EX-3.38 EX-3.38 Bylaws of Bhc Cedar Vista Hospital 4 54K
40: EX-3.39 EX-3.39 Charter of Bhc Columbus Hospital, Inc. 4 58K
5: EX-3.4 EX-3.4 Bylaws of Ardent Health Services 2 50K
41: EX-3.40 EX-3.40 Bylaws of Bhc Columbus Hospital, Inc. 2 50K
42: EX-3.41 EX-3.41 Charter of Bhc Fairfax Hospital, Inc. 3 56K
43: EX-3.42 EX-3.42 Bylaws of Bhc Fairfax Hospital, Inc. 2 50K
44: EX-3.43 EX-3.43 Charter of Bhc Fox Run Hospital, Inc. 3 56K
45: EX-3.44 EX-3.44 Bylaws of Bhc Fox Run Hospital, Inc. 2 50K
46: EX-3.45 EX-3.45 Charter of Bhc Fremont Hospital, Inc. 3 56K
47: EX-3.46 EX-3.46 Bylaws of Bhc Fremont Hospital, Inc. 2 50K
48: EX-3.47 EX-3.47 Charter of Bhc Gulf Coast Management 3 56K
49: EX-3.48 EX-3.48 Bylaws of Bhc Gulf Coast Management 2 50K
50: EX-3.49 EX-3.49 Bhc Health Services Articles 4 55K
6: EX-3.5 EX-3.5 Ahs Albuquerque - Articles of Incorporation 4 55K
51: EX-3.50 EX-3.50 Bylaws Bhc Health Services of Nevada 2 49K
52: EX-3.51 EX-3.51 Charter of Bhc Heritage Oaks Hospital 3 56K
53: EX-3.52 EX-3.52 Bylaws of Bhc Heritage Oaks Hospital 2 50K
54: EX-3.53 EX-3.53 Bhc Hospital Holdings Certificate 2 50K
55: EX-3.54 EX-3.54 Bylaws of Bhc Hospital Holdings, Inc. 16 104K
56: EX-3.55 EX-3.55 Charter of Bhc Intermountain Hospital 3 56K
57: EX-3.56 EX-3.56 Bylaws of Bhc Intermountain Hospital, Inc. 2 50K
58: EX-3.57 EX-3.57 Charter of Bhc Lebanon Hospital, Inc. 4 58K
59: EX-3.58 EX-3.58 Bylaws of Bhc Lebanon Hospital, Inc. 2 50K
60: EX-3.59 EX-3.59 Bhc Management Holdings Certificate 2 50K
7: EX-3.6 EX-3.6 Ahs Albuquerque Operating Agreement 17 121K
61: EX-3.60 EX-3.60 Bylaws of Bhc Management Holdings, Inc. 16 104K
62: EX-3.61 EX-3.61 Certificate of Formation Bhc Management 1 48K
63: EX-3.62 EX-3.62 Bhc Management Services Agreement 6 60K
64: EX-3.63 EX-3.63 Certificate of Formation Bhc Management 1 48K
65: EX-3.64 EX-3.64 Bhc Management of Indiana Co. Agreement 6 55K
66: EX-3.65 EX-3.65 Bhc Management of Kentucky Certifcate 2 50K
67: EX-3.66 EX-3.66 Bhc Management of Kentucky Agreement 6 55K
68: EX-3.67 EX-3.67 Bhc Services New Mexico Certifcate 2 51K
69: EX-3.68 EX-3.68 Bhc Services New Mexico Agreement 6 55K
70: EX-3.69 EX-3.69 Bhc Services Streamwood, LLC Certificate 2 50K
8: EX-3.7 EX-3.7 Ahs Cumberland Articles of Organization 1 48K
71: EX-3.70 EX-3.70 Bhc Services Streamwood, LLC Agreement 6 55K
72: EX-3.71 EX-3.71 Bhc Meadows Partner Certificate 5 58K
73: EX-3.72 EX-3.72 Bylaws of Bhc Meadows Partner, Inc. 2 50K
74: EX-3.73 EX-3.73 Bhc Montevista Hospital Articles 4 56K
75: EX-3.74 EX-3.74 Bylaws of Bhc Montevista Hospital, Inc. 2 49K
76: EX-3.75 EX-3.75 Bhc Northwest Certificate of Formation 1 48K
77: EX-3.76 EX-3.76 Bhc Northwest Company Agreement 19 102K
78: EX-3.77 EX-3.77 Agreement of Partnership of Bhc Indiana 17 96K
79: EX-3.78 EX-3.78 Charter of Bhc of Northern Indiana, Inc. 4 59K
80: EX-3.79 EX-3.79 Bylaws of Bhc of Northern Indiana, Inc. 2 50K
9: EX-3.8 EX-3.8 Ahs Cumberland Operating Agreement 17 120K
81: EX-3.80 EX-3.80 Bhc Service Kentucky Formation Certificate 2 51K
82: EX-3.81 EX-3.81 Bhc Services Kentucky Company Agreement 6 55K
83: EX-3.82 EX-3.82 Charter of Bhc Pinnacle Pointe Hospital 3 56K
84: EX-3.83 EX-3.83 Bylaws of Bhc Pinnacle Pointe Hospital 2 50K
85: EX-3.84 EX-3.84 Charter of Bhc Properties, Inc. 3 57K
86: EX-3.85 EX-3.85 Bylaws of Bhc Properties, Inc. 2 50K
87: EX-3.86 EX-3.86 Charter of Bhc Sierra Vista Hospital, Inc. 3 56K
88: EX-3.87 EX-3.87 Bylaws of Bhc Sierra Vista Hospital, Inc. 2 50K
89: EX-3.88 EX-3.88 Charter of Bhc Spirit of St Louis Hospital 3 56K
90: EX-3.89 EX-3.89 Bylaws of Bhc Spirit of St Louis Hospital 2 50K
10: EX-3.9 EX-3.9 Ahs Kentucky Certificate of Incorporation 2 53K
91: EX-3.90 EX-3.90 Charter of Bhc Streamwood Hospital, Inc. 3 56K
92: EX-3.91 EX-3.91 Bylaws of Bhc Streamwood Hospital, Inc. 2 50K
93: EX-3.92 EX-3.92 Charter of Bhc Valle Vista Hospital, Inc. 3 56K
94: EX-3.93 EX-3.93 Bylaws of Bhc Valle Vista Hospital, Inc. 2 50K
95: EX-3.94 EX-3.94 Articles of Incorporation Bhc Windsor 4 55K
96: EX-3.95 EX-3.95 Bylaws of Bhc Windsor Hospital, Inc. 4 52K
97: EX-3.96 EX-3.96 Columbus Hospital Certificate of Formation 1 48K
98: EX-3.97 EX-3.97 Operating Agreement of Columbus Hospital 5 56K
99: EX-3.98 EX-3.98 Indiana Psychiatric Institutes Certificate 8 68K
100: EX-3.99 EX-3.99 Bylaws of Indiana Psychiatric Institutes 23 123K
112: EX-4.1 EX-4.1 Ardent Health Services Indenture 08/19/03 140 535K
113: EX-4.4 EX-4.4 Amended Intercompany Promissory Note 5 60K
114: EX-4.5 EX-4.5 Amended and Restated Security Agreement 21 114K
115: EX-4.6 EX-4.6 Intercreditor and Subordination Agreement 18 117K
116: EX-4.7 EX-4.7 Collateral Assignment 7 63K
117: EX-4.8 EX-4.8 Registration Rights Agreement 26 146K
118: EX-5.1 EX-5.1 Opinion of Ropes & Gray LLP 3 53K
119: EX-10.1 EX-10.1 Ardent Health Credit Agreement 08/19/03 124 596K
128: EX-10.10 EX-10.10 Employment Agreement N Becker 05/05/03 10 85K
129: EX-10.11 EX-10.11 Employment Agreement J Hopping 06/01/02 10 88K
130: EX-10.12 EX-10.12 Employment Agreement V Westrich 09/13/01 10 85K
131: EX-10.13 EX-10.13 Indemnification Agreement Page Barnes 10 80K
132: EX-10.14 EX-10.14 Indemnification Agreement J Hopping 10 80K
133: EX-10.15 EX-10.15 Indemnification Agreement S Petrovich 10 80K
134: EX-10.16 EX-10.16 Indemnification Agreement D Vanderwater 10 80K
135: EX-10.17 Ex-10.16 Indemnification Agreement V Westrich 10 80K
120: EX-10.2 Ardent Health - 10.2% Senior Notes 08/15/14 19 113K
121: EX-10.3 EX-10.3 Adrent Health Option & Unit Plan 12 88K
122: EX-10.4 EX-10.4 Non Qualified Interest Option Agreement 9 73K
123: EX-10.5 EX-10.5 Ardent Subscription Agreement 09/25/01 25 115K
124: EX-10.6 EX-10.6 Ardent Subscription Agreement 12/11/02 30 146K
125: EX-10.7 EX-10.7 Professional Services Agreement 12/11/02 4 55K
126: EX-10.8 EX-10.8 Letter Agreement 01/30/02 3 55K
127: EX-10.9 EX-10.9 Employment Agreement Page Barnes 05/02/01 11 86K
136: EX-12 EX-12 Computation of Ratios Statement 2± 51K
137: EX-21 EX-21 Subsidiaries of Ardent Health Services LLC 3 53K
138: EX-23.1 EX-23.1 Consent of Kpmg LLP 1 48K
139: EX-23.2 EX-23.2 Consent of Ernst & Young LLP 4 51K
140: EX-23.3 EX-23.3 Consent of Pricewaterhousecoopers LLP 1 47K
141: EX-25 EX-25 Form T-1 Statement of Eligibility 8 88K
142: EX-99.1 EX-99.1 Letter of Transmittal 18 121K
143: EX-99.2 EX-99.2 Notice of Guaranteed Delivery 4 60K
144: EX-99.3 EX-99.3 Form of Letter to Brokers 2 51K
145: EX-99.4 EX-99.4 Form of Letter to Clients 3 55K
EX-10.6 — EX-10.6 Ardent Subscription Agreement 12/11/02
Exhibit Table of Contents
EXHIBIT 10.6
EXECUTION COPY
================================================================================
SUBSCRIPTION AGREEMENT
among
ARDENT HEALTH SERVICES LLC,
WELSH, CARSON, ANDERSON & STOWE IX, L.P.,
FFC PARTNERS II, L.P. and related entities
and
THE SEVERAL OTHER PURCHASERS LISTED ON ANNEX I HERETO
Dated as of December 11, 2002
================================================================================
TABLE OF CONTENTS
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Page
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ARTICLE I PURCHASE AND SALE OF NEW COMMON UNITS................................. 1
SECTION 1.01 The Right to Purchase New Common Units.......................... 1
SECTION 1.02 Issuance and Sale of New Common Units........................... 3
SECTION 1.03 Closing Dates................................................... 3
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY......................... 3
SECTION 2.01 Formation and Qualifications.................................... 3
SECTION 2.02 Authorization of Agreements and Transactions.................... 4
SECTION 2.03 Validity........................................................ 4
SECTION 2.04 Membership Interests............................................ 5
SECTION 2.05 Financial Statements............................................ 5
SECTION 2.06 Absence of Undisclosed Liabilities.............................. 5
SECTION 2.07 Absence of Certain Changes or Events............................ 6
SECTION 2.08 Governmental Approvals.......................................... 6
SECTION 2.09 Offering of the New Common Units................................ 7
SECTION 2.10 Litigation and Proceedings; Orders.............................. 7
SECTION 2.11 Compliance With Contracts....................................... 7
SECTION 2.12 Compliance with Laws; Permits................................... 7
SECTION 2.13 Taxes........................................................... 8
SECTION 2.14 Brokers' or Finders' Fees....................................... 8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS...................... 8
SECTION 3.01 Authorization................................................... 9
SECTION 3.02 Validity........................................................ 9
SECTION 3.03 Investment Representations...................................... 9
SECTION 3.04 Governmental Approvals.......................................... 9
ARTICLE IV CONDITIONS PRECEDENT.................................................. 10
SECTION 4.01 Conditions Precedent to the Obligations of the Purchasers
with Respect to Each Closing.................................... 10
SECTION 4.02 Conditions to the Obligations of the Company with Respect
to Each Closing................................................. 11
ARTICLE V COVENANTS............................................................. 12
SECTION 5.01 Consents and Approvals.......................................... 12
i
Table of Contents
(continuation)
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SECTION 5.02 Compliance with Laws............................................ 12
SECTION 5.03 Notice of Certain Events........................................ 12
SECTION 5.04 Use of Proceeds................................................. 13
ARTICLE VI MISCELLANEOUS......................................................... 13
SECTION 6.01 Expenses, Etc................................................... 13
SECTION 6.02 Survival of Agreements.......................................... 13
SECTION 6.03 Parties in Interest............................................. 13
SECTION 6.04 Notices......................................................... 13
SECTION 6.05 Entire Agreement; Modifications................................. 14
SECTION 6.06 Counterparts.................................................... 14
SECTION 6.07 Assignment...................................................... 14
SECTION 6.08 Governing Law................................................... 14
INDEX TO ANNEXES AND SCHEDULES
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Annex I Description
------- -----------
I Purchasers, Maximum New Common Units
II Form of Opinion of Reboul, MacMurray, Hewitt & Maynard
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Schedule Description
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2.01 Company Ownership of Stock or Other Interests
2.04 Membership Interests
2.05 Balance Sheet
2.06 Liabilities
2.07 Changes or Events
2.10 Litigation
2.11 Contracts
2.13 Taxes
ii
INDEX TO DEFINED TERMS
THIS INDEX IS INCLUDED FOR CONVENIENCE ONLY AND DOES NOT
CONSTITUTE A PART OF THIS AGREEMENT
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Term Section
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BA.............................................................................. Preamble
BA Subscription Agreement....................................................... Recitals
Balance Sheet................................................................... Section 2.05
Balance Sheet Date.............................................................. Section 2.05
Business........................................................................ Recitals
Change of Control............................................................... Section 1.01
Closing......................................................................... Section 1.03
Closing Date.................................................................... Section 1.03
Code............................................................................ Section 2.14(a)
Common Units.................................................................... Recitals
Company......................................................................... Preamble
Exchange Act.................................................................... Section 1.01
Existing Subscription Agreement................................................. Recitals
FFC............................................................................. Preamble
Financial Statements............................................................ Section 2.05
GAAP............................................................................ Section 2.05
Governmental Body............................................................... Section 2.08
group........................................................................... Section 1.01
IPO............................................................................. Section 1.01(c)
Law............................................................................. Section 2.02(b)
Liens........................................................................... Section 2.02(b)
LLC Agreement................................................................... Recitals
Material Adverse Effect......................................................... Section 2.01(a)
New Common Units................................................................ Recitals
Notice of Financing Event....................................................... Section 1.01(d)
Order........................................................................... Section 2.10
Permitted Liens................................................................. Section 2.13
person.......................................................................... Section 1.01
Preferred Units................................................................. Recitals
Purchasers...................................................................... Preamble
Purchase Notice................................................................. Section 1.01(e)
Put Units....................................................................... Section 1.01(d)
Returns......................................................................... Section 2.14(a)
Securities Act.................................................................. Section 1.01(c)
Taxes........................................................................... Section 2.14
Taxing Authorities.............................................................. Section 2.14
Termination Date................................................................ Section 1.01(c)
Units........................................................................... Recitals
WCAS............................................................................ Preamble
iv
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WCAS IX......................................................................... Preamble
v
SUBSCRIPTION AGREEMENT, dated as of December 11, 2002 among
ARDENT HEALTH SERVICES LLC, a Delaware limited liability company (the
"Company"), Welsh, Carson, Anderson & Stowe IX, L.P. ("WCAS IX") and the
several purchasers listed on Annex I hereto (collectively, "WCAS") and FFC
Partners II, L.P. and related entities ("FFC"); and together with WCAS, each
individually a "Purchaser" and collectively the "Purchasers".
W I T N E S S E T H:
WHEREAS, the Company engages in the business of owning
medical/surgical hospitals and behavioral healthcare facilities and acquiring
additional hospitals and facilities and other businesses related thereto
(collectively, the "Business"):
WHEREAS, pursuant to the terms of (x) a Subscription
Agreement, dated as of September 25, 2001 (the "Existing Subscription
Agreement"), among the Company and the Purchasers and (y) a Subscription
Agreement, dated as of September 25, 2001 (the "BA Subscription Agreement"),
between the Company and BancAmerica Capital Investors I, L.P. ("BA"), each
Purchaser has previously executed and delivered the Ardent Health Services LLC
Limited Liability Company Agreement (as amended, modified or supplemented from
time to time, the "LLC Agreement") pursuant to which each Purchaser received
membership interests in the Company consisting of (i) common units ("Common
Units"), and (ii) 8% cumulative redeemable preferred units ("Preferred Units")
(said Common Units, together with the Preferred Units being hereinafter
collectively called the "Units"), as set forth opposite the name of such
Purchaser under the headings "Number of Common Units Held" and "Number of
Redeemable Preferred Units Held" respectively on Annex A attached to the LLC
Agreement;
WHEREAS, subject to the terms and conditions hereof, from time
to time prior to the Termination Date, subject to the terms and conditions of
Section 1.01 hereof, the Purchasers may wish to purchase in the aggregate up to
an additional 36,666,666 Common Units (the "New Common Units") to finance future
acquisitions by the Company, capital expenditures, operating expenses and other
general corporate purposes; and
WHEREAS, the Company wishes to issue, sell and deliver said
New Common Units, all on the terms and subject to the conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF NEW COMMON UNITS
SECTION 1.01 The Right to Purchase New Common Units. (a) The
New Common Units shall be reserved for issuance by the Company from time to time
pursuant to this Section 1.01 to the Purchasers.
(b) The maximum number of New Common Units that may be
purchased by each Purchaser pursuant to this Subscription Agreement (as
hereinafter defined) is set forth opposite the name of such Purchaser on Annex I
hereto under the heading "Maximum Number of
New Common Units". It is understood that any purchase of New Common Units by
each Purchaser on a Closing Date pursuant to this Section 1.01 shall be made pro
rata among the Purchasers in proportion to the maximum amounts listed on Annex I
hereto.
(c) The aggregate number of New Common Units available
for purchase by the Purchasers on a Closing Date shall be reduced by the
aggregate number of New Common Units purchased on any previous Closing Date. On
the date (the "Termination Date") that is the earlier to occur of (i) such time
as the Company (or its successor) shall have consummated an initial public
offering of its equity securities registered under the Securities Act of 1933,
as amended (the "Securities Act") (an "IPO") and (ii) a Change of Control (as
defined hereafter), the number, if any, of New Common Units available for
purchase hereunder, after taking into account all reductions thereof, shall no
longer be subject to any of the provisions of this Section 1.01.
As used in this Section 1.01, the term "Change of Control"
shall mean (i) a consolidation or merger of the Company with or into any other
unrelated business entity (other than a merger in which the Company is the
surviving business entity and which will not result in more man 50% of the units
(or other securities) of the Company outstanding being owned of record or
beneficially by persons other than the holders of such units or securities
immediately prior to such merger), (ii) a sale of all or substantially all of
the properties and assets of the Company, taken as a whole, in one transaction
or a series of related transactions, to any "person" or "group" other than the
Purchasers, or (iii) the acquisition by any "person" or "group" (other than the
Purchasers and their respective affiliates) of voting units (or other
securities) of the Company representing more than 50% of the voting power of all
outstanding voting units (or other securities), whether by way of merger or
consolidation or otherwise. The terms "person" and "group" shall have the
meanings set forth in Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), whether or not applicable.
(d) At any time prior to the Termination Date, in the
event that the Company desires to finance (w) acquisitions of medical/surgical
hospitals or behavioral healthcare facilities, (x) capital expenditures for the
business of the Company, including without limitation additional acquisitions,
(y) operating expenses or (z) other general corporate purposes, the Company
shall, subject to the approval of its Board of Managers, on any such occasion,
notify the Purchasers that it desires financing. Such notice (a "Notice of
Financing Event") shall be in writing and shall specify (A) the terms and a
general description of the proposed acquisition, development or corporate
purpose intended to be financed by the Company, (B) the aggregate amount
required to finance such project, (C) the aggregate number of New Common Units
(the "Put Units") that would be required to be issued to each Purchaser to
finance such project and (D) the date on which the applicable acquisition or
other transaction is to be consummated.
(e) Within five business days after receipt of a Notice
of Financing Event pursuant to paragraph (d) above, WCAS IX may elect, at its
sole option, to require the Purchasers to purchase all or a portion of the Put
Units by the delivery by WCAS IX of a notice to the Company and each of the
other Purchasers (a "Purchase Notice") stating the number of Put Units to be
purchased by each Purchaser (which number may, in the aggregate, be less than
all of the Put Units) and the Closing Date for the issuance and sale of the Put
Units. Upon receipt of a Purchase Notice, the Company shall be required to sell
such number of Put Units to the
2
Purchasers, and each Purchaser shall be required to purchase its pro rata
portion of such number of Put Units, in accordance with Section 1.02 below. It
is understood and agreed that such number of Put Units indicated in such
Purchase Notice will be allocated in accordance with the pro rata allocation
provisions described in Section 1.01(b) above.
(f) It is understood and agreed that WCAS IX shall be
entitled, in its sole discretion after consultation with the other Purchasers,
to deliver a Purchase Notice to the Company on behalf of the Purchasers to
purchase any remaining New Common Units pursuant to this Section 1.01 at any
time during the 20-day period prior to the Termination Date, whether or not the
Company shall have delivered a Notice of Financing Event
SECTION 1.02 Issuance and Sale of New Common Units. (a) In the
event that WCAS IX shall have delivered a Purchase Notice to the Company as
specified in Section 1.01(e) or (f) above, subject to the other terms and
conditions of this Agreement, then, on the Closing Date specified in said
Purchase Notice, the Company shall issue and sell to the Purchasers, and the
Purchasers shall purchase from the Company, as applicable, the number of New
Common. Units specified in said Purchase Notice at. a purchase price equal to
$4.50 per New Common Unit, and the Company shall cause Annex A to the LLC
Agreement to be revised to reflect the issuance of the New Common Units being
purchased by the Purchasers hereunder.
(b) As payment in full for the New Common Units being
purchased by it hereunder, each Purchaser shall transfer by wire transfer to the
account or accounts designated by the Company on each Closing Date an amount
equal to the applicable purchase price per New Common Unit referred to in
paragraph (a) above multiplied by the applicable number of New Common Units, as
the case may be, to be purchased by such Purchaser.
SECTION 1.03 Closing Dates. Each closing of a sale and
purchase of New Common Units shall take place at the offices of Reboul,
MacMurray, Hewitt & Maynard, 45 Rockefeller Plaza, New York, New York 10111 at
10 a.m., New York time, on such date (which shall not be a day on which banking
institutions in the State of New York are required or authorized to close) as
shall be specified in any Purchase Notice, or at such other date and time as may
be mutually agreed upon between the Purchasers and the Company (each such
closing being herein called a "Closing" and each such date and time being herein
called a "Closing Date").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchasers as
follows:
SECTION 2.01 Formation and Qualifications. (a) The Company is
a limited liability company duly formed, validly existing and in good standing
under the laws of the State of Delaware and is duly licensed or qualified in
each jurisdiction in which the nature of its business or the ownership of its
properties makes such licensing or qualification necessary, except where the
failure to be so licensed or qualified would not have a material adverse effect
on the properties, assets, condition (financial or otherwise), prospects,
operating results or
3
business of the Company and its subsidiaries taken as a whole (a "Material
Adverse Effect"). The Company has all requisite limited liability company power
and authority to own or lease and operate its properties and assets and to carry
on its business as currently conducted.
(b) The Company has previously made available to each
Purchaser or its counsel, upon its request, complete and correct copies of the
Certificate of Formation and LLC Agreement of the Company, each as in effect on
the date hereof.
(c) Except as set forth in Schedule 2.01 hereto, the
Company does not own of record or beneficially, directly or indirectly, (i) any
shares of capital stock or securities convertible into capital stock of any
corporation or (ii) any participating interest in any other partnership, joint
venture or other non-corporate business enterprise.
SECTION 2.02 Authorization of Agreements and Transactions. (a)
The Company has all requisite limited liability company power to execute and
deliver this Agreement and all ancillary agreements to which it is a party, and
to perform its obligations hereunder and thereunder.
(b) The execution, delivery, and performance by the
Company of this Agreement and the ancillary agreements to which it is a party
have been duly authorized by all requisite limited liability company action on
the part of the Company. Each of (i) the execution, delivery and performance by
the Company of this Agreement and the ancillary agreements to which it is a
party, (ii) the performance by the Company of its obligations hereunder and
thereunder, (iii) and the contemplated sale, issuance and delivery by the
Company of New Common Units will not violate any provision of law, any order of
any court or other agency of government, ordinance, rule, regulation (each, a
"Law") the Company's LLC Agreement, any provision of any indenture, agreement or
other instrument to which the Company or any subsidiary is a party or by which
it or any of its properties or assets is bound or affected, or conflict with,
result in a breach of or constitute (with due notice or lapse of time or both) a
default under any such indenture, agreement or other instrument, or result in
the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever ("Liens") upon any of the properties or assets of the Company or any
subsidiary, except where any such violation, conflict, breach or default would
not, individually or in the aggregate, have a Material Adverse Effect or a
material adverse effect on the Company's ability to perform its obligations
under this Agreement.
(c) When sold and paid for in accordance with this
Agreement, the New Common Units will be validly issued, fully paid and
nonassessable units of Common Units. In connection with the issuance, sale and
delivery of the New Common Units, the Company is not subject to any preemptive
rights of holders of Units of the Company or to any right of first refusal or
other similar right in favor of any person or entity.
SECTION 2.03 Validity. This Agreement and each ancillary
agreement to which the Company is a party has been duly executed and delivered
by the Company and when executed by the other parties hereto will constitute the
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject, as to
4
enforcement of remedies, to applicable bankruptcy, insolvency, fraudulent
conveyance and similar laws and to limitations on the availability of equitable
remedies.
SECTION 2.04 Membership Interests. (a) On the date hereof,
prior to the transactions contemplated herein, the authorized and outstanding
membership interests in the Company consists of 28,835,597 Common Units and
28,161,796 Preferred Units as set forth on Schedule 2.04 hereto. All of such
issued and outstanding Units were duly authorized and are validly issued and are
fully paid and nonassessable and none of such Units were issued in violation of
any preemptive rights of any member of the Company or any right of first refusal
or other similar right in favor of any person. All of the issued and outstanding
Units of membership interests in of the Company were offered, issued, and sold
in compliance with applicable federal and state securities laws.
(b) Except as set forth on Schedule 2.04 hereto or as
contemplated by this Agreement, the LLC Agreement, the Existing Subscription
Agreement or the BA Subscription Agreement, (i) no subscription, warrant,
option, convertible security or other right (contingent or other) to purchase or
acquire any Units or any membership interests or other equity interests of the
Company or of any subsidiary is authorized or outstanding, (ii) there is not any
commitment of the Company or any subsidiary to issue any Units, membership
interests or other equity interests, warrants, options or other such rights or
to distribute to holders of any class of the Company's or any subsidiary's
membership interests or other equity interests, any evidences of indebtedness or
assets and (iii) neither the Company nor any subsidiary has any obligation
(contingent or other) to purchase, redeem or otherwise acquire any Units or
membership interests or other equity interests or any interest therein or to pay
any dividend or make any other distribution in respect thereof.
SECTION 2.05 Financial Statements. The Company has previously
delivered to the Purchasers the unaudited balance sheet of the Company as of
September 30, 2002 (the "Balance Sheet Date"), a copy of which is attached as
Schedule 2.05 (the "Balance Sheet"), and the audited balance sheets and
statements of income as of and for the fiscal year ended December 31, 2001
(collectively with the Balance Sheet, the "Financial Statements". The Financial
Statements (i) are consistent with and were derived from the Company's books and
records as maintained by the Company in the ordinary course of business, (ii)
were prepared in accordance with United States generally accepted accounting
principals consistently applied ("GAAP") and (iii) fairly present the financial
position of the Company and the results of its operations as of the dates and
periods covered thereby, subject to normal, recurring year-end adjustments. To
the Company's knowledge, since the Balance Sheet Date, no event has occurred
which has or could reasonably be expected to have a Material Adverse Effect.
SECTION 2.06 Absence of Undisclosed Liabilities. Except as and
to the extent (i) reflected or reserved against on the Balance Sheet, (ii) set
forth on Schedule 2.06 or (iii) incurred since the Balance Sheet Date in the
ordinary course of business and consistent with past practice, the Company has
no material liabilities, debts or obligations of any kind or nature whatsoever.
5
SECTION 2.07 Absence of Certain Changes or Events. Since the
Balance Sheet Date, except (i) as otherwise set forth on Schedule 2.07 or (ii)
as otherwise expressly contemplated by this Agreement, the Company has not:
(a) changed or amended its LLC Agreement;
(b) incurred any obligation, debt or liability in excess
of $5,000,000, except trade payables and other business obligations incurred in
the ordinary course of business and consistent with past practice;
(c) discharged or satisfied any Lien or paid any
obligation, debt or liability in excess of $5,000,000, other than payment of
obligations, debts or liabilities in the ordinary course of business and
consistent with past practice;
(d) mortgaged, pledge or subjected to any Lien (other
than (i) liens for taxes not yet due and payable, (ii) mechanics', carriers',
workmen's, repairmen's or other like liens arising or incurred in the ordinary
course of business and (iii) imperfections of title that do not detract from the
value or impair the use of the property subject thereto (the Liens described in
clauses, (i), (ii) and (iii) above being referred to herein as ("Permitted
Liens");
(e) transferred, leased or otherwise disposed of any of
its assets or properties except to persons for fair consideration in the
ordinary course of business and consistent with past practice, or acquired any
assets or properties, except from persons in the ordinary course of business
consistent with past practice;
(f) made any loan or investment of a capital nature in
excess of $5,000,000, whether by purchase of stock or securities, contributions
to capital, property transfers or otherwise, in any partnership, corporation or
other entity or person;
(g) cancelled or compromised any debt or claim, other
than debts of or claims against persons in the ordinary course of business
consistent with past practice;
(h) waived or released any rights of value in excess of
$5,000,000;
(i) made or granted any wage, salary or benefit increase
or bonus payment applicable to any group or classification of employees
generally other than any such increase or bonus payment made or granted in the
ordinary course of business consistent with past practice;
(j) entered into any agreement or commitment to take any
action described in this Section 2.07.
SECTION 2.08 Governmental Approvals. Subject to the accuracy
of the representations and warranties of the Purchasers set forth in Article III
hereof, no registration or filing with, or consent or approval of, or other
action by, any Federal, state or other governmental agency or instrumentality
(each, a "Governmental Body") is or will be necessary for the valid execution,
delivery and performance by the Company of this Agreement and any ancillary
agreement to which the Company is a party, or the issuance, sale and delivery by
the Company of the New Common Units.
6
SECTION 2.09 Offering of the New Common Units. Neither the
Company nor any person authorized or employed by the Company as agent, broker,
dealer or otherwise in connection with the offering or sale of the New Common
Units or any similar securities of the Company has offered any such securities
for sale to, or solicited any offers to buy any such securities from, or
otherwise approached or negotiated with respect thereto with, any person or
persons, under circumstances that involved the use of any form of general
advertising or solicitation as such terms are defined in Regulation D of the
Securities Act; and, assuming the accuracy of the representations and warranties
of the Purchasers set forth in Article III hereof, neither the Company nor any
person acting on the Company's behalf has taken or will take any action
(including, without limitation, any offer, issuance or sale of any securities of
the Company under circumstances which would require the integration of such
transactions with the sale of the New Common Units under the Securities Act or
the rules and regulations of the Securities and Exchange Commission thereunder)
which would subject the offering, issuance or sale of the New Common Units to
the Purchasers to the registration provisions of the Securities Act.
SECTION 2.10 Litigation and Proceedings; Orders, (a) Except as
set forth in Schedule 2.10, there are no pending or, to the knowledge of the
Company, threatened litigations, claims, actions, suits, proceedings or
investigations by or against or affecting the Company or any of its properties
or assets which, if adversely determined, could reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect. Neither the
Company nor any of its properties or assets is subject to any order, writ,
judgment, decree, consent decree, injunction, award, settlement agreement,
stipulation, ruling or subpoena (each an "Order") of any Governmental Body. To
the knowledge of the Company, there is no basis for any other claim, action,
suit, proceeding or investigation which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect.
(b) There are no claims, actions, suits, proceedings or
investigations pending before or by any court, arbitrator, regulatory authority
or government agency against or affecting, the Company that could reasonably be
expected to enjoin or prevent the consummation of the transactions contemplated
by this Agreement.
SECTION 2.11 Compliance With Contracts. Except as set forth in
Schedule 2.11, the Company is not in default (with or without notice or the
passage of time or both) under, and the Company has not received written notice
that (and is not otherwise aware that) any other party is in default (with or
without notice or the passage of time or both) under, any agreement, mortgage,
note, indenture, deed of trust, loan or credit agreement, contract, lease,
license, permit or other instrument to which the Company is a party or is
otherwise bound or by which any of its properties or assets is bound, except to
the extent such default could not reasonably be expected to have a Material
Adverse Effect.
SECTION 2.12 Compliance with Laws; Permits. Since its
formation the Company has complied with, and the Company is currently in
compliance with, any Law applicable to the Company, except to the extent its
noncompliance with any such Law does not or could not reasonably be expected to
have a Material Adverse Effect, and the Company has obtained all permits,
authorizations, approvals, registrations, accreditations, variances and licenses
required thereby which are necessary to the conduct of its business as now
conducted and as presently proposed to be conducted.
7
SECTION 2.13 Taxes. (a) Except as set forth on Schedule 2.13,
(i) the Company and any affiliated group, within the meaning of Section 1504 of
the Internal Revenue Code of 1986, as amended (the "Code"), of which the Company
is or has been a member, has filed or caused to be filed in a timely manner
(within any applicable extension periods) all material tax returns, reports,
declarations, statements and forms (collectively, "Returns") required to be
filed by the Code or by applicable state, local or foreign tax laws, (ii) all
Taxes shown to be due on such returns, reports and forms or required to be paid
in respect of the periods covered by such returns, reports and forms have been
timely paid in full or will be timely paid in full by the due date thereof, and
(iii) no material tax Liens have been filed and no material claims are being
asserted in writing or, to the knowledge of the Company, threatened with respect
to any Taxes.
For purposes of this Agreement, "Taxes" means (i) any net
income, alternative or add-on minimum tax, gross income, gross receipts, sales,
use ad valorem, value added, transfer, franchise, profits, license, withholding
on amounts paid or received, payroll, employment, excise, severance, stamp,
occupation, premium, property, environmental or windfall profit taxes, custom
duties or other taxes, unclaimed property assessments, governmental fees or
other like assessments or charges of any kind whatsoever, together with any
interest or any penalty, addition to tax or additional amount imposed on the
Company by any governmental authority responsible for the imposition of any such
taxes (domestic or foreign) ("Taxing Authorities"), (ii) liability for the
payment of any amounts of the type described in clause (i) as a result of being
a member of an affiliated, consolidated, combined or unitary group, or being a
party to any agreement or arrangement whereby liability for payments of such
amounts was determined or taken into account with reference to the liability of
any other person for any period prior to the Closing Date and (iii) liability
with respect to the payment of any amounts described in clause (i) as a result
of any express or implied obligation to indemnify any other person.
(b) Except as set forth on Schedule 2.13, none of the
Company or its affiliates has ever, with respect to the Company, (i) requested
or received a tax ruling (other than a determination with respect to a qualified
employee benefit plan) or entered into a legally binding agreement (such as a
closing agreement) with any Taxing Authority, which ruling or agreement could
have a material effect on the Taxes of the Company on or after the Closing Date
or (ii) filed any election or caused any deemed election under Section 338 of
the Code, or any similar state or local provision.
SECTION 2.14 Brokers' or Finders' Fees. All negotiations
relative to this Agreement and any ancillary agreements and the transactions
contemplated hereby and thereby and were carried on by the Company directly with
the Purchasers and their affiliates without the intervention of any other person
on behalf of any Company in such manner as to give rise to any valid claim by
any other person for a finder's fee, advisory fee, investment banking fee,
brokerage commission or similar payment other than pursuant to a Professional
Services Fee Agreement, dated as of the date hereof, by and between the Company
and WCAS Management Corporation.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
8
Each Purchaser represents and warrants to the Company,
severally and not jointly, as follows:
SECTION 3.01 Authorization. The execution, delivery and
performance by such Purchaser of this Agreement and the purchase and receipt by
such Purchaser of the New Common Units being purchased by it hereunder have been
duly authorized by all requisite action on the part of such Purchaser, and will
not violate any provision of law, any order of any court or other agency of
government applicable to such Purchaser, or any provision of any indenture,
agreement or other instrument by which such Purchaser or any of such Purchaser's
properties or assets are bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument.
SECTION 3.02 Validity. This Agreement has been duly executed
and delivered by such Purchaser and constitutes the legal, valid and binding
obligation of such Purchaser, enforceable against such Purchaser in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws from time to time in effect affecting the
enforcement of creditors' rights generally and to general equity principles.
SECTION 3.03 Investment Representations. (a) Such Purchaser is
acquiring the New Common Units for its own account, for investment, and not with
a view toward the resale or distribution thereof in violation of applicable law.
(b) Such Purchaser understands that it must bear the
economic risk of its investment for an indefinite period of time because the New
Common Units are not registered under the Securities Act or any applicable state
securities laws, and may not be resold unless subsequently registered under the
Securities Act and such other laws or unless an exemption from such registration
is available.
(c) Such Purchaser is able to fend for itself in the
transactions contemplated by this Agreement and has the ability to bear the
economic risks of its investment in the New Common Units being purchased by it
for an indefinite period of time. Such Purchaser has had the opportunity to ask
questions of, and receive answers from, officers of the Company with respect to
the business and financial condition of the Company and the terms and conditions
of the offering of the New Common Units and to obtain additional information
necessary to verify such information, or can acquire it without unreasonable
effort or expense.
(d) Such Purchaser has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of its investment in the New Common Units. Such Purchaser is an
"accredited investor" as such term is defined in Rule 501 of Regulation D under
the Securities Act with respect to its purchase of the New Common Units, and
that if such Purchaser is a partnership, it has not been formed solely for the
purpose of purchasing the New Common Units it is purchasing hereunder (unless
each of the partners of such partnership is an accredited investor).
SECTION 3.04 Governmental Approvals. No registration or filing
with, or consent or approval of, or other action by, any Federal, state or other
governmental agency or instrumentality is or will be necessary by such Purchaser
for the valid execution, delivery and
9
performance of this Agreement, other than, if applicable, compliance with the
requirements of the HSR Act.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.01 Conditions Precedent to the Obligations of the
Purchasers with Respect to Each Closing. The obligation of each Purchaser to
purchase and pay for the New Common Units being purchased by it on each Closing
Date is, at its option, subject to the satisfaction or waiver in writing at or
prior to each Closing of the following conditions:
(a) Consummation of Each Prior Closing. On each prior
Closing Date, the Company shall have issued and sold the New Common Units being
issued and sold on such Closing Date.
(b) Preliminary Documentation. If applicable, a Notice of
Financing Event shall have been given and shall have been delivered to the
Purchasers pursuant to Section 1.01(d).
(c) Accuracy of Representations and Warranties. The
representations and warranties of the Company set forth in Article III shall be
true and correct in all material respects on and as of the Closing Date as
though made at and as of that date (except for those representations and
warranties that specifically relate to an earlier date, which shall be true and
correct in all material respects as of such earlier date), and the Company shall
have so certified to such effect to the Purchasers in writing.
(d) Performance. The Company shall have performed and
complied in all material respects with all terms, agreements, covenants and
conditions contained herein required to be performed or complied with by it
prior to or at the Closing, and the Company shall have certified to such effect
to the Purchasers in writing.
(e) No Material Adverse Change. There shall not have
occurred since the Balance Sheet Date any undisclosed liabilities as described
in Section 2.06 or any event which, in each case, could reasonably be expected
to have a Material Adverse Effect, and the Company shall have certified to such
effect to the Purchasers in writing.
(f) All Proceedings to Be Satisfactory. All proceedings
to be taken by the Company and all waivers and consents to be obtained by the
Company in connection with the transactions contemplated hereby and all
documents incident thereto shall be satisfactory in form and substance to the
Purchasers and their counsel, and the Purchasers and said counsel shall have
received all such counterpart originals or certified or other copies of such
documents as they may reasonably request.
(g) Supporting Documents. On or prior to the Closing Date
the Purchasers and their counsel shall have received copies of the following
supporting documents:
10
(i) (x) copies of the Certificate of Formation of the
Company, and all amendments thereto, certified as of a recent
date by the Secretary of State of the State of Delaware, and
(y) a certificate of said Secretary dated as of a recent date
as to the due formation and good standing of the Company and
listing all documents of the Company on file with said
Secretary;
(ii) a certificate of the Secretary or an Assistant
Secretary of the Company dated the Closing Date and certifying
(w) that attached thereto is a true and complete copy of the
Limited Liability Company Agreement of the Company as in
effect on the date of such certification; (x) that attached
thereto is a true and complete copy of resolutions adopted by
the Board of Managers of the Company authorizing the
execution, delivery and performance of this Agreement and the
issuance, sale and delivery of the New Common Units, and that
all such resolutions are still in full force and effect and
are all the resolutions adopted in connection with the
transactions contemplated by this Agreement; (y) that the
Certificate of Formation of the Company has not been amended
since the date of the last amendment referred to in the
certificate delivered pursuant to clause (h)(i)(x) above; and
(z) as to the incumbency and specimen signature of each
officer of the Company executing this Agreement, and the
certificates representing the New Common Units and any
certificate or instrument furnished pursuant hereto, and a
certification by another officer of the Company as to the
incumbency and signature of the officer signing the
certificate referred to in this paragraph (ii); and
(iii) such additional supporting documents and other
information with respect to the operations and affairs of the
Company as the Purchasers or their counsel may reasonably
request.
All such documents shall be satisfactory in form and substance
to the Purchasers and their counsel.
(h) Consents. The Company shall have obtained all
consents required to be obtained pursuant to Section 5.01 hereof.
(i) Opinion of Counsel. The Purchasers shall have
received from Reboul, MacMurray, Hewitt & Maynard (or such other counsel
satisfactory to the Purchasers) an opinion dated such Closing Date confirming
the opinion delivered by such counsel substantially in the form annexed hereto
as Annex II, with such other changes as may be required as a result of the
transactions contemplated by this Agreement.
SECTION 4.02 Conditions to the Obligations of the Company with
Respect to Each Closing. The obligations of the Company to issue and sell the
New Common Units on each Closing Date are, at its option, subject to the
satisfaction or waiver in writing at or prior to each Closing of the following
conditions:
11
(a) Consummation of Each Prior Closing. On each prior
Closing Date, the Purchasers shall have purchased and paid for the New Common
Units being issued and sold on such Closing Date.
(b) Accuracy of Representations and Warranties. The
representations and warranties of a Purchaser set forth in Article III shall be
true and correct in all material respects on and as of the Closing Date as
though made at and as of that date (except for those representations and
warranties that specifically relate to an earlier date, which shall be true and
correct in all material respects as of such earlier date).
(c) Performance. Each Purchaser shall have performed and
complied in all material respects with all terms, agreements, covenants and
conditions contained herein required to be performed or complied with by it
prior to or at the Closing.
(d) All Proceedings to Be Satisfactory. All corporate,
partnership or other proceedings to be taken by each Purchaser and all waivers
and consents to be obtained by such Purchaser in connection with the
transactions contemplated hereby and all documents incident thereto shall be
satisfactory in form and substance to the Company's counsel.
ARTICLE V
COVENANTS
SECTION 5.01 Consents and Approvals. Prior to each Closing
Date the Company shall promptly apply for or otherwise seek and use its best
efforts to obtain all authorizations, consents, waivers and approvals (whether
by or from any person, entity, court or governmental agency or authority) as may
be required in connection with the consummation of this Agreement and the
transactions contemplated hereby.
SECTION 5.02 Compliance with Laws. The Company shall comply,
and shall cause each of its subsidiaries to comply, with all applicable laws,
rules, regulations and orders, the noncompliance with which could reasonably be
expected to have a Material Adverse Effect or a material adverse effect on the
Company's ability to perform its obligations under this Agreement.
SECTION 5.03 Notice of Certain Events. The Company shall give
the Purchasers prompt notice of (i) the occurrence, or failure to occur, of any
event that the Company believes would be likely to (x) cause any of the
representations or warranties of the Company contained in this Agreement to be
untrue or inaccurate in any material respect at any time from the date hereof,
(y) cause any covenant, condition or agreement contained in this Agreement not
to be complied with or satisfied in any material respect or (z) result in any
Material Adverse Effect, (ii) any failure of the Company, or any officer,
director, employee or agent thereof, to comply in any material respect with or
satisfy in any material respect any covenant, condition or agreement to be
complied with or satisfied by it hereunder, (iii) any event of default under any
agreement with respect to indebtedness for borrowed money or a purchase money
obligation, and any event which, upon notice or lapse of time or both, would
constitute such an event of default, that would permit the holder of such
indebtedness or obligation to
12
accelerate the maturity thereof, (iv) any claim, action, suit or proceeding at
law or in equity or by or before any governmental instrumentality or agency
which, if adversely determined, would materially impair the ability of the
Company to carry on its business substantially as now or then conducted.
SECTION 5.04 Use of Proceeds. The Company shall use the
proceeds from the sale of the New Common Units hereunder for working capital and
general company purposes, including duly authorized and approved acquisitions by
the Company.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 Expenses, Etc. The Company shall pay its own
expenses and all fees and expenses of the Purchasers incident to the
negotiation, preparation and execution of this Agreement, including the fees and
expenses of counsel, accountants or other advisors.
SECTION 6.02 Survival of Agreements. All covenants,
agreements, representations and warranties made herein shall survive the
execution and delivery of this Agreement and the issuance, sale and delivery of
the New Common Units pursuant hereto and all statements contained in any
certificate or other instrument delivered by the Company hereunder shall be
deemed to constitute representations and warranties made by the Company.
SECTION 6.03 Parties in Interest. All covenants and agreements
contained in this Agreement by or on behalf of any of the parties hereto shall
bind and inure to the benefit of the respective successors and assigns of the
parties hereto whether so expressed or not.
SECTION 6.04 Notices. Any notice or other communications
required or permitted hereunder shall be deemed to be sufficient if contained in
a written instrument delivered in person or by overnight courier or duly sent by
first class certified mail, postage prepaid, or by facsimile addressed to such
party at the address or facsimile number set forth below:
if to the Company, to:
Ardent Health Services LLC
102 Woodmont Boulevard
Suite 800
Nashville, TN 37205
Facsimile: (615)843-3419
Attention: General Counsel
if to any party who is a member of WCAS, to such party at:
c/o Welsh, Carson, Anderson & Stowe
13
320 Park Avenue
Suite 2500
New York, NY 10022
Facsimile: (212) 893-9575
Attention: Mr. Russell L. Carson
if to FFC,to:
FFC Partners II, L.P.
The Mill
10 Glenville Street
Greenwich, CT 06831
Facsimile: (203) 532-8016
Attention: Mr. Carlos Ferrer
with a copy to:
Reboul, MacMurray, Hewitt & Maynard
45 Rockefeller Plaza
New York, NY 10011
Facsimile: (212) 841-5725
Attention: Othon A. Prounis, Esq.
or, in any case, at such other address or addresses as shall have been furnished
in writing by such party to the other parties hereto. All such notices,
requests, consents and other communications shall be deemed to have been
received (a) in the case of personal or courier delivery, on the date of such
delivery, (b) in the case of mailing, on the fifth business day following the
date of such mailing and (c) in the case of facsimile, when received.
SECTION 6.05 Entire Agreement; Modifications. This Agreement
(including the Annexes and Schedules hereto) constitutes the entire agreement of
the parties with respect to the subject matter hereof and may not be amended or
modified nor any provisions waived except in a writing signed by each party
hereto.
SECTION 6.06 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 6.07 Assignment. This Agreement may not be assigned by
the Company or the Purchasers without the prior written consent of the Company
and each of the Purchasers.
SECTION 6.08 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
*********
14
IN WITNESS WHEREOF, the Company and the Purchasers have
executed this Agreement as of the day and year first above written.
ARDENT HEALTH SERVICES LLC
By: /s/ William P. Barnes
------------------------------------
Name: William P. Barnes
Title: Sr. Vice President and Chief
Financial Officer
PURCHASERS:
WELSH, CARSON, ANDERSON &
STOWE IX, L.P.
By: WCAS IX Associates, L.L.C.,
General Partner
By: /s/ Jonathan M. Rather
-------------------------------------------------
Name: Jonathan M. Rather
Title: Managing Member
John Almeida
Bruce K. Anderson
Russell L. Carson
Anthony J. de Nicola
Michael Donovan
Michael Gerstner
IRA - f/b/o Jon Clark
IRA - f/b/o James R. Mathews
IRA - f/b/o Jonathan M. Rather
Eric J. Lee
D. Scott Mackesy
Thomas E. McInerney
Robert A. Minicucci
Paul B. Queally
Sanjay Swani
Sean Traynor
Patrick J. Welsh
By: /s/ Jonathan M. Rather
-------------------------------------------------
Jonathan M. Rather, Individually and
as Attorney-in-Fact
WCAS HEALTHCARE PARTNERS, L.P.
By: WCAS HP Partners, General Partner
By: /s/ Jonathan M. Rather
-------------------------------------------------
Jonathan M. Rather, Attorney-in-Fact
FFC PARTNERS IL, L.P.
By: FFC GP II, LLC, General Partner
By: /s/ Carlos Ferrer
-------------------------------------------------
Name: Carlos Ferrer
Title: Member
FFC EXECUTIVE PARTNERS II, L.P.
By: FFC EXECUTIVE GP II, LLC as
General Partner
BY: /s/ Carlos Ferrer
-------------------------------------------------
Name: Carlos Ferrer
Title: Member
EXECUTION COPY
AMENDMENT, JOINDER AND WAIVER AGREEMENT
AMENDMENT, JOINDER AND WAIVER AGREEMENT, dated as of February
7, 2003 (the "Amendment"), entered into in connection with the Subscription
Agreement, dated as of December 11, 2002 (as amended, supplemented or otherwise
modified from time to time, the "Subscription Agreement", among Ardent Health
Services LLC (the "Company"), Welsh, Carson, Anderson & Stowe IX, L.P. ("WCAS
IX") and the several purchasers (other than WCAS IX) listed under the caption
"WCAS Purchasers" on Annex I thereto (collectively, "WCAS") and FFC Partners II,
L.P. and related entities (collectively, "FFC": and together with WCAS, each
individually an "Original Purchaser" and collectively the "Original
Purchasers").
WITNESSETH:
WHEREAS, subject to the terms and conditions of the
Subscription Agreement, each Original Purchaser agreed to purchase from time to
time common units of the Company ("Common Units"), up to a maximum number set
forth opposite its name under the heading "Initial Maximum Number of New Common
Units" on Annex I hereto;
WHEREAS, the Original Purchasers have already purchased an
aggregate of 24,444,446 Common Units (the "Purchased Units") pursuant to the
Subscription Agreement;
WHEREAS, the Original Purchasers wish to amend Annex I of the
Subscription Agreement and reallocate the current maximum number of outstanding
Common Units that may be purchased by the Original Purchasers, giving effect to
the prior Purchased Units and substitution of certain Original Purchasers with
the New WCAS Purchasers (as defined below);
WHEREAS, the New Purchaser (as defined below) wishes to (i)
join the Subscription Agreement and purchase up to 2,222,222 Common Units (the
"New Purchaser Units") and (ii) in order to catch up on a pro rata basis with
the prior sale and issuance by the Company to the Original Purchasers of the
Purchased Units, purchase 1,481,481 of such New Purchaser Units (the
"Catch-up Units") on the date hereof;
WHEREAS, the Company and Original Purchasers are willing to
(i) consent to the joinder by the New Purchaser and each New WCAS Purchaser to,
and in connection therewith amend the provisions of, the Subscription Agreement,
(ii) amend the allocations on Annex I of the Subscription Agreement and (iii) in
the case of the Company, issue and sell to the New Purchaser the Catch-up Units,
all in the manner and upon the terms set forth below;
NOW, THEREFORE, in consideration of the premises and the
covenants herein contained, the parties hereto agree as follows:
1. Definitions. All capitalized terms used herein but
not defined have the meanings attributed to them in the Subscription Agreement.
2. Joinder; Consent; Waiver. (a) Each of the undersigned
entities and persons listed on the signature pages hereto under the captions
"New Purchaser" (the "New Purchaser") and "New WCAS Purchasers" (the "New WCAS
Purchasers") hereby acknowledges that he, she or it has received and reviewed
copies (in execution form) of the Subscription Agreement, and agrees to (i) join
the Subscription Agreement as a "Purchaser", (ii) be bound by, and hereby
confirms, all covenants, agreements, consents, submissions, appointments and
acknowledgements attributable to a Purchaser in the Subscription Agreement and
(iii) perform all obligations required of it as a Purchaser by the Subscription
Agreement.
(b) Each of the Company and the Original Purchasers
consents, upon the terms and conditions set forth herein, to the joinder of the
New Purchaser and each New WCAS Purchaser to the Subscription Agreement.
(c) Each of WCAS, FFC and the New Purchaser waives
any "Co-Purchase Rights" it has or may have had, pursuant to the letter,
dated as of September 25, 2001, by and among the WCAS, FFC and the New
Purchaser, in connection with the sale by the Company of the Purchased Units
or Catch-up Units.
3. Amendments. (a) The first paragraph of the
Subscription Agreement is hereby amended by deleting the text "and the several
purchasers listed on Annex I hereto" appearing therein and inserting in lieu
thereof the text 'and the several purchasers (other than WCAS IX) listed under
the caption "WCAS Purchasers" on Annex I hereto'.
(b) The definition of "New Common Units" appearing in
the third paragraph of the Preamble to the Subscription Agreement is hereby
amended by deleting the text "36,666,666 Common Units" appearing therein and
inserting in lieu thereof the text "38,888,888 Common Units".
(c) Section 4.01(c) of the Subscription Agreement is
hereby amended by deleting the text "Article III" appearing therein and
inserting in lieu thereof the text "Article II".
(d) Section 6.05 of the Subscription Agreement is
hereby amended by deleting it in its entirety and inserting in lieu thereof the
following:
"SECTION 6.05. Entire Agreement; Modifications. This Agreement
(including the Annexes and Schedules hereto) constitutes the entire
agreement of the parties with respect to the subject matter hereof and
may not be amended or modified nor any provisions waived except in a
writing signed by the Company, WCAS IX and each other Purchaser (other
than WCAS)."
2
(d) Annex I of the Subscription Agreement is hereby
amended by deleting it in its entirety and inserting in lieu thereof Annex I
attached hereto.
4. Purchase and Sale of Catch-up Units. Subject to the
accuracy of the representations and warranties in Section 5 below and the
fulfillment (or waiver at the option of the New Purchaser) of each of the
conditions set forth in Section 4.01 of the Subscription Agreement, on the date
hereof the Company shall issue and sell to the New Purchaser, and the New
Purchaser shall purchase from the Company, the Catch-up Units at a purchase
price equal to $4.50 per Catch-up Unit, and the Company shall cause Annex A to
the LLC Agreement to be revised to reflect the issuance of the Catch-up Units.
As payment in full for the Catch-up Units, the New Purchaser shall transfer, by
wire transfer to the account or accounts designated by the Company on the date
hereof, $6,666,664.50; provided, that, the purchase and sale of the Catch-up
Units shall be deemed to be a Closing under the Subscription Agreement and
subject to all applicable terms and conditions thereof; provided, further, that
the Original Purchasers, New Purchaser and New WCAS Purchasers agree to waive
the requirements of Section 4.01(i) of the Subscription Agreement with respect
to any Closing thereunder.
5. Representations and Warranties. The New Purchaser and
each New WCAS Purchaser hereby represents and warrants that the representations
and warranties with respect to it contained in, or made or deemed made by it in
Article III of the Subscription Agreement are true and correct on the date
hereof.
6. Expenses, Etc. The Company shall pay its own expenses
and all fees and expenses of the New Purchaser and New WCAS Purchasers incident
to the negotiation, preparation and execution of this Amendment, including
the fees and expenses of counsel, accountants or other advisors.
7. Notice. For purposes of Section 6.04 of the
Subscription Agreement, the address for WCAS shall be the address used for
notices to the New WCAS Purchasers, and the following address shall be used for
notices to the New Purchaser:
BancAmerica Capital Investors I, L.P.
100 North Tryon Street, Suite 2500
Charlotte, NC 28255
Attention: Mr. Walker Poole
Facsimile: (704) 386-6432
8. Governing Law. This Amendment shall be governed by,
and construed and interpreted in accordance with, the laws of the State of New
York.
********
3
IN WITNESS WHEREOF, each of the undersigned has caused this
Amendment to be duly executed and delivered by its proper and duly authorized
officer as of the date first set forth above.
New Purchaser:
BANCAMERICA CAPITAL INVESTORS I, L.P.
By: BancAmerica Capital Management I, L.P., its
general partner
By: BACM I GP, LLC, its general partner
By: /s/ Walker L. Poole
-------------------------------------------------
Name: Walker L. Poole
Title: Managing Director
New WCAS Purchasers:
John Clark
By: /s/ Jonathan M. Rather
-------------------------------------------------
Jonathan M. Rather, Individually
and as Attorney-in-Fact
WCAS MANAGEMENT CORPORATION
By: /s/ Jonathan M. Rather
-------------------------------------------------
Name: Jonathan M. Rather
Title: Treasurer
The Company:
ARDENT HEALTH SERVICES LLC
By: /s/ William P. Barnes
-------------------------------
Name: William P. Barnes
Title: Sr. Vice President and
Chief Financial Officer
The Original Purchasers:
WELSH, CARSON, ANDERSON &
STOWE IX, L.P.
By: WCAS IX Associates, L.L.C.,
General Partner
By: /s/ Jonathan M. Rather
-----------------------
Name: Jonathan M. Rather
Title: Managing Member
John Almeida
Bruce K. Anderson
Russell L. Carson
Anthony J. de Nicola
Michael Donovan
Michael Gerstner
IRA - f/b/o John Clark
IRA - f/b/o James R. Mathews
IRA - f/b/o Jonathan M. Rather
Eric J. Lee
D. Scott Mackesy
Thomas E. McInerney
Robert A. Minicucci
Paul E. Queally
Sanjay Swani
Sean Traynor
Patrick J. Welsh
By: /s/ Jonathan M. Rather
--------------------------------
Jonathan M. Rather, Individually
and as Attorney-in-Fact
By: /s/ Jonathan M. Rather
-------------------------------
Jonathan M. Rather, Individually
and as Attorney-in-Fact
WCAS HEALTHCARE PARTNERS, L.P.
By: WCAS HP Partners, General Partner
By: /s/ Jonathan M. Rather
------------------------------------------
Name: Jonathan M. Rather, Attorney-in-Fact
FFC PARTNERS II, L.P.
By: FFC GP II, LLC, General Partner
BY: /s/ Carlos Ferrer
---------------------------------
Name: Carlos Ferrer
Title: Member
FFC EXECUTIVE PARTNERS II, L.P.
By: FFC EXECUTIVE GP II, LLC as General Partner
By: /s/ Carlos Ferrer
------------------------------------
Name: Carlos Ferrer
Title: Member
ANNEX I
[Intentionally Omitted]
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed as of: | | 10/31/03 | | | | | | | None on these Dates |
| Filed on: | | 10/30/03 |
| | 2/7/03 | | 23 |
| | 12/11/02 | | 1 | | 23 |
| | 9/30/02 | | 10 |
| | 12/31/01 | | 10 |
| | 9/25/01 | | 6 | | 24 |
| List all Filings |
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