<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 2, 2000
REGISTRATION NO. 333-31790
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
COMMUNITY HEALTH SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 8062 13-3893191
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification
incorporation or organization) Classification Code Number) Number)
</TABLE>
--------------------------
155 FRANKLIN ROAD, SUITE 400
BRENTWOOD, TENNESSEE 37027
(615) 373-9600
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
--------------------------
RACHEL A. SEIFERT
155 FRANKLIN ROAD, SUITE 400
BRENTWOOD, TENNESSEE 37027
(615) 373-9600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------------------
COPIES TO:
<TABLE>
<S> <C>
JEFFREY BAGNER MICHAEL W. BLAIR
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON DEBEVOISE & PLIMPTON
ONE NEW YORK PLAZA 875 THIRD AVENUE
NEW YORK, NEW YORK 10004 NEW YORK, NEW YORK 10022
(212) 859-8000 (212) 909-6000
</TABLE>
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after the effective date of this registration statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act,
check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH CLASS OF SECURITIES PROPOSED MAXIMUM AGGREGATE
TO BE REGISTERED OFFERING PRICE (1) AMOUNT OF REGISTRATION FEE (2)
<S> <C> <C>
COMMON STOCK, $.01 PAR VALUE $345,000,000 $91,080(3)
</TABLE>
(1) A portion of the proposed maximum aggregate offering price represents shares
that are to be offered outside the United States but that may be resold from
time to time in the United States. Such shares are not being registered for
the purpose of sales outside the United States.
(2) Estimated pursuant to Rule 457(o) solely for the purpose of calculating the
registration fee.
(3) Previously paid.
------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This registration statement contains two separate prospectuses. The first
prospectus relates to a public offering in the United States and Canada of an
aggregate of 15,937,500 shares of common stock. The second prospectus relates to
a concurrent offering outside the United States and Canada of an aggregate of
2,812,500 shares of common stock. The prospectuses for each of the U.S. offering
and the international offering will be identical with the exception of an
alternate front cover page, an alternate back cover page, and an alternate
"Underwriting" section for the international offering. These alternate pages
appear in this registration statement immediately following the complete
prospectus for the U.S. offering.
<PAGE>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED MAY 2, 2000
PROSPECTUS
18,750,000 SHARES
[LOGO]
COMMON STOCK
--------------
This is Community Health Systems, Inc.'s initial public offering. We are
selling all of the shares. The U.S. underwriters are offering 15,937,500 shares
in the U.S. and Canada and the international managers are offering 2,812,500
shares outside the U.S. and Canada.
We expect the public offering price to be between $15.00 and $17.00 per
share. Currently, no public market exists for the shares. After pricing of the
offering, we expect that the shares will trade on the New York Stock Exchange
under the symbol "CYH."
INVESTING IN THE COMMON STOCK INVOLVES RISKS WHICH ARE DESCRIBED IN THE
"RISK FACTORS" SECTION BEGINNING ON PAGE 8 OF THIS PROSPECTUS.
-----------------
<TABLE>
<CAPTION>
PER SHARE TOTAL
--------- -----
<S> <C> <C>
Public offering price...................................... $ $
Underwriting discount...................................... $ $
Proceeds before expenses to Community Health Systems....... $ $
</TABLE>
The U.S. underwriters may also purchase up to an additional 2,390,625 shares
from us at the public offering price, less the underwriting discount, within
30 days from the date of this prospectus to cover over-allotments. The
international managers may similarly purchase up to an additional 421,875 shares
from us.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The shares will be ready for delivery on or about , 2000.
-------------------
MERRILL LYNCH & CO.
BANC OF AMERICA SECURITIES LLC
CHASE H&Q
CREDIT SUISSE FIRST BOSTON
GOLDMAN, SACHS & CO.
MORGAN STANLEY DEAN WITTER
-------------------
The date of this prospectus is , 2000.
<PAGE>
[INSIDE FRONT COVER]
[DESCRIPTION OF ARTWORK: MAP OF THE UNITED STATES INDICATING LOCATIONS OF OUR
FACILITIES]
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
Prospectus Summary.......................................... 1
Risk Factors................................................ 8
Special Note Regarding Forward-Looking Statements........... 13
Use of Proceeds............................................. 14
Dividend Policy............................................. 14
Capitalization.............................................. 15
Dilution.................................................... 16
Selected Consolidated Financial and Other Data.............. 17
Management's Discussion and Analysis of Financial Condition
and Results of Operations................................. 21
Business of Community Health Systems........................ 32
Management.................................................. 55
Principal Stockholders...................................... 65
Description of Indebtedness................................. 67
Description of Capital Stock................................ 68
Shares Eligible for Future Sale............................. 72
United States Federal Tax Considerations for Non-United
States Holders............................................ 73
Underwriting................................................ 77
Legal Matters............................................... 81
Experts..................................................... 81
Where You Can Find More Information......................... 81
Index to Consolidated Financial Statements.................. F-1
</TABLE>
i
<PAGE>
PROSPECTUS SUMMARY
YOU SHOULD READ THE ENTIRE PROSPECTUS CAREFULLY, ESPECIALLY THE RISKS OF
INVESTING IN OUR COMMON STOCK DISCUSSED UNDER RISK FACTORS.
COMMUNITY HEALTH SYSTEMS
OVERVIEW OF OUR COMPANY
We are the largest non-urban provider of general hospital healthcare
services in the United States in terms of number of facilities and the second
largest in terms of revenues. As of April 30, 2000, we owned, leased or operated
49 hospitals, geographically diversified across 20 states, with an aggregate of
4,348 licensed beds. In over 80% of our markets, we are the sole provider of
general hospital healthcare services. In most of our other markets, we are one
of two providers of these services. For the fiscal year ended December 31, 1999,
we generated $1.08 billion in revenues.
Affiliates of Forstmann Little & Co. formed us in 1996 to acquire our
predecessor company. Wayne T. Smith, who has over 30 years of experience in the
healthcare industry, joined our company in January 1997. Under this new
ownership and leadership, we have:
- strengthened the senior management team in all key business areas;
- standardized and centralized our operations across key business areas;
- implemented a disciplined acquisition program;
- expanded and improved the services and facilities at our hospitals;
- recruited additional physicians to our hospitals;
- instituted a company-wide regulatory compliance program; and
- divested certain non-core assets.
As a result of these initiatives, we achieved revenue growth of 26.4% in 1999
and 15.1% in 1998.
We target growing, non-urban healthcare markets because of their favorable
demographic and economic trends and competitive conditions. Because non-urban
service areas have smaller populations, there are generally fewer hospitals and
other healthcare service providers in each community. We believe that smaller
populations result in less direct competition for hospital-based services. Also,
we believe that non-urban communities generally view the local hospital as an
integral part of the community. There is generally a lower level of managed care
presence in these markets.
OUR BUSINESS STRATEGY
The key elements of our business strategy are to:
- INCREASE REVENUE AT OUR FACILITIES. We seek to increase our share of the
healthcare dollars spent by local residents and limit inpatient and
outpatient migration to larger urban facilities. Our initiatives to
increase revenue include:
u recruiting additional primary care physicians and specialists;
u expanding the breadth of services offered at our hospitals through
targeted capital expenditures; and
u providing the capital to invest in our facilities, particularly in our
emergency rooms.
- GROW THROUGH SELECTIVE ACQUISITIONS. Each year we intend to selectively
acquire two to four hospitals. We pursue acquisition candidates that:
u have a general service area population between 20,000 and 80,000 with a
stable or growing population base;
1
<PAGE>
u are the sole or primary provider of general hospital services in the
community;
u are located more than 25 miles from a competing hospital;
u are not located in an area that is dependent upon a single employer or
industry; and
u have financial performance that we believe will benefit from our
management's operating skills.
We estimate that there are currently approximately 400 hospitals that
meet our acquisition criteria. These hospitals are primarily
not-for-profit or municipally owned.
- REDUCE COSTS. To improve efficiencies and increase margins, we implement
cost containment programs which include:
u standardizing and centralizing our operations;
u optimizing resource allocation by utilizing our company-devised case and
resource management program;
u capitalizing on purchasing efficiencies;
u installing a standardized management information system; and
u managing staffing levels.
- IMPROVE QUALITY. We implement new programs to improve the quality of care
provided. These include training programs, sharing of best practices,
assistance in complying with regulatory requirements, standardized
accreditation documentation, and patient, physician, and staff
satisfaction surveys.
RECENT DEVELOPMENTS
Since December 31, 1999, we acquired three additional hospitals, increasing
the number of hospitals we own, lease, or operate to 49 as of April 30, 2000. We
acquired all three hospitals from tax-exempt entities for an aggregate
consideration of approximately $35 million. Each of these hospitals is the sole
provider of general hospital services in its community.
INDUSTRY OVERVIEW
Hospital services is the largest single category of healthcare expenditures
at 33.7% of total healthcare spending in 1999, or $401.3 billion. The U.S.
Health Care Financing Administration projects the hospital services category to
grow by 5.7% per year through 2008.
According to the American Hospital Association, there are approximately
5,015 hospitals in the U.S. that are owned by not-for-profit entities,
for-profit investors, or state or local governments. Of these hospitals, 44%, or
approximately 2,200, are located in non-urban areas.
------------------------
At the closing of the offering, we will have only one class of common stock.
To achieve this, we will effect a recapitalization immediately before the
closing of the offering. The recapitalization includes the exchange of Class B
common stock for Class A common stock, the exchange of options to acquire
Class C common stock for options to acquire Class A common stock, the
redesignation of Class A common stock as common stock, and a 118.7148-for-1
split of our common stock. Unless otherwise indicated, all information in this
prospectus gives effect to the recapitalization. See "Description of Capital
Stock--Overview."
We were incorporated in Delaware in 1996. Our principal subsidiary was
incorporated in Delaware in 1985. Our principal executive offices are located at
155 Franklin Road, Suite 400, Brentwood, Tennessee 37027. Our telephone number
at that address is (615) 373-9600. Our World Wide Web site address is
www.chs.net. The information in the website is not intended to be incorporated
into this prospectus by reference and should not be considered a part of this
prospectus.
2
<PAGE>
THE OFFERING
<TABLE>
<S> <C>
Common stock offered by Community Health
Systems:
U.S. offering.............................. 15,937,500 shares
International offering..................... 2,812,500 shares
---------------
Total.................................... 18,750,000 shares
Common stock to be outstanding after the
offering................................... 74,342,832 shares (a)
Use of proceeds.............................. Our net proceeds from the offering are
estimated to be approximately
$279.0 million. We will use these proceeds to
repay senior debt, including approximately
$60.3 million of senior debt held by
affiliates of the underwriters.
Risk factors................................. See "Risk Factors" and other information
included in this prospectus for a discussion
of factors you should carefully consider
before deciding to invest in shares of our
common stock.
Proposed NYSE symbol......................... CYH
</TABLE>
- ------------------------
(a) Excludes 5,238,406 shares of common stock we have reserved for issuance
under our stock option plans. Of these reserved shares, 738,406 shares are
issuable upon exercise of outstanding stock options at an average exercise
price of $7.23.
If our value changes significantly prior to the pricing of the offering, we
will change the split ratio and exchange rates indicated in this preliminary
prospectus to reflect the fair values of the shares. If that occurs, the number
of our outstanding shares and the number of shares held by each of our
stockholders reflected in this preliminary prospectus will change. We will
reflect the actual split ratio, exchange rates, and share numbers in the final
prospectus.
Unless we specifically state otherwise, the information in this prospectus
does not take into account the sale of up to 2,812,500 shares of common stock
which the underwriters have the option to purchase from us to cover
over-allotments.
3
<PAGE>
SUMMARY CONSOLIDATED FINANCIAL AND OTHER DATA
You should read the summary consolidated financial and other data below in
conjunction with our consolidated financial statements and the accompanying
notes. We derived the historical financial data for the three years ended
December 31, 1999 from our audited consolidated financial statements. We derived
the historical financial data for the three months ended March 31, 1999 and
March 31, 2000, and as of March 31, 2000, from our unaudited interim condensed
consolidated financial statements. You should also read Selected Consolidated
Financial and Other Data and the accompanying Management's Discussion and
Analysis of Financial Condition and Results of Operations. All of these
materials are contained later in this prospectus. The pro forma consolidated
statement of operations data reflects the offering and the use of the estimated
net proceeds from the offering to repay a portion of outstanding debt as if
these events had occurred on January 1, 1999 for the year ended December 31,
1999 and on January 1, 2000 for the three months ended March 31, 2000. The pro
forma consolidated balance sheet data give effect to these events as if they had
occurred on March 31, 2000.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, THREE MONTHS ENDED MARCH 31,
--------------------------------------------------------- ---------------------------------------
PRO FORMA
PRO FORMA -----------
1997 1998 1999 1999(a) 1999 2000 2000(A)
----------- ------------ ----------- -------------- ----------- ----------- -----------
(DOLLARS IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
CONSOLIDATED
STATEMENT OF
OPERATIONS DATA
Net operating
revenues......... $ 742,350 $ 854,580 $ 1,079,953 $ 1,079,953 $ 263,004 $ 308,651 $ 308,651
Operating expenses
(b).............. 620,112 688,190 875,768 875,768 210,734 248,570 248,570
Depreciation and
amortization..... 43,753 49,861 56,943 56,943 13,033 16,380 16,380
Amortization of
goodwill......... 25,404 26,639 24,708 24,708 5,677 6,168 6,168
Impairment of
long-lived
assets........... -- 164,833 -- -- -- -- --
Compliance
settlement and
Year 2000
remediation costs
(c).............. -- 20,209 17,279 17,279 300 -- --
----------- ------------ ----------- ----------- ----------- ----------- -----------
Income (loss) from
operations....... 53,081 (95,152) 105,255 105,255 33,260 37,533 37,533
Interest expense,
net.............. 89,753 101,191 116,491 94,963 26,762 32,683 26,943
----------- ------------ ----------- ----------- ----------- ----------- -----------
Income (loss)
before cumulative
effect of a
change in
accounting
principle and
income taxes..... (36,672) (196,343) (11,236) 10,292 6,498 4,850 10,590
Provision for
(benefit from)
income taxes..... (4,501) (13,405) 5,553 13,949 4,580 3,929 6,168
----------- ------------ ----------- ----------- ----------- ----------- -----------
Income (loss)
before cumulative
effect of a
change in
accounting
principle........ (32,171) (182,938) (16,789) (3,657) 1,918 921 4,422
Cumulative effect
of a change in
accounting
principle, net of
taxes............ -- (352) -- -- -- -- --
----------- ------------ ----------- ----------- ----------- ----------- -----------
Net income (loss).. $ (32,171) $ (183,290) $ (16,789) $ (3,657) $ 1,918 $ 921 $ 4,422
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, THREE MONTHS ENDED MARCH 31,
--------------------------------------------------------- ---------------------------------------
PRO FORMA
PRO FORMA -----------
1997 1998 1999 1999(a) 1999 2000 2000(A)
----------- ------------ ----------- -------------- ----------- ----------- -----------
(DOLLARS IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
=========== ============ =========== =========== =========== =========== ===========
Basic income (loss)
per common share:
Income (loss)
before
cumulative
effect of a
change in
accounting
principle...... $ (0.60) $ (3.39) $ (0.31) $ (0.05) $ 0.04 $ 0.02 $ 0.06
Cumulative effect
of a change in
accounting
principle...... -- (0.01) -- -- -- -- --
----------- ------------ ----------- ----------- ----------- ----------- -----------
Net income
(loss)......... $ (0.60) $ (3.40) $ (0.31) $ (0.05) $ 0.04 $ 0.02 $ 0.06
=========== ============ =========== =========== =========== =========== ===========
Diluted income
(loss) per common
share:
Income (loss)
before
cumulative
effect of a
change in
accounting
principle...... $ (0.60) $ (3.39) $ (0.31) $ (0.05) $ 0.03 $ 0.02 $ 0.06
Cumulative effect
of a change in
accounting
principle...... -- (0.01) -- -- -- -- --
----------- ------------ ----------- ----------- ----------- ----------- -----------
Net income
(loss)......... $ (0.60) $ (3.40) $ (0.31) $ (0.05) $ 0.03 $ 0.02 $ 0.06
=========== ============ =========== =========== =========== =========== ===========
Weighted-average
number of shares
outstanding (d):
Basic............ 53,568,891 53,892,388 54,258,465 73,008,481 54,128,085 54,369,202 73,119,202
=========== ============ =========== =========== =========== =========== ===========
Diluted.......... 53,568,891 53,892,388 54,258,465 73,008,481 55,607,631 55,857,980 74,607,980
=========== ============ =========== =========== =========== =========== ===========
CONSOLIDATED
BALANCE SHEET
DATA (AS OF END
OF PERIOD)
Cash and cash equivalents................................................................. $ 10,885 $ 10,885
Total assets.............................................................................. 1,935,730 1,935,730
Long-term obligations..................................................................... 1,488,018 1,209,018
Stockholders' equity...................................................................... 230,694 509,694
</TABLE>
(FOOTNOTES BEGIN ON FOLLOWING PAGE)
5
<PAGE>
SELECTED OPERATING DATA
The following table sets forth operating statistics for our hospitals for
each of the periods presented. Statistics for 1997 include a full year of
operations for 36 hospitals, including one hospital acquired on January 1, 1997,
and a partial period for one hospital acquired during the year. Statistics for
1998 include a full year of operations for 37 hospitals and partial periods for
four hospitals acquired during the year. Statistics for 1999 include a full year
of operations for 41 hospitals and partial periods for four hospitals acquired,
and one hospital constructed and opened, during the year. Statistics for the
three months ended March 31, 1999 include operations for 41 hospitals and
partial periods for two hospitals acquired. Statistics for the three months
ended March 31, 2000 include operations for 46 hospitals and partial periods for
one hospital acquired.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
------------------------------------------ ---------------------
1997 1998 1999 1999 2000
---------- ---------- ---------- --------- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Number of hospitals (e)......................... 37 41 46 43 47
Licensed beds (e)(f)............................ 3,288 3,644 4,115 3,903 4,223
Beds in service (e)(g).......................... 2,543 2,776 3,123 2,847 3,207
Admissions (h).................................. 88,103 100,114 120,414 31,516 34,704
Adjusted admissions (i)......................... 153,618 177,075 217,006 53,637 62,309
Patient days (j)................................ 399,012 416,845 478,658 131,698 138,473
Average length of stay (days) (k)............... 4.5 4.2 4.0 4.2 4.0
Occupancy rate (beds in service) (l)............ 43.1% 43.3% 44.1% 51.4% 47.4%
Net inpatient revenue as a % of total net
revenue....................................... 57.3% 55.7% 52.7% 55.5% 52.4%
Net outpatient revenue as a % of total net
revenue....................................... 41.5% 42.6% 45.5% 42.9% 45.8%
Adjusted EBITDA (m)............................. $122,238 $ 166,390 $ 204,185 $ 52,270 $ 60,081
Adjusted EBITDA as a % of net revenue........... 16.5% 19.5% 18.9% 19.9% 19.5%
Net cash flows provided by (used in) operating
activities.................................... $ 21,544 $ 15,719 $ (11,746) $ (18,860) $ (4,945)
Net cash flows used in investing activities..... $(76,651) $(236,553) $(155,541) $ (66,143) $ (38,423)
Net cash flows provided by financing
activities.................................... $ 36,182 $ 219,890 $ 164,850 $ 89,595 $ 49,971
</TABLE>
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, PERCENTAGE MARCH 31, PERCENTAGE
-------------------------- INCREASE ------------------------ INCREASE
1998 1999 (DECREASE) 1999 2000 (DECREASE)
---------- ---------- ---------- --------- --------- ----------
(DOLLARS IN THOUSANDS) (DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
SAME HOSPITALS DATA (n)
Admissions (h).................... 100,114 105,053 4.9% 30,798 31,307 1.7%
Adjusted admissions (i)........... 177,075 190,661 7.7% 52,488 55,878 6.5%
Patient days (j).................. 416,845 419,942 0.7% 128,520 124,251 (3.3%)
Average length of stay (days)
(k)............................. 4.2 4.0 (4.8%) 4.2 4.0 (4.8%)
Occupancy rate (beds in
service) (l).................... 43.3% 43.5% 52.2% 48.6%
Net revenue....................... $850,980 $915,811 7.6% $ 254,976 $ 275,273 8.0%
Adjusted EBITDA (m)............... $160,611 $180,794 12.6% $ 49,995 $ 57,013 14.1%
Adjusted EBITDA, as a % of net
revenue......................... 18.9% 19.7% 19.6% 20.7%
</TABLE>
- ------------------------------
(a) Reflects the offering, the application of the estimated net proceeds from
the offering to repay debt of $279.0 million based upon outstanding debt
balances as of December 31, 1999 and March 31, 2000, and the resultant
reduction of interest expense of $21.5 million for the year ended
December 31, 1999 as if these events had occurred on January 1, 1999 and
$5.7 million for the three months ended March 31, 2000 as if these events
had occurred on January 1, 2000. Also reflects an increase in provision for
income taxes of $8.4 million for the year ended December 31, 1999 and
$2.2 million for the three months ended March 31, 2000 resulting from the
decrease in interest expense. See "Use of Proceeds" and note (e) to the
"Selected Consolidated Financial and Other Data."
(b) Operating expenses include salaries and benefits, provision for bad debts,
supplies, rent, and other operating expenses, and exclude the items that are
excluded for purposes of determining adjusted EBITDA as discussed in
footnote (m) on the next page.
(c) Includes Year 2000 remediation costs of $0.2 million in 1998 and
$3.3 million in 1999.
(FOOTNOTES CONTINUED ON FOLLOWING PAGE)
6
<PAGE>
(FOOTNOTES CONTINUED FROM PREVIOUS PAGE)
(d) See notes 10 and 14 to the consolidated financial statements.
(e) At end of period.
(f) Licensed beds are the number of beds for which the appropriate state agency
licenses a facility regardless of whether the beds are actually available
for patient use.
(g) Beds in service are the number of beds that are readily available for
patient use.
(h) Admissions represent the number of patients admitted for inpatient
treatment.
(i) Adjusted admissions is a general measure of combined inpatient and
outpatient volume. We computed adjusted admissions by multiplying admissions
by gross patient revenues and then dividing that number by gross inpatient
revenues.
(j) Patient days represent the total number of days of care provided to
inpatients.
(k) Average length of stay (days) represents the average number of days
inpatients stay in our hospitals.
(l) We calculated percentages by dividing the average daily number of inpatients
by the weighted average of beds in service.
(m) We define adjusted EBITDA as EBITDA adjusted to exclude cumulative effect of
a change in accounting principle, impairment of long-lived assets,
compliance settlement and Year 2000 remediation costs, and loss from
hospital sales. EBITDA consists of income (loss) before interest, income
taxes, depreciation and amortization, and amortization of goodwill. EBITDA
and adjusted EBITDA should not be considered as measures of financial
performance under generally accepted accounting principles. Items excluded
from EBITDA and adjusted EBITDA are significant components in understanding
and assessing financial performance. EBITDA and adjusted EBITDA are key
measures used by management to evaluate our operations and provide useful
information to investors. EBITDA and adjusted EBITDA should not be
considered in isolation or as alternatives to net income, cash flows
generated by operations, investing or financing activities, or other
financial statement data presented in the consolidated financial statements
as indicators of financial performance or liquidity. Because EBITDA and
adjusted EBITDA are not measurements determined in accordance with generally
accepted accounting principles and are thus susceptible to varying
calculations, EBITDA and adjusted EBITDA as presented may not be comparable
to other similarly titled measures of other companies.
(n) Includes acquired hospitals to the extent we operated them during comparable
periods in both years.
7
<PAGE>
RISK FACTORS
IF FEDERAL OR STATE HEALTHCARE PROGRAMS OR MANAGED CARE COMPANIES REDUCE THE
PAYMENTS WE RECEIVE AS REIMBURSEMENT FOR SERVICES WE PROVIDE, OUR REVENUES MAY
DECLINE.
A large portion of our revenues come from the Medicare and Medicaid
programs. In recent years, federal and state governments made significant
changes in the Medicare and Medicaid programs. These changes have decreased the
amount of money we receive for our services relating to these programs.
In recent years, Congress and some state legislatures have introduced an
increasing number of other proposals to make major changes in the healthcare
system. Future federal and state legislation may further reduce the payments we
receive for our services.
In addition, insurance and managed care companies and other third parties
from whom we receive payment for our services increasingly are attempting to
control healthcare costs by requiring that hospitals discount their services in
exchange for exclusive or preferred participation in their benefit plans. We
believe that this trend may continue and may reduce the payments we receive for
our services.
IF WE FAIL TO COMPLY WITH EXTENSIVE LAWS AND GOVERNMENT REGULATIONS, WE COULD
SUFFER PENALTIES OR BE REQUIRED TO MAKE SIGNIFICANT CHANGES TO OUR OPERATIONS.
The healthcare industry is required to comply with many laws and regulations
at the federal, state, and local government levels. These laws and regulations
require that hospitals meet various requirements, including those relating to
the adequacy of medical care, equipment, personnel, operating policies and
procedures, maintenance of adequate records, compliance with building codes, and
environmental protection. If we fail to comply with applicable laws and
regulations, we could suffer civil or criminal penalties, including the loss of
our licenses to operate and our ability to participate in the Medicare,
Medicaid, and other federal and state healthcare programs.
In addition, there are heightened coordinated civil and criminal enforcement
efforts by both federal and state government agencies relating to the healthcare
industry, including the hospital segment. The ongoing investigations relate to
various referral, cost reporting, and billing practices, laboratory and home
healthcare services, and physician ownership and joint ventures involving
hospitals.
In the future, different interpretations or enforcement of these laws and
regulations could subject our current practices to allegations of impropriety or
illegality or could require us to make changes in our facilities, equipment,
personnel, services, capital expenditure programs, and operating expenses.
IF WE FAIL TO COMPLY WITH THE MATERIAL TERMS OF OUR CORPORATE COMPLIANCE
AGREEMENT, WE COULD BE EXCLUDED FROM GOVERNMENT HEALTHCARE PROGRAMS.
In December 1997, we approached the Office of Inspector General of the U.S.
Department of Health and Human Services and made a voluntary disclosure
regarding reimbursements we received from the U.S. government programs from 1993
to 1997. The disclosure related to possible inaccurate practices and policies
for the assignment of billing codes for inpatient services. We have executed a
settlement agreement with the U.S. Department of Justice and the Inspector
General under the terms of which we will pay approximately $31 million to the
appropriate governmental agencies in exchange for a release of civil claims
relating to these reimbursements. The settlement agreement has been executed by
the federal government and the Department of Justice has advised us that all
applicable state Medicaid programs have agreed to its terms.
8
<PAGE>
As part of this settlement, we entered into a corporate compliance agreement
with the Inspector General. Complying with our corporate compliance agreement
will require additional efforts and costs. Our failure to comply with the terms
of the compliance agreement could subject us to civil and criminal penalties,
including significant fines. In addition, failure to comply with the material
terms of the compliance agreement could lead to suspension or disbarment from
further participation in the federal and state healthcare programs, including
Medicare and Medicaid. Any suspension or disbarment would restrict our ability
to treat patients and receive reimbursement from these programs. See "Business
of Community Health Systems--Compliance Program."
IF COMPETITION DECREASES OUR ABILITY TO ACQUIRE ADDITIONAL HOSPITALS ON
FAVORABLE TERMS, WE MAY BE UNABLE TO EXECUTE OUR ACQUISITION STRATEGY.
An important part of our business strategy is to acquire two to four
hospitals each year in non-urban markets. However, not-for-profit hospital
systems and other for-profit hospital companies generally attempt to acquire the
same type of hospitals as we do. Some of these other purchasers have greater
financial resources than we do. Our principal competitors for acquisitions
include Health Management Associates, Inc. and Province Healthcare Company. In
addition, some hospitals are sold through an auction process, which may result
in higher purchase prices than we believe are reasonable. Therefore, we may not
be able to acquire additional hospitals on terms favorable to us.
IF WE FAIL TO IMPROVE THE OPERATIONS OF ACQUIRED HOSPITALS, WE MAY BE UNABLE TO
ACHIEVE OUR GROWTH STRATEGY.
Some of the hospitals we have acquired had operating losses prior to the
time we acquired them. We may be unable to operate profitably any hospital or
other facility we may acquire, effectively integrate the operations of any
acquisitions, or otherwise achieve the intended benefit of our growth strategy.
IF WE ACQUIRE HOSPITALS WITH UNKNOWN OR CONTINGENT LIABILITIES, WE COULD BECOME
LIABLE FOR MATERIAL OBLIGATIONS.
Hospitals that we acquire may have unknown or contingent liabilities,
including liabilities for failure to comply with healthcare laws and
regulations. Although we seek indemnification from prospective sellers covering
these matters, we may nevertheless have material liabilities for past activities
of acquired hospitals.
STATE EFFORTS TO REGULATE THE SALE OF HOSPITALS OPERATED BY NOT-FOR-PROFIT
ENTITIES COULD PREVENT US FROM ACQUIRING ADDITIONAL HOSPITALS AND EXECUTING OUR
BUSINESS STRATEGY.
Many states, including some where we have hospitals and others where we may
in the future acquire hospitals, have adopted legislation regarding the sale or
other disposition of hospitals operated by not-for-profit entities. In other
states that do not have specific legislation, the attorneys general have
demonstrated an interest in these transactions under their general obligations
to protect charitable assets from waste. These legislative and administrative
efforts focus primarily on the appropriate valuation of the assets divested and
the use of the proceeds of the sale by the non-profit seller. While these review
and, in some instances, approval processes can add additional time to the
closing of a hospital acquisition, we have not had any significant difficulties
or delays in completing acquisitions. However, future actions on the state level
could seriously delay or even prevent our ability to acquire hospitals.
9
<PAGE>
STATE EFFORTS TO REGULATE THE CONSTRUCTION, ACQUISITION OR EXPANSION OF
HOSPITALS COULD PREVENT US FROM ACQUIRING ADDITIONAL HOSPITALS, RENOVATING OUR
FACILITIES OR EXPANDING THE BREADTH OF SERVICES WE OFFER.
Some states require prior approval for the construction or acquisition of
healthcare facilities and for the expansion of healthcare facilities and
services. In giving approval, these states consider the need for additional or
expanded healthcare facilities or services. In some states in which we operate,
we are required to obtain certificates of need, known as CONs, for capital
expenditures exceeding a prescribed amount, changes in bed capacity or services,
and certain other matters. Other states may adopt similar legislation. We may
not be able to obtain the required CONs or other prior approvals for additional
or expanded facilities in the future. In addition, at the time we acquire a
hospital, we may agree to replace or expand the facility we are acquiring. If we
are not able to obtain required prior approvals, we would not be able to acquire
additional hospitals and expand healthcare services.
BECAUSE OF OUR SIGNIFICANT INDEBTEDNESS, OUR OPERATIONAL AND CAPITAL FLEXIBILITY
COULD BE LIMITED.
As of March 31, 2000, on a pro forma basis after giving effect to the use of
the net proceeds of the offering, we had total long term debt of $1,184 million
or approximately 70.0% of our total capitalization.
Our acquisition program requires substantial capital resources. In addition,
the operations of our existing hospitals require ongoing capital expenditures.
We may need to incur additional indebtedness to fund these acquisitions and
expenditures. However, we may be unable to obtain sufficient financing on terms
satisfactory to us.
The degree to which we are leveraged could have other important consequences
to holders of the common stock, including the following:
- a substantial portion of our cash flow from operations must be dedicated
to the payment of principal and interest on our indebtedness, reducing the
funds available for our operations;
- a portion of our borrowings are at variable rates of interest, which makes
us vulnerable to increases in interest rates; and
- our indebtedness contains numerous financial and other restrictive
covenants, including restrictions on paying dividends, incurring
additional indebtedness, and selling assets.
IF WE ARE UNABLE TO EFFECTIVELY COMPETE FOR PATIENTS, OUR SHARE OF THE
HEALTHCARE DOLLARS SPENT BY LOCAL RESIDENTS COULD BE REDUCED.
The hospital industry is highly competitive. In addition to the competition
we face for acquisitions and physicians, we must also compete with other
hospitals and healthcare providers for patients. The competition among hospitals
and other healthcare providers for patients has intensified in recent years. Our
hospitals are located in non-urban service areas. Most of our hospitals face no
direct competition because there are no other hospitals in their primary service
areas. However, these hospitals do face competition from hospitals outside of
their primary service area, including hospitals in urban areas that provide more
complex services. These facilities generally are located in excess of 25 miles
from our facilities. Patients in our primary service areas may travel to these
other hospitals for a variety of reasons. These reasons include physician
referrals or the need for services we do not offer. Patients who are required to
seek services from these other hospitals may subsequently shift their
preferences to those hospitals for the services we do provide.
Some of our hospitals operate in primary service areas where they compete
with one other hospital. One of our hospitals competes with more than one other
hospital in its primary service area. Some of these competing hospitals use
equipment and services more specialized than those available at our hospitals.
In addition, some of the hospitals that compete with us are owned by
tax-supported
10
<PAGE>
governmental agencies or not-for-profit entities supported by endowments and
charitable contributions. These hospitals can make capital expenditures without
paying sales, property and income taxes. We also face competition from other
specialized care providers, including outpatient surgery, orthopedic, oncology,
and diagnostic centers.
We expect that these competitive trends will continue. Our inability to
compete effectively with other hospitals and other healthcare providers could
reduce our share of the healthcare dollars spent by local residents in the
communities in which we operate. See "Business of Community Health
Systems--Competition."
IF WE BECOME SUBJECT TO SIGNIFICANT LEGAL ACTIONS, WE COULD BE SUBJECT TO
SUBSTANTIAL UNINSURED LIABILITIES.
In recent years, physicians, hospitals, and other healthcare providers have
become subject to an increasing number of legal actions alleging malpractice,
product liability, or related legal theories. Many of these actions involve
large claims and significant defense costs. To protect us from the cost of these
claims, we generally maintain professional malpractice liability insurance and
general liability insurance coverage in amounts and with deductibles that we
believe to be appropriate for our operations. However, our insurance coverage
may not cover all claims against us or continue to be available at a reasonable
cost for us to maintain adequate levels of insurance.
IF FUTURE CASH FLOWS ARE INSUFFICIENT TO RECOVER THE CARRYING VALUE OF OUR
GOODWILL, A MATERIAL NON-CASH CHARGE TO EARNINGS COULD RESULT.
The acquisition of our predecessor company in 1996 was paid for principally
in cash. We recorded a significant portion of the purchase price as goodwill. We
have also recorded as goodwill a portion of the purchase price for our
subsequent hospital acquisitions. At March 31, 2000, we had $876.7 million of
goodwill recorded on our books. We expect the carrying value of this goodwill to
be recovered through our future cash flows. On an ongoing basis, we evaluate,
based on projected undiscounted cash flows, whether all or a portion of the
carrying value of goodwill may no longer be recoverable. If future cash flows
are insufficient to recover the carrying value of our goodwill, we must write
off a portion of the unamortized balance of goodwill. In 1998, in connection
with our periodic review process, we determined that projected undiscounted cash
flows from seven of our hospitals were below the carrying value of the
long-lived assets associated with these hospitals. In accordance with generally
accepted accounting principles, we adjusted the carrying value of these assets
to their estimated fair value through an impairment charge of $164.8 million. Of
this charge, $134.3 million was related to goodwill. This impairment charge
arose from various circumstances that were unique to each of the hospitals and
adversely affected their prospects. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations."
BECAUSE THE INITIAL PUBLIC OFFERING PRICE OF OUR COMMON STOCK EXCEEDS OUR NET
TANGIBLE BOOK DEFICIT PER SHARE, INVESTORS WILL EXPERIENCE IMMEDIATE AND
SUBSTANTIAL DILUTION.
As a result of this offering, purchasers of the common stock in the offering
will experience dilution in the amount of $21.56 per share. On a pro forma
basis, our net tangible book deficit at March 31, 2000 would have been
$414 million, or $5.56 per share of common stock. Present stockholders will
experience an immediate and substantial decrease in net tangible book deficit in
the amount of $6.90 per share of common stock.
11
<PAGE>
IF OUR STOCK PRICE FLUCTUATES AFTER THE INITIAL OFFERING, YOU COULD LOSE A
SIGNIFICANT PART OF YOUR INVESTMENT.
Prior to the offering, there has been no public market for our common stock.
We intend to list our common stock on the NYSE. We do not know if an active
trading market will develop for our common stock or how the common stock will
trade in the future. The initial public offering price will be determined
through negotiations between the underwriters and us. You may not be able to
resell your shares at or above the initial public offering price due to
fluctuations in the market price of our common stock due to changes in our
operating performance or prospects.
In addition, the stock market in general has experienced extreme volatility
that often has been unrelated to the operating performance or prospects of
particular companies.
BECAUSE WE ARE CONTROLLED BY FORSTMANN LITTLE AND OUR MANAGEMENT, THEY WILL BE
ABLE TO DETERMINE THE OUTCOME OF ALL MATTERS SUBMITTED TO OUR STOCKHOLDERS FOR
APPROVAL, REGARDLESS OF THE PREFERENCES OF THE MINORITY STOCKHOLDERS.
Following the offering, the Forstmann Little partnerships and our management
will together own approximately three-fourths of our outstanding common stock.
Accordingly, they will be able to:
- elect our entire board of directors;
- control our management and policies; and
- determine, without the consent of our other stockholders, the outcome of
any corporate transaction or other matter submitted to our stockholders
for approval, including mergers, consolidations and the sale of all or
substantially all of our assets.
The Forstmann Little partnerships and our management will also be able to
prevent or cause a change in control of us and will be able to amend our
certificate of incorporation and by-laws at any time. Their interests may
conflict with the interests of the other holders of common stock.
IF EXISTING STOCKHOLDERS SELL THEIR COMMON STOCK, THE MARKET PRICE OF OUR COMMON
STOCK COULD BE IMPAIRED.
Sales of a substantial number of shares of common stock into the public
market after the offering, or the perception that these sales could occur, could
have a material adverse effect on our stock price. As of April 30, 2000 and
giving effect to the recapitalization and the offering, there were 74,342,832
shares of common stock outstanding. We have granted to the Forstmann Little
partnerships six demand rights to cause us to file, at our expense, a
registration statement under the Securities Act covering resales of their
shares. These shares, along with shares held by others who can participate in
the registrations, will represent 74.78% of our outstanding common stock after
the offering. The Forstmann Little partnerships have no present intent to
exercise their demand registration rights, although they retain the right to do
so. These shares may also be sold under Rule 144 of the Securities Act,
depending on their holding period and subject to significant restrictions in the
case of shares held by persons deemed to be our affiliates.
IF PROVISIONS IN OUR CORPORATE DOCUMENTS AND DELAWARE LAW DELAY OR PREVENT A
CHANGE IN CONTROL OF OUR COMPANY, WE MAY BE UNABLE TO CONSUMMATE A TRANSACTION
THAT OUR STOCKHOLDERS CONSIDER FAVORABLE.
Our certificate of incorporation and by-laws may discourage, delay, or
prevent a merger or acquisition involving us that our stockholders may consider
favorable by:
- authorizing the issuance of preferred stock, the terms of which may be
determined at the sole discretion of the board of directors;
12
<PAGE>
- providing for a classified board of directors, with staggered three-year
terms; and
- establishing advance notice requirements for nominations for election to
the board of directors or for proposing matters that can be acted on by
stockholders at meetings.
Delaware law may also discourage, delay or prevent someone from acquiring or
merging with us. For a description you should read "Description of Capital
Stock."
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
THIS PROSPECTUS INCLUDES FORWARD-LOOKING STATEMENTS WHICH COULD DIFFER FROM
ACTUAL FUTURE RESULTS.
Some of the matters discussed in this prospectus include forward-looking
statements. Statements that are predictive in nature, that depend upon or refer
to future events or conditions or that include words such as "expects,"
"anticipates," "intends," "plans," "believes," "estimates," "thinks," and
similar expressions are forward-looking statements. These statements involve
known and unknown risks, uncertainties, and other factors that may cause our
actual results and performance to be materially different from any future
results or performance expressed or implied by these forward-looking statements.
These factors include the following:
- general economic and business conditions, both nationally and in the
regions in which we operate;
- demographic changes;
- existing governmental regulations and changes in, or the failure to comply
with, governmental regulations;
- legislative proposals for healthcare reform;
- our ability, where appropriate, to enter into managed care provider
arrangements and the terms of these arrangements;
- changes in Medicare and Medicaid payment levels;
- liability and other claims asserted against us;
- competition;
- our ability to attract and retain qualified personnel, including
physicians;
- trends toward treatment of patients in lower acuity healthcare settings;
- changes in medical or other technology;
- changes in generally accepted accounting principles;
- the availability and terms of capital to fund additional acquisitions or
replacement facilities; and
- our ability to successfully acquire and integrate additional hospitals.
13
<PAGE>
Although we believe that these statements are based upon reasonable
assumptions, we can give no assurance that our goals will be achieved. Given
these uncertainties, prospective investors are cautioned not to place undue
reliance on these forward-looking statements. These forward-looking statements
are made as of the date of this prospectus. We assume no obligation to update or
revise them or provide reasons why actual results may differ.
USE OF PROCEEDS
We estimate our net proceeds from the offering, after deducting estimated
expenses and underwriting discounts and commissions of $21.0 million, to be
approximately $279.0 million. We will use these proceeds to repay senior debt
outstanding under our credit agreement with The Chase Manhattan Bank and other
lenders in the following priority: debt under our revolving credit facility;
debt under our acquisition loan facility; and our term loans. Based upon our
senior debt outstanding as of March 31, 2000, we will use these proceeds to
repay approximately $145.0 million of senior debt under our revolving credit
facility and $134.0 million of senior debt under our acquisition loan facility.
These amounts include approximately $60.3 million of senior debt held by
affiliates of the underwriters. The revolving credit facility and acquisition
loan facility expire December 31, 2002. As of March 31, 2000, the effective
interest rate for the revolving credit facility and acquisition loan facility
was 8.19%. The term loans expire on December 31, 2005. As of March 31, 2000, the
effective interest rate for the term loans was 9.49%.
Any net proceeds received by us from the exercise by the underwriters of
their over-allotment option will also be used to repay our senior debt in
accordance with the priority specified above.
We expect to borrow under the revolving credit facility as needed to fund
our working capital needs and for general corporate purposes. We also expect to
borrow under the acquisition loan facility as needed to fund the acquisition of
additional hospitals. See "Business of Community Health Systems--Our Business
Strategy--Grow Through Selective Acquisitions."
See "Management--Relationships and Transactions between Community Health
Systems and its Officers, Directors and 5% Beneficial Owners and their Family
Members" and "Description of Indebtedness."
DIVIDEND POLICY
We have not paid any cash dividends in the past, and we do not intend to pay
any cash dividends for the foreseeable future. We intend to retain earnings, if
any, for the future operation and expansion of our business. Any determination
to pay dividends in the future will be dependent upon results of operations,
financial condition, contractual restrictions, restrictions imposed by
applicable law, and other factors deemed relevant by our board of directors. Our
existing indebtedness limits our ability to pay dividends and make distributions
to stockholders.
14
<PAGE>
CAPITALIZATION
The following table sets forth our debt and capitalization as of March 31,
2000, on an actual basis and on a pro forma basis. The pro forma data reflect
the offering and the use of the estimated net proceeds from the offering to
repay a portion of the outstanding debt.
In addition, you should read the following table in conjunction with
Selected Consolidated Financial and Other Data, our consolidated financial
statements and the accompanying notes, Management's Discussion and Analysis of
Financial Condition and Results of Operations, and Description of Indebtedness,
which are contained later in this prospectus.
<TABLE>
<CAPTION>
AS OF MARCH 31, 2000
------------------------
ACTUAL PRO FORMA
---------- -----------
(IN THOUSANDS)
<S> <C> <C>
LONG-TERM DEBT:
Credit facilities(a):
Revolving credit loans.................................. $ 145,000 $ --
Acquisition loans....................................... 159,951 25,951
Term loans.............................................. 619,307 619,307
Subordinated debentures................................... 500,000 500,000
Taxable bonds............................................. 28,800 28,800
Tax-exempt bonds.......................................... 8,000 8,000
Capital lease obligations and other debt.................. 23,547 23,547
---------- ----------
Total debt.............................................. 1,484,605 1,205,605
Less current maturities................................... (20,955) (20,955)
---------- ----------
Total long-term debt(b)................................. 1,463,650 1,184,650
---------- ----------
STOCKHOLDERS' EQUITY:
Preferred stock, $.01 par value per share, 100,000,000
shares authorized, none issued.......................... -- --
Common stock, $.01 par value per share, 300,000,000 shares
authorized; 56,793,489 shares issued and 55,592,832
outstanding actual; 75,543,489 shares issued and
74,342,832 outstanding pro forma........................ 568 755
Additional paid-in capital................................ 483,235 762,048
Accumulated deficit....................................... (244,431) (244,431)
Treasury stock, at cost, 1,200,657 shares................. (6,587) (6,587)
Notes receivable for common stock......................... (1,932) (1,932)
Unearned stock compensation............................... (159) (159)
---------- ----------
Total stockholders' equity............................ 230,694 509,694
---------- ----------
Total capitalization.................................. $1,694,344 $1,694,344
========== ==========
</TABLE>
- ------------------------
(a) These borrowings included amounts borrowed in connection with our April 1,
2000 acquisitions.
(b) We also had letters of credit issued, primarily in support of our taxable
and tax-exempt bonds, of approximately $43 million, reducing to $40 million
by December 31, 2000.
15
<PAGE>
DILUTION
At March 31, 2000, we had a net tangible book deficit of $693 million or
$12.46 per share. Net tangible book deficit is the difference between our total
tangible assets and our total liabilities. We determined the net tangible book
deficit per share by dividing our tangible net book deficit by the total number
of shares of common stock outstanding. After giving effect to the sale of the
18,750,000 shares of common stock offered by us in the offering at $16.00 per
share, the mid-point of the range of the initial public offering prices set
forth on the cover page of this prospectus, and after deducting estimated
underwriting discounts and commissions and offering expenses payable by us, our
pro forma net tangible book deficit would have been approximately $414 million,
or $5.56 per share of common stock. This represents an immediate increase in net
tangible book value of $6.90 per share to existing stockholders and an immediate
dilution of $21.56 per share to new investors purchasing shares of common stock
in the offering. The following table illustrates this dilution on a per share
basis:
<TABLE>
<S> <C> <C>
Assumed initial public offering price per share............. $ 16.00
Net tangible book deficit per share before the offering... $(12.46)
Increase in net tangible book value per share attributable
to new investors........................................ 6.90
-------
Pro forma net tangible book deficit per share after the
offering.................................................. (5.56)
-------
Dilution per share to new investors......................... $ 21.56
=======
</TABLE>
The following table sets forth, on a pro forma basis as of March 31, 2000,
the number of shares of common stock owned by existing stockholders and to be
owned by new investors, the total consideration paid and the average price per
share paid by our existing stockholders and to be paid by new investors in the
offering at $16.00, the mid-point of the range of the initial public offering
prices set forth on the cover page of this prospectus, and before deduction of
estimated underwriting discounts and commissions:
<TABLE>
<CAPTION>
SHARES PURCHASED TOTAL CONSIDERATION
---------------------- ----------------------- AVERAGE PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
----------- -------- ------------ -------- -------------
<S> <C> <C> <C> <C> <C>
Existing stockholders............... 55,592,832 74.78% $496,196,000 62.32% $ 8.93
New investors....................... 18,750,000 25.22% 300,000,000 37.68% 16.00
----------- ------- ------------ -------
Total........................... 74,342,832 100.00% $796,196,000 100.00%
=========== ======= ============ =======
</TABLE>
16
<PAGE>
SELECTED CONSOLIDATED FINANCIAL AND OTHER DATA
You should read the selected consolidated historical financial and other
data below in conjunction with our consolidated financial statements and the
accompanying notes. You should also read Management's Discussion and Analysis of
Financial Condition and Results of Operations. All of these materials are
contained later in this prospectus. We derived the consolidated historical
financial data as of December 31, 1998 and 1999 and for the three years ended
December 31, 1999 from our consolidated financial statements. We derived the
historical data for the three months ended March 31, 1999 and March 31, 2000,
and as of March 31, 2000, from our unaudited interim condensed consolidated
financial statements. We adjusted the pro forma data for the offering and the
use of the estimated net proceeds from the offering to repay a portion of
outstanding debt as if these events had occurred on January 1, 1999 for the year
ended December 31, 1999 and on January 1, 2000 for the three months ended
March 31, 2000 with respect to the consolidated statement of operations data and
on December 31, 1999 and March 31, 2000 with respect to consolidated balance
sheet data. We derived the selected consolidated financial and other data as of
December 31, 1996 and 1997 for the period from July 1 through December 31, 1996
from our unaudited consolidated financial statements, which are not contained in
this prospectus. We derived the selected consolidated financial and other data
at December 31, 1995 and June 30, 1996 and for the year ended December 31, 1995
and the period from
17
<PAGE>
January 1, 1996 through June 30, 1996 from the unaudited consolidated financial
statements of our predecessor company, which are not contained in this
prospectus.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
PREDECESSOR (a)
-------------------------
PERIOD
FROM PERIOD FROM
JANUARY 1 JULY 1 YEAR ENDED DECEMBER 31,
YEAR ENDED THROUGH THROUGH -----------------------------------------------------
DECEMBER 31, JUNE 30, DECEMBER 31, PRO FORMA
1995(b) 1996(c) 1996(d) 1997 1998 1999 1999(e)
------------ ---------- ------------ ----------- ----------- ----------- -----------
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
CONSOLIDATED STATEMENT OF OPERATIONS DATA
Net operating revenues.... $547,926 $ 294,166 $ 327,922 $ 742,350 $ 854,580 $ 1,079,953 $ 1,079,953
Operating expenses (f).... 453,173 291,712(g) 270,319 620,112 688,190 875,768 875,768
Depreciation and
amortization............ 35,944 17,558 18,858 43,753 49,861 56,943 56,943
Amortization of
goodwill................ 223 164 11,627 25,404 26,639 24,708 24,708
Impairment of long-lived
assets and relocation
costs................... 25,400 15,655 -- -- 164,833 -- --
Compliance settlement and
Year 2000 remediation
costs (h)............... -- -- -- -- 20,209 17,279 17,279
Loss from hospital
sales................... -- 3,146 -- -- -- -- --
-------- ---------- ----------- ----------- ----------- ----------- -----------
Income (loss) from
operations.............. 33,186 (34,069) 27,118 53,081 (95,152) 105,255 105,255
Interest expense, net..... 18,790 8,930 38,964 89,753 101,191 116,491 94,963
-------- ---------- ----------- ----------- ----------- ----------- -----------
Income (loss) before
cumulative effect of a
change in accounting
principle and income
taxes................... 14,396 (42,999) (11,846) (36,672) (196,343) (11,236) 10,292
Provision for (benefit
from) income taxes...... 4,443 (15,747) 1,256 (4,501) (13,405) 5,553 13,949
-------- ---------- ----------- ----------- ----------- ----------- -----------
Income (loss) before
cumulative effect of a
change in accounting
principle............... 9,953 (27,252) (13,102) (32,171) (182,938) (16,789) (3,657)
Cumulative effect of a
change in accounting
principle, net of
taxes................... -- -- -- -- (352) -- --
-------- ---------- ----------- ----------- ----------- ----------- -----------
Net income (loss)......... $ 9,953 $ (27,252) $ (13,102) $ (32,171) $ (183,290) $ (16,789) $ (3,657)
======== ========== =========== =========== =========== =========== ===========
Basic and diluted income
(loss) per common share:
Income (loss) before
cumulative effect of a
change in accounting
principle............. $ (0.24) $ (0.60) $ (3.39) $ (0.31) $ (0.05)
Cumulative effect of a
change in accounting
principle............. -- -- (0.01) -- --
----------- ----------- ----------- ----------- -----------
Net income (loss)....... $ (0.24) $ (0.60) $ (3.40) $ (0.31) $ (0.05)
=========== =========== =========== =========== ===========
Weighted-average number of
shares outstanding,
basic and diluted (i)... 53,317,547 53,568,891 53,892,388 54,258,465 73,008,481
=========== =========== =========== =========== ===========
CONSOLIDATED BALANCE SHEET
DATA (AS OF END OF PERIOD
OR YEAR)
Cash and cash
equivalents............. $ 14,282 $ 10,410 $ 26,588 $ 7,663 $ 6,719 $ 4,282 $ 4,282
Total assets.............. 547,910 506,323 1,630,791 1,642,027 1,747,016 1,895,084 1,895,084
Long-term obligations..... 258,779 246,216 1,009,698 1,053,450 1,273,502 1,430,099 1,171,754
Stockholders' equity...... 212,852 165,879 465,673 433,625 246,826 229,708 508,708
(CONTINUED ON FOLLOWING PAGE)
</TABLE>
18
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
PREDECESSOR (a)
------------------------------
PERIOD FROM PERIOD FROM
JANUARY 1 JULY 1
YEAR ENDED THROUGH THROUGH YEAR ENDED DECEMBER 31,
DECEMBER 31, JUNE 30, DECEMBER 31, ------------------------------------
1995(b) 1996(c) 1996(d) 1997 1998 1999
------------ --------------- ------------- ---------- ---------- ----------
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS)
SELECTED OPERATING DATA
Number of hospitals (j)................. 36 29 35 37 41 46
Licensed beds (j)(k).................... 3,298 2,641 3,222 3,288 3,644 4,115
Beds in service (j)(l).................. 2,519 2,005 2,311 2,543 2,776 3,123
Admissions (m).......................... 76,347 34,876 40,246 88,103 100,114 120,414
Adjusted admissions (n)................. 118,042 56,136 68,059 153,618 177,075 217,006
Patient days (o)........................ 404,453 168,995 183,809 399,012 416,845 478,658
Average length of stay (days) (p)....... 5.3 4.8 4.6 4.5 4.2 4.0
Occupancy rate (beds in service) (q).... 44.0% 46.3% 43.2% 43.1% 43.3% 44.1%
Net inpatient revenue as a % of total
net revenue........................... 63.0% 61.1% 58.3% 57.3% 55.7% 52.7%
Net outpatient revenue as a % of total
net revenue........................... 35.4% 37.5% 40.4% 41.5% 42.6% 45.5%
Adjusted EBITDA (r)..................... $ 94,753 $ 2,454(g) $ 57,603 $ 122,238 $ 166,390 $ 204,185
Adjusted EBITDA as a % of net revenue... 17.3% 0.8% 17.6% 16.5% 19.5% 18.9%
Net cash flows provided by (used in)
operating activities.................. $ 47,899 $ 30,081 $ 2,953 $ 21,544 $ 15,719 $ (11,746)
Net cash flows used in investing
activities............................ $(71,414) $ (25,067) $(1,259,268) $ (76,651) $ (236,553) $ (155,541)
Net cash flows provided by (used in)
financing activities.................. $ 5,659 $ (8,886) $ 1,282,903 $ 36,182 $ 219,890 $ 164,850
</TABLE>
<TABLE>
<CAPTION>
Three Months Ended March
31,
---------------------------------------
PRO FORMA
1999 2000 2000(e)
----------- ----------- -----------
<S> <C> <C> <C>
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE
AMOUNTS)
CONSOLIDATED STATEMENT OF OPERATIONS DATA
Net operating revenues.................................... $ 263,004 $ 308,651 $ 308,651
Operating expenses(f)..................................... 210,734 248,570 248,570
Depreciation and amortization............................. 13,033 16,380 16,380
Amortization of goodwill.................................. 5,677 6,168 6,168
Year 2000 remediation costs............................... 300 -- --
----------- ----------- -----------
Income from operations.................................... 33,260 37,533 37,533
Interest expense, net..................................... 26,762 32,683 26,943
----------- ----------- -----------
Income before income taxes................................ 6,498 4,850 10,590
Provision for income taxes................................ 4,580 3,929 6,168
----------- ----------- -----------
Net income................................................ $ 1,918 $ 921 $ 4,422
=========== =========== ===========
Net income per common share:
Basic................................................... $ 0.04 $ 0.02 $ 0.06
Diluted................................................. $ 0.03 $ 0.02 $ 0.06
Weighted average number of shares outstanding:
Basic................................................... 54,128,085 54,369,202 73,119,202
Diluted................................................. 55,607,631 55,857,980 74,607,980
=========== =========== ===========
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C>
CONSOLIDATED BALANCE SHEET DATA (AS OF END OF PERIOD)
Cash and cash equivalents................................. $ 10,885 $ 10,885
Total assets.............................................. 1,935,730 1,935,730
Long-term obligations..................................... 1,488,018 1,209,018
Stockholders' equity...................................... 230,694 509,694
</TABLE>
19
<PAGE>
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
-------------------
1999 2000
-------- --------
(DOLLARS IN
THOUSANDS)
<S> <C> <C>
SELECTED OPERATING DATA
Number of hospitals (j)................................... 43 47
Licensed beds (j)(k)...................................... 3,903 4,223
Beds in service (j)(l).................................... 2,847 3,207
Admissions (m)............................................ 31,516 34,704
Adjusted admissions (m)................................... 53,637 62,309
Patient days (o).......................................... 131,698 138,473
Average length of stay (days) (p)......................... 4.2 4.0
Occupancy rate (beds in service) (q)...................... 51.4% 47.4%
Net inpatient revenue as a % of total net revenue......... 55.5% 52.4%
Net outpatient revenue as a % of total net revenue........ 42.9% 45.8%
Adjusted EBITDA (r)....................................... $ 52,270 $ 60,081
Adjusted EBITDA as a % of net revenue..................... 19.9% 19.5%
Net cash flows used in operating activities............... $(18,860) $ (4,945)
Net cash flows used in investing activities............... $(66,143) $(38,423)
Net cash flows provided by financing activities........... $ 89,595 $ 49,971
</TABLE>
- ----------------------------------
(a) Effective in July 1996, we acquired all of the outstanding common stock of
our principal subsidiary, CHS/Community Health Systems, Inc. The predecessor
company had a substantially different capital structure compared to ours.
Because of the limited usefulness of the earnings per share information for
the predecessor company, these amounts have been excluded.
(b) Includes nine hospitals divested or held for divestiture in 1996.
(c) Includes two acquisitions.
(d) Includes six acquisitions.
(e) Reflects the offering, the application of the estimated net proceeds from
the offering to repay debt of $279.0 million based upon outstanding debt
balances as of December 31, 1999 and March 31, 2000, and the resultant
reduction of interest expense of $21.5 million as if these events had
occured on January 1, 1999 for the year ended December 31, 1999 and
$5.7 million as if these events had occurred on January 1, 2000 for the
three months ended March 31, 2000. Also reflects an increase in provision
for income taxes of $8.4 million for the year ended December 31, 1999 and
$2.2 million for the three months ended March 31, 2000, resulting from the
decrease in interest expense. See "Use of Proceeds." These adjustments are
detailed as follows:
(1) To adjust interest expense to reflect the following:
- For the year ended December 31, 1999, interest expense on the revolving
credit loans totaling $8.2 million has been excluded, giving effect to
the repayment of $109.8 million in outstanding borrowings with the
proceeds from the offering using an assumed weighted average interest
rate of 7.43%. For the three months ended March 31, 2000, interest
expense on the revolving credit loans totaling $3.0 million has been
excluded, giving effect to the repayment of $145.0 million in
outstanding borrowings with the proceeds from the offering using an
assumed weighted average interest rate of 8.27%.
- For the year ended December 31, 1999, interest expense on the
acquisition loans totaling $10.3 million has been excluded, giving
effect to the repayment of $138.5 million in outstanding borrowings
with proceeds from the offering using an assumed weighted average
interest rate of 7.43%. For the three months ended March 31, 2000,
interest expense on the acquisition loans totaling $2.7 million has
been excluded, giving effect to the repayment of $134.0 million in
outstanding borrowings with proceeds from the offering using an assumed
weighted average interest rate of 8.19%.
- For the year ended December 31, 1999, interest expense on the term
loans totaling $3.0 million has been excluded, giving effect to the
repayment of $30.7 million in outstanding borrowings with the proceeds
from the offering using an assumed weighted average interest rate of
10.03%.
(2) The adjustment to the pro forma provision for income taxes, computed
using 39% statutory income tax rate, was $8.4 million for the year ended
December 31, 1999 and $2.2 million for the three months ended March 31,
2000 for the tax effect of the above-noted pro forma adjustments.
(f) Operating expenses include salaries and benefits, provision for bad debts,
supplies, rent, and other operating expenses, and exclude the items that are
excluded for purposes of determining adjusted EBITDA as discussed in
footnote (r) below.
(g) Includes $47.5 million of expense resulting from the cancellation of stock
options associated with the acquisition of our principal subsidiary as
discussed in footnote (a).
(h) Includes Year 2000 remediation costs of $0.2 million in 1998 and
$3.3 million in 1999.
(i) See notes 10 and 14 to the consolidated financial statements.
(j) At end of period.
(k) Licensed beds are the number of beds for which the appropriate state agency
licenses a facility regardless of whether the beds are actually available
for patient use.
(l) Beds in service are the number of beds that are readily available for
patient use.
(m) Admissions represent the number of patients admitted for inpatient
treatment.
(n) Adjusted admissions is a general measure of combined inpatient and
outpatient volume. We computed adjusted admissions by multiplying admissions
by gross patient revenues and then dividing that number by gross inpatient
revenues.
(o) Patient days represent the total number of days of care provided to
inpatients.
(p) Average length of stay (days) represents the average number of days
inpatients stay in our hospitals.
(q) We calculated percentages by dividing the daily average number of inpatients
by the weighted average of beds in service.
(r) We define adjusted EBITDA as EBITDA adjusted to exclude cumulative effect of
a change in accounting principle, impairment of long-lived assets and
relocation costs, compliance settlement and Year 2000 remediation costs, and
loss from hospital sales. EBITDA
20
<PAGE>
consists of income (loss) before interest, income taxes, depreciation and
amortization, and amortization of goodwill. EBITDA and adjusted EBITDA
should not be considered as measures of financial performance under
generally accepted accounting principles. Items excluded from EBITDA and
adjusted EBITDA are significant components in understanding and assessing
financial performance. EBITDA and adjusted EBITDA are key measures used by
management to evaluate our operations and provide useful information to
investors. EBITDA and adjusted EBITDA should not be considered in isolation
or as alternatives to net income, cash flows generated by operations,
investing or financing activities, or other financial statement data
presented in the consolidated financial statements as indicators of
financial performance or liquidity. Because EBITDA and adjusted EBITDA are
not measurements determined in accordance with generally accepted accounting
principles and are thus susceptible to varying calculations, EBITDA and
adjusted EBITDA as presented may not be comparable to other similarly titled
measures of other companies.
21
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
You should read this discussion together with our consolidated financial
statements and the accompanying notes and Selected Consolidated Financial and
Other Data included elsewhere in this prospectus.
OVERVIEW
We are the largest non-urban provider of general hospital healthcare
services in the United States in terms of number of facilities and the second
largest in terms of revenues and EBITDA. As of December 31, 1999, we owned,
leased or operated 46 hospitals, geographically diversified across 20 states,
with an aggregate of 4,115 licensed beds. In over 80% of our markets, we are the
sole provider of general hospital healthcare services. In most of our other
markets, we are one of two providers of general hospital healthcare services.
For the fiscal year ended December 31, 1999, we generated $1.08 billion in net
operating revenues and $204.2 million in adjusted EBITDA. We achieved revenue
growth of 26.4% in 1999 and 15.1% in 1998. We also achieved growth in adjusted
EBITDA of 22.7% in 1999 and 36.1% in 1998.
ACQUISITIONS
On March 1, 2000, we acquired Southampton Memorial Hospital, a 105 bed
hospital located in Franklin, Virginia. On April 1, 2000, we acquired Lakeview
Community Hospital, a 74 bed hospital located in Eufaula, Alabama and
Northeastern Regional Hospital, a 50 bed hospital located in Las Vegas, New
Mexico. We acquired all three hospitals from tax-exempt entities for an
aggregate consideration of approximately $35 million, including working capital.
Each of these hospitals is the sole provider of general hospital services in its
community.
During 1999, we acquired, through three purchases and one capital lease
transaction, most of the assets, including working capital, of four hospitals.
The consideration for the four hospitals totaled $77.8 million. This
consideration consisted of $59.7 million in cash, which we borrowed under our
acquisition loan facility, and assumed liabilities of $18.1 million. We prepaid
the entire lease obligation relating to the lease transaction. We included the
prepayment as part of the cash consideration. We also opened one additional
hospital, after completion of construction, at a cost of $15.3 million. This
owned hospital replaced a hospital that we managed.
During 1998, we acquired, through two purchase and two capital lease
transactions, most of the assets, including working capital, of four hospitals.
The consideration for the four hospitals totaled $218.6 million. This
consideration consisted of $169.8 million in cash, which we borrowed under our
acquisition loan facility, and assumed liabilities of $48.8 million. We prepaid
the entire lease obligation relating to each lease transaction. We included the
prepayment as part of the cash consideration. Also, effective December 1, 1998,
we entered into an operating agreement relating to a 38 licensed bed hospital.
We also purchased the working capital accounts of that hospital. The cash
payment made for this hospital was $2.8 million. Pursuant to this operating
agreement, upon specified conditions being met, we will be obligated to
construct a replacement hospital and to purchase for $0.9 million the remaining
assets of the hospital. Upon completion, all rights of ownership and operation
will transfer to us.
During 1997, we exercised a purchase option under an operating lease and
acquired two hospitals through capital lease transactions. The consideration for
these three hospitals totaled $46.1 million, including working capital. This
consideration consisted of $36.3 million in cash, which we borrowed under our
acquisition loan facility, and assumed liabilities of $9.8 million. We prepaid
the entire lease obligation relating to each lease transaction. We included the
prepayment as part of the cash consideration.
In the future, we intend to selectively acquire two to four hospitals in our
target markets annually. Because of the financial impact of acquisitions, it is
difficult to make meaningful comparisons between
21
<PAGE>
our financial statements for the periods presented. Because EBITDA margins at
hospitals we acquire are, at the time of acquisition, lower than those of our
existing hospitals, acquisitions can negatively affect our EBITDA margins on a
consolidated basis.
At March 31, 2000, we segregated the carrying amounts of two of our
hospitals from our remaining assets. These carrying amounts are classified in
our unaudited interim condensed consolidated balance sheet as of March 31, 2000,
as long-term assets of facilities held for disposition. On May 1, 2000, we
divested one of these facilities. We do not expect the impact of any gain or
loss on our financial results to be material.
SOURCES OF REVENUE
Net operating revenues include amounts estimated by management to be
reimbursable by Medicare and Medicaid under prospective payment systems and
provisions of cost-reimbursement and other payment methods. Approximately 55% of
net operating revenues for the year ended December 31, 1997, 49% for the year
ended December 31, 1998, and 48% for the year ended December 31, 1999, are
related to services rendered to patients covered by the Medicare and Medicaid
programs. In addition, we are reimbursed by non-governmental payors using a
variety of payment methodologies. Amounts we receive for treatment of patients
covered by these programs are generally less than the standard billing rates. We
account for the differences between the estimated program reimbursement rates
and the standard billing rates as contractual adjustments, which we deduct from
gross revenues to arrive at net operating revenues. Final settlements under some
of these programs are subject to adjustment based on administrative review and
audit by third parties. We record adjustments to the estimated billings in the
periods that such adjustments become known. We account for adjustments to
previous program reimbursement estimates as contractual adjustments and report
them in future periods as final settlements are determined. Adjustments related
to final settlements or appeals that increased revenue were insignificant in
each of the years ended December 31, 1997, 1998 and 1999. Net amounts due to
third-party payors as of December 31, 1998 were $19.9 million and as of
December 31, 1999 were $9.1 million. We included these amounts in accrued
liabilities--other in the accompanying balance sheets. Substantially all
Medicare and Medicaid cost reports are final settled through 1996.
We expect the percentage of revenues received from the Medicare program to
increase due to the general aging of the population and the restoration of some
payments under the Balanced Budget Refinement Act of 1999. The payment rates
under the Medicare program for inpatients are based on a prospective payment
system, based upon the diagnosis of a patient. While these rates are indexed for
inflation annually, the increases have historically been less than actual
inflation. Reductions in the rate of increase in Medicare reimbursement may have
an adverse impact on our net operating revenue growth.
Based on our preliminary assessment of the recently released final
regulations implementing Medicare's new prospective payment system for
outpatient hospital care, we expect its impact to be favorable but not material
to our future operating results. The Health Care Financing Administration
estimates that this new prospective payment system will result in an overall
9.7% increase in projected outpatient payments starting July 1, 2000,
eliminating a projected 5.7% reduction in payments mandated by the Balance
Budget Act of 1997.
In addition, Medicaid programs, insurance companies, and employers are
actively negotiating the amounts paid to hospitals as opposed to their standard
rates. The trend toward increased enrollment in managed care may adversely
affect our net operating revenue growth.
RESULTS OF OPERATIONS
Our hospitals offer a variety of services involving a broad range of
inpatient and outpatient medical and surgical services. These include
orthopedics, cardiology, OB/GYN, occupational medicine, rehabilitation
treatment, home health, and skilled nursing. The strongest demand for hospital
services generally occurs during January through April and the weakest demand
for these services occurs during
22
<PAGE>
the summer months. Accordingly, eliminating the effect of new acquisitions, our
net operating revenues and earnings are generally highest during the first
quarter and lowest during the third quarter.
The following tables summarize, for the periods indicated, selected
operating data.
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
------------------------------------ ----------------------
1997 1998 1999 1999 2000
-------- -------- -------- -------- --------
(EXPRESSED AS A PERCENTAGE OF NET OPERATING
REVENUES)
<S> <C> <C> <C> <C> <C>
Net operating revenues............................. 100.0 100.0 100.0 100.0 100.0
Operating expenses (a)............................. (83.5) (80.5) (81.1) (80.1) (80.5)
----- ----- ----- ----- -----
Adjusted EBITDA (b)................................ 16.5 19.5 18.9 19.9 19.5
Depreciation and amortization...................... (5.9) (5.8) (5.3) (5.0) (5.3)
Amortization of goodwill........................... (3.4) (3.1) (2.3) (2.2) (2.0)
Impairment of long-lived assets.................... -- (19.3) -- -- --
Compliance settlement and Year 2000 remediation
costs (c)........................................ -- (2.4) (1.6) (0.1) --
----- ----- ----- ----- -----
Income (loss) from operations...................... 7.2 (11.1) 9.7 12.6 12.2
Interest, net...................................... (12.1) (11.8) (10.8) (10.2) (10.6)
----- ----- ----- ----- -----
Income (loss) before cumulative effect of a change
in accounting principle and income taxes......... (4.9) (22.9) (1.1) 2.4 1.6
Provision for (benefit from) income taxes.......... (0.6) (1.5) .5 (1.7) (1.3)
----- ----- ----- ----- -----
Income (loss) before cumulative effect of a change
in accounting principle.......................... (4.3) (21.4) (1.6) .7 .3
===== ===== ===== ===== =====
</TABLE>
<TABLE>
<CAPTION>
THREE MONTHS
YEAR ENDED ENDED
DECEMBER 31, MARCH 31,
---------------------- ------------
1998 1999 2000
-------- -------- ------------
(EXPRESSED IN PERCENTAGES)
<S> <C> <C> <C>
PERCENTAGE CHANGE FROM PRIOR PERIOD:
Net operating revenues.................................... 15.1 26.4 17.4
Admissions................................................ 13.6 20.3 10.1
Adjusted admissions (d)................................... 15.3 22.6 16.2
Average length of stay.................................... (6.7) (4.8) (4.8)
Adjusted EBITDA........................................... 36.1 22.7 14.9
SAME HOSPITALS PERCENTAGE CHANGE FROM PRIOR PERIOD (e):
Net operating revenues.................................... 2.5 7.6 8.0
Admissions................................................ 4.3 4.9 1.7
Adjusted admissions....................................... 6.4 7.7 6.5
Adjusted EBITDA........................................... 11.7 12.6 14.1
</TABLE>
- ------------------------
(a) Operating expenses include salaries and benefits, provision for bad debts,
supplies, rent, and other operating expenses, and exclude the items that are
excluded for purposes of determining adjusted EBITDA as discussed in
footnote (b) below.
(b) We define adjusted EBITDA as EBITDA adjusted to exclude cumulative effect of
a change in accounting principle, impairment of long-lived assets,
compliance settlement and Year 2000 remediation costs, and loss from
hospital sales. EBITDA consists of income (loss) before interest, income
taxes, depreciation and amortization, and amortization of goodwill. EBITDA
and adjusted EBITDA should not be considered as measures of financial
performance under generally accepted accounting principles. Items excluded
from EBITDA and adjusted EBITDA are significant components in understanding
and assessing financial performance. EBITDA and adjusted EBITDA are key
measures used by management to evaluate our operations and provide useful
information to investors. EBITDA and adjusted EBITDA should not be
considered in isolation or as alternatives to net income, cash flows
generated by operations, investing or financing activities, or other
financial statement data presented in the consolidated financial statements
as indicators
(FOOTNOTES CONTINUED ON FOLLOWING PAGE)
23
<PAGE>
(FOOTNOTES CONTINUED FROM PREVIOUS PAGE)
of financial performance or liquidity. Because EBITDA and adjusted EBITDA
are not measurements determined in accordance with generally accepted
accounting principles and are thus susceptible to varying calculations,
EBITDA and adjusted EBITDA as presented may not be comparable to other
similarly titled measures of other companies.
(c) Includes Year 2000 remediation costs representing 0.0% in 1998 and 0.3% in
1999.
(d) Adjusted admissions is a general measure of combined inpatient and
outpatient volume. We computed adjusted admissions by multiplying admissions
by gross patient revenues and then dividing that number by gross inpatient
revenues.
(e) Includes acquired hospitals to the extent we operated them during comparable
periods in both years.
THREE MONTHS ENDED MARCH 31, 2000 COMPARED TO THREE MONTHS ENDED MARCH 31, 1999
Net operating revenues increased by 17.4% to $308.7 million for the three
months ended March 31, 2000 from $263.0 million for the three months ended
March 31, 1999. Of the $45.7 million increase in net operating revenues, the six
hospitals we acquired in 1999 and 2000 contributed approximately $25.4 million,
and hospitals we owned throughout both periods contributed $20.3 million, an
increase of 8.0%. The increase from hospitals owned throughout both periods was
attributable primarily to volume increases.
Inpatient admissions increased by 10.1%. Adjusted admissions increased by
16.2%. Adjusted admissions is a general measure of combined inpatient and
outpatient volume. We computed adjusted admissions by multiplying admissions by
gross patient revenues and then dividing that number by gross inpatient
revenues. Average length of stay decreased by 4.8%. On a same-hospital basis,
inpatient admissions increased by 1.7% and adjusted admissions increased by
6.5%. The increase in same hospital inpatient admissions and adjusted admissions
was due primarily to an increase in services offered, physician relationship
development efforts and the addition of physicians through our focused
recruitment program. We experienced this increase in inpatient admissions
notwithstanding a higher incidence of flu in the three months ended March 31,
1999. On a same-hospital basis, net outpatient operating revenues increased
13.8%. Outpatient growth reflects the continued trend toward a preference for
outpatient procedures, where appropriate, by patients, physicians, and payors.
Operating expenses, as a percentage of net operating revenues, increased
from 80.1% for the three months ended March 31, 1999 to 80.5% for the three
months ended March 31, 2000, primarily due to higher operating expenses and
lower initial adjusted EBITDA margins associated with acquired hospitals and one
recently constructed hospital. Adjusted EBITDA margin decreased from 19.9% for
the three months ended March 31, 1999 to 19.5% for the three months ended
March 31, 2000. Operating expenses include salaries and benefits, provision for
bad debts, supplies, rent and other operating expenses. Salaries and benefits,
as a percentage of net operating revenues, increased to 39.0% from 38.6% for the
comparable periods, due to acquisitions of hospitals in 1999 and 2000 having
higher salaries and benefits as a percentage of net operating revenues.
Provisions for bad debts, as a percentage of net operating revenues, increased
to 9.1% from 8.6% for the comparable periods due to an increase in self-pay
revenues and payor remittance slowdowns in part caused by Year 2000 compliant
program conversions. Supplies, as a percentage of net operating revenues,
decreased to 11.7% from 12.1%. Rent and other operating expenses, as a
percentage of net operating revenues, decreased to 20.8% from 21.0% for the
comparable periods.
On a same-hospital basis, operating expenses as a percentage of net
operating revenues decreased from 80.4% for the three months ended March 31,
1999 to 79.3% for the three months ended March 31, 2000. We achieved these
efficiency and productivity gains by reaching target staffing ratios
24
<PAGE>
and improving compliance with national purchasing contacts. Operating expenses
improved as a percentage of net operating revenues in every major category
except provision for bad debts.
Depreciation and amortization increased by $3.4 million from $13.0 million
for the three months ended March 31, 1999 to $16.4 million for the three months
ended March 31, 2000. The six hospitals acquired in 1999 and 2000 accounted for
$1.0 million of the increase and facility renovations and purchases of
equipment, including purchases of medical equipment and information systems
upgrades related to Year 2000, accounted for the remaining $2.4 million.
Amortization of goodwill increased by $0.5 million from $5.7 million for the
three months ended March 31, 1999 to $6.2 milion for the three months ended
March 31, 2000. The increase was related to the six hospitals acquired in 1999
and the first quarter of 2000.
Interest, net increased by $5.9 million from $26.8 million for the three
months ended March 31, 1999 to $32.7 million for the three months ended
March 31, 2000. The six hospitals acquired in 1999 and the first quarter of 2000
accounted for approximately $1.5 million of the increase and borrowings under
our credit agreement to finance capital expenditures and an increase in average
interest rates accounted for the remaining $4.4 million.
Income before income taxes decreased from $6.5 million for the three months
ended March 31, 1999 to $4.9 million for the three months ended March 31, 2000
primarily as a result of $0.8 million in additional depreciation expense related
to purchases of medical equipment and information systems upgrades related to
Year 2000, $2.8 million increase in interest expense related to an increase in
our average interest rates between the three months ended March 31, 1999 and the
comparable period of 2000, and $1.0 million in initial operating losses at a
recently constructed facility.
Provision for income taxes decreased from $4.6 million for the three months
ended March 31, 1999 to $3.9 million for the three months ended March 31, 2000.
Net income was $0.9 million for the three months ended March 31, 2000
compared to $1.9 million for the three months ended March 31, 1999.
YEAR ENDED DECEMBER 31, 1999 COMPARED TO YEAR ENDED DECEMBER 31, 1998
Net operating revenues increased by 26.4% to $1,080.0 million in 1999 from
$854.6 million in 1998. Of the $225.4 million increase in net operating
revenues, the nine hospitals we acquired, including one constructed, in 1998 and
1999, contributed $160.6 million and nine hospitals we owned throughout both
periods contributed $64.8 million. The $64.8 million, or 7.6%, increase in same
hospitals net operating revenues was attributable primarily to inpatient and
outpatient volume increases, partially offset by a decrease in reimbursement. In
1999, we experienced $23 million of reductions from the Balanced Budget Act of
1997. We have experienced lower payments from a number of payors, resulting
primarily from:
- reductions mandated by the Balanced Budget Act of 1997, particularly in
the areas of reimbursement for Medicare outpatient, capital, bad debts,
home health, and skilled nursing;
- reductions in various states' Medicaid programs; and
- reductions in length of stay for patients not reimbursed on an admission
basis.
We expect the Balanced Budget Refinement Act of 1999 to lessen the impact of
these reductions in future periods.
Inpatient admissions increased by 20.3%. Adjusted admissions increased by
22.6%. Average length of stay decreased by 4.8%. On a same hospitals basis,
inpatient admissions increased by 4.9% and adjusted admissions increased by
7.7%. The increase in same hospitals inpatient admissions and adjusted
admissions was due primarily to an increase in services offered, physician
relationship development efforts, and the addition of physicians through our
focused recruitment program. On a
25
<PAGE>
same hospitals basis, net outpatient operating revenues increased 14.8%.
Outpatient growth reflects the continued trend toward a preference for
outpatient procedures, where appropriate, by patients, physicians, and payors.
Operating expenses, as a percentage of net operating revenues, increased
from 80.5% in 1998 to 81.1% in 1999 due to higher operating expenses and lower
initial adjusted EBITDA margins associated with acquired hospitals and one
recently constructed hospital. Adjusted EBITDA margin decreased from 19.5% in
1998 to 18.9% in 1999. Salaries and benefits, as a percentage of net operating
revenues, increased to 38.8% in 1999 from 38.4% in 1998, due to acquisitions of
hospitals in 1998 and 1999 having higher salaries and benefits as a percentage
of net operating revenues than our 1998 results. Provision for bad debts, as a
percentage of net operating revenues, increased to 8.8% in 1999 from 8.1% in
1998 due to an increase in self-pay revenues and payor remittance slowdowns in
part caused by Year 2000 conversions. Supplies, as a percentage of net operating
revenues, decreased to 11.7% in 1999 from 11.8% in 1998. Rent and other
operating expenses, as a percentage of net operating revenues, decreased to
21.7% in 1999 from 22.3% in 1998.
On a same hospitals basis, operating expenses as a percentage of net
operating revenues decreased from 81.1% in 1998 to 80.3% in 1999 and adjusted
EBITDA margin increased from 18.9% in 1998 to 19.7% in 1999. These efficiency
and productivity gains resulted from the achievement of target staffing ratios
and improved compliance with national purchasing contracts. Operating expenses
improved as a percentage of net operating revenues in every major category
except provision for bad debts.
Depreciation and amortization increased by $7 million from $49.9 million in
1998 to $56.9 million in 1999. The nine hospitals acquired in 1998 and 1999
accounted for $7.1 million of the increase and facility renovations and
purchases of equipment accounted for the remaining $3.3 million. These increases
were offset by a $3.4 million reduction in depreciation and amortization related
to the 1998 impairment write-off of certain assets.
Amortization of goodwill decreased by $1.9 million from $26.6 million in
1998 to $24.7 million in 1999. The 1998 impairment charge resulted in a
$3.6 million reduction in amortization of goodwill, offset by an increase of
$1.7 million primarily related to the nine hospitals acquired in 1998 and 1999.
Interest, net increased by $15.3 million from $101.2 million in 1998 to
$116.5 million in 1999. The nine hospitals acquired in 1998 and 1999 accounted
for $10.2 million of the increase, and borrowings under our credit agreement to
finance capital expenditures accounted for the remaining $5.1 million.
Loss before cumulative effect of a change in accounting principle and income
taxes for 1999 was $11.2 million compared to a loss of $196.3 million in 1998. A
majority of this variance was due to a $164.8 million charge for impairment of
long-lived assets recorded in 1998. In December 1998, in connection with our
periodic review process, we determined that as a result of adverse changes in
physician relationships, undiscounted cash flows from seven of our hospitals
were below the carrying value of long-lived assets associated with those
hospitals. Therefore, in accordance with Statement of Financial Accounting
Standards No. 121, "Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to be Disposed of," we adjusted the carrying value of the
related long-lived assets, primarily goodwill, to their estimated fair value. We
based the estimated fair values of these hospitals on specific market
appraisals.
The provision for income taxes in 1999 was $5.6 million compared to a
benefit of $13.4 million in 1998. Due to the non-deductible nature of certain
goodwill amortization and the goodwill portion of the 1998 impairment charge,
the resulting effective tax rate is in excess of the statutory rate.
Including the impairment of long-lived assets, compliance settlement costs,
Year 2000 remediation costs, and cumulative effect of a change in accounting
principle charges, net loss for 1999 was $16.8 million as compared to
$183.3 million net loss in 1998. In 1997, we initiated a voluntary review of
inpatient medical records to determine whether documentation supported the
inpatient codes billed to certain governmental payors for the years 1993 through
1997. We have executed a settlement
26
<PAGE>
agreement with the appropriate federal governmental agencies for a negotiated
settlement amount of $31 million. As of May 1, 2000, the Department of Justice
advised us that five of the six affected Medicaid states had returned executed
signature pages to the settlement agreement and that it expected the other state
to return its documents shortly. The settlement agreement requires payment of
the entire settlement amount within ten business days of our receipt of a fully
executed document. We recorded as a charge to income, under the caption
"Compliance settlement costs," $20 million in 1998 and $14 million in 1999.
YEAR ENDED DECEMBER 31, 1998 COMPARED TO YEAR ENDED DECEMBER 31, 1997
Net operating revenues increased by 15.1% to $854.6 million in 1998 from
$742.4 million in 1997. Of the $112.2 million increase, the six hospitals we
acquired in 1997 and 1998 contributed approximately $93.3 million, and the
hospitals we owned throughout both periods contributed $18.9 million. The
$18.9 million, or 2.5%, increase in same hospital net operating revenues was
attributable primarily to inpatient and outpatient volume increases, partially
offset by a decrease in reimbursement. In 1998, we experienced $14 million of
reductions from the Balanced Budget Act of 1997. We have experienced lower
payments from a number of payors, resulting primarily from:
- reductions mandated by the Balanced Budget Act of 1997, particularly in
the areas of reimbursement for Medicare outpatient, capital, bad debts,
and home health;
- reductions in various states' Medicaid programs;
- reductions in length of stay for patients not reimbursed on an admission
basis; and
- a reduction in Medicare case-mix index.
Inpatient admissions increased by 13.6%, adjusted admissions increased by
15.3%, and average length of stay decreased by 6.7%. On a same hospitals basis,
inpatient admissions increased by 4.3% and adjusted admissions increased by
6.4%. The increase in same hospitals inpatient admissions and adjusted
admissions was due primarily to an increase in services offered as a result of
our capital expenditure program, physician relationship development efforts, and
the addition of physicians through recruitment. On a same hospitals basis, net
outpatient operating revenues increased 7.6%. Outpatient growth reflects the
continued trend toward a preference for outpatient procedures, where
appropriate, by patients, physicians, and payors.
Operating expenses, as a percentage of net operating revenues, decreased
from 83.5% in 1997 to 80.5% in 1998. Adjusted EBITDA margin increased to 19.5%
in 1998 from 16.5% in 1997. Salaries and benefits, as a percentage of net
operating revenues, decreased to 38.4% in 1998 from 40.0% in 1997. Provision for
bad debts, as a percentage of net operating revenues, increased to 8.1% in 1998
from 7.7% in 1997 due to an increase in self pay revenues. Supplies, as a
percentage of net operating revenues, decreased to 11.8% in 1998 from 12.2% in
1997. Rent and other operating expenses, as a percentage of net operating
revenues, decreased to 22.3% in 1998 from 23.7% in 1997.
On a same hospitals basis, operating expenses as a percentage of net
operating revenues decreased from 82.4% in 1997 to 80.9% in 1998 and adjusted
EBITDA margin increased from 17.6% in 1997 to 19.1% in 1998. These efficiency
and productivity gains resulted in part from the achievement of target staffing
ratios. Operating expenses improved as a percentage of net operating revenues in
every major category except provision for bad debts.
Depreciation and amortization increased by $6.1 million from $43.8 million
in 1997 to $49.9 million in 1998. The six hospitals acquired in 1997 and 1998
accounted for $4.4 million of the increase, and facility renovations and
purchases of equipment accounted for the remaining $1.7 million.
Amortization of goodwill increased by $1.2 million from $25.4 million in
1997 to $26.6 million in 1998. The six hospitals acquired in 1997 and 1998
accounted for the majority of this increase.
27
<PAGE>
Interest, net increased by $11.4 million from $89.8 million in 1997 to
$101.2 million in 1998. The six hospitals acquired in 1997 and 1998 accounted
for $8 million of the increase, and borrowings under our credit agreement to
finance capital expenditures accounted for the remaining $3.4 million.
Loss before cumulative effect of a change in accounting principle and income
taxes for 1998 was $196.3 million compared to a loss of $36.7 million in 1997. A
majority of this increase was due to a $164.8 million charge for impairment of
long-lived assets recorded in 1998. In December 1998, in connection with our
periodic review process, we determined that projected undiscounted cash flows
for seven of our hospitals were below the carrying value of the long-lived
assets associated with these hospitals. In accordance with Statement of
Financial Accounting Standards No. 121, "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to Be Disposed Of," we adjusted the
carrying value of these assets to their estimated fair values and recorded an
impairment charge of $164.8 million. $134.3 million of this charge was related
to goodwill. Of the seven impaired hospitals, two are located in Georgia; two
are located in Texas; one is located in Florida; one is located in Louisiana;
and one is located in Kentucky. The events and circumstances leading to the
impairment charge were unique to each of the hospitals.
One of our Kentucky hospitals lost its only anesthesiologist due to
unexpected death and a leading surgeon due to illness. We have not been able to
successfully recruit a replacement surgeon. One of our Georgia hospitals lost a
key surgeon due to unexpected death and a leading specialist due to relocation
to another market. We have not been able to successfully recruit replacement
physicians. One of our Louisiana hospitals relies heavily on foreign physicians
and, following the departure of four foreign physicians from its market over a
short period of time, has had difficulties replacing these physicians because of
regulatory changes in recruiting foreign physicians. The skilled nursing and
home health reimbursement for one of our Texas hospitals was disproportionately
and adversely affected by the Balanced Budget Act of 1997. In addition, the
market in which this hospital operates relies on foreign physicians that have
been difficult to recruit because of regulatory changes. Our other Georgia
hospital terminated an employed specialty surgeon who was responsible for over
5% of the hospital's revenue. We have not been able to replace the surgeon. In
addition, this hospital's skilled nursing reimbursement was disproportionately
and adversely affected by the Balanced Budget Act of 1997. Our other Texas
hospital lost market share and was excluded from several key managed care
contracts caused by the combination in 1998 of two larger competing hospitals.
This is our only hospital which competes with more than one hospital in its
primary service area. A Florida hospital we then owned terminated discussions in
1998 with an unrelated hospital, located in a contiguous county, to build a
combined replacement facility. The short and long-term success of this hospital
was in our view dependent upon the combination being effected.
Generally, we have not experienced difficulty in recruiting physicians and
specialists for our hospitals. However, for the four hospitals referred to above
we have experienced difficulty in recruiting physicians and specialists where
the number of physicians on staff is low. These four hospitals averaged 13
physicians per hospital as of December 31, 1998. The average number of
physicians on the medical staff of our other hospitals was 39 physicians at that
time. We continually monitor the relationships of our hospitals with their
physicians and any physician recruiting requirements. We have frequent
discussions with board members, chief executive officers and chief financial
officers of our hospitals. We are not aware of any significant adverse
relationships with physicians or any recurring physician recruitment needs that,
if not resolved in a timely manner, would have a material adverse effect on our
results of operations and financial position, either currently or in future
periods.
The provision for income taxes in 1998 was a benefit of $13.4 million
compared to a benefit of $4.5 million in 1997. Due to the non-deductible nature
of goodwill amortization and the goodwill portion of the 1998 impairment charge,
the resulting effective tax rate is in excess of the statutory rate.
28
<PAGE>
Including the impairment of long-lived assets, compliance settlement costs,
Year 2000 remediation costs, and cumulative effect of a change in accounting
principle charges, net loss for 1998 was $183.3 million as compared to
$32.2 million net loss in 1997.
LIQUIDITY AND CAPITAL RESOURCES
THREE MONTHS ENDED MARCH 31, 2000 COMPARED TO THREE MONTHS ENDED MARCH 31, 1999
Net cash used in operating activities decreased $14 million from a use of
$18.9 million for the three months ended March 31, 1999 to a use of
$4.9 million for the three months ended March 31, 2000. The use of cash from
investing activities decreased from $66.1 million to $38.4 million for the
comparable periods. The cost of acquisitions for the three months ended
March 31, 2000 included $8.5 million for the acquisition of a hospital located
in Franklin, Virginia and $12.9 million for acquisitions located in Las Vegas,
New Mexico and Eufaulo, Alabama that closed on April 1, 2000. The cost of
acquisitions during the comparable periods decreased $23.0 million and the cost
of construction and renovation projects decreased $3.9 million primarily as a
result of the completion of construction of a new facility which was opened in
October 1999. Net cash provided by financing activities decreased from
$89.6 million to $50.0 million for the comparable periods as a result of the
lower cost of acquired hospitals and reduction in construction and renovations
costs.
1999 COMPARED TO 1998
Net cash provided by operating activities decreased by $27.4 million, from
$15.7 million during 1998 to a use of $11.7 million during 1999 due primarily to
an increase in accounts receivable at both same hospitals and newly-acquired
hospitals. The use of cash in investing activities decreased from
$236.6 million in 1998 to $155.5 million in 1999. The $81.1 million decrease was
due primarily to a decrease in cash used to finance hospital acquisitions of
$112.9 million during 1999. This decrease was offset by a $31.8 million increase
in cash used primarily to finance capital expenditures during 1999, including
approximately $15.0 million of Year 2000 expenditures. The 1998 use of cash to
acquire facilities, included four hospitals, two of which were larger
facilities. Net cash provided by financing activities decreased from
$219.9 million in 1998 to $164.9 million in 1999. Excluding the refinancing of
our credit facility, borrowings in 1999 would have been $186.3 million and
repayments would have been $20.9 million. This represents a $56.2 million
decrease compared to $242.5 million borrowed in 1998 and repayments of long-term
indebtedness of $20.9 million in 1999 compared to repayments of $18.8 million in
1998. The $56.2 million decrease in borrowings related to a lesser amount spent
on acquisition of facilities, partially offset by increased capital expenditures
and an increase in the accounts receivable balance.
1998 COMPARED TO 1997
Net cash provided by operating activities decreased by $5.8 million from
$21.5 million during 1997 to $15.7 million during 1998, due primarily to an
increase in accounts receivable at both same hospitals and newly-acquired
hospitals. The use of cash in investing activities increased from $76.7 million
in 1997 to $236.6 million in 1998. The $159.9 million increase was attributable
primarily to the four hospitals acquired in 1998, including two larger
facilities, as compared to two hospitals acquired in 1997. Net cash provided by
financing activities increased by $183.7 million to $219.9 million in 1998, as
compared to $36.2 million in 1997. The increase was due primarily to the
purchase of four hospitals in 1998.
CAPITAL EXPENDITURES
Our capital expenditures for 1999 totaled $64.8 million compared to
$51.3 million in 1998 and $48.8 million in 1997. Our capital expenditures for
1999 excludes $15.3 million of costs associated with the opening and
construction of one additional hospital. The increase in capital expenditures in
1999
29
<PAGE>
was due primarily to an increase in purchases of medical equipment and
information systems upgrades related to Year 2000 compliance. The increase in
capital expenditures during 1998 as compared to 1997 was attributable primarily
to an increase in purchases of medical equipment and facility improvements.
As an obligation under hospital purchase agreements in effect as of
April 30, 2000, we are required to construct four replacement hospitals through
2005 with an aggregate estimated construction cost of approximately
$100 million. This includes our obligation under a purchase agreement relating
to a hospital we acquired on April 1, 2000. We expect total capital expenditures
of approximately $70 million in 2000, including $55 million for renovation and
equipment purchases and $15 million for construction of replacement hospitals.
CAPITAL RESOURCES
Net working capital was $100.8 million at March 31, 2000 compared to
$65.2 million at December 31, 1999. The $35.6 million increase from
December 31, 1999 to March 31, 2000 was attributable primarily to an increase in
patient accounts receivable due to a combination of growth in same hospitals
revenues during 2000 and the addition of one hospital in 2000.
During March 1999, we amended our credit agreement. The amended credit
agreement provides for $644 million in term debt with quarterly amortization and
staggered maturities in 2000, 2001, 2002, 2003, 2004 and 2005. This agreement
also provides for $482.5 million of revolving facility debt for working capital
and acquisitions and matures on December 31, 2002. Borrowings under the facility
bear interest at either LIBOR or prime rate plus various applicable margins
which are based upon financial covenant ratio tests. As of March 31, 2000, under
our credit agreement, our weighted average interest rate was 8.49%. As of
March 31, 2000, we had availability to borrow an additional $12 million under
the working capital revolving facility and an additional $123 million under the
acquisition loan revolving facility.
We are required to pay a quarterly commitment fee at a rate which ranges
from .375% to .500% based on specified financial performance criteria. This fee
applies to unused commitments under the revolving credit facility and the
acquisition loan facility.
The terms of the credit agreement include various restrictive covenants.
These covenants include restrictions on additional indebtedness, investments,
asset sales, capital expenditures, dividends, sale and leasebacks, contingent
obligations, transactions with affiliates, and fundamental changes. The
covenants also require maintenance of various ratios regarding senior
indebtedness, senior interest, and fixed charges.
We believe that internally generated cash flows and borrowings under our
revolving credit facility and acquisition facility will be sufficient to finance
acquisitions, capital expenditures and working capital requirements through the
12 months following the date of this prospectus. If funds required for future
acquisitions exceed existing sources of capital, we will need to increase our
credit facilities or obtain additional capital by other means.
REIMBURSEMENT, LEGISLATIVE AND REGULATORY CHANGES
Legislative and regulatory action has resulted in continuing change in the
Medicare and Medicaid reimbursement programs which will continue to limit
payment increases under these programs. Within the statutory framework of the
Medicare and Medicaid programs, there are substantial areas subject to
administrative rulings, interpretations, and discretion which may further affect
payments made under those programs, and the federal and state governments might,
in the future, reduce the funds available under those programs or require more
stringent utilization and quality reviews of hospital facilities. Additionally,
there may be a continued rise in managed care programs and future restructuring
of the financing and delivery of healthcare in the United States. These events
could have an adverse effect on our future financial results.
30
<PAGE>
INFLATION
The healthcare industry is labor intensive. Wages and other expenses
increase during periods of inflation and when labor shortages occur in the
marketplace. In addition, suppliers pass along rising costs to us in the form of
higher prices. We have implemented cost control measures, including our case and
resource management program, to curb increases in operating costs and expenses.
We have, to date, offset increases in operating costs by increasing
reimbursement for services and expanding services. However, we cannot predict
our ability to cover or offset future cost increases.
PREPARATION FOR YEAR 2000
As with most industries, hospitals and healthcare systems use information
systems that had the potential to misidentify dates beginning January 1, 2000,
which could have resulted in systems or equipment failures or miscalculations.
We engaged in a comprehensive project to upgrade computer software and hospital
equipment and systems to be Year 2000 compliant. This project was successfully
completed with no major difficulties encountered.
RECENT ACCOUNTING PRONOUNCEMENT NOT YET ADOPTED
During 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards (SFAS) No. 133, "Accounting for Derivative
Instruments and Hedging Activities." This statement specifies how to report and
display derivative instruments and hedging activities and is effective for
fiscal years beginning after June 15, 2000. We are evaluating the impact, if
any, of adopting SFAS No. 133.
FEDERAL INCOME TAX EXAMINATIONS
The Internal Revenue Service is examining our filed federal income tax
returns for the tax periods ended between December 31, 1993 and December 31,
1996. The Internal Revenue Service has indicated that it is considering a number
of adjustments, primarily involving temporary or timing differences. To date, a
revenue agent's report has not been issued in connection with the examination of
these tax periods. We do not expect that the ultimate outcome of the Internal
Revenue Service examinations will have a material effect on us.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We are exposed to interest rate changes, primarily as a result of our credit
agreement which bears interest based on floating rates. We have not taken any
action to cover interest rate market risk, and are not a party to any interest
rate market risk management activities.
A 1% change in interest rates on variable rate debt would have resulted in
interest expense fluctuating approximately $6 million for 1998, $8 million for
1999, and $2 million for the three months ended March 31, 2000.
31
<PAGE>
BUSINESS OF COMMUNITY HEALTH SYSTEMS
OVERVIEW OF OUR COMPANY
We are the largest non-urban provider of general hospital healthcare
services in the United States in terms of number of facilities and the second
largest in terms of revenues and EBITDA. As of April 30, 2000, we owned, leased
or operated 49 hospitals, geographically diversified across 20 states, with an
aggregate of 4,348 licensed beds. In over 80% of our markets, we are the sole
provider of these services. In most of our other markets, we are one of two
providers of these services. For the fiscal year ended December 31, 1999, we
generated $1.08 billion in revenues and $204.2 million in adjusted EBITDA.
In July 1996, an affiliate of Forstmann Little & Co. acquired our
predecessor company from its public stockholders. The predecessor company was
formed in 1985. The aggregate purchase price for the acquisition was
$1,100.2 million. Wayne T. Smith, who has over 30 years of experience in the
healthcare industry, joined our company as President in January 1997, and we
named him Chief Executive Officer in April 1997. Under this new ownership and
leadership, we have:
- strengthened the senior management team in all key business areas;
- standardized and centralized our operations across key business areas;
- implemented a disciplined acquisition program;
- expanded and improved the services and facilities at our hospitals;
- recruited additional physicians to our hospitals;
- instituted a company-wide regulatory compliance program; and
- divested certain non-core assets.
As a result of these initiatives, we achieved revenue growth of 26.4% in 1999
and 15.1% in 1998. We also achieved growth in adjusted EBITDA of 22.7% in 1999
and 36.1% in 1998. Our adjusted EBITDA margins improved from 16.5% for 1997 to
18.9% for 1999.
Our hospitals typically have 50 to 200 beds and annual revenue ranging from
$15 million to $75 million. They generally are located in non-urban markets with
populations of 20,000 to 80,000 people and economically diverse employment
bases. These facilities, together with their medical staffs, provide a wide
range of inpatient and outpatient general hospital services and a variety of
specialty services.
We target growing, non-urban healthcare markets because of their favorable
demographic and economic trends and competitive conditions. Because non-urban
service areas have smaller populations, there are generally fewer hospitals and
other healthcare service providers in each community. We believe that smaller
populations result in less direct competition for hospital-based services. Also,
we believe that non-urban communities generally view the local hospital as an
integral part of the community. There is generally a lower level of managed care
presence in these markets.
OUR BUSINESS STRATEGY
The key elements of our business strategy are to:
- increase revenue at our facilities;
- grow through selective acquisitions;
- reduce costs; and
- improve quality.
32
<PAGE>
INCREASE REVENUE AT OUR FACILITIES
OVERVIEW. We seek to increase revenue at our facilities by providing a
broader range of services in a more attractive care setting, as well as by
supporting and recruiting physicians. We identify the healthcare needs of the
community by analyzing demographic data and patient referral trends. We also
work with local hospital boards, management teams, and medical staffs to
determine the number and type of additional physicians needed. Our initiatives
to increase revenue include:
- recruiting additional primary care physicians and specialists;
- expanding the breadth of services offered at our hospitals through
targeted capital expenditures to support the addition of more complex
services, including orthopedics, cardiology, OB/GYN, and occupational
medicine; and
- providing the capital to invest in technology and the physical plant at
the facilities, particularly in our emergency rooms.
By taking these actions, we believe that we can increase our share of the
healthcare dollars spent by local residents and limit inpatient and outpatient
migration to larger urban facilities. Total revenue for hospitals operated by us
for a full year increased by 7.6% from 1998 to 1999. Total inpatient admissions
increased by 4.9% over the same period.
PHYSICIAN RECRUITING. The primary method of adding or expanding medical
services is the recruitment of new physicians into the community. A core group
of primary care physicians is necessary as an initial contact point for all
local healthcare. The addition of specialists who offer services including
general surgery, OB/GYN, cardiology, and orthopedics completes the full range of
medical and surgical services required to meet a community's core healthcare
needs. When we acquire a hospital, we identify the healthcare needs of the
community by analyzing demographic data and patient referral trends. We are then
able to determine what we believe to be the optimum mix of primary care
physicians and specialists. We employ recruiters at the corporate level to
support the local hospital managers in their recruitment efforts. During the
past three years, we have increased the number of physicians affiliated with us
by 320, including 80 in 1997, 84 in 1998, and 156 in 1999. The percentage of
recruited physicians commencing practice that were surgeons or specialists grew
from 45% in 1997 to 52% in 1999. We do not employ most of our physicians, but
rather they are in private practice in their communities. We have been
successful in recruiting physicians because of the practice opportunities of
physicians in our markets, as well as the lower managed care penetration as
compared to urban areas. These physicians are able to earn incomes comparable to
incomes earned by physicians in urban centers. As of April 30, 2000
approximately 1,700 physicians were affiliated with our hospitals.
To attract and retain qualified physicians, we provide recruited physicians
with various services to assist them in opening and operating their practices,
including:
- relocation assistance;
- physician practice management assistance, either through consulting advice
or training;
- access to medical office building space adjacent to our hospitals;
- joint marketing programs for community awareness of new services and
providers of care in the community;
- case management consulting for best practices; and
- access to a physician advisory board which communicates regularly with
physicians regarding a wide range of issues affecting the medical staffs
of our hospitals.
EMERGENCY ROOM INITIATIVES. Given that over 50% of our hospital admissions
originate in the emergency room, we systematically take steps to increase
patient flow in our emergency rooms as a
33
<PAGE>
means of optimizing utilization rates for our hospitals. Furthermore, the
impression of our overall operations by our customers is substantially
influenced by our emergency room since often that is their first experience with
our hospitals. The steps we take to increase patient flow in our emergency rooms
include renovating and expanding our emergency room facilities, improving
service, and reducing waiting times, as well as publicizing our emergency room
capabilities in the local community. We have expanded or renovated four of our
emergency room facilities since 1997 and are now in the process of upgrading an
additional nine emergency room facilities. Since 1997, we have entered into
approximately 20 new contracts with emergency room operating groups to improve
performance in our emergency rooms. We have implemented marketing campaigns that
emphasize the speed, convenience, and quality of our emergency rooms to enhance
each community's awareness of our emergency room services.
Our upgrades include the implementation of specialized software programs
designed to assist physicians in making diagnoses and determining treatments.
The software also benefits patients and hospital personnel by assisting in
proper documentation of patient records. It enables our nurses to provide more
consistent patient care and provides clear instructions to patients at time of
discharge to help them better understand their treatments.
EXPANSION OF SERVICES. To capture a greater portion of the healthcare
spending in our markets and to more efficiently utilize our hospital facilities,
we have added a broad range of emergency, outpatient, and specialty services to
our hospitals. Depending on the needs of the community, we identify
opportunities to expand into various specialties, including orthopedics,
cardiology, OB/GYN, and occupational medicine. In addition to expanding
services, we have completed major capital projects at selected facilities to
offer these types of services. For example, in 1999 we invested $1 million in a
new cardiac catheterization laboratory at our Crestview, Florida hospital. As a
result, this laboratory increased the number of procedures it performed by 84%,
from 122 in 1998 to 224 in 1999. In 1999, we initiated major capital projects at
many of our hospitals. These projects included renovations to nine emergency
rooms, two operating rooms, two OB/GYN facilities, and three intensive care
units at various hospitals. We believe that through these efforts we will reduce
patient migration to competing providers of healthcare services and increase
volume.
MANAGED CARE STRATEGY. Managed care has seen growth across the U.S. as
health plans expand service areas and membership. As we service primarily
non-urban markets, we have limited relationships with managed care
organizations. We have responded with a proactive and carefully considered
strategy developed specifically for each of our facilities. Our experienced
business development department reviews and approves all managed care contracts,
which are managed through a central database. The primary mission of this
department is to select and evaluate appropriate managed care opportunities,
manage existing reimbursement arrangements, negotiate increases, and educate our
physicians. We have terminated our only risk sharing capitated contract, which
we acquired through our acquisition of a California hospital.
GROW THROUGH SELECTIVE ACQUISITIONS
ACQUISITION CRITERIA. Each year we intend to selectively acquire two to
four hospitals that fit our acquisition criteria. We pursue acquisition
candidates that:
- have a general service area population between 20,000 and 80,000 with a
stable or growing population base;
- are the sole or primary provider of acute care services in the community;
- are located more than 25 miles from a competing hospital;
- are not located in an area that is dependent upon a single employer or
industry; and
- have financial performance that we believe will benefit from our
management's operating skills.
34
<PAGE>
Most hospitals we have acquired are located in service areas having
populations within the lower to middle range of our criteria. However, we have
also acquired hospitals having service area populations in the upper range of
our criteria. For example, in 1998, we acquired a 162-bed facility in Roswell,
New Mexico which has a service area population of over 70,000 and is located 200
miles from the nearest urban centers in Albuquerque, New Mexico and Lubbock,
Texas. Facilities similar to the one located in Roswell offer even greater
opportunities to expand services given their larger service area populations.
Most of our acquisition targets are municipal and other not-for-profit
hospitals. We believe that our access to capital and ability to recruit
physicians make us an attractive partner for these communities. In addition, we
have found that communities located in states where we already operate a
hospital are more receptive to us when they consider selling their hospital
because they are aware of our operating track record with respect to our
facilities within the state.
ACQUISITION OPPORTUNITIES. We believe that there are significant
opportunities for growth through the acquisition of additional facilities. We
estimate that there are currently approximately 400 hospitals that meet our
acquisition criteria. These hospitals are primarily not-for-profit or
municipally owned. Many of these hospitals have experienced declining financial
performance, lack the resources necessary to maintain and improve facilities,
have difficulty attracting qualified physicians, and are challenged by the
changing healthcare industry. We believe that these circumstances will continue
and may encourage owners of these facilities to turn to companies, like ours,
that have greater management expertise and financial resources and can enhance
the local availability of healthcare.
After we acquire a hospital, we:
- improve hospital operations by implementing our standardized and
centralized programs and appropriate expense controls as well as by
managing staff levels;
- recruit additional primary care physicians and specialists;
- expand the breadth of services offered in the community to increase local
market share and reduce inpatient and outpatient migration to larger urban
hospitals; and
- implement appropriate capital expenditure programs to renovate the
facility, add new services, and upgrade equipment.
REPLACEMENT FACILITIES. In some cases, we enter into agreements with the
owners of hospitals to construct a new facility to be owned or leased by us that
will replace the existing facility. The new facilities offer many benefits to us
as well as the local community, including:
- state of the art technology, which attracts physicians trained in the
latest medical procedures;
- physical plant efficiencies designed to enhance the flow of services,
including emergency room and outpatient services;
- improved registration and business office functions; and
- local support for the institution.
As an obligation under hospital purchase agreements in effect as of
April 30, 2000, we are required to construct four replacement hospitals through
2005 with an aggregate estimated construction cost of approximately
$100 million.
DISCIPLINED ACQUISITION APPROACH. We have been disciplined in our approach
to acquisitions. We have a dedicated team of internal and external professionals
who complete a thorough review of the hospital's financial and operating
performance, the demographics of the market, and the state of the physical plant
of the facilities. Based on our historical experience, we then build a pro forma
financial
35
<PAGE>
model that reflects what we believe can be accomplished under our ownership.
Whether we buy or lease the existing facility or agree to construct a
replacement hospital, we have been disciplined in our approach to pricing.
ACQUISITION EFFORTS. We have significantly enhanced our acquisition efforts
in the last three years in an effort to achieve our goals. We have focused on
identifying possible acquisition opportunities through expanding our internal
acquisition group and working with a broad range of financial advisors who are
active in the sale of hospitals, especially in the not-for-profit sector. Since
July 1996, we have acquired 20 hospitals through April 30, 2000, for an
aggregate investment of approximately $550 million, including working capital.
We have completed the following acquisitions since July 1996:
<TABLE>
<CAPTION>
YEAR OF LICENSED
ACQUISITION/LEASE BEDS
HOSPITAL NAME CITY STATE INCEPTION (a)
- ------------- ------------- -------- ----------------- ---------------------
<S> <C> <C> <C> <C>
Chesterfield General (b)........................ Cheraw SC 1996 66
Marlboro Park (b)............................... Bennettsville SC 1996 109
Northeast Medical (b)........................... Bonham TX 1996 75
Cleveland Regional (b).......................... Cleveland TX 1996 115
River West Medical (b).......................... Plaquemine LA 1996 80
Marion Memorial................................. Marion IL 1996 99
Lake Granbury Medical........................... Granbury TX 1997 56
Payson Regional................................. Payson AZ 1997 66
Eastern New Mexico.............................. Roswell NM 1998 162
Watsonville Community........................... Watsonville CA 1998 102
Martin General.................................. Williamston NC 1998 49
Fallbrook Hospital.............................. Fallbrook CA 1998 47
Greensville Memorial............................ Emporia VA 1999 114
Berwick Hospital................................ Berwick PA 1999 144
King's Daughters................................ Greenville MS 1999 137
Big Bend Regional (c)........................... Alpine TX 1999 40
Evanston Regional............................... Evanston WY 1999 42
Southampton Memorial............................ Franklin VA 2000 105
Northeastern Regional........................... Las Vegas NM 2000 54
Lakeview Community.............................. Eufaula AL 2000 74
</TABLE>
- ------------------------
(a) Licensed beds are the number of beds for which the appropriate state agency
licenses a facility regardless of whether the beds are actually available
for patient use.
(b) Acquired in a single transaction from a private, for-profit company.
(c) New hospital constructed to replace existing facility that we managed.
Since 1998, we have also operated a hospital in Tooele, Utah under an
operating agreement pending our completion of the construction of a replacement
facility.
REDUCE COSTS
OVERVIEW. To improve efficiencies and increase operating margins, we
implement cost containment programs and adhere to operating philosophies which
include:
- standardizing and centralizing our operations;
- optimizing resource allocation by utilizing our company-devised case and
resource management program, which assists in improving clinical care and
containing expenses;
- capitalizing on purchasing efficiencies through the use of company-wide
standardized purchasing contracts and terminating or renegotiating certain
vendor contracts;
36
<PAGE>
- installing a standardized management information system, resulting in more
efficient billing and collection procedures; and
- managing staffing levels according to patient volumes and the appropriate
level of care.
In addition, each of our hospital management teams is supported by our
centralized operational, reimbursement, regulatory, and compliance expertise as
well as by our senior management team, which has an average of 20 years of
experience in the healthcare industry. Adjusted EBITDA margins on a same
hospitals basis improved from 18.9% in 1998 to 19.7% in 1999.
STANDARDIZATION AND CENTRALIZATION. Our standardization and centralization
initiatives encompass nearly every aspect of our business, from developing
standard policies and procedures with respect to patient accounting and
physician practice management, to implementing standard processes to initiate,
evaluate, and complete construction projects. Our standardization and
centralization initiatives have been a key element in improving our adjusted
EBITDA margins.
- BILLING AND COLLECTIONS. We have adopted standard policies and procedures
with respect to billing and collections. We have also automated and
standardized various components of the collection cycle, including
statement and collection letters and the movement of accounts through the
collection cycle. Upon completion of an acquisition, our management
information system team converts the hospital's existing information
system to our standardized system. This enables us to quickly implement
our business controls and cost containment initiatives.
- PHYSICIAN SUPPORT. We support our physicians to enhance their performance.
We have implemented physician practice management seminars and training.
We host these seminars at least quarterly. All newly recruited physicians
are required to attend a three-day introductory seminar. The subjects
covered in these comprehensive seminars include:
u our corporate structure and philosophy;
u provider applications, physician to physician relationships, and
performance standards;
u marketing and volume building techniques;
u medical records, equipment, and supplies;
u review of coding and documentation guidelines;
u compliance, legal, and regulatory issues;
u understanding financial statements;
u national productivity standards; and
u managed care.
- MATERIALS MANAGEMENT. We have standardized and centralized our operations
with respect to medical supplies and equipment and pharmaceuticals used in
our hospitals. In 1997, after evaluating our vendor contract pricing, we
entered into an affiliation agreement with BuyPower, a group purchasing
organization owned by Tenet Healthcare Corporation. At the present time,
BuyPower is the source for a substantial portion of our medical supplies
and equipment and pharmaceuticals. We have reduced supply costs for
hospitals operated by us for a full year from 11.8% of our revenue in 1998
to 11.5% of our revenue in 1999.
- FACILITIES MANAGEMENT. We have standardized interiors, lighting, and
furniture programs. We have also implemented a standard process to
initiate, evaluate, and complete construction projects. Our corporate
staff monitors all construction projects and pays all construction project
invoices. Our initiatives in this area have reduced our construction costs
while maintaining the same level of quality and improving upon the time it
takes us to complete these projects.
37
<PAGE>
- OTHER INITIATIVES. We have also improved margins by implementing standard
programs with respect to ancillary services support in areas including
pharmacy, laboratory imaging, home health, skilled nursing, emergency
medicine, and health information management. We have reduced costs
associated with these services by improving contract terms, standardizing
information systems, and encouraging adherence to best practices
guidelines.
CASE AND RESOURCE MANAGEMENT. Our case and resource management program is a
company-devised program developed in response to ongoing reimbursement changes
with the goal of improving clinical care and cost containment. The program
focuses on:
- appropriately treating patients along the care continuum;
- reducing inefficiently applied processes, procedures, and resources;
- developing and implementing standards for operational best practices; and
- using on-site clinical facilitators to train and educate care
practitioners on identified best practices.
Our case and resource management program integrates the functions of
utilization review, discharge planning, overall clinical management, and
resource management into a single effort to improve the quality and efficiency
of care. Issues evaluated in this process include patient treatment, patient
length of stay, and utilization of resources. The average length of inpatient
stays decreased from 4.5 days in 1997 to 4.0 days in 1999. We believe this
decrease was primarily a result of these initiatives.
Under our case and resource management program, patient care begins with a
clinical assessment of the appropriate level of care, discharge planning, and
medical necessity for planned services. Once a patient is admitted to the
hospital, we conduct a review for ongoing medical necessity using
appropriateness criteria. We reassess and adjust discharge plan options as the
needs of the patient change. We closely monitor cases to prevent delayed service
or inappropriate utilization of resources. Once the patient obtains clinical
improvement, we encourage the attending physician to consider alternatives to
hospitalization through discussions with the facility's physician advisor.
Finally, we refer the patient to the appropriate post-hospitalization resources.
IMPROVE QUALITY
We have implemented various programs to ensure improvement in the quality of
care provided. We have developed training programs for all senior hospital
management, chief nursing officers, quality directors, physicians and other
clinical staff. We share information among our hospital management to implement
best practices and assist in complying with regulatory requirements. We have
standardized accreditation documentation and requirements. Corporate support is
provided to each facility to assist with accreditation reviews. Several of our
facilities have received accreditation "with commendation" from the Joint
Commission on Accreditation of Healthcare Organizations. All hospitals conduct
patient, physician, and staff satisfaction surveys to help identify methods of
improving the quality of care.
Each of our hospitals is governed by a board of trustees, which includes
members of the hospital's medical staff. The board of trustees establishes
policies concerning the hospital's medical, professional, and ethical practices,
monitors these practices, and is responsible for ensuring that these practices
conform to legally required standards. We maintain quality assurance programs to
support and monitor quality of care standards and to meet Medicare and Medicaid
accreditation and regulatory requirements. Patient care evaluations and other
quality of care assessment activities are reviewed and monitored continuously.
38
<PAGE>
OUR FACILITIES
Our hospitals are general care hospitals offering a wide range of inpatient
and outpatient medical services. These services generally include internal
medicine, general surgery, cardiology, oncology, orthopedics, OB/GYN, diagnostic
and emergency room services, outpatient surgery, laboratory, radiology,
respiratory therapy, physical therapy, and rehabilitation services. In addition,
some of our hospitals provide skilled nursing and home health services based on
individual community needs.
For each of our hospitals, the following table shows its location, the date
of its acquisition or lease inception and the number of licensed beds as of
April 30, 2000:
<TABLE>
<CAPTION>
DATE OF
LICENSED ACQUISITION/LEASE OWNERSHIP
HOSPITAL CITY BEDS(a) INCEPTION TYPE
- -------- ------------- -------- ----------------- -------------
<S> <C> <C> <C> <C>
ALABAMA
Woodland Community Hospital............ Cullman 100 October, 1994 Owned
Parkway Medical Center Hospital........ Decatur 120 October, 1994 Owned
L.V. Stabler Memorial Hospital......... Greenville 72 October, 1994 Owned
Hartselle Medical Center............... Hartselle 150 October, 1994 Owned
Edge Regional Hospital................. Troy 97 December, 1994 Owned
Lakeview Community Hospital............ Eufaula 74 April, 2000 Owned
ARIZONA
Payson Regional Medical Center......... Payson 66 August, 1997 Leased
ARKANSAS
Harris Hospital........................ Newport 132 October, 1994 Owned
Randolph County Medical Center......... Pocahontas 50 October, 1994 Leased
CALIFORNIA
Barstow Community Hospital............. Barstow 56 January, 1993 Leased
Fallbrook Hospital..................... Fallbrook 47 November, 1998 Operated (b)
Watsonville Community Hospital......... Watsonville 102 September, 1998 Owned
FLORIDA
North Okaloosa Medical Center.......... Crestview 110 March, 1996 Owned
GEORGIA
Berrien County Hospital................ Nashville 71 October, 1994 Leased
Fannin Regional Hospital............... Blue Ridge 34 January, 1986 Owned
ILLINOIS
Crossroads Community Hospital.......... Mt. Vernon 55 October, 1994 Owned
Marion Memorial Hospital............... Marion 99 October, 1996 Leased
KENTUCKY
Parkway Regional Hospital.............. Fulton 70 May, 1992 Owned
Three Rivers Medical Center............ Louisa 90 May, 1993 Owned
Kentucky River Medical Center.......... Jackson 55 August, 1995 Leased
LOUISIANA
Byrd Regional Hospital................. Leesville 70 October, 1994 Owned
Sabine Medical Center.................. Many 52 October, 1994 Owned
River West Medical Center.............. Plaquemine 80 August, 1996 Leased
MISSISSIPPI
The King's Daughters Hospital.......... Greenville 137 September, 1999 Owned
MISSOURI
Moberly Regional Medical Center........ Moberly 114 November, 1993 Owned
</TABLE>
39
<PAGE>
<TABLE>
<CAPTION>
DATE OF
LICENSED ACQUISITION/LEASE OWNERSHIP
HOSPITAL CITY BEDS(a) INCEPTION TYPE
- -------- ------------- -------- ----------------- -------------
<S> <C> <C> <C> <C>
NEW MEXICO
Mimbres Memorial Hospital.............. Deming 49 March, 1996 Owned
Eastern New Mexico Medical Center...... Roswell 162 April, 1998 Owned
Northeastern Regional Hospital......... Las Vegas 50 April, 2000 Leased
NORTH CAROLINA
Martin General Hospital................ Williamston 49 November, 1998 Leased
PENNSYLVANIA
Berwick Hospital....................... Berwick 144 March, 1999 Owned
SOUTH CAROLINA
Marlboro Park Hospital................. Bennettsville 109 August, 1996 Leased
Chesterfield General Hospital.......... Cheraw 66 August, 1996 Leased
Springs Memorial Hospital.............. Lancaster 194 November, 1994 Owned
TENNESSEE
Lakeway Regional Hospital.............. Morristown 135 May, 1993 Owned
Scott County Hospital.................. Oneida 99 November, 1989 Leased
Cleveland Community Hospital........... Cleveland 100 October, 1994 Owned
White County Community Hospital........ Sparta 60 October, 1994 Owned
TEXAS
Big Bend Regional Medical Center....... Alpine 40 October, 1999 Owned
Northeast Medical Center............... Bonham 75 August, 1996 Owned
Cleveland Regional Medical Center...... Cleveland 115 August, 1996 Leased
Highland Medical Center................ Lubbock 123 September, 1986 Owned
Scenic Mountain Medical Center......... Big Spring 150 October, 1994 Owned
Hill Regional Hospital................. Hillsboro 92 October, 1994 Owned
Lake Granbury Medical Center........... Granbury 56 January, 1997 Leased
UTAH
Tooele Valley Regional Medical
Center............................... Tooele 38 November, 1998 Operated (c)
VIRGINIA
Greensville Memorial Hospital.......... Emporia 114 March, 1999 Leased
Russell County Medical Center.......... Lebanon 78 September, 1986 Owned
Southampton Memorial Hospital.......... Franklin 105 March, 2000 Leased
WYOMING
Evanston Regional Hospital............. Evanston 42 November, 1999 Owned
</TABLE>
- ------------------------
(a) Licensed beds are the number of beds for which the appropriate state agency
licenses a facility regardless of whether the beds are actually available
for patient use.
(b) We operate this hospital under a lease-leaseback and operating agreement. We
recognize all revenue and expenses associated with this hospital on our
financial statements.
(c) We operate this hospital pending our completion of the construction of a
replacement facility. Our fee is equal to the EBITDA of the facility. For
purposes of reporting our operating statistics, we have excluded this
facility.
SELECTED OPERATING DATA
The following table sets forth operating statistics for our hospitals for
each of the years presented. Statistics for 1997 include a full year of
operations for 36 hospitals, including one hospital acquired on January 1, 1997,
and a partial period for one hospital acquired during the year. Statistics for
1998 include a full year of operations for 37 hospitals and partial periods for
four hospitals acquired during
40
<PAGE>
the year. Statistics for 1999 include a full year of operations for 41 hospitals
and partial periods for four hospitals acquired, and one hospital constructed
and opened, during the year.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------
1997 1998 1999
-------- -------- --------
<S> <C> <C> <C>
Number of hospitals (a)................................ 37 41 46
Licensed beds (a)(b)................................... 3,288 3,644 4,115
Beds in service (a)(c)................................. 2,543 2,776 3,123
Admissions (d)......................................... 88,103 100,114 120,414
Adjusted admissions (e)................................ 153,618 177,075 217,006
Patient days (f)....................................... 399,012 416,845 478,658
Average length of stay (days) (g)...................... 4.5 4.2 4.0
Occupancy rate (beds in service) (h)................... 43.1% 43.3% 44.1%
Net inpatient revenue as a % of total net revenue...... 57.3% 55.7% 52.7%
Net outpatient revenue as a % of total net revenue..... 41.5% 42.6% 45.5%
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, PERCENTAGE
------------------------ INCREASE
1998 1999 (DECREASE)
--------- --------- ----------
<S> <C> <C> <C>
SAME HOSPITALS DATA (i)
Admissions (d)......................................... 100,114 105,053 4.9%
Adjusted admissions (e)................................ 177,075 190,661 7.7%
Patient days (f)....................................... 416,845 419,942 0.7%
Average length of stay (days) (g)...................... 4.2 4.0 (4.8%)
Occupancy rate (beds in service) (h)................... 43.3% 43.5%
</TABLE>
- ------------------------
(a) At end of period.
(b) Licensed beds are the number of beds for which the appropriate state agency
licenses a facility regardless of whether the beds are actually available
for patient use.
(c) Beds in service are the number of beds that are readily available for
patient use.
(d) Admissions represent the number of patients admitted for inpatient
treatment.
(e) Adjusted admissions is a general measure of combined inpatient and
outpatient volume. We computed adjusted admissions by multiplying admissions
by gross patient revenues and then dividing that number by gross inpatient
revenues.
(f) Patient days represent the total number of days of care provided to
inpatients.
(g) Average length of stay (days) represents the average number of days
inpatients stay in our hospitals.
(h) We calculated percentages by dividing the average daily number of inpatients
by the weighted average of beds in service.
(i) Includes acquired hospitals to the extent we operated them during comparable
periods in both years.
41
<PAGE>
SOURCES OF REVENUE
We receive payment for healthcare services provided by our hospitals from:
- the federal Medicare program;
- state Medicaid programs;
- healthcare insurance carriers, health maintenance organizations or "HMOs,"
preferred provider organizations or "PPOs," and other managed care
programs; and
- patients directly.
The following table presents the approximate percentages of net revenue
received from private, Medicare, Medicaid and other sources for the periods
indicated. The data for the years presented are not strictly comparable due to
the significant effect that hospital acquisitions and dispositions have had on
these statistics.
<TABLE>
<CAPTION>
NET REVENUE BY PAYOR SOURCE 1997 1998 1999
- --------------------------- -------- -------- --------
<S> <C> <C> <C>
Medicare......................................... 43.9% 39.0% 36.2%
Medicaid......................................... 11.5% 10.2% 11.9%
Managed Care (HMO/PPO)........................... 7.7% 14.0% 14.3%
Private and Other................................ 36.9% 36.8% 37.6%
------ ------ ------
Total........................................ 100.0% 100.0% 100.0%
====== ====== ======
</TABLE>
As shown above, we receive a substantial portion of our revenue from the
Medicare and Medicaid programs.
Medicare is a federal program that provides medical insurance benefits to
persons age 65 and over, some disabled persons, and persons with end-stage renal
disease. Medicaid is a federal-state funded program, administered by the states,
which provides medical benefits to individuals who are unable to afford
healthcare. All of our hospitals are certified as providers of Medicare and
Medicaid services. Amounts received under the Medicare and Medicaid programs are
generally significantly less than the hospital's customary charges for the
services provided. In recent years, changes made to the Medicare and Medicaid
programs have further reduced payment to hospitals. We expect this trend to
continue. Since an important portion of our revenues comes from patients under
Medicare and Medicaid programs, our ability to operate our business successfully
in the future will depend in large measure on our ability to adapt to changes in
these programs.
In addition to government programs, we are paid by private payors, which
include insurance companies, HMOs, PPOs, other managed care companies, and
employers, as well as by patients directly. Patients are generally not
responsible for any difference between customary hospital charges and amounts
paid for hospital services by Medicare and Medicaid programs, insurance
companies, HMOs, PPOs, and other managed care companies, but are responsible for
services not covered by these programs or plans, as well as for deductibles and
co-insurance obligations of their coverage. The amount of these deductibles and
co-insurance obligations has increased in recent years. Collection of amounts
due from individuals is typically more difficult than collection of amounts due
from government or business payors. To further reduce their healthcare costs, an
increasing number of insurance companies, HMOs, PPOs, and other managed care
companies are negotiating discounted fee structures or fixed amounts for
hospital services performed, rather than paying healthcare providers the amounts
billed. We negotiate discounts with managed care companies which are typically
smaller than discounts under governmental programs. If an increased number of
insurance companies, HMOs, PPOs, and other managed care companies succeed in
negotiating discounted fee structures or fixed amounts, our results of
operations may be negatively affected. For more information on the payment
programs on which our revenues depend, see "--Payment."
42
<PAGE>
Hospital revenues depend upon inpatient occupancy levels, the volume of
outpatient procedures, and the charges or negotiated payment rates for hospital
services provided. Charges and payment rates for routine inpatient services vary
significantly depending on the type of service performed and the geographic
location of the hospital. In recent years, we have experienced a significant
increase in revenue received from outpatient services. We attribute this
increase to:
- advances in technology, which have permitted us to provide more services
on an outpatient basis; and
- pressure from Medicare or Medicaid programs, insurance companies, and
managed care plans to reduce hospital stays and to reduce costs by having
services provided on an outpatient rather than on an inpatient basis.
SUPPLY CONTRACTS
During fiscal 1997, we entered into an affiliation agreement with BuyPower,
a group purchasing organization owned by Tenet Healthcare Corporation. Our
affiliation with BuyPower combines the purchasing power of our hospitals with
the purchasing power of more than 600 other healthcare providers affiliated with
the program. This increased purchasing power has resulted in reductions in the
prices paid by our hospitals for medical supplies and equipment and
pharmaceuticals. In March 2000, we entered into an agreement with Broadlane
Inc., an affiliate of Tenet Healthcare Corporation, to use their e-commerce
marketplace as our exclusive internet purchasing portal.
INDUSTRY OVERVIEW
The U.S. Healthcare Financing Administration estimated that in 1999, total
U.S. healthcare expenditures grew by 6.0% to $1.2 trillion. It projects total
U.S. healthcare spending to grow by 7.1% in 2000 and by 6.5% annually from 2001
through 2008. By these estimates, healthcare expenditures will account for
approximately $2.2 trillion, or 16.2% of the total U.S. gross domestic product,
by 2008.
Hospital services, the market in which we operate, is the largest single
category of healthcare at 33.7% of total healthcare spending in 1999, or
$401.3 billion. The U.S. Healthcare Financing Administration projects the
hospital services category to grow by 5.7% per year through 2008. It expects
growth in hospital healthcare spending to continue due to the aging of the U.S.
population and consumer demand for expanded medical services. As hospitals
remain the primary setting for healthcare delivery, it expects hospital services
to remain the largest category of healthcare spending.
U.S. HOSPITAL INDUSTRY. The U.S. hospital industry is broadly defined to
include acute care, rehabilitation, and psychiatric facilities that are either
public (government owned and operated), not-for-profit private (religious or
secular), or for-profit institutions (investor owned). According to the American
Hospital Association, there are approximately 5,015 inpatient hospitals in the
U.S. which are not-for-profit owned, investor owned, or state or local
government owned. Of these hospitals, 44% are located in non-urban communities.
These facilities offer a broad range of healthcare services, including internal
medicine, general surgery, cardiology, oncology, neurosurgery, orthopedics,
OB/GYN, and emergency services. In addition, hospitals also offer other
ancillary services including psychiatric, diagnostic, rehabilitation, home
health, and outpatient surgery services.
URBAN VS. NON-URBAN HOSPITALS
According to the U.S. Census Bureau, 25% of the U.S. population lives in
communities designated as non-urban. In these non-urban communities, hospitals
are typically the primary source of healthcare and, in many cases, a single
hospital is the only provider of general healthcare services. According to the
American Hospital Association, in 1998, there were 2,199 non-urban hospitals in
the U.S. We believe that a majority of these hospitals are owned by
not-for-profit or governmental entities.
43
<PAGE>
FACTORS AFFECTING PERFORMANCE. Among the many factors that can influence a
hospital's financial and operating performance are:
- facility size and location;
- facility ownership structure (i.e., tax-exempt or investor owned);
- a facility's ability to participate in group purchasing organizations; and
- facility payor mix.
We believe that non-urban hospitals are generally able to obtain higher
operating margins than urban hospitals. Factors contributing to a non-urban
hospital's margin advantage include fewer patients with complex medical
problems, a lower cost structure, limited competition, and favorable Medicare
payment provisions. Patients needing the most complex care are more often served
by the larger and/or more specialized urban hospitals. A non-urban hospital's
lower cost structure results from its geographic location as well as the lower
number of patients treated who need the most highly advanced services.
Additionally, because non-urban hospitals are generally sole providers or one of
a small group of providers in their markets, there is limited competition. This
generally results in more favorable pricing with commercial payors. Medicare has
special payment provisions for "sole community hospitals." Under present law,
hospitals that qualify for this designation receive higher reimbursement rates
and are guaranteed capital reimbursement equal to 90% of capital costs. As of
December 31, 1999, 11 of our hospitals were "sole community hospitals." In
addition, we believe that non-urban communities are generally characterized by a
high level of patient and physician loyalty that fosters cooperative
relationships among the local hospitals, physicians, employees, and patients.
The type of third party responsible for the payment of services performed by
healthcare service providers is also an important factor which affects hospital
margins. These providers have increasingly exerted pressure on healthcare
service providers to reduce the cost of care. The most active providers in this
regard have been HMOs, PPOs, and other managed care organizations. The
characteristics of non-urban markets make them less attractive to these managed
care organizations. This is partly because the limited size of non-urban markets
and their diverse, non-national employer bases minimize the ability of managed
care organizations to achieve economies of scale. In 1999, approximately 14% of
our revenues were paid by managed care organizations.
HOSPITAL INDUSTRY TRENDS
DEMOGRAPHIC TRENDS. According to the U.S. Census Bureau, there are
approximately 35 million Americans aged 65 or older in the U.S. today, who
comprise approximately 13% of the total U.S. population. By the year 2030 the
number of elderly is expected to climb to 69 million, or 20% of the total
population. Due to the increasing life expectancy of Americans, the number of
people aged 85 years and older is also expected to increase from 4.3 million to
8.5 million by the year 2030. This increase in life expectancy will increase
demand for healthcare services and, as importantly, the demand for innovative,
more sophisticated means of delivering those services. Hospitals, as the largest
category of care in the healthcare market, will be among the main beneficiaries
of this increase in demand. Based on data compiled for us, the populations of
the service areas where our hospitals are located grew by 6.9% from 1990 to 1997
and are projected to grow by 4.6% from 1998 to 2002. The number of people aged
65 or older in these service areas grew by 16.4% from 1990 to 1997 and is
projected to grow by 5.7% from 1998 to 2002.
CONSOLIDATION. During the late 1980s and early 1990s, there was significant
industry consolidation involving large, investor owned hospital companies
seeking to achieve economies of scale. While consolidation activity in the
hospital industry is continuing, the consolidation is currently primarily taking
place through mergers and acquisitions involving not-for-profit hospital
systems. Reasons for this activity include:
44
<PAGE>
- limited access to capital;
- financial performance issues, including challenges associated with changes
in reimbursement;
- the desire to enhance the local availability of healthcare in the
community;
- the need and ability to recruit primary care physicians and specialists;
and
- the need to achieve general economies of scale and to gain access to
standardized and centralized functions, including favorable supply
agreements.
SHIFTING UTILIZATION TRENDS. Over the past decade, many procedures that had
previously required hospital visits with overnight stays have been performed on
an outpatient basis. This shift has been driven by cost containment efforts led
by private and government payors. The focus on cost containment has coincided
with advancements in medical technology that have allowed patients to be treated
with less invasive procedures that do not require overnight stays. According to
the American Hospital Association, the number of surgeries performed on an
inpatient basis declined from 1994 to 1998 at an average annual rate of 0.3%,
from 9.8 million in 1994 to 9.7 million in 1998. During the same period, the
number of outpatient surgeries increased at an average annual rate of 4.3%, from
13.2 million in 1994 to 15.6 million in 1998. The mix of inpatient as compared
to outpatient surgeries shifted from a ratio of 42.8% inpatient to 57.2%
outpatient in 1994 to a ratio of 38.4% inpatient to 61.6% outpatient in 1998.
These trends have led to a reduction in the average length of stay and, as a
result, inpatient utilization rates. According to the American Hospital
Association, the average length of stay in general hospitals has declined from
6.7 days in 1994 to 6.0 days in 1998.
GOVERNMENT REGULATION
OVERVIEW. The healthcare industry is required to comply with extensive
government regulation at the federal, state, and local levels. Under these
regulations, hospitals must meet requirements to be certified as hospitals and
qualified to participate in government programs, including the Medicare and
Medicaid programs. These requirements relate to the adequacy of medical care,
equipment, personnel, operating policies and procedures, maintenance of adequate
records, hospital use, rate-setting, compliance with building codes, and
environmental protection laws. There are also extensive regulations governing a
hospital's participation in these government programs. If we fail to comply with
applicable laws and regulations, we can be subject to criminal penalties and
civil sanctions, our hospitals can lose their licenses and we could lose our
ability to participate in these government programs. In addition, government
regulations may change. If that happens, we may have to make changes in our
facilities, equipment, personnel, and services so that our hospitals remain
certified as hospitals and qualified to participate in these programs. We
believe that our hospitals are in substantial compliance with current federal,
state, and local regulations and standards.
Hospitals are subject to periodic inspection by federal, state, and local
authorities to determine their compliance with applicable regulations and
requirements necessary for licensing and certification. All of our hospitals are
licensed under appropriate state laws and are qualified to participate in
Medicare and Medicaid programs. In addition, most of our hospitals are
accredited by the Joint Commission on Accreditation of Healthcare Organizations.
This accreditation indicates that a hospital satisfies the applicable health and
administrative standards to participate in Medicare and Medicaid programs.
FRAUD AND ABUSE LAWS. Participation in the Medicare program is heavily
regulated by federal statute and regulation. If a hospital fails substantially
to comply with the requirements for participating in the Medicare program, the
hospital's participation in the Medicare program may be terminated and/or civil
or criminal penalties may be imposed. For example, a hospital may lose its
ability to participate in the Medicare program if it performs any of the
following acts:
45
<PAGE>
- making claims to Medicare for services not provided or misrepresenting
actual services provided in order to obtain higher payments;
- paying money to induce the referral of patients where services are
reimbursable under a federal health program; or
- failing to provide treatment to any individual who comes to a hospital's
emergency room with an "emergency medical condition" or otherwise failing
to properly treat and transfer emergency patients.
The Health Insurance Portability and Accountability Act of 1996 broadened
the scope of the fraud and abuse laws by adding several criminal statutes that
are not related to receipt of payments from a federal healthcare program. The
Accountability Act created civil penalties for conduct, including upcoding and
billing for medically unnecessary goods or services. It established new
enforcement mechanisms to combat fraud and abuse. These include a bounty system,
where a portion of the payments recovered is returned to the government
agencies, as well as a whistleblower program. This law also expanded the
categories of persons that may be excluded from participation in federal
healthcare programs.
Another law regulating the healthcare industry is a section of the Social
Security Act, known as the "anti-kickback" or "fraud and abuse" statute. This
law prohibits some business practices and relationships under Medicare,
Medicaid, and other federal healthcare programs. These practices include the
payment, receipt, offer, or solicitation of money in connection with the
referral of patients covered by a federal or state healthcare program.
Violations of the anti-kickback statute may be punished by criminal and civil
fines, exclusion from federal healthcare programs, and damages up to three times
the total dollar amount involved.
The Office of Inspector General of the Department of Health and Human
Services is authorized to publish regulations outlining activities and business
relationships that would be deemed not to violate the anti-kickback statute.
These regulations are known as "safe harbor" regulations. However, the failure
of a particular activity to comply with the safe harbor regulations does not
mean that the activity violates the anti-kickback statute.
The Office of Inspector General is responsible for identifying fraud and
abuse activities in government programs. In order to fulfill its duties, the
Office of Inspector General performs audits, investigations, and inspections. In
addition, it provides guidance to healthcare providers by identifying types of
activities that could violate the anti-kickback statute. The Office of the
Inspector General has identified the following incentive arrangements as
potential violations:
- payment of any incentive by the hospital each time a physician refers a
patient to the hospital;
- use of free or significantly discounted office space or equipment for
physicians in facilities usually located close to the hospital;
- provision of free or significantly discounted billing, nursing, or other
staff services;
- free training for a physician's office staff including management and
laboratory techniques;
- guarantees which provide that if the physician's income fails to reach a
predetermined level, the hospital will pay any portion of the remainder;
- low-interest or interest-free loans, or loans which may be forgiven if a
physician refers patients to the hospital;
- payment of the costs of a physician's travel and expenses for conferences;
or
- payment of services which require few, if any, substantive duties by the
physician, or payment for services in excess of the fair market value of
the services rendered.
46
<PAGE>
We have a variety of financial relationships with physicians who refer
patients to our hospitals. Physicians own interests in a few of our facilities.
Physicians may also own our stock. These physicians may acquire some of these
shares from the reserved shares offered at the initial public offering price. We
also have contracts with physicians providing for a variety of financial
arrangements, including employment contracts, leases, management agreements, and
professional service agreements. We provide financial incentives to recruit
physicians to relocate to communities served by our hospitals. These incentives
include revenue guarantees and, in some cases, loans. Although we believe that
we have structured our arrangements with physicians in light of the "safe
harbor" rules, we cannot assure you that regulatory authorities will not
determine otherwise. If that happens, we would be subject to criminal and civil
penalties and/or exclusion from participating in Medicare, Medicaid, or other
government healthcare programs.
The Social Security Act also includes a provision commonly known as the
"Stark law." This law prohibits physicians from referring Medicare and Medicaid
patients to healthcare entities in which they or any of their immediate family
members have ownership or other financial interests. These types of referrals
are commonly known as "self referrals." Sanctions for violating the Stark law
include civil money penalties, assessments equal to twice the dollar value of
each service, and exclusion from Medicare and Medicaid programs. There are
ownership and compensation arrangement exceptions to the self-referral
prohibition. One exception allows a physician to make a referral to a hospital
if the physician owns the entire hospital, as opposed to an ownership interest
in a department of the hospital. Another exception allows a physician to refer
patients to a healthcare entity in which the physician has an ownership interest
if the entity is located in a rural area, as defined in the statute. There are
also exceptions for many of the customary financial arrangements between
physicians and providers, including employment contracts, leases, and
recruitment agreements. The federal government has not finalized its regulations
which will interpret several of the provisions included in the Stark law. We
have structured our financial arrangements with physicians to comply with the
statutory exceptions included in the Stark law. However, when the government
finalizes these regulations, it may interpret certain provisions of this law in
a manner different from the manner with which we have interpreted them. We
cannot predict the final form that such regulations will take or the effect
those regulations will have on us.
Many states in which we operate also have adopted, or are considering
adopting, similar laws. Some of these state laws apply even if the payment for
care does not come from the government. These statutes typically provide
criminal and civil penalties as well as loss of licensure. While there is little
precedent for the interpretation or enforcement of these state laws, we have
attempted to structure our financial relationships with physicians and others in
light of these laws. However, if we are found to have violated these state laws,
it could result in the imposition of criminal and civil penalties as well as
possible licensure revocation.
CORPORATE PRACTICE OF MEDICINE FEE-SPLITTING. Some states have laws that
prohibit unlicensed persons or business entities, including corporations, from
employing physicians. Some states also have adopted laws that prohibit direct or
indirect payments or fee-splitting arrangements between physicians and
unlicensed persons or business entities. Possible sanctions for violations of
these restrictions include loss of a physician's license, civil and criminal
penalties and rescission of business arrangements. These laws vary from state to
state, are often vague and have seldom been interpreted by the courts or
regulatory agencies. We structure our arrangements with healthcare providers to
comply with the relevant state law. However, we cannot assure you that
governmental officials charged with responsibility for enforcing these laws will
not assert that we, or transactions in which we are involved, are in violation
of these laws. These laws may also be interpreted by the courts in a manner
inconsistent with our interpretations.
EMERGENCY MEDICAL TREATMENT AND ACTIVE LABOR ACT. The Emergency Medical
Treatment and Active Labor Act imposes requirements as to the care that must be
provided to anyone who comes to
47
<PAGE>
facilities providing emergency medical services seeking care before they may be
transferred to another facility or otherwise denied care. Sanctions for failing
to fulfill these requirements include exclusion from participation in Medicare
and Medicaid programs and civil money penalties. In addition, the law creates
private civil remedies which enable an individual who suffers personal harm as a
direct result of a violation of the law to sue the offending hospital for
damages and equitable relief. A medical facility that suffers a financial loss
as a direct result of another participating hospital's violation of the law also
has a similar right. Although we believe that our practices are in compliance
with the law, we can give no assurance that governmental officials responsible
for enforcing the law or others will not assert we are in violation of these
laws.
FALSE CLAIMS ACT. Another trend in healthcare litigation is the use of the
False Claims Act. This law has been used not only by the U.S. government, but
also by individuals who bring an action on behalf of the government under the
law's "qui tam" or "whistleblower" provisions. When a private party brings a qui
tam action under the False Claims Act, the defendant will generally not be aware
of the lawsuit until the government makes a determination whether it will
intervene and take a lead in the litigation.
Civil liability under the False Claims Act can be up to three times the
actual damages sustained by the government plus civil penalties for each
separate false claim. There are many potential bases for liability under the
False Claims Act. Although liability under the False Claims Act arises when an
entity knowingly submits a false claim for reimbursement to the federal
government, the False Claims Act defines the term "knowingly" broadly. Thus,
although simple negligence generally will not give rise to liability under the
False Claims Act, submitting a claim with reckless disregard to its truth or
falsity can constitute "knowingly" submitting a claim. See "--Legal Proceedings"
for a description of pending, unsealed False Claims Act litigation.
HEALTHCARE REFORM. The healthcare industry continues to attract much
legislative interest and public attention. In recent years, an increasing number
of legislative proposals have been introduced or proposed in Congress and in
some state legislatures that would effect major changes in the healthcare
system. Proposals that have been considered include cost controls on hospitals,
insurance market reforms to increase the availability of group health insurance
to small businesses, and mandatory health insurance coverage for employees. The
costs of implementing some of these proposals would be financed, in part, by
reductions in payments to healthcare providers under Medicare, Medicaid, and
other government programs. We cannot predict the course of future healthcare
legislation or other changes in the administration or interpretation of
governmental healthcare programs and the effect that any legislation,
interpretation, or change may have on us.
CONVERSION LEGISLATION. Many states, including some where we have hospitals
and others where we may in the future acquire hospitals, have adopted
legislation regarding the sale or other disposition of hospitals operated by
not-for-profit entities. In other states that do not have specific legislation,
the attorneys general have demonstrated an interest in these transactions under
their general obligations to protect charitable assets from waste. These
legislative and administrative efforts primarily focus on the appropriate
valuation of the assets divested and the use of the proceeds of the sale by the
not-for-profit seller. While these review and, in some instances, approval
processes can add additional time to the closing of a hospital acquisition, we
have not had any significant difficulties or delays in completing the process.
There can be no assurance, however, that future actions on the state level will
not seriously delay or even prevent our ability to acquire hospitals. If these
activities are widespread, they could have a negative impact on our ability to
acquire additional hospitals. See "--Our Business Strategy."
CERTIFICATES OF NEED. The construction of new facilities, the acquisition
of existing facilities and the addition of new services at our facilities may be
subject to state laws that require prior approval by state regulatory agencies.
These certificate of need laws generally require that a state agency determine
the public need and give approval prior to the construction or acquisition of
facilities or the addition of
48
<PAGE>
new services. We operate hospitals in 11 states that have adopted certificate of
need laws. If we fail to obtain necessary state approval, we will not be able to
expand our facilities, complete acquisitions or add new services in these
states. Violation of these state laws may result in the imposition of civil
sanctions or the revocation of a hospital's licenses.
PAYMENT
MEDICARE. Under the Medicare program, we are paid for inpatient and
outpatient services performed by our hospitals.
Payments for inpatient acute services are generally made pursuant to a
prospective payment system, commonly known as "PPS." Under a PPS, our hospitals
are paid a prospectively determined amount for each hospital discharge based on
the patient's diagnosis. Specifically, each discharge is assigned to a
diagnosis-related group, commonly known as a "DRG," based upon the patient's
condition and treatment during the relevant inpatient stay. Each DRG is assigned
a payment rate that is prospectively set using national average costs per case
for treating a patient for a particular diagnosis. DRG payments do not consider
the actual costs incurred by a hospital in providing a particular inpatient
service. However, DRG payments are adjusted by a predetermined geographic
adjustment factor assigned to the geographic area in which the hospital is
located. While a hospital generally does not receive payment in addition to a
DRG payment, hospitals may qualify for an "outlier" payment when the relevant
patient's treatment costs are extraordinarily high and exceed a specified
threshold.
The DRG rates are adjusted by an update factor each federal fiscal year,
which begins on October 1. The update factor is determined, in part, by the
projected increase in the cost of goods and services that are purchased by
hospitals. For several years the annual update factor has been lower than the
projected increases in the costs of goods and services purchased by hospitals.
DRG rate increases were 1.1% for federal fiscal year 1995, 1.5% for federal
fiscal year 1996, and 2.0% for federal fiscal year 1997. For federal fiscal year
1998, there was no increase. The DRG rate was increased by the projected
increase in the cost of goods and services minus 1.9% for federal fiscal year
1999 and 1.8% for federal fiscal year 2000. For both federal fiscal years 2001
and 2002, the DRG rate will be increased by the projected increase in the cost
of goods and services minus 1.1%. Future legislation may decrease the rate of
increase for DRG payments, but we are not able to predict the amount of the
reduction or the effect that the reduction will have on us.
Outpatient services have traditionally been paid at the lower of customary
charges or on a reasonable cost basis. The Balanced Budget Act established a PPS
for outpatient hospital services that is scheduled to commence on July 1, 2000.
The Balanced Budget Refinement Act of 1999 eliminated the anticipated average
reduction of 5.7% for various Medicare outpatient business under the Balanced
Budget Act of 1997. Under the Balanced Budget Refinement Act of 1999, non-urban
hospitals with 100 beds or less are held harmless under Medicare outpatient PPS
through December 31, 2003. Thirty-three of our hospitals qualify for this
relief. Losses under Medicare outpatient PPS of non-urban hospitals with greater
than 100 beds and urban hospitals will be mitigated through a corridor
reimbursement approach, where a percentage of losses will be reimbursed through
December 31, 2003. Substantially all of our remaining hospitals qualify for
relief under this provision.
Skilled nursing facilities have historically been paid by Medicare on the
basis of actual costs, subject to limitations. The Balanced Budget Act
established a PPS for Medicare skilled nursing facilities. The new PPS commenced
in July 1998, and is being implemented progressively over a three year term. We
have experienced reductions in payments for our skilled nursing services.
However, the Balanced Budget Refinement Act of 1999 has established adjustments
to the PPS payments made to skilled nursing facilities which are scheduled to be
implemented on October 1, 2000.
The Balanced Budget Act also requires the Department of Health and Human
Services to establish a PPS for home health services. The Balanced Budget Act of
1997 put in place the interim payment system, commonly known as "IPS," until the
home health PPS could be implemented. The
49
<PAGE>
home health PPS is currently scheduled to replace IPS on October 1, 2000. We
have experienced reductions in payments for our home health services and a
decline in home health visits due to a reduction in benefits by reason of the
Balanced Budget Act.
MEDICAID. Most state Medicaid payments are made under a PPS or under
programs which negotiate payment levels with individual hospitals. Medicaid is
currently funded jointly by state and federal governments. The federal
government and many states are currently considering significantly reducing
Medicaid funding, while at the same time expanding Medicaid benefits. This could
adversely affect future levels of Medicaid payments received by our hospitals.
ANNUAL COST REPORTS. Hospitals participating in the Medicare and some
Medicaid programs, whether paid on a reasonable cost basis or under a PPS, are
required to meet certain financial reporting requirements. Federal and, where
applicable, state regulations require submission of annual cost reports
identifying medical costs and expenses associated with the services provided by
each hospital to Medicare beneficiaries and Medicaid recipients.
Annual cost reports required under the Medicare and some Medicaid programs
are subject to routine governmental audits. These audits may result in
adjustments to the amounts ultimately determined to be due to us under these
reimbursement programs. Finalization of these audits often takes several years.
Providers can appeal any final determination made in connection with an audit.
COMMERCIAL INSURANCE. Our hospitals provide services to individuals covered
by private healthcare insurance. Private insurance carriers pay our hospitals or
in some cases reimburse their policyholders based upon the hospital's
established charges and the coverage provided in the insurance policy.
Commercial insurers are trying to limit the costs of hospital services by
negotiating discounts, including PPS, which would reduce payments by commercial
insurers to our hospitals. Reductions in payments for services provided by our
hospitals to individuals covered by commercial insurers could adversely affect
us.
COMPETITION
The hospital industry is highly competitive. In addition to the competition
we face for acquisitions and physicians, we must also compete with other
hospitals and healthcare providers for patients. The competition among hospitals
and other healthcare providers for patients has intensified in recent years. Our
hospitals are located in non-urban service areas. Most of our hospitals face no
direct competition because there are no other hospitals in their primary service
areas. However, these hospitals do face competition from hospitals outside of
their primary service area, including hospitals in urban areas that provide more
complex services. These facilities are generally located in excess of 25 miles
from our facilities. Patients in our primary service areas may travel to these
other hospitals for a variety of reasons, including the need for services we do
not offer or physician referrals. Patients who are required to seek services
from these other hospitals may subsequently shift their preferences to those
hospitals for services we do provide.
Some of our hospitals operate in primary service areas where they compete
with one other hospital. One of our hospitals competes with more than one other
hospital in its primary service area. Some of these competing hospitals use
equipment and services more specialized than those available at our hospitals.
In addition, some of the hospitals that compete with us are owned by
tax-supported governmental agencies or not-for-profit entities supported by
endowments and charitable contributions. These hospitals can make capital
expenditures without paying sales, property and income taxes. We also face
competition from other specialized care providers, including outpatient surgery,
orthopedic, oncology, and diagnostic centers.
The number and quality of the physicians on a hospital's staff is an
important factor in a hospital's competitive advantage. Physicians decide
whether a patient is admitted to the hospital and the procedures to be
performed. Admitting physicians may be on the medical staffs of other hospitals
in
50
<PAGE>
addition to those of our hospitals. We attempt to attract our physicians'
patients to our hospitals by offering quality services and facilities,
convenient locations, and state-of-the-art equipment.
COMPLIANCE PROGRAM
OUR COMPLIANCE PROGRAM. In early 1997, under our new management and
leadership, we voluntarily adopted a company-wide compliance program. The
program included the appointment of a compliance officer and committee, adoption
of an ethics and business conduct code, employee education and training,
implementation of an internal system for reporting concerns, auditing and
monitoring programs, and a means for enforcing the program's policies.
We take an operations team approach to compliance and utilize corporate
experts for program design efforts and facility leaders for employee-level
implementation. Compliance is another area that demonstrates our utilization of
standardization and centralization techniques and initiatives which yield
efficiencies and consistency throughout our facilities. We recognize that our
compliance with applicable laws and regulations depends on individual employee
actions as well as company operations. Our approach focuses on integrating
compliance responsibilities with operational function. This approach is intended
to reinforce our company-wide commitment to operate strictly in accordance with
the laws and regulations that govern our business.
Since its initial adoption, the compliance program continues to be expanded
and developed to meet the industry's expectations and our needs. Specific
written policies, procedures, training and educational materials and programs,
as well as auditing and monitoring activities have been prepared and implemented
to address the functional and operational aspects of our business. Included
within these functional areas are materials and activities for business
sub-units, including laboratory, radiology, pharmacy, emergency, surgery,
observation, home health, skilled nursing, and clinics. Specific areas
identified through regulatory interpretation and enforcement activities have
also been addressed in our program. Claims preparation and submission, including
coding, billing, and cost reports, comprise the bulk of these areas. Financial
arrangements with physicians and other referral sources, including anti-kickback
and Stark laws, emergency department treatment and transfer requirements, and
other patient disposition issues are also the focus of policy and training,
standardized documentation requirements, and review and audit.
INPATIENT CODING COMPLIANCE ISSUE. In August 1997, during a routine
internal audit at one of our facilities, we discovered inaccuracies in the DRG
coding for some of our inpatient medical records. At that time, this was the
primary auditing activity for our compliance program. These inaccuracies
involved inpatient coding practices that had been put in place prior to the time
we acquired our operating company in 1996.
Because of the concerns raised by the internal audit, we performed an
internal review of historical inpatient coding practices. At the completion of
this review in December 1997, we voluntarily disclosed the coding problems to
the Office of Inspector General of the U.S. Department of Health and Human
Services. After discussions with the Inspector General, we agreed to have an
independent consultant audit the coding for eight specific DRGs. This audit
ultimately involved a review by the consultant of approximately 1,500 patient
files. The audit procedures we followed generated a statistically valid estimate
of the dollar amounts related to coding errors for these DRGs at 36 of our
hospitals for the period 1993 to 1997.
The results of this audit were reviewed by the Inspector General and the
Department of Justice, who also conducted their own investigation. We cooperated
fully with their investigation. The government agencies advised us of potential
liability under various legal theories, including the False Claims Act. Under
the False Claims Act, we could be liable for as much as treble damages and
penalties of between $5,000 and $10,000 per false claim submitted to Medicare
and Medicaid.
51
<PAGE>
We have executed a settlement agreement with these federal government
agencies and are in the process of obtaining executed settlement documents from
the applicable state Medicaid programs. The Department of Justice has advised us
that the applicable state Medicaid programs have agreed to its terms and five of
the six applicable state Medicaid programs have executed it. Pursuant to the
settlement agreement, we will pay approximately $31 million and will be released
from all civil claims relating to the coding of the eight specific DRGs for the
hospitals and time periods covered in the audit. During 1998 and 1999, we
established a liability in our financial statements for this amount. We have
also agreed with the Inspector General to continue our existing voluntary
compliance program under a corporate compliance agreement and to adopt various
additional compliance measures for a period of three years. These additional
compliance measures include making various reports to the federal government and
having our actions pursuant to the compliance agreement reviewed annually by a
third party.
The compliance measures and reporting and auditing requirements contained in
the compliance agreement include:
- continuing the duties and activities of our corporate compliance officer,
corporate compliance work group, and facility compliance chairs and
committees;
- maintaining our written ethics and conduct policy, which sets out our
commitment to full compliance with all statutes, regulations, and
guidelines applicable to federal healthcare programs;
- maintaining our written policies and procedures addressing the operation
of our compliance program, including proper coding for inpatient hospital
stays;
- continuing our general training on the ethics and conduct policy and
adding training about our compliance program and the compliance agreement;
- continuing our specific training for the appropriate personnel on billing
and coding issues;
- continuing independent third party periodic audits of our facilities'
inpatient DRG coding;
- having an independent third party perform an annual review of our
compliance with the compliance agreement;
- continuing our confidential disclosure program and "ethics hotline" to
enable employees or others to disclose issues or questions regarding
possible inappropriate policies or behavior;
- enhancing our screening program to ensure that we do not hire or engage
employees or contractors who are ineligible persons for federal healthcare
programs;
- reporting any material deficiency which resulted in an overpayment to us
by a federal healthcare program; and
- submitting annual reports to the Inspector General which describe in
detail the operations of our corporate compliance program for the past
year.
Our substantial adherence to the terms and conditions of the compliance
agreement will constitute an element of our eligibility to participate in the
federal healthcare programs. Consequently, material, uncorrected violations of
the compliance agreement could lead to suspension or disbarment from these
federal programs. In addition, we will be subject to possible civil penalties
for a failure to substantially comply with the terms of the compliance
agreement, including stipulated penalties ranging between $1,000 to $2,500 per
day. We will also be subject to a stipulated penalty of $25,000 per day,
following notice and cure periods, for any deliberate and/or flagrant breach of
the material provisions of the compliance agreement.
52
<PAGE>
EMPLOYEES
At December 31, 1999, we employed 8,643 full time employees and 4,475
part-time employees. Of these employees, 1,056 are union members. We believe
that our labor relations are good.
PROFESSIONAL LIABILITY
As part of our business of owning and operating hospitals, we are subject to
legal actions alleging liability on our part. To cover claims arising out of the
operations of hospitals, we generally maintain professional malpractice
liability insurance and general liability insurance on a claims made basis in
amounts and with deductibles that we believe to be sufficient for our
operations. We also maintain umbrella liability coverage covering claims which,
due to their nature or amount, are not covered by our insurance policies. We
cannot assure you that professional liability insurance will cover all claims
against us or continue to be available at reasonable costs for us to maintain
adequate levels of insurance.
LEGAL PROCEEDINGS
We have executed a settlement agreement with the Inspector General and the
Department of Justice pursuant to which we will pay approximately $31 million in
exchange for a release of civil claims associated with possible inaccurate
inpatient coding for the period 1993 to 1997. As of April 30, 2000, the
settlement agreement had been executed by five of the six applicable state
Medicaid programs. However, the Department of Justice has advised us that all
parties to the settlement agreement have agreed to its terms. For a description
of the terms of the settlement agreement as well as the events giving rise to
the settlement agreement, see "--Compliance Program" and "Risk Factors--If we
fail to comply with the material terms of our corporate compliance agreement, we
could be excluded from government healthcare programs."
In May 1999, we were served with a complaint in U.S. EX REL. BLEDSOE V.
COMMUNITY HEALTH SYSTEMS, INC., Case # 1-98-CV-0435-MHS (N.D. Ga.). This qui tam
action seeks treble damages and penalties under the False Claims Act against us.
The Department of Justice did not intervene in this action. The allegations in
the proposed complaint are extremely general, but appear to involve Medicare
billing at our White County Community Hospital in Sparta, Tennessee. No
discovery has occurred in this action. Based on our review of the complaint, we
do not believe that this lawsuit is meritorious and we intend to vigorously
defend ourselves against this action. However, because of the uncertain nature
of litigation, we cannot predict the outcome of this matter.
The Department of Justice also has notified us of the existence of U.S. EX
REL. SMITH V. COMMUNITY HEALTH SYSTEMS, INC., filed in September 1999 in the
federal court in Nashville, Tennessee. This qui tam lawsuit was brought against
us by a former employee of our Lakeway Regional Hospital. The complaint alleges
violations of the False Claims Act in connection with alleged inflated costs
caused by incorrect allocation of employee salaries to Lakeway Regional
Hospital's rehabilitation unit, as well as improper Medicare reimbursement for
patients readmitted to that hospital from the rehabilitation unit. Our initial
review indicates that the allegations relating to the reimbursement for the
readmitted patients lack factual support. In addition, our initial review
indicates that any inaccuracies in salary allocations to the rehabilitation
unit's cost reports were relatively minimal in amount. This litigation is at a
very preliminary stage and we have not been served with the complaint. The
Department of Justice has informed us that it has not made a decision to
intervene. We intend to assert a number of factual and legal defenses to these
allegations.
The Department of Justice also has notified us of the existence of U.S. EX
REL. KOWATLI V. RUSSELL COUNTY MEDICAL CENTER, ET AL., filed in January 1999 in
the federal court in Abingdon, Virginia. This lawsuit was brought by a physician
who formerly had privileges at Russell County Medical Center. The complaint is
filed under the False Claims Act against various individual doctors as well as
Russell County Medical Center and us. The complaint alleges that the defendants
engaged in unnecessary and
53
<PAGE>
unsafe medical procedures, tests and hospitalizations. The physician had
previously filed two antitrust actions against the doctors and hospital which
were both found to be without merit and dismissed by the courts. Because we have
only recently been notified of this complaint, we have not done any
investigation into the substance of these specific allegations. We have not been
served with the complaint, and the Department of Justice has not made a decision
to intervene.
During the past year, we have received federal grand jury subpoenas from the
U.S. Attorney's Office for the Eastern District of Arkansas seeking documents
from our Harris Hospital facility relating to its mammography department.
Investigators from the Food and Drug Administration and the State of Arkansas
also have sought documents and interviewed employees relating to the activities
of the Harris Hospital mammography department. We have cooperated with the
government's investigation and made documents and individuals available. The
U.S. Attorney's Office has not disclosed to us the specific nature of its
investigation. We are unable to determine if the government intends to go
forward on this matter against us and, if so, whether it will proceed civilly or
criminally.
We have also received various inquiries or subpoenas from state regulators,
fiscal intermediaries, and the Department of Justice regarding various Medicare
and Medicaid issues. In addition, we are subject to other claims and lawsuits
arising in the ordinary course of our business. Plaintiffs in these lawsuits
generally request punitive or other damages that by state law may not be able to
be covered by insurance. We are not aware of any pending or threatened
litigation which we believe would have a material adverse impact on us.
ENVIRONMENTAL MATTERS
We are subject to various federal, state, and local laws and regulations
governing the use, discharge, and disposal of hazardous materials, including
medical waste products. Compliance with these laws and regulations is not
expected to have a material adverse effect on us. It is possible, however, that
environmental issues may arise in the future which we cannot now predict.
54
<PAGE>
MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
The following sets forth information regarding our executive officers and
directors as of April 30, 2000. Unless otherwise indicated, each of our
executive officers holds an identical position with CHS/ Community Health
Systems, Inc., our wholly owned subsidiary:
<TABLE>
<CAPTION>
NAME AGE POSITION
- ---- -------- ------------------------------------------
<S> <C> <C>
Wayne T. Smith............................ 54 President and Chief Executive Officer and
Director (Class III)
W. Larry Cash............................. 51 Executive Vice President and Chief
Financial Officer
David L. Miller........................... 51 Group Vice President
Gary D. Newsome........................... 42 Group Vice President
Michael T. Portacci....................... 41 Group Vice President
John A. Fromhold.......................... 46 Group Vice President
Martin G. Schweinhart..................... 45 Vice President Operations
T. Mark Buford............................ 48 Vice President and Corporate Controller
Rachel A. Seifert......................... 41 Vice President, Secretary and General
Counsel
Sheila P. Burke........................... 49 Director (Class III)
Robert J. Dole............................ 76 Director (Class I)
J. Anthony Forstmann...................... 62 Director (Class I)
Nicholas C. Forstmann..................... 53 Director (Class II)
Theodore J. Forstmann..................... 60 Director (Class III)
Dale F. Frey.............................. 67 Director (Class II)
Sandra J. Horbach......................... 39 Director (Class II)
Thomas H. Lister.......................... 36 Director (Class III)
Michael A. Miles.......................... 60 Chairman of the Board (Class I)
Samuel A. Nunn............................ 61 Director (Class II)
</TABLE>
WAYNE T. SMITH is the President and Chief Executive Officer. Mr. Smith
joined us in January 1997 as President. In April 1997 we also named him our
Chief Executive Officer and a member of the Board of Directors. Prior to joining
us, Mr. Smith spent 23 years at Humana Inc., most recently as President and
Chief Operating Officer, and as a director, from 1993 to mid-1996. He is also a
director of Almost Family.
W. LARRY CASH is the Executive Vice President and Chief Financial Officer.
Mr. Cash joined us in September 1997 as Executive Vice President and Chief
Financial Officer. Prior to joining Community Health Systems, he served as Vice
President and Group Chief Financial Officer of Columbia/HCA Healthcare
Corporation from September 1996 to August 1997. Prior to Columbia/HCA, Mr. Cash
spent 23 years at Humana Inc., most recently as Senior Vice President of Finance
and Operations from 1993 to 1996.
DAVID L. MILLER is a Group Vice President. Mr. Miller joined us in
November 1997 as a Group Vice President, managing hospitals in Alabama, Florida,
North Carolina, South Carolina, and Virginia. Prior to joining us, he served as
a Divisional Vice President for Health Management Associates, Inc. from January
1996 to October 1997. From July 1994 to December 1995, Mr. Miller was the Chief
Executive Officer of the Lake Norman Regional Medical Center in Mooresville,
North Carolina, which is owned by Health Management Associates, Inc.
GARY D. NEWSOME is a Group Vice President. Mr. Newsome joined us in February
1998 as Group Vice President, managing hospitals in Arkansas, Kentucky,
Louisiana, Mississippi, Wyoming, Pennsylvania, Tennessee, and Utah. Prior to
joining us, he was a Divisional Vice President of Health Management
Associates, Inc. in Midwest City, Oklahoma from January 1996 to February 1998.
From January 1995 to January 1996, Mr. Newsome served as Assistant Vice
President/Operations and Group
55
<PAGE>
Operations Vice President responsible for facilities of Health Management
Associates, Inc. in Oklahoma, Arkansas, Kentucky, and West Virginia.
MICHAEL T. PORTACCI is a Group Vice President. Mr. Portacci joined us in
1987 as a hospital administrator and became a Group Director in 1991. In 1994,
he became Group Vice President, managing facilities in Arizona, California,
Illinois, Missouri, New Mexico, and Texas.
JOHN A. FROMHOLD is a Group Vice President. Mr. Fromhold joined us in
June 1998 as a Group Vice President, managing hospitals in Florida, Georgia, and
Texas. Prior to joining us, he served as Chief Executive Officer of Columbia
Medical Center of Arlington, Texas from 1995 to 1998.
MARTIN G. SCHWEINHART is Vice President Operations. Mr. Schweinhart joined
us in June 1997 and has served as the Vice President Operations. From 1994 to
1997 he served as Chief Financial Officer of the Denver and Kentucky divisional
markets of Columbia/HCA Healthcare Corporation. Prior to that time he spent 18
years with Humana Inc. and Columbia/HCA in various management capacities.
T. MARK BUFORD is Vice President and Corporate Controller. Mr. Buford has
served as our Corporate Controller since 1986 and as Vice President since 1988.
RACHEL A. SEIFERT is Vice President, Secretary and General Counsel.
Ms. Seifert joined us in January 1998. From 1992 to 1997, she was Associate
General Counsel of Columbia/HCA Healthcare Corporation and became Vice
President-Legal Operations in 1994. Prior to joining Columbia/HCA in 1992, she
was in private practice in Dallas, Texas.
SHEILA P. BURKE has been a director since 1997. She has been Executive Dean
of the John F. Kennedy School of Government, Harvard University since 1996.
Previously in 1996, Ms. Burke was senior advisor to the Dole for President
Campaign. From 1986 until June 1996, Ms. Burke served as the chief of staff to
former Senator Robert Dole and, in that capacity, was actively involved in
writing some of the healthcare legislation in effect today. She is a director of
WellPoint Health Networks Inc. and The Chubb Corporation.
ROBERT J. DOLE has been a director since 1997. He was a U.S. Senator from
1968 to 1996, during which time he served as Senate majority leader, minority
leader and chairman of the Senate Finance Committee. Mr. Dole was also a U.S.
Representative from 1960 to 1968. He has been a special counsel with Verner,
Liipfert, Bernhard, McPherson and Hand since 1997. He is also a director of TB
Woods Corp.
J. ANTHONY FORSTMANN has been a director since 1996. He has been a Managing
Director of J.A. Forstmann & Co., a merchant banking firm, since October 1987.
Mr. Forstmann was President of The National Registry Inc. from October 1991 to
August 1993 and from September 1994 to March 1995 and Chief Executive Officer
from October 1991 to August 1993 and from September 1994 to December 1995. In
1968, he co-founded Forstmann-Leff Associates, an institutional money management
firm with $6 billion in assets. He is also a special limited partner of one of
the Forstmann Little partnerships.
NICHOLAS C. FORSTMANN has been a director since 1996. He has been a general
partner of FLC XXIX Partnership, L.P. since he co-founded Forstmann Little & Co.
in 1978. He is also a director of The Yankee Candle Company, Inc. and NEXTLINK
Communications, Inc.
THEODORE J. FORSTMANN has been a director since 1996. He has been a general
partner of FLC XXIX Partnership, L.P. since he co-founded Forstmann Little & Co.
in 1978. He is also a director of The Yankee Candle Company, Inc. and McLeodUSA
Incorporated.
DALE F. FREY has been a director since 1997. Mr. Frey currently is retired.
From 1984 until 1997, Mr. Frey was the Chairman of the Board and President of
General Electric Investment Corp. From 1980 until 1997, he was also Vice
President of General Electric Company. Mr. Frey is also a director of
Praxair, Inc., Roadway Express Inc., and Aftermarket Technology Corp.
56
<PAGE>
SANDRA J. HORBACH has been a director since 1996. She has been a general
partner of FLC XXIX Partnership, L.P. since 1993. She is also a director of The
Yankee Candle Company, Inc. and NEXTLINK Communications, Inc.
THOMAS H. LISTER has been a director since April 2000. He has been a general
partner of FLC XXX Partnership, L.P. since 1997. He joined Forstmann Little &
Co. in 1993 as an associate.
MICHAEL A. MILES has been a director since 1997 and has served as Chairman
of the Board since March 1998. Mr. Miles currently is retired. Mr. Miles served
as Chairman and Chief Executive Officer of Philip Morris from 1991 to 1994. He
is also a director of Dell Computer Corp., Morgan Stanley Dean Witter, Sears
Roebuck and Co., Time Warner Inc., Allstate Inc., and the Interpublic Group of
Companies. He is a special limited partner of one of the Forstmann Little
partnerships.
SAMUEL A. NUNN has been a director since 1997. Mr. Nunn has been a partner
at the law firm of King & Spalding since 1997. Prior to joining King & Spalding,
he was a United States Senator from 1972 to 1997. He is also a director of The
Coca Cola Company, Dell Computer Corporation, General Electric Company, Internet
Security Systems Group, Inc., National Service Industries, Inc., Scientific-
Atlanta, Inc., Texaco, Inc., and Total System Services, Inc. He has continued
his service in the public policy arena as Chairman of the Board of the Center
for Strategic and International Studies.
THE BOARD OF DIRECTORS
Our certificate of incorporation will provide for a classified board of
directors consisting of three classes. Each class will consist, as nearly as
possible, of one-third of the total number of directors constituting the entire
board. The term of the initial Class I directors will terminate on the date of
the 2001 annual meeting of stockholders; the term of the initial Class II
directors will terminate on the date of the 2002 annual meeting of stockholders;
and the term of the initial Class III directors will terminate on the date of
the 2003 annual meeting of stockholders. Beginning in 2001, at each annual
meeting of stockholders, successors to the class of directors whose term expires
at that annual meeting will be elected for a three-year term and until their
respective successors are elected and qualified. A director may only be removed
with cause by the affirmative vote of the holders of a majority of the
outstanding shares of capital stock entitled to vote in the election of
directors. The Forstmann Little partnerships have a contractual right to elect
two directors until they no longer own any shares of our common stock.
Directors who are neither our executive officers nor general partners in the
Forstmann Little partnerships have been granted options to purchase common stock
in connection with their election to our board of directors. Directors do not
receive any fees for serving on our board, but are reimbursed for their
out-of-pocket expenses arising from attendance at meetings of the board and
committees. See "--Outside Director Stock Options."
The board has three committees: Executive, Compensation, and Audit and
Compliance. The Executive Committee consists of Theodore J. Forstmann, Sandra J.
Horbach, Michael A. Miles, and Wayne T. Smith. The Compensation Committee
consists of Michael A. Miles, J. Anthony Forstmann, and Nicholas C. Forstmann.
The Audit and Compliance Committee consists of Dale F. Frey, Michael A. Miles,
Sheila P. Burke, and Sandra J. Horbach.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The current members of the Compensation Committee of our board of directors
are: Michael A. Miles, J. Anthony Forstmann, and Nicholas C. Forstmann. During
1999, the Compensation Committee consisted of Theodore J. Forstmann and Sandra
J. Horbach. Sandra J. Horbach formerly served as one of our officers but
received no compensation for her services. None of the other members of the
current or former Compensation Committees are current or former executive
officers or employees of us or any of our subsidiaries. Each of Theodore J.
Forstmann, Nicholas C. Forstmann, and Sandra J. Horbach are general partners in
partnerships affiliated with the Forstmann Little partnerships. See
"--Relationships and Transactions between Community Health Systems and its
Officers, Directors and
57
<PAGE>
5% Beneficial Owners and their Family Members" for a description of the 1996
acquisition of our principal subsidiary by the Forstmann Little partnerships and
members of our management.
EXECUTIVE COMPENSATION
The following table sets forth certain summary information with respect to
compensation for 1999 paid by us for services to our Chief Executive Officer and
our four other most highly paid executive officers who were serving as executive
officers at December 31, 1999.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
ANNUAL COMPENSATION
---------------------------------------
OTHER
ANNUAL ALL
COMPENSATION OTHER
NAME AND POSITION SALARY ($) BONUS ($) (a) COMPENSATION ($)
- ----------------- ---------- --------- -------------- ----------------
<S> <C> <C> <C> <C>
Wayne T. Smith 475,002 427,500 -- 11,947 (b)
President and Chief
Executive Officer
W. Larry Cash 375,000 318,750 -- 10,764 (c)
Executive Vice President and
Chief Financial Officer
Michael T. Portacci 216,000 145,800 -- 5,735 (d)
Group Vice President
David L. Miller 235,000 137,475 -- 6,635 (e)
Group Vice President
Gary D. Newsome 216,000 163,080 -- 32,352 (f)
Group Vice President
</TABLE>
- --------------------------
(a) The amount of other annual compensation is not required to be reported since
the aggregate amount of perquisites and other personal benefits was less
than $50,000 or 10% of the total annual salary and bonus reported for each
named executive officer.
(b) Amount consists of additional long-term disability premiums and payments
made to the Supplemental Survivors Accumulation Plan of $4,822, employer
matching contributions to the 401(k) plan of $2,400 and matching
contributions to the deferred compensation plan of $4,725.
(c) Amount consists of additional long-term disability premiums and payments
made to the Supplemental Survivors Accumulation Plan of $5,139, employer
matching contributions to the 401(k) plan of $2,400, and employer matching
contributions to the deferred compensation plan of $3,225.
(d) Amount consists of additional long-term disability premiums and payments
made to the Supplemental Survivors Accumulation Plan of $3,335 and employer
matching contributions to the 401(k) plan of $2,400.
(e) Amount consists of additional long-term disability premiums and payments
made to the Supplemental Survivors Accumulation Plan of $4,235 and employer
matching contributions to the 401(k) plan of $2,400.
(f) Amount consists of additional long-term disability premiums and payments
made to the Supplemental Survivors Accumulation Plan totaling $3,502,
relocation expense reimbursement of $26,758, and employer matching
contributions to the 401(k) plan of $2,092.
58
<PAGE>
OPTION GRANTS IN LAST FISCAL YEAR
There were no stock options granted to any of our executive officers or
directors during the year ended December 31, 1999.
AGGREGATED OPTION VALUES AS OF DECEMBER 31, 1999
The executive officers named in the summary compensation table did not
exercise any stock options during the year ended December 31, 1999. The
following table sets forth the stock option values as of December 31, 1999 for
these persons.
<TABLE>
<CAPTION>
NUMBER OF SECURITIES VALUE OF UNEXERCISED
UNDERLYING UNEXERCISED IN-THE-MONEY OPTIONS
OPTIONS AT FISCAL YEAR-END AT FISCAL YEAR-END
(#) ($)(a)
--------------------------- ---------------------------
EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
----------- ------------- ----------- -------------
<S> <C> <C> <C> <C>
Wayne T. Smith................................. -- -- $ -- $ --
Larry W. Cash.................................. -- -- -- --
David L. Miller................................ 3,562 5,342 56,992 85,472
Gary D. Newsome................................ 3,562 5,342 56,992 85,472
Michael T. Portacci............................ 5,342 3,562 85,472 56,992
</TABLE>
- ------------------------
(a) Sets forth values for options that represent the positive spread between the
respective exercise prices of outstanding stock options and the value of the
common stock as of December 31, 1999, based on the mid-point of the range of
initial public offering prices set forth on the cover page of this
prospectus.
COMMUNITY HEALTH SYSTEMS STOCK OPTION PLAN
The Community Health Systems Employee Stock Option Plan provides for the
granting of options to purchase shares of common stock of our company to any
employee of our company or our subsidiaries. These options are not intended to
qualify as incentive stock options. The plan is currently administered by the
Compensation Committee of our Board of Directors. As of April 14, 2000, options
to purchase 548,462 shares of common stock have been issued. No additional
grants will be made under this plan.
STOCK OPTION AGREEMENTS. Options are granted pursuant to stock option
agreements. To exercise an option, the optionee must pay for the shares in full
and execute the stockholder's agreement described below. One-fifth of the
options generally vest and become exercisable on each of the first, second,
third, fourth and fifth anniversaries of the grant date. Unvested options expire
on the date of the optionee's termination of employment and vested options
expire after the termination of employment as described below.
Each option expires, unless earlier terminated, on the earliest of:
- the tenth anniversary of the date of grant; and
- the exercise in full of the option.
If an optionee's employment is terminated for any reason, the options will
terminate to the extent they were not exercisable at the time of termination of
employment. The optionee has a 60-day period from the date of our notification
to exercise the vested portion of the option. These options are generally
exercisable only by an optionee during the optionee's lifetime and are not
transferable.
59
<PAGE>
The stock option agreements provide that we will notify the optionee prior
to a total sale or a partial sale. A total sale includes:
- the merger or consolidation of us into another corporation, other than a
merger or consolidation in which we are the surviving corporation and
which does not result in a capital reorganization, reclassification or
other change in the then outstanding common stock;
- the liquidation of us;
- the sale to a third party of all or substantially all of our assets; or
- the sale to a third party of common stock, other than through a public
offering;
but only if the Forstmann Little partnerships cease to own any shares of the
voting stock of our Company.
A partial sale means a sale by the Forstmann Little partnerships of all or a
portion of their shares of common stock to a third party, including through a
public offering, other than a total sale. This offering constitutes neither a
total sale nor a partial sale.
The optionee may exercise his or her options only for purposes of
participating in the partial sale, whether or not the options were otherwise
exercisable, with respect to the excess, if any, of
- the number of shares with respect to which the optionee would be entitled
to participate in the partial sale under the stockholder's agreement which
permits proportional participation with the Forstmann Little partnerships
in a public offering or sale to a third party, as described below, over
- the number of shares previously issued upon exercise of such options and
not previously disposed of in a partial sale.
Upon receipt of a notice of a total sale, the optionee may exercise all or
part of his or her options, whether or not such options were otherwise
exercisable, within five days of receiving such notice, or a shorter time as
determined by the committee.
In connection with a total sale involving the merger, consolidation or
liquidation of us or the sale of common stock by the Forstmann Little
partnerships, we may redeem the unexercised portion of the options, for a price
equal to the price received per share of common stock in the total sale, less
the exercise price of the options, in lieu of permitting the optionee to
exercise the options. Any unexercised portion of an option will terminate upon
the completion of a total sale, unless we provide for its continuation.
In the event a total sale or partial sale is not completed, any option that
the optionee had exercised in connection with the total sale or partial sale
will be deemed not to have been exercised and will be exercisable after the
total sale or partial sale only to the extent it would have been exercisable if
notice of the total sale or partial sale had not been given to the optionee. The
optionee has no independent right to require us to register the shares of common
stock underlying the options under the Securities Act.
The stock option agreements permit us to terminate all of an optionee's
options if the optionee engages in prohibited or competitive activities,
including:
- disclosing confidential information about us;
- soliciting any of our employees within eighteen months of being
terminated;
- publishing any statement critical of us;
60
<PAGE>
- engaging in any competitive activities; or
- being convicted of a crime against us.
The number and class of shares underlying, and the terms of, outstanding
options may be adjusted in certain events, such as a merger, consolidation,
stock split or stock dividend.
STOCKHOLDER'S AGREEMENT. Upon exercise of an option under the plan, an
optionee is required to enter into a stockholder's agreement with us in the form
then in effect. The stockholder's agreement governs the optionee's rights and
obligations as a stockholder. The stockholder's agreement provides that,
generally, the shares issued upon exercise of the options may not be sold,
assigned or otherwise transferred. The description below summarizes the terms of
the form of the stockholder's agreement currently in effect.
If one or more partial sales result in the Forstmann Little partnerships
owning, in the aggregate, less than 25% of our then outstanding voting stock,
the stockholder is entitled to sell, transfer or hold his or her shares of
common stock free of the restrictions and rights contained in the stockholder's
agreement.
The stockholder's agreement provides that the stockholder may participate
proportionately in any sale by the Forstmann Little partnerships of all or a
portion of their shares of common stock to any person who is not a partner or
affiliate of the Forstmann Little partnerships. In addition, the stockholder
shall be entitled to (and may be required to) participate proportionately in a
public offering of shares of common stock by the Forstmann Little partnerships,
by selling the same percentage of the stockholder's shares that the Forstmann
Little partnerships are selling of their shares. The sale of shares of common
stock in such a transaction must be for the same price and otherwise on the same
terms and conditions as the sale by the Forstmann Little partnerships. If the
Forstmann Little partnerships sell or exchange all or a portion of their common
stock in a bona fide arm's-length transaction, the Forstmann Little partnerships
may require the stockholder to sell a proportionate amount of his or her shares
for the same price and on the same terms and conditions as the sale of common
stock by the Forstmann Little partnerships and, if stockholder approval of the
transaction is required, to vote his or her shares in favor of the sale or
exchange.
The stockholder's agreement permits us to repurchase all the shares of
common stock then held by a stockholder if the stockholder engages in any
prohibited activity or competitive activity or is convicted of a crime against
us.
OUTSIDE DIRECTOR STOCK OPTIONS
Six directors, Messrs. Dole, J. Anthony Forstmann, Frey, Miles, and Nunn and
Ms. Burke, have options which were granted pursuant to individual stock option
agreements. Each of the director optionees other than Mr. Miles has options to
purchase 29,679 shares of common stock at $9.04 per share. Mr. Miles has options
to purchase 41,550 shares of common stock at $9.04 per share. These options are
not intended to qualify as incentive stock options and were not issued pursuant
to the plan.
One-third of the options generally become exercisable on each of the first,
second and third anniversaries of the date of the grant. Each option expires on
the earliest of:
- the tenth anniversary of the date of grant;
- the date the director optionee ceases to serve as one of our directors;
and
- the exercise in full of the option.
The director optionees may not sell or otherwise transfer their options.
61
<PAGE>
The director option agreements provide that we will notify the director
optionees prior to a total sale or a partial sale. Upon receipt of a notice of a
partial sale, a director optionee may exercise his or her options only for
purposes of participating in the partial sale, whether or not the options were
otherwise exercisable, with respect to the excess, if any, of:
- the number of shares with respect to which the director optionee would be
entitled to participate in the partial sale under the director
stockholder's agreements described below, over
- the number of shares previously issued upon exercise of the options and
not previously disposed of in a partial sale.
Upon receipt of a notice of a total sale, a director optionee may exercise
all or part of his options, whether or not the options were otherwise
exercisable.
In connection with a total sale, we may redeem the unexercised portion of
the director optionee's options. Any unexercised portion of a director
optionee's options will terminate upon the completion of a total sale, unless we
provide for continuation of the options.
In the event a total sale or partial sale is not completed, any option which
a director optionee had exercised in connection with the sale will be
exercisable after the sale only to the extent it would have been exercisable if
notice of the sale had not been given to the director optionee. The offering
constitutes neither a total sale nor a partial sale.
The director option agreements provide that, if the Forstmann Little
partnerships sell shares of common stock in a bona fide arm's-length
transaction, at our election, a director optionee may be required to:
- proportionately exercise the director optionee's options and to sell all
of the shares of common stock purchased under the exercise in the same
transaction and on the same terms as the shares sold by the Forstmann
Little partnerships, or if unwilling to do so; or
- forfeit the portion of the option required to be exercised.
The director optionees have no independent right to require us to register
the shares of common stock underlying the options under the Securities Act.
The number and class of shares underlying and the terms of outstanding
options may be adjusted in certain events, such as a merger, consolidation,
stock split or stock dividend.
DIRECTOR STOCKHOLDER'S AGREEMENTS. Upon exercise of a director option, a
director optionee is required to enter into a director stockholder's agreement
with us in the form then in effect. The form of director stockholder's agreement
currently in effect is substantially the same as the form of employee
stockholder's agreement currently in effect.
STOCKHOLDER'S AGREEMENTS
Currently, 23 members of our management and other employees or former
employees own an aggregate of 2,275,312 shares of our common stock, excluding
shares issuable upon exercise of options. These shares were purchased pursuant
to the terms of stockholder agreements. The stockholder agreements contain
transfer provisions substantially similar to those in the form of stockholder's
agreements that the employee and director optionees must execute upon exercise
of options.
Upon termination of employment, we have the right, at our option, to
purchase all of the unvested shares of common stock held by the stockholder. The
stock vests at a rate of 20% per year, beginning after one year. The
stockholders have no independent right to require us to register their shares
under the Securities Act.
62
<PAGE>
THE COMMUNITY HEALTH SYSTEMS 2000 STOCK OPTION AND AWARD PLAN
Our Board of Directors adopted the 2000 Stock Option and Award Plan in
April, 2000, and the stockholders approved it in April, 2000. The stock plan
provides for the grant of incentive stock options intended to qualify under
Section 422 of the Internal Revenue Code and stock options which do not so
qualify, stock appreciation rights, restricted stock, performance units and
performance shares, phantom stock awards, and share awards. Persons are eligible
to receive grants under the stock plan include our directors, officers,
employees, and consultants. The stock plan is designed to comply with the
requirements for "performance-based compensation" under Section 162(m) of the
Internal Revenue Code, and the conditions for exemption from the short-swing
profit recovery rules under Rule 16b-3 under the Securities Exchange Act.
The stock plan is administered by a committee that consists of at least two
nonemployee outside board members. The Compensation Committee of the board
currently serves as the committee. Generally, the committee has the right to
grant options and other awards to eligible individuals and to determine the
terms and conditions of options and awards, including the vesting schedule and
exercise price of options and awards. The stock plan authorizes the issuance of
6% of the outstanding shares of common stock determined on a fully diluted basis
as of April 25, 2000, with adjustments to give effect to this offering and our
recapitalization and in the case of changes in capitalization affecting the
options.
At the completion of this offering, we intend to grant stock option to
various employees, including our executive officers, under the 2000 Stock Option
and Award Plan. An aggregate of 3,000,000 shares of common stock would be
issuable upon the exercise of these options, and the exercise price of these
options will be the initial public offering price. The following table sets
forth the number of shares of our common stock underlying these options:
<TABLE>
<S> <C>
Wayne Smith ................................................ 750,000
President and Chief Executive Officer
Larry Cash ................................................. 500,000
Executive Vice President and Chief Financial Officer
David Miller ............................................... 200,000
Group Vice President
Gary Newsome ............................................... 200,000
Group Vice President
Michael Portacci ........................................... 200,000
Group Vice President
Executive officers as a group excluding named executive
officers (12 persons)..................................... 500,000
Other employees as a group.................................. 650,000
</TABLE>
The stock plan provides that the term of any option may not exceed ten
years, except in the case of the death of an optionee in which event the option
may be exercised for up to one year following the date of death even if it
extends beyond ten years from the date of grant. If a participant's employment,
or service as a director, is terminated following a change in control, any
options or stock appreciation rights become immediately and fully vested at that
time and will remain outstanding until the earlier of the six-month anniversary
of termination and the expiration of the option term.
THE COMMUNITY HEALTH SYSTEMS 2000 EMPLOYEE STOCK PURCHASE PLAN
We adopted the 2000 Employee Stock Purchase Plan in April, 2000. The stock
purchase plan provides our employees with the opportunity to purchase shares of
our common stock on the date of this offering at the initial public offering
price as part of our directed share program. After this
63
<PAGE>
offering, the plan allows our employees to purchase additional shares of our
common stock on the NYSE at the then current market price. Employees who elect
to participate in the program will pay for these subsequent purchases with funds
that we will withhold from their paychecks.
RELATIONSHIPS AND TRANSACTIONS BETWEEN COMMUNITY HEALTH SYSTEMS AND ITS
OFFICERS, DIRECTORS AND 5% BENEFICIAL OWNERS AND THEIR FAMILY MEMBERS
In July 1996, we were formed by two Forstmann Little partnerships and
members of our management to acquire CHS/Community Health Systems, Inc., which
was then a publicly owned company named Community Health Systems, Inc. We
financed the acquisition by issuing our common stock to the Forstmann Little
partnerships and members of management, by incurring indebtedness under credit
facilities, and by issuing an aggregate of $500 million of subordinated
debentures to one of the Forstmann Little partnerships, Forstmann Little & Co.
Subordinated Debt and Equity Management Buyout Partnership-VI, L.P. ("MBO-VI").
MBO-VI immediately distributed the subordinated debentures to its limited
partners. The subordinated debentures are our general senior subordinated
obligations, are not subject to mandatory redemption and mature in three equal
annual installments beginning June 30, 2007, with the final payment due on
June 30, 2009. The debentures bear interest at a fixed rate of 7.50% which is
payable semi-annually in January and July. The balance of debentures outstanding
at December 31, 1999 was $500 million. Total interest expense for the debentures
was $37.5 million for each of the years ended December 31, 1997, 1998 and 1999.
We have engaged Greenwood Marketing and Management Services to provide
oversight for our Senior Circle Association, which is a community affinity
organization with local chapters sponsored by each of our hospitals. Greenwood
Marketing and Management is a company owned and operated by Anita Greenwood
Cash, the spouse of W. Larry Cash. In 1999, we paid Greenwood Marketing and
Management Services $268,000 for marketing services, postage, magazines,
handbooks, sales brochures, training manuals, and membership services.
The law firm of King & Spalding, of which Mr. Samuel A. Nunn is a partner,
has in the past provided, and may continue to provide, legal services to us and
our subsidiaries.
The following executive officers of our company were indebted to us in
amounts greater than $60,000 since January 1, 1999 under full recourse
promissory notes. These notes were delivered in partial payment for the purchase
of our common stock. The promissory notes are secured by the shares to which
they relate. The highest amounts outstanding under these notes since January 1,
1999 and the amounts outstanding at December 31, 1999 were as follows:
<TABLE>
<CAPTION>
SINCE JANUARY 1, AT DECEMBER 31,
1999 1999 INTEREST RATE
----------------- --------------- -------------
<S> <C> <C> <C>
W. Larry Cash....................................... $ 697,771 $697,771 6.84%
David L. Miller..................................... 344,620 344,620 6.84%
Gary D. Newsome..................................... 221,707 221,707 6.84%
Michael T. Portacci................................. 82,065 82,065 6.84%
John A. Fromhold.................................... 224,250 224,250 6.84%
Rachel A. Seifert................................... 75,000 72,157 6.84%
</TABLE>
In connection with the relocation of our corporate office from Houston to
Nashville in May 1996, we lent $100,000 to Mr. T. Mark Buford, our Vice
President and Corporate Controller. This loan is due on December 15, 2000 and
bears no interest.
64
<PAGE>
PRINCIPAL STOCKHOLDERS
The following table sets forth certain information regarding the beneficial
ownership of our common stock immediately prior to the consummation of the
offering and as adjusted to reflect the sale of the shares of common stock
pursuant to the offering. The table includes:
- each person who is known by us to be the beneficial owner of more than 5%
of the outstanding common stock;
- each of our directors;
- each executive officer named in the summary compensation table; and
- all directors and executive officers as a group.
Except as otherwise indicated, the persons or entities listed below have
sole voting and investment power with respect to all shares of common stock
beneficially owned by them, except to the extent such power may be shared with a
spouse.
<TABLE>
<CAPTION>
PERCENT BENEFICIALLY
OWNED (a)
SHARES BENEFICIALLY ---------------------
OWNED PRIOR TO BEFORE AFTER
NAME OFFERING (a) OFFERING OFFERING
- ---- ------------------- --------- ---------
<S> <C> <C> <C>
5% STOCKHOLDERS:
Forstmann Little & Co. Equity Partnership-V, L.P. (b)....... 31,101,956 55.9% 41.8%
Forstmann Little & Co. Subordinated Debt and Equity
Management Buyout Partnership-VI, L.P. (b)................ 22,215,564 40.0% 29.9%
DIRECTORS:
Sheila P. Burke............................................. 19,786(c) * *
Robert J. Dole.............................................. 29,679(d) * *
J. Anthony Forstmann........................................ 118,715(e) * *
Nicholas C. Forstmann(b).................................... 53,317,520 95.9% 71.7%
Theodore J. Forstmann(b).................................... 53,317,520 95.9% 71.7%
Dale F. Frey(b)............................................. 29,679(f) * *
Sandra J. Horbach(b)........................................ 53,317,520 95.9% 71.7%
Thomas H. Lister(b)......................................... 31,101,956 55.9% 41.8%
Michael A. Miles(b)......................................... 108,571(g) * *
Samuel A. Nunn(b)........................................... 29,679(h) * *
Wayne T. Smith.............................................. 717,440 1.3% 1.0%
OTHER NAMED EXECUTIVE OFFICERS:
W. Larry Cash............................................... 219,797 * *
David L. Miller............................................. 113,460(i) * *
Gary D. Newsome............................................. 66,592(j) * *
Michael T. Portacci......................................... 109,737(k) * *
All Directors and Executive Officers as a Group
(19 persons).............................................. 55,070,943(l) 98.7% 73.9%
</TABLE>
- ------------------------
* Less than 1%.
(a) For purposes of this table, information as to the shares of common stock
assumes that the recapitalization has been effected and, in the case of the
column "After Offering," that the underwriters' over-allotment option is not
exercised. In addition, a person or group of persons is deemed to have
"beneficial ownership" of any shares of common stock when such person or
persons has the right to acquire them within 60 days after the date of this
prospectus. For purposes of computing the percentage of outstanding shares
of common stock held by each person or group of persons named above, any
shares which such person or persons have the right to acquire within
60 days after the date of this prospectus is deemed to be outstanding but is
not
65
<PAGE>
deemed to be outstanding for the purpose of computing the percentage
ownership of any other person.
(b) The general partner of Forstmann Little & Co. Equity Partnership-V, L.P., a
Delaware limited partnership ("Equity-V"), is FLC XXX Partnership, L.P. a
New York limited partnership of which Theodore J. Forstmann, Nicholas C.
Forstmann, Sandra J. Horbach, Thomas H. Lister, Winston W. Hutchins, Erskine
B. Bowles (through Tywana LLC, a North Carolina limited liability company
having its principal business office at 2012 North Tryon Street, Suite 2450,
Charlotte, N.C. 28202), Jamie C. Nicholls and S. Joshua Lewis are general
partners. The general partner of Forstmann Little & Co. Subordinated Debt
and Equity Management Buyout Partnership-VI, L.P., a Delaware limited
partnership ("MBO-VI"), is FLC XXIX Partnership, L.P., a New York limited
partnership of which Theodore J. Forstmann, Nicholas C. Forstmann, Sandra J.
Horbach, Thomas H. Lister, Winston W. Hutchins, Erskine B. Bowles (through
Tywana LLC), Jamie C. Nicholls and S. Joshua Lewis are general partners.
Accordingly, each of the individuals named above, other than Mr. Lister,
with respect to MBO-VI, and Mr. Bowles, Ms. Nicholls and Mr. Lewis, with
respect to Equity-V and MBO-VI, for the reasons described below, may be
deemed the beneficial owners of shares owned by MBO-VI and Equity-V and, for
purposes of this table, beneficial ownership is included. Mr. Lister, with
respect to MBO-VI, and Mr. Bowles, Ms. Nicholls and Mr. Lewis, with respect
to Equity-V and MBO-VI, do not have any voting or investment power with
respect to, or any economic interest in, the shares of common stock of the
company held by MBO-VI or Equity-V; and, accordingly, Mr. Lister,
Mr. Bowles, Ms. Nicholls and Mr. Lewis are not deemed to be the beneficial
owners of these shares. Theodore J. Forstmann, Nicholas C. Forstmann and J.
Anthony Forstmann are brothers. Messrs. Frey, Miles and Nunn are members of
the Forstmann Little Advisory Board and, as such, have economic interests in
the Forstmann Little partnerships. FLC XXX Partnership is a limited partner
of Equity-V. Each of Messrs. J. Anthony Forstmann and Michael A. Miles is a
special limited partner in one of the Forstmann Little partnerships. None of
the other limited partners in each of MBO-VI and Equity-V is otherwise
affiliated with Community Health Systems. The address of Equity-V and MBO-VI
is c/o Forstmann Little & Co., 767 Fifth Avenue, New York, New York 10153.
(c) Includes 19,786 shares subject to options which are currently exercisable or
exercisable within 60 days of the date of this prospectus.
(d) Includes 29,679 shares subject to options which are currently exercisable or
exercisable within 60 days of the date of this prospectus.
(e) Includes 29,679 shares subject to options which are currently exercisable or
exercisable within 60 days of the date of this prospectus. The remaining
shares are held through a limited partnership interest in the Forstmann
Little partnerships.
(f) Includes 29,679 shares subject to options which are currently exercisable or
exercisable within 60 days of the date of this prospectus.
(g) Includes 41,550 shares subject to options which are currently exercisable or
exercisable within 60 days of the date of this prospectus. The remaining
shares are held through a limited partnership interest in the Forstmann
Little partnerships.
(h) Includes 29,679 shares subject to options which are currently exercisable or
exercisable within 60 days of the date of this prospectus.
(i) Includes 3,561 shares subject to options which are currently exercisable or
exercisable within 60 days of the date of this prospectus.
(j) Includes 3,561 shares subject to options which are currently exercisable or
exercisable within 60 days of the date of this prospectus.
(k) Includes 5,342 shares subject to options which are currently exercisable or
exercisable within 60 days of the date of this prospectus.
(l) Includes 24,841 shares subject to options which are currently exercisable or
exercisable within 60 days of the date of this prospectus.
66
<PAGE>
DESCRIPTION OF INDEBTEDNESS
THE CREDIT AGREEMENT
We and our wholly owned subsidiary, CHS/Community Health Systems, Inc., are
parties to a credit facility with a syndicate of banks and other financial
institutions led by The Chase Manhattan Bank, as a lender and administrative
agent, under which our subsidiary has, and may in the future, borrow. We have
guaranteed the performance of our subsidiary under this credit facility. The
credit facility consists of the following:
<TABLE>
<CAPTION>
BALANCE OUTSTANDING
(AS OF MARCH 31, 2000)
----------------------
<S> <C>
Revolving credit facility.............................. $145,000,000
Acquisition loan facility.............................. $159,951,000
Tranche A term loan.................................... $ 27,250,000
Tranche B term loan.................................... $127,000,000
Tranche C term loan.................................... $127,000,000
Tranche D term loan.................................... $338,056,500
</TABLE>
The loans bear interest, at our option, at either of the following rates:
(a) the highest of:
- the rate from time to time publicly announced by The Chase Manhattan
Bank in New York as its prime rate;
- the secondary market rate for three-month certificates of deposit from
time to time plus 1%; and
- the federal funds rate from time to time, plus 1/2 of 1%;
in each case plus an applicable margin which is:
- based on a pricing grid depending on our leverage ratio at that time
for the revolving credit loans, acquisition loans and the tranche A
term loan;
- 2.00% for the tranche B term loan;
- 2.50% for the tranche C term loan;
- 2.75% for the tranche D term loan; or
(b) a Eurodollar rate plus an applicable margin which is:
- based on a pricing grid depending on our leverage ratio at that time,
for revolving credit loans, acquisition loans and the tranche A term
loan;
- 3.00% for the tranche B loan;
- 3.50% for the tranche C loan;
- 3.75% for the tranche D loan.
The term loans are repayable in quarterly installments pursuant to a
predetermined payment schedule through December 31, 2005.
We also pay a commitment fee for the daily average unused commitment under
the revolving credit commitment and available acquisition loan commitment. The
commitment fee is based on a pricing grid depending on the applicable margin in
effect for Eurodollar revolving credit loans. The commitment fee is payable
quarterly in arrears and on the revolving credit termination date with respect
to the available revolving credit commitments and on the acquisition loan
termination date with
67
<PAGE>
respect to available acquisition loan commitments. In addition, we will pay fees
for each letter of credit issued under the credit facility.
Loans under the revolving credit facility can be made at any time prior to
December 31, 2002, provided that no loan taken pursuant to the revolving credit
facility can mature later than December 31, 2002. The total borrowings we may
have outstanding at any time under our revolving credit facility is $200
million.
The acquisition facility is a reducing revolving credit facility that will
be permanently reduced on predetermined anniversaries in accordance with a
schedule. Once reduced, outstanding acquisition loans must be repaid to the
extent they exceed the reduced level. The acquisition loan termination date is
December 31, 2002. The total borrowings we may have outstanding at any time
under our acquisition facility is $282.5 million.
The loans must be prepaid with the net proceeds in excess of $20 million in
the aggregate of specified asset sales and issuances of additional indebtedness
not constituting permitted indebtedness in the credit facility. These net
proceeds will be applied first to prepay the outstanding balances of the term
loans and the acquisition loans and then to repay outstanding balances of the
revolving credit loans. The commitments under the acquisition loans and
revolving credit loans will be permanently reduced by the amount of the
repayment of these facilities.
The credit facility contains covenants and provisions that restrict, among
other things, our ability to change the business we are conducting, declare
dividends, grant liens, incur additional indebtedness, exceed a specified
leverage ratio, fall below a minimum interest coverage ratio and make capital
expenditures. Our wholly owned subsidiary, CHS/Community Health Systems, Inc.,
is prohibited from paying dividends or making other distributions to us except
to the extent necessary to pay taxes, fees, and expenses to maintain our
corporate existence and to conduct our activities as permitted by our guarantee
of the obligations under the credit facility.
We will use the net proceeds of the offering to prepay indebtedness under
this credit facility. See "Use of Proceeds."
SUBORDINATED DEBT
We issued an aggregate of $500 million of subordinated debentures to MBO-VI
in connection with the July 1996 acquisition of our subsidiary. MBO-VI
immediately distributed the subordinated debentures to its limited partners. The
subordinated debentures are divided into three equal series, due on June 30,
2007, June 30, 2008 and June 30, 2009. The subordinated debentures provide for
interest at a rate of 7 1/2%, payable semi-annually. The subordinated debentures
may be prepaid by us at any time without premium, penalty or charge and are
subordinate to our credit agreement and other senior obligations. We have a
right of first refusal on the transfer of the debentures.
DESCRIPTION OF CAPITAL STOCK
OVERVIEW
Immediately before the closing of the offering, we will be recapitalized as
follows:
- each outstanding share of Class B common stock will be exchanged for .488
of a share of Class A common stock;
- each outstanding option to purchase a share of Class C common stock will
be exchanged for an option to purchase .750 of a share of Class A common
stock;
- the Class A common stock will be redesignated as common stock and adjusted
for a stock split on a 118.7148-for-1 basis; and
68
<PAGE>
- the certificate of incorporation will be amended and restated to reflect a
single class of common stock, par value $.01 per share, and the number of
authorized shares of common stock and preferred stock will be increased.
After giving effect to these changes to our certificate of incorporation,
our authorized capital stock will consist of 300,000,000 shares of common stock,
$.01 par value per share, and 100,000,000 shares of preferred stock, $.01 par
value per share.
After giving effect to these changes to our certificate of incorporation and
the 118.7148-for-1 stock split, but before the closing of the offering, based on
share information as of April 30, 2000, there will be 55,592,832 shares of
common stock outstanding and no shares of preferred stock outstanding. After the
closing of the offering, there will be 74,342,832 shares of common stock
outstanding.
After the closing of the offering, the Forstmann Little partnerships and our
management will beneficially own approximately 74.78% of the outstanding common
stock, 75.03% on a fully diluted basis. As long as the Forstmann Little
partnerships and our management continue to own in the aggregate more than 50%
of the outstanding shares of common stock, they will collectively have the power
to:
- elect our entire board of directors;
- determine without the consent of other stockholders, the outcome of any
corporate transaction or other matter submitted to the stockholders for
approval, including mergers, consolidations and the sale of all or
substantially all of our assets;
- prevent or cause a change in control; and
- approve substantially all amendments to our certificate of incorporation.
The Forstmann Little partnerships have a contractual right to elect two
directors until such time as they no longer own any of our shares of common
stock.
The following summary contains material information relating to provisions
of our common stock, preferred stock, certificate of incorporation and by-laws
is not intended to be complete and is qualified by reference to the provisions
of applicable law and to our certificate of incorporation and by-laws included
as exhibits to the registration statement of which this prospectus is a part.
COMMON STOCK
Holders of common stock are entitled to one vote for each share held on all
matters submitted to a vote of stockholders and do not have cumulative voting
rights. Accordingly, holders of a majority of the outstanding shares of common
stock entitled to vote in any election of directors may elect all of the
directors standing for election. Holders of common stock are entitled to receive
ratably such dividends, if any, as may be declared by the board of directors out
of legally available funds. Upon our liquidation, dissolution or winding-up,
holders of common stock are entitled to receive ratably our net assets available
for distribution after the payment of all of our liabilities and the payment of
any required amounts to the holders of any outstanding preferred stock. Holders
of common stock have no preemptive, subscription, redemption or conversion
rights. The outstanding shares of common stock are, and the shares sold in the
offering will be, when issued and paid for, validly issued, fully paid and
nonassessable. The rights, preferences and privileges of holders of common stock
are subject to, and may be adversely affected by, the rights of holders of
shares of any series of preferred stock that may designate and issue in the
future.
69
<PAGE>
PREFERRED STOCK
Our board of directors is authorized, subject to any limitations prescribed
by law, without further stockholder approval, to establish from time to time one
or more classes or series of preferred stock covering up to an aggregate of
100,000,000 shares of preferred stock, and to issue such shares of preferred
stock. Each class or series of preferred stock will cover such number of shares
and will have such preferences, voting powers, qualifications and special or
relative rights or privileges as is determined by the board of directors, which
may include, among others, dividend rights, liquidation preferences, voting
rights, conversion rights, preemptive rights, and redemption rights.
The purpose of authorizing the board of directors to establish preferred
stock is to eliminate delays associated with a stockholders vote on the creation
of a particular class or series of preferred stock. The rights of the holders of
common stock will be subject to the rights of holders of any preferred stock
issued in the future. The issuance of preferred stock, while providing desirable
flexibility in connection with possible acquisitions and other corporate
purposes, could have the effect of discouraging, delaying or preventing an
acquisition of our company at a price which many stockholders find attractive.
These provisions could also make it more difficult for our stockholders to
effect certain corporate actions, including the election of directors. We have
no present plans to issue any shares of preferred stock.
LIMITATION ON LIABILITY AND INDEMNIFICATION MATTERS
Our certificate of incorporation limits the liability of our directors to us
and our stockholders to the fullest extent permitted by Delaware law.
Specifically, our directors will not be personally liable for money damages for
breach of fiduciary duty as a director, except for liability
- for any breach of the director's duty of loyalty to us or our
stockholders;
- for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
- under Section 174 of the Delaware General Corporation Law, which concerns
unlawful payments of dividends, stock purchases, or redemptions; and
- for any transaction from which the director derived an improper personal
benefit.
Our certificate of incorporation and by-laws will also contain provisions
indemnifying our directors and officers to the fullest extent permitted by
Delaware law. The indemnification permitted under Delaware law is not exclusive
of any other rights to which such persons may be entitled.
In addition, we maintain directors' and officers' liability insurance to
provide our directors and officers with insurance coverage for losses arising
from claims based on breaches of duty, negligence, error and other wrongful
acts.
We have entered into, or intend to enter into, indemnification agreements
with our directors and executive officers. These agreements contain provisions
that may require us, among other things, to indemnify these directors and
executive officers against certain liabilities that may arise because of their
status or service as directors or executive officers, advance their expenses
incurred as a result of any proceeding against them as to which they could be
indemnified and obtain directors' and officers' liability insurance.
At present there is no pending litigation or proceeding involving any
director or officer, as to which indemnification is required or permitted. We
are not aware of any threatened litigation or proceeding which may result in a
claim for such indemnification.
70
<PAGE>
ANTI-TAKEOVER EFFECTS OF OUR CERTIFICATE OF INCORPORATION AND BYLAWS AND
PROVISIONS OF DELAWARE LAW
A number of provisions in our certificate of incorporation, by-laws and
Delaware law may make it more difficult to acquire control of us. These
provisions could deprive the stockholders of opportunities to realize a premium
on the shares of common stock owned by them. In addition, these provisions may
adversely affect the prevailing market price of the common stock. These
provisions are intended to:
- enhance the likelihood of continuity and stability in the composition of
the board and in the policies formulated by the board;
- discourage certain types of transactions which may involve an actual or
threatened change in control of our company;
- discourage certain tactics that may be used in proxy fights; and
- encourage persons seeking to acquire control of our company to consult
first with the board of directors to negotiate the terms of any proposed
business combination or offer.
STAGGERED BOARD. Our certificate of incorporation and by-laws will provide
that the number of our directors shall be fixed from time to time by a
resolution of a majority of our board of directors. Our certificate of
incorporation and by-laws also provide that the board of directors shall be
divided into three classes. The members of each class of directors will serve
for staggered three-year terms. In accordance with the Delaware General
Corporation Law, directors serving on classified boards of directors may only be
removed from office for cause. The classification of the board has the effect of
requiring at least two annual stockholder meetings, instead of one, to replace a
majority of the members of the board. Subject to the rights of the holders of
any outstanding series of preferred stock, vacancies on the board of directors
may be filled only by a majority of the remaining directors, or by the sole
remaining director, or by the stockholders if the vacancy was caused by removal
of the director by the stockholders. This provision could prevent a stockholder
from obtaining majority representation on the board by enlarging the board of
directors and filling the new directorships with its own nominees.
ADVANCE NOTICE PROCEDURES FOR STOCKHOLDER PROPOSALS AND DIRECTOR
NOMINATIONS. Our by-laws will provide that stockholders seeking to bring
business before an annual meeting of stockholders, or to nominate candidates for
election as directors at an annual meeting of stockholders, must provide timely
notice thereof in writing. To be timely, a stockholder's notice generally must
be delivered to or mailed and received at our principal executive offices not
less than 45 or more than 75 days prior to the first anniversary of the date on
which we first mailed our proxy materials for the preceding year's annual
meeting of stockholders. However, if the date of the annual meeting is advanced
more than 30 days prior to or delayed by more than 30 days after the anniversary
of the preceding year's annual meeting, to be timely, notice by the stockholder
must be delivered not later than the close of business on the later of the 90th
day prior to the annual meeting or the 10th day following the day on which
public announcement of the date of the meeting is first made. The by-laws will
also specify certain requirements as to the form and content of a stockholder's
notice. These provisions may preclude stockholders from bringing matters before
an annual meeting of stockholders or from making nominations for directors at an
annual meeting of stockholders.
STOCKHOLDER ACTION BY WRITTEN CONSENT. Our by-laws provide that
stockholders may take action by written consent.
PREFERRED STOCK. The ability of our board to establish the rights and issue
substantial amounts of preferred stock without the need for stockholder
approval, while providing desirable flexibility in connection with possible
acquisitions, financings, and other corporate transactions, may among other
things, discourage, delay, defer, or prevent a change in control of the company.
71
<PAGE>
AUTHORIZED BUT UNISSUED SHARES OF COMMON STOCK. The authorized but unissued
shares of common stock are available for future issuance without stockholder
approval. These additional shares may be utilized for a variety of corporate
purposes, including future public offerings to raise additional capital,
corporate acquisitions, and employee benefit plans. The existence of authorized
but unissued shares of common stock could render more difficult or discourage an
attempt to obtain control of us by means of a proxy contest, tender offer,
merger or otherwise.
WE HAVE OPTED OUT OF SECTION 203 OF THE DELAWARE GENERAL CORPORATION
LAW. Our certificate of incorporation provides that we have opted out of the
provisions of Section 203 of the Delaware General Corporation Law. In general,
Section 203 prohibits a publicly held Delaware corporation from engaging in a
"business combination" with an "interested stockholder" for a period of three
years after the date of the transaction in which the person became an interested
stockholder, unless the business combination is approved in a prescribed manner.
Because we have opted out in the manner permitted under Delaware law, the
restrictions of this provision will not apply to us.
SHARES ELIGIBLE FOR FUTURE SALE
RULE 144 SECURITIES
Upon the consummation of the offering, we will have 74,342,832 shares of
common stock outstanding. Of these shares, only the 18,750,000 shares of common
stock sold in the offering will be freely tradable without registration under
the Securities Act and without restriction by persons other than our
"affiliates." The 55,592,832 shares of common stock held by the Forstmann Little
partnerships and our directors and executive officers after the offering will be
"restricted" securities under the meaning of Rule 144 under the Securities Act
and may not be sold in the absence of registration under the Securities Act,
unless an exemption from registration is available, including exemptions
pursuant to Rule 144 or Rule 144A under the Securities Act.
In general, under Rule 144 as currently in effect, beginning 90 days after
the date of this prospectus, a person who has beneficially owned shares of our
common stock for at least one year would be entitled to sell within any
three-month period a number of shares that does not exceed the greater of either
of the following:
- 1% of the number of shares of common stock then outstanding, which will
equal approximately the number of shares outstanding immediately after the
offering, or
- the average weekly trading volume of the common stock on the NYSE during
the four calendar weeks preceding the filing of a notice on Form 144 with
respect to such sale.
Sales under Rule 144 are also subject to certain manner of sale provisions
and notice requirements and to the availability of current public information
about us.
Under Rule 144(k), a person who is not deemed to have been one of our
"affiliates" at any time during the 90 days preceding a sale, and who has
beneficially owned the shares proposed to be sold for at least two years,
including the holding period of any prior owner other than an "affiliate," is
entitled to sell its shares without complying with the manner of sale, public
information, volume limitation or notice provisions of Rule 144. Therefore,
unless otherwise restricted, "144(k) shares" may be sold immediately upon the
completion of the offering. The sale of these shares, or the perception that
sales will be made, could adversely affect the price of our common stock after
the offering because a greater supply of shares would be, or would be perceived
to be, available for sale in the public market.
We and our executive officers and directors and all existing stockholders
have agreed that, without the prior written consent of Merrill Lynch & Co. on
behalf of the underwriters, it will not, during the period ended 180 days after
the date of this prospectus, sell shares of common stock or take certain related
actions, subject to limited exceptions, all as described under "Underwriting."
72
<PAGE>
REGISTRATION RIGHTS
We have entered into a registration rights agreement with the Forstmann
Little partnerships, pursuant to which we have granted to the Forstmann Little
partnerships six demand rights to cause us to file a registration statement
under the Securities Act covering resales of all shares of common stock held by
the Forstmann Little partnerships, and to cause the registration statement to
become effective. The registration rights agreement also grants "piggyback"
registration rights permitting the Forstmann Little partnerships to include its
registrable securities in a registration of securities by us. Under the
agreement, we will pay the expenses of such registrations.
In addition, pursuant to the stockholder's and subscription agreements, we
have granted "piggyback" registration rights to all of our employees and
directors who have purchased shares of common stock and/or that have been
awarded options to purchase shares of common stock. These registration rights
are exercisable only upon registration by us of shares of common stock held by
the Forstmann Little partnerships. The holders of common stock entitled to these
registration rights are entitled to notice of any proposal to register shares
held by the Forstmann Little partnerships and to include their shares in such
registration. We will pay the expenses of these piggyback registrations.
UNITED STATES FEDERAL TAX CONSIDERATIONS FOR NON-UNITED STATES HOLDERS
The following is a general discussion of the principal United States federal
income and estate tax consequences of the ownership and disposition of our
common stock by a non-U.S. holder. As used in this discussion, the term
"non-U.S. holder" means a beneficial owner of our common stock that is not, for
U.S. federal income tax purposes:
- an individual who is a citizen or resident of the United States;
- a corporation or partnership created or organized in or under the laws of
the United States or of any political subdivision of the United States,
other than a partnership treated as foreign under U.S. Treasury
regulations;
- an estate whose income is includible in gross income for U.S. federal
income tax purposes regardless of its source; or
- a trust, in general, if a U.S. court is able to exercise primary
supervision over the administration of the trust and one or more U.S.
persons have authority to control all substantial decisions of the trust.
An individual may be treated as a resident of the United States in any
calendar year for U.S. federal income tax purposes, instead of a nonresident,
by, among other ways, being present in the United States on at least 31 days in
that calendar year and for an aggregate of at least 183 days during a three-year
period ending in the current calendar year. For purposes of this calculation,
you would count all of the days present in the current year, one-third of the
days present in the immediately preceding year and one-sixth of the days present
in the second preceding year. Residents are taxed for U.S. federal income
purposes as if they were U.S. citizens.
This discussion does not consider:
- U.S. state and local or non-U.S. tax consequences;
- specific facts and circumstances that may be relevant to a particular
non-U.S. holder's tax position, including, if the non-U.S. holder is a
partnership that the U.S. tax consequences of holding and disposing of our
common stock may be affected by certain determinations made at the partner
level;
- the tax consequences for the shareholders, partners or beneficiaries of a
non-U.S. holder;
73
<PAGE>
- special tax rules that may apply to particular non-U.S. holders, such as
financial institutions, insurance companies, tax-exempt organizations,
U.S. expatriates, broker-dealers, and traders in securities; or
- special tax rules that may apply to a non-U.S. holder that holds our
common stock as part of a "straddle," "hedge," "conversion transaction,"
"synthetic security" or other integrated investment.
The following discussion is based on provisions of the U.S. Internal Revenue
Code of 1986, as amended, applicable U.S. Treasury regulations and
administrative and judicial interpretations, all as in effect on the date of
this prospectus, and all of which are subject to change, retroactively or
prospectively. The following summary assumes that a non-U.S. holder holds our
common stock as a capital asset. EACH NON-U.S. HOLDER SHOULD CONSULT A TAX
ADVISOR REGARDING THE U.S. FEDERAL, STATE, LOCAL, AND NON-U.S. INCOME AND OTHER
TAX CONSEQUENCES OF ACQUIRING, HOLDING, AND DISPOSING OF SHARES OF OUR COMMON
STOCK.
DIVIDENDS
We do not anticipate paying cash dividends on our common stock in the
foreseeable future. See "Dividend Policy." In the event, however, that we pay
dividends on our common stock, we will have to withhold a U.S. federal
withholding tax at a rate of 30%, or a lower rate under an applicable income tax
treaty, from the gross amount of the dividends paid to a non-U.S. holder.
Non-U.S. holders should consult their tax advisors regarding their entitlement
to benefits under a relevant income tax treaty.
Dividends paid prior to 2001 to an address in a foreign country are
presumed, absent actual knowledge to the contrary, to be paid to a resident of
such country for purposes of the withholding discussed above and for purposes of
determining the applicability of a tax treaty rate. For dividends paid after
2000:
- a non-U.S. holder who claims the benefit of an applicable income tax
treaty rate generally will be required to satisfy applicable certification
and other requirements;
- in the case of common stock held by a foreign partnership, the
certification requirement will generally be applied to the partners of the
partnership and the partnership will be required to provide certain
information, including a U.S. taxpayer identification number; and
- look-through rules will apply for tiered partnerships.
A non-U.S. holder that is eligible for a reduced rate of U.S. federal
withholding tax under an income tax treaty may obtain a refund or credit of any
excess amounts withheld by filing an appropriate claim for a refund with the
U.S. Internal Revenue Service.
Dividends that are effectively connected with a non-U.S. holder's conduct of
a trade or business in the United States or, if an income tax treaty applies,
attributable to a permanent establishment in the United States, are taxed on a
net income basis at the regular graduated rates and in the manner applicable to
U.S. persons. In that case, we will not have to withhold U.S. federal
withholding tax if the non-U.S. holder complies with applicable certification
and disclosure requirements. In addition, a "branch profits tax" may be imposed
at a 30% rate, or a lower rate under an applicable income tax treaty, on
dividends received by a foreign corporation that are effectively connected with
the conduct of a trade or business in the United States.
74
<PAGE>
GAIN ON DISPOSITION OF COMMON STOCK
A non-U.S. holder generally will not be taxed on gain recognized on a
disposition of our common stock unless:
- the gain is effectively connected with the non-U.S. holder's conduct of a
trade or business in the United States or, alternatively, if an income tax
treaty applies, is attributable to a permanent establishment maintained by
the non-U.S. holder in the United States; in these cases, the gain will be
taxed on a net income basis at the regular graduated rates and in the
manner applicable to U.S. persons and, if the non-U.S. holder is a foreign
corporation, the "branch profits tax" described above may also apply;
- the non-U.S. holder is an individual who holds our common stock as a
capital asset, is present in the United States for more than 182 days in
the taxable year of the disposition and meets other requirements; or
- we are or have been a "U.S. real property holding corporation" for U.S.
federal income tax purposes at any time during the shorter of the
five year period ending on the date of disposition or the period that the
non-U.S. holder held our common stock.
In general, we will be treated as a "U.S. real property holding corporation"
if the fair market value of our "U.S. real property interests" equals or exceeds
50% of the sum of the fair market value of our worldwide real property interests
and our other assets used or held for use in a trade or business. Currently, it
is our best estimate that the fair market value of our U.S. real property
interests is, and has been for at least the previous five years, less than 50%
of the sum of the fair market value of our worldwide real property interests and
our other assets, including goodwill, used or held for use in a trade or
business. Therefore, we believe that we are not currently a U.S. real property
holding corporation. Nor do we anticipate becoming a U.S. real property holding
corporation in the future.
However, even if we are or have been a U.S. real property holding
corporation, a non-U.S. holder which did not beneficially own, directly or
indirectly, more than 5% of the total fair market value of our common stock at
any time during the shorter of the five-year period ending on the date of
disposition or the period that our common stock was held by the non-U.S. holder
(a "non-5% holder") and which is not otherwise taxed under any other
circumstances described above, generally will not be taxed on any gain realized
on the disposition of our common stock if, at any time during the calendar year
of the disposition, our common stock was regularly traded on an established
securities market within the meaning of the applicable U.S. Treasury
regulations.
We have applied to have our common stock listed on the NYSE. Although not
free from doubt, our common stock should be considered to be regularly traded on
an established securities market for any calendar quarter during which it is
regularly quoted on the NYSE by brokers or dealers which hold themselves out to
buy or sell our common stock at the quoted price. If our common stock were not
considered to be regularly traded on the NYSE at any time during the applicable
calendar year, then a non-5% holder would be taxed for U.S. federal income tax
purposes on any gain realized on the disposition of our common stock on a net
income basis as if the gain were effectively connected with the conduct of a
U.S. trade or business by the non-5% holder during the taxable year and, in such
case, the person acquiring our common stock from a non-5% holder generally would
have to withhold 10% of the amount of the proceeds of the disposition. Such
withholding may be reduced or eliminated pursuant to a withholding certificate
issued by the U.S. Internal Revenue Service in accordance with applicable U.S.
Treasury regulations. We urge all non-U.S. holders to consult their own tax
advisors regarding the application of these rules to them.
75
<PAGE>
FEDERAL ESTATE TAX
Common stock owned or treated as owned by an individual who is a non-U.S.
holder at the time of death will be included in the individual's gross estate
for U.S. federal estate tax purposes, unless an applicable estate tax or other
treaty provides otherwise and, therefore, may be subject to U.S. federal estate
tax.
INFORMATION REPORTING AND BACKUP WITHHOLDING TAX
We must report annually to the U.S. Internal Revenue Service and to each
non-U.S. holder the amount of dividends paid to that holder and the tax withheld
from those dividends. Copies of the information returns reporting those
dividends and withholding may also be made available to the tax authorities in
the country in which the non-U.S. holder is a resident under the provisions of
an applicable income tax treaty or agreement.
Under some circumstances, U.S. Treasury regulations require additional
information reporting and backup withholding at a rate of 31% on some payments
on common stock. Under currently applicable law, non-U.S. holders generally will
be exempt from these additional information reporting requirements and from
backup withholding on dividends paid prior to 2001 if we either were required to
withhold a U.S. federal withholding tax from those dividends or we paid those
dividends to an address outside the United States. After 2000, however, the
gross amount of dividends paid to a non-U.S. holder that fails to certify its
non-U.S. holder status in accordance with applicable U.S. Treasury regulations
generally will be reduced by backup withholding at a rate of 31%.
The payment of the proceeds of the disposition of common stock by a non-U.S.
holder to or through the U.S. office of a broker or a non-U.S. office of a U.S.
broker generally will be reported to the U.S. Internal Revenue Service and
reduced by backup withholding at a rate of 31% unless the non-U.S. holder either
certifies its status as a non-U.S. holder under penalties of perjury or
otherwise establishes an exemption and the broker has no actual knowledge to the
contrary. The payment of the proceeds of the disposition of common stock by a
non-U.S. holder to or through a non-U.S. office of a non-U.S. broker will not be
reduced by backup withholding or reported to the U.S. Internal Revenue Service
unless the non-U.S. broker has certain enumerated connections with the United
States. In general, the payment of proceeds from the disposition of common stock
by or through a non-U.S. office of a broker that is a U.S. person or has certain
enumerated connections with the United States will be reported to the U.S.
Internal Revenue Service and, after 2000, may be reduced by backup withholding
at a rate of 31%, unless the broker receives a statement from the non-U.S.
holder, signed under penalty of perjury, certifying its non-U.S. status or the
broker has documentary evidence in its files that the holder is a non-U.S.
holder and the broker has no actual knowledge to the contrary.
Non-U.S. holders should consult their own tax advisors regarding the
application of the information reporting and backup withholding rules to them,
including changes to these rules that will become effective after 2000.
Any amounts withheld under the backup withholding rules from a payment to a
non-U.S. holder will be refunded, or credited against the holder's U.S. federal
income tax liability, if any, provided that the required information is
furnished to the U.S. Internal Revenue Service.
76
<PAGE>
UNDERWRITING
We intend to offer the shares in the U.S. and Canada through the U.S.
underwriters and elsewhere through the international managers. Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Banc of America Securities LLC, Chase
Securities Inc., Credit Suisse First Boston Corporation, Goldman, Sachs & Co.,
and Morgan Stanley & Co. Incorporated are acting as U.S. representatives of the
U.S. underwriters named below. Subject to the terms and conditions described in
a U.S. purchase agreement between us and the U.S. underwriters, and concurrently
with the sale of 2,812,500 shares to the international managers, we have agreed
to sell to the U.S. underwriters, and the U.S. underwriters severally have
agreed to purchase from us, the number of shares listed opposite their names
below.
<TABLE>
<CAPTION>
NUMBER
U.S. UNDERWRITER OF SHARES
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated......................................
Banc of America Securities LLC..............................
Chase Securities Inc........................................
Credit Suisse First Boston Corporation......................
Goldman, Sachs & Co.........................................
Morgan Stanley & Co. Incorporated...........................
----------
Total............................................. 15,937,500
==========
</TABLE>
We have also entered into an international purchase agreement with the
international managers for sale of the shares outside the U.S. and Canada for
whom Merrill Lynch International, Bank of America International Limited, Chase
Manhattan International Limited, Credit Suisse First Boston (Europe) Limited,
Goldman Sachs International, and Morgan Stanley & Co. International Limited are
acting as lead managers. Subject to the terms and conditions in the
international purchase agreement, and concurrently with the sale of 15,937,500
shares to the U.S. underwriters pursuant to the U.S. purchase agreement, we have
agreed to sell to the international managers, and the international managers
severally have agreed to purchase 2,812,500 shares from us. The initial public
offering price per share and the total underwriting discount per share are
identical under the U.S. purchase agreement and the international purchase
agreement.
The U.S. underwriters and the international managers have agreed to purchase
all of the shares sold under the U.S. and international purchase agreements if
any of these shares are purchased. If an underwriter defaults, the U.S. and
international purchase agreements provide that the purchase commitments of the
nondefaulting underwriters may be increased or the purchase agreements may be
terminated. The closings for the sale of shares to be purchased by the U.S.
underwriters and the international managers are conditioned on one another.
We have agreed to indemnify the U.S. underwriters and the international
managers against certain liabilities, including liabilities under the Securities
Act, or to contribute to payments the U.S. underwriters and international
managers may be required to make in respect of those liabilities.
The underwriters are offering the shares, subject to prior sale, when, as,
and if issued to and accepted by them, subject to approval of legal matters by
their counsel, including the validity of the shares, and other conditions
contained in the purchase agreements, such as the receipt by the underwriters of
officer's certificates and legal opinions. The underwriters reserve the right to
withdraw, cancel, or modify offers to the public and to reject orders in whole
or in part.
COMMISSIONS AND DISCOUNTS
The U.S. representatives have advised us that the U.S. underwriters propose
initially to offer the shares to the public at the initial public offering price
on the cover page of this prospectus and to dealers at that price less a
concession not in excess of $ per share. The U.S. underwriters may
77
<PAGE>
allow, and the dealers may reallow, a discount not in excess of $ per share
to other dealers. After the initial public offering, the public offering price,
concession, and discount may be changed.
The following table shows the public offering price, underwriting discount
and proceeds before our expenses. The information assumes either no exercise or
full exercise by the U.S. underwriters and the international managers of their
over-allotment options.
<TABLE>
<CAPTION>
PER SHARE WITHOUT OPTION WITH OPTION
--------- -------------- -----------
<S> <C> <C> <C>
Public offering price............................. $ $ $
Underwriting discount............................. $ $ $
Proceeds before expenses to Community
Health Systems.................................. $ $ $
</TABLE>
The expenses of the offering, not including the underwriting discount, are
estimated at $ and are payable by us.
OVER-ALLOTMENT OPTION
We have granted options to the U.S. underwriters to purchase up to 2,390,625
additional shares at the public offering price less the underwriting discount.
The U.S. underwriters may exercise these options for 30 days from the date of
this prospectus solely to cover any overallotments. If the U.S. underwriters
exercise these options, each will be obligated, subject to conditions contained
in the purchase agreements, to purchase a number of additional shares
proportionate to that U.S. underwriter's initial amount reflected in the above
table.
We have also granted options to the international managers, exercisable for
30 days from the date of this prospectus, to purchase up to 421,875 additional
shares to cover any over-allotments on terms similar to those granted to the
U.S. underwriters.
INTERSYNDICATE AGREEMENT
The U.S. underwriters and the international managers have entered into an
intersyndicate agreement that provides for the coordination of their activities.
Under the intersyndicate agreement, the U.S. underwriters and the international
managers may sell shares to each other for purposes of resale at the initial
public offering price, less an amount not greater than the selling concession.
Under the intersyndicate agreement, the U.S. underwriters and any dealer to whom
they sell shares will not offer to sell or sell shares to persons who are
non-U.S. or non-Canadian persons or to persons they believe intend to resell to
persons who are non-U.S. or non-Canadian persons, except in the case of
transactions under the intersyndicate agreement. Similarly, the international
managers and any dealer to whom they sell shares will not offer to sell or sell
shares to U.S. persons or Canadian persons or to persons they believe intend to
resell to U.S. or Canadian persons, except in the case of transactions under the
intersyndicate agreement.
RESERVED SHARES
At our request, the underwriters have reserved for sale, at the initial
public offering price, up to 5% of the shares offered for sale in the offering
for sale to some of our directors, officers, employees, business associates, and
related persons. These persons include physicians who maintain staff privileges
at some of our hospitals. If these persons purchase reserved shares, this will
reduce the number of shares available for sale to the general public. Any
reserved shares that are not orally confirmed for purchase within one day of the
pricing of the offering will be offered by the underwriters to the general
public on the same terms as the other shares offered by this prospectus. There
is no expectation or requirement that any person who purchases reserved shares
will refer, either directly or indirectly, any patients to our hospitals.
78
<PAGE>
NO SALES OF SIMILAR SECURITIES
We and our executive officers and directors and all existing stockholders
have agreed, with exceptions, not to sell or transfer any common stock for
180 days after the date of this prospectus without first obtaining the written
consent of Merrill Lynch. Specifically, we and these other individuals have
agreed not to directly or indirectly
- offer, pledge, sell or contract to sell any common stock;
- sell any option or contract to purchase any common stock;
- purchase any option or contract to sell any common stock;
- grant any option, right or warrant for the sale of any common stock;
- lend or otherwise dispose of or transfer any common stock;
- request or demand that we file a registration statement related to the
common stock; or
- enter into any swap or other agreement that transfers, in whole or in
part, the economic consequence of ownership of any common stock whether
any such swap or transaction is to be settled by delivery of shares or
other securities, in cash or otherwise.
This lockup provision applies to common stock and to securities convertible
into or exchangeable or exercisable for or repayable with common stock. It also
applies to common stock owned now or acquired later by the person executing the
agreement or for which the person executing the agreement later acquires the
power of disposition. This lockup provision does not limit our ability to grant
options to purchase common stock under stock option plans or to issue common
stock under our employee stock purchase plan.
NEW YORK STOCK EXCHANGE LISTING
We expect the shares to be approved for listing on the NYSE under the symbol
"CYH." In order to meet the requirements for listing on that exchange, the U.S.
underwriters and the international managers have undertaken to sell a minimum
number of shares to a minimum number of beneficial owners as required by that
exchange.
Before the offering, there has been no public market for our common stock.
The initial public offering price will be determined through negotiations among
us and the U.S. representatives and lead managers. In addition to prevailing
market conditions, the factors to be considered in determining the initial
public offering price are
- the valuation multiples of publicly traded companies that the U.S.
representatives and the lead managers believe to be comparable to us;
- our financial information;
- the history of, and the prospects for, us and the industry in which we
compete;
- an assessment of our management, its past and present operations, and the
prospects for, and timing of, our future revenues;
- the present state of our development; and
- the above factors in relation to market values and various valuation
measures of other companies engaged in activities similar to ours.
An active trading market for the shares may not develop. It is also possible
that after the offering the shares will not trade in the public market at or
above the initial public offering price.
The underwriters do not expect to sell more than 5% of the shares in the
aggregate to accounts over which they exercise discretionary authority.
NASD REGULATIONS
It is anticipated that more than ten percent of the proceeds of the offering
will be applied to pay down debt obligations owed to affiliates of Chase
Securities Inc., Banc of America Securities LLC,
79
<PAGE>
Merrill Lynch, Pierce, Fenner & Smith Incorporated, and Morgan Stanley & Co.
Incorporated. Because more than ten percent of the net proceeds of the offering
may be paid to members or affiliates of members of the National Association of
Securities Dealers, Inc. participating in the offering, the offering will be
conducted in accordance with NASD Conduct Rule 2710(c)(8). This rule requires
that the public offering price of an equity security be no higher than the price
recommended by a qualified independent underwriter which has participated in the
preparation of the registration statement and performed its usual standard of
due diligence with respect to that registration statement. Merrill Lynch,
Pierce, Fenner & Smith Incorporated has agreed to act as qualified independent
underwriter for the offering. The price of the shares will be no higher than
that recommended by Merrill Lynch, Pierce, Fenner & Smith Incorporated.
PRICE STABILIZATION, SHORT POSITIONS, AND PENALTY BIDS
Until the distribution of the shares is completed, Commission rules may
limit underwriters and selling group members from bidding for and purchasing our
common stock. However, the U.S. representatives may engage in transactions that
stabilize the price of the common stock, such as bids or purchases to peg, fix
or maintain that price.
If the underwriters create a short position in the common stock in
connection with the offering, i.e., if they sell more shares than are listed on
the cover of this prospectus, the U.S. representatives may reduce that short
position by purchasing shares in the open market. The U.S. representatives may
also elect to reduce any short position by exercising all or part of the
over-allotment option described above. Purchases of the common stock to
stabilize its price or to reduce a short position may cause the price of the
common stock to be higher than it might be in the absence of such purchases.
The U.S. representatives may also impose a penalty bid on underwriters. This
means that if the U.S. representatives purchase shares in the open market to
reduce the underwriter's short position or to stabilize the price of such
shares, they may reclaim the amount of the selling concession from the
underwriters who sold those shares. The imposition of a penalty bid may also
affect the price of the shares in that it discourages resales of those shares.
Neither we nor any of the underwriters makes any representation or
prediction as to the direction or magnitude of any effect that the transactions
described above may have on the price of the common stock. In addition, neither
we nor any of the underwriters makes any representation that the U.S.
representatives or the lead managers will engage in these transactions or that
these transactions, once commenced, will not be discontinued without notice.
OTHER RELATIONSHIPS
Some of the underwriters and their affiliates have engaged in, and may in
the future engage in, investment banking and other commercial dealings in the
ordinary course of business with us. They have received customary fees and
commissions for these transactions. In particular, an affiliate of Chase
Securities Inc. acts as administrative agent for our credit facility and
affiliates of Chase Securities Inc., Banc of America Securities LLC, Merrill
Lynch, Pierce, Fenner & Smith Incorporated, and Morgan Stanley & Co. are lenders
under our credit facility. Michael A. Miles, our Chairman of the Board, is a
director of Morgan Stanley Dean Witter and receives customary compensation for
serving in this position.
Merrill Lynch will be facilitating internet distribution for the offering to
some of its internet subscription customers. Merrill Lynch intends to allocate a
limited number of shares for sale to its online brokerage customers. An
electronic prospectus is available on the website maintained by Merrill Lynch.
Other than the prospectus in electronic format, the information on the Merrill
Lynch website relating to the offering is not a part of this prospectus.
80
<PAGE>
LEGAL MATTERS
The validity of the shares of common stock offered by this prospectus will
be passed upon for us by Fried, Frank, Harris, Shriver & Jacobson (a partnership
including professional corporations), New York, New York. Certain legal matters
related to the offering will be passed upon for the underwriters by Debevoise &
Plimpton, New York, New York. Fried, Frank, Harris, Shriver & Jacobson has in
the past provided, and may continue to provide, legal services to Forstmann
Little and its affiliates.
EXPERTS
The consolidated financial statements as of December 31, 1998 and 1999 and
for each of the three years in the period ended December 31, 1999 included in
this prospectus and the related financial statement schedule included elsewhere
in the registration statement have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their reports appearing herein and elsewhere
in the registration statement, and have been so included in reliance upon the
reports of such firm given upon their authority as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Commission a registration statement on Form S-1,
which includes amendments, exhibits, schedules and supplements, under the
Securities Act and the rules and regulations under the Securities Act, for the
registration of the common stock offered by this prospectus. Although this
prospectus, which forms a part of the registration statement, contains all
material information included in the registration statement, parts of the
registration statement have been omitted from this prospectus as permitted by
the rules and regulations of the Commission. For further information with
respect to us and the common stock offered by this prospectus, please refer to
the registration statement. Statements contained in this prospectus as to the
contents of any contracts or other document referred to in this prospectus are
not necessarily complete and, where such contract or other document is an
exhibit to the registration statement, each such statement is qualified in all
respects by the provisions of such exhibit, to which reference is now made. The
registration statement can be inspected and copied at prescribed rates at the
public reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's regional offices
at Seven World Trade Center, 13th Floor, New York, New York 10048 and
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. The public may obtain information regarding the Washington, D.C.
Public Reference Room by calling the Commission at 1-800-SEC-0330. In addition,
the registration statement is publicly available through the Commission's site
on the Internet's World Wide Web, located at: http://www.sec.gov. Following the
offering, our future public filings are expected to be available for inspection
at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York,
New York 10005.
After the offering, we will be subject to the full informational
requirements of the Securities Exchange Act. To comply with these requirements,
we will file periodic reports, proxy statements and other information with the
Commission.
------------------------
You should rely only on the information contained in this prospectus. We
have not, and the underwriters have not, authorized anyone to provide you with
information different from that contained in this prospectus. If anyone provides
you with different information you should not rely on it. We are offering to
sell, and seeking offers to buy, shares of common stock only in jurisdictions
where offers and sales are permitted. The information contained in this
prospectus is accurate only as of the date of this prospectus regardless of the
time of delivery of this prospectus or of any sale of common stock. Our
business, financial condition, results of operations, and prospects may have
changed since that date.
81
<PAGE>
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<S> <C>
Independent Auditors' Report................................ F-2
Consolidated Balance Sheets as of December 31, 1998 and
1999...................................................... F-3
Consolidated Statements of Operations for the years ended
December 31, 1997, 1998 and 1999.......................... F-4
Consolidated Statements of Stockholders' Equity for the
years ended December 31, 1997, 1998 and 1999.............. F-5
Consolidated Statements of Cash Flows for the years ended
December 31, 1997, 1998 and 1999.......................... F-6
Notes to Consolidated Financial Statements.................. F-7
Unaudited Interim Condensed Consolidated Balance Sheet as of
March 31, 2000............................................ F-24
Unaudited Interim Condensed Consolidated Statements of
Operations for the three months ended March 31, 1999 and
2000...................................................... F-25
Unaudited Interim Condensed Consolidated Statements of Cash
Flows for the three months ended March 31, 1999 and
2000...................................................... F-26
Notes to Unaudited Interim Condensed Consolidated Financial
Statements................................................ F-27
</TABLE>
F-1
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Stockholders of
Community Health Systems, Inc.
Brentwood, Tennessee
We have audited the accompanying consolidated balance sheets of Community
Health Systems, Inc. (formerly Community Health Systems Holdings Corp.) and
subsidiaries as of December 31, 1998 and 1999, and the related consolidated
statements of operations, stockholders' equity, and cash flows for each of the
three years in the period ended December 31, 1999. These financial statements
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States of America. Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in
all material respects, the consolidated financial position of Community Health
Systems, Inc. and subsidiaries as of December 31, 1998 and 1999, and the results
of their operations and their cash flows for each of the three years in the
period ended December 31, 1999, in conformity with accounting principles
generally accepted in the United States of America.
Nashville, Tennessee
February 25, 2000 (May , 2000 as to Notes 9, 10, 14 and a portion of Note 1)
THE ACCOMPANYING CONSOLIDATED FINANCIAL STATEMENTS GIVE EFFECT TO THE
RECAPITALIZATION OF THE COMPANY WHICH INCLUDES THE EXCHANGE OF CLASS B COMMON
STOCK FOR CLASS A COMMON STOCK, THE EXCHANGE OF OPTIONS TO ACQUIRE CLASS C
COMMON STOCK FOR OPTIONS TO ACQUIRE CLASS A COMMON STOCK, THE REDESIGNATION OF
CLASS A COMMON STOCK AS COMMON STOCK AND A 118.7148-FOR-1 STOCK SPLIT OF THE
COMMON STOCK. THE FOREGOING REPORT IS THE FORM WHICH WILL BE FURNISHED BY
DELOITTE & TOUCHE LLP UPON COMPLETION OF THE RECAPITALIZATION AND EXCHANGE
DESCRIBED IN NOTE 14 TO THE CONSOLIDATED FINANCIAL STATEMENTS AND ASSUMING THAT
FROM DECEMBER 31, 1999 TO THE DATE OF SUCH COMPLETION NO OTHER MATERIAL EVENTS
HAVE OCCURRED THAT WOULD AFFECT THE ACCOMPANYING CONSOLIDATED FINANCIAL
STATEMENTS OR REQUIRED DISCLOSURES THEREIN.
/s/ Deloitte & Touche LLP
Nashville, Tennessee
February 25, 2000
F-2
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
AS OF DECEMBER 31,
------------------------
1998 1999
---------- ----------
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents................................. $ 6,719 $ 4,282
Patient accounts receivable, net of allowance for doubtful
accounts of $28,771 and $34,499 in 1998 and 1999,
respectively............................................ 168,652 226,350
Supplies.................................................. 26,037 32,134
Prepaid and current deferred income taxes................. 7,564 5,862
Prepaid expenses.......................................... 7,456 9,846
Other current assets...................................... 13,683 22,022
---------- ----------
Total current assets.................................. 230,111 300,496
---------- ----------
PROPERTY AND EQUIPMENT
Land and improvements..................................... 35,804 41,327
Buildings and improvements................................ 402,853 470,856
Equipment and fixtures.................................... 184,472 219,659
---------- ----------
623,129 731,842
Less accumulated depreciation and amortization............ (70,114) (108,499)
---------- ----------
property and equipment, net........................... 553,015 623,343
---------- ----------
GOODWILL, NET OF ACCUMULATED AMORTIZATION OF $73,058 AND
$97,766 IN 1998 AND 1999, RESPECTIVELY.................... 878,416 877,890
---------- ----------
OTHER ASSETS, NET OF ACCUMULATED AMORTIZATION OF $27,343 AND
$34,265 IN 1998 AND 1999, RESPECTIVELY.................... 85,474 93,355
---------- ----------
TOTAL ASSETS................................................ $1,747,016 $1,895,084
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Current maturities of long-term debt...................... $ 21,248 $ 27,029
Accounts payable.......................................... 63,843 57,392
Compliance settlement payable............................. 20,000 30,900
Accrued liabilities
Employee compensation................................. 36,524 49,346
Interest.............................................. 25,523 19,451
Other................................................. 59,550 51,159
---------- ----------
Total current liabilities............................. 226,688 235,277
---------- ----------
LONG-TERM DEBT.............................................. 1,246,594 1,407,604
---------- ----------
OTHER LONG-TERM LIABILITIES................................. 26,908 22,495
---------- ----------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY
Preferred stock, $.01 par value per share, 100,000,000
shares authorized, none issued.......................... -- --
Common stock, $.01 par value per share, 300,000,000 shares
authorized; 56,793,489 shares issued and 55,607,605 and
55,592,832 shares outstanding at December 31, 1998 and
1999, respectively...................................... 568 568
Additional paid-in capital................................ 482,086 483,235
Accumulated deficit....................................... (228,563) (245,352)
Treasury stock, at cost, 1,185,884 and 1,200,657 shares at
December 31, 1998 and 1999, respectively................ (5,555) (6,587)
Notes receivable for common stock......................... (1,710) (1,997)
Unearned stock compensation............................... -- (159)
---------- ----------
Total stockholders' equity............................ 246,826 229,708
---------- ----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY.................. $1,747,016 $1,895,084
========== ==========
</TABLE>
See notes to consolidated financial statements.
F-3
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------------
1997 1998 1999
----------- ----------- -----------
<S> <C> <C> <C>
NET OPERATING REVENUES................................ $ 742,350 $ 854,580 $ 1,079,953
----------- ----------- -----------
OPERATING COSTS AND EXPENSES
Salaries and benefits............................... 296,779 328,264 419,320
Provision for bad debts............................. 57,376 69,005 95,149
Supplies............................................ 90,391 100,633 126,693
Rent................................................ 20,281 22,344 25,522
Other operating expenses............................ 155,285 167,944 209,084
Depreciation and amortization....................... 43,753 49,861 56,943
Amortization of goodwill............................ 25,404 26,639 24,708
Impairment of long-lived assets..................... -- 164,833 --
Compliance settlement and Year 2000 remediation
costs............................................. -- 20,209 17,279
----------- ----------- -----------
TOTAL OPERATING COSTS AND EXPENSES.................... 689,269 949,732 974,698
----------- ----------- -----------
INCOME (LOSS) FROM OPERATIONS......................... 53,081 (95,152) 105,255
INTEREST EXPENSE, NET OF INTEREST INCOME OF $71, $261,
AND $288 IN 1997, 1998 AND 1999, RESPECTIVELY....... 89,753 101,191 116,491
----------- ----------- -----------
LOSS BEFORE CUMULATIVE EFFECT OF A CHANGE IN
ACCOUNTING PRINCIPLE AND INCOME TAXES............... (36,672) (196,343) (11,236)
PROVISION FOR (BENEFIT FROM) INCOME TAXES............. (4,501) (13,405) 5,553
----------- ----------- -----------
LOSS BEFORE CUMULATIVE EFFECT OF A CHANGE IN
ACCOUNTING PRINCIPLE................................ (32,171) (182,938) (16,789)
CUMULATIVE EFFECT OF A CHANGE IN ACCOUNTING PRINCIPLE,
NET OF TAXES OF $189................................ -- (352) --
----------- ----------- -----------
NET LOSS.............................................. $ (32,171) $ (183,290) $ (16,789)
=========== =========== ===========
BASIC AND DILUTED LOSS PER COMMON SHARE:
Loss before cumulative effect of a change in
accounting principle.............................. $ (0.60) $ (3.39) $ (0.31)
Cumulative effect of a change in accounting
principle......................................... -- (0.01) --
----------- ----------- -----------
Net loss............................................ $ (0.60) $ (3.40) $ (0.31)
=========== =========== ===========
WEIGHTED-AVERAGE NUMBER OF SHARES OUTSTANDING, BASIC
AND DILUTED......................................... 53,568,891 53,892,388 54,258,465
=========== =========== ===========
Pro forma information (unaudited):
Pro forma basic and diluted loss per common share... $ (.05)
Pro forma weighted-average number of shares
outstanding, basic and diluted.................... 73,008,481
===========
</TABLE>
See notes to consolidated financial statements.
F-4
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
COMMON STOCK ADDITIONAL TREASURY STOCK NOTES RECEIVABLE
--------------------- PAID-IN ACCUMULATED --------------------- FOR
SHARES AMOUNT CAPITAL DEFICIT SHARES AMOUNT COMMON STOCK
---------- -------- ---------- ------------ ---------- -------- -----------------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE, January 1, 1997.... 56,320,062 $563 $479,126 $ (13,102) -- $ -- $ (904)
Issuance of common stock.. 210,354 2 1,308 -- -- -- (634)
Common stock purchased for
treasury, at cost....... -- -- -- -- (168,527) (1,041) 450
Payments on notes
receivable.............. -- -- -- -- -- -- 38
Net loss.................. -- -- -- (32,171) -- -- --
---------- ---- -------- --------- ---------- ------- -------
BALANCE, December 31,
1997...................... 56,530,416 565 480,434 (45,273) (168,527) (1,041) (1,050)
Issuance of common stock.. 263,073 3 1,652 -- 186,139 1,120 (900)
Common stock purchased for
treasury, at cost....... -- -- -- -- (1,203,496) (5,634) 204
Payments on notes
receivable.............. -- -- -- -- -- -- 36
Net loss.................. -- -- -- (183,290) -- -- --
---------- ---- -------- --------- ---------- ------- -------
BALANCE, December 31,
1998...................... 56,793,489 568 482,086 (228,563) (1,185,884) (5,555) (1,710)
Issuance of common stock.. -- -- 907 -- 390,004 1,748 (440)
Common stock purchased for
treasury, at cost....... -- -- -- -- (404,777) (2,780) --
Payments on notes
receivable.............. -- -- -- -- -- -- 153
Unearned stock
compensation............ -- -- 242 -- -- -- --
Earned stock
compensation............ -- -- -- -- -- -- --
Net loss.................. -- -- -- (16,789) -- -- --
---------- ---- -------- --------- ---------- ------- -------
BALANCE, December 31,
1999...................... 56,793,489 $568 $483,235 $(245,352) (1,200,657) $(6,587) $(1,997)
========== ==== ======== ========= ========== ======= =======
<CAPTION>
UNEARNED
STOCK
COMPENSATION TOTAL
------------- ---------
<S> <C> <C>
BALANCE, January 1, 1997.... $ -- $ 465,683
Issuance of common stock.. -- 676
Common stock purchased for
treasury, at cost....... -- (591)
Payments on notes
receivable.............. -- 38
Net loss.................. -- (32,171)
----- ---------
BALANCE, December 31,
1997...................... -- 433,635
Issuance of common stock.. -- 1,875
Common stock purchased for
treasury, at cost....... -- (5,430)
Payments on notes
receivable.............. -- 36
Net loss.................. -- (183,290)
----- ---------
BALANCE, December 31,
1998...................... -- 246,826
Issuance of common stock.. -- 2,215
Common stock purchased for
treasury, at cost....... -- (2,780)
Payments on notes
receivable.............. -- 153
Unearned stock
compensation............ (242) --
Earned stock
compensation............ 83 83
Net loss.................. -- (16,789)
----- ---------
BALANCE, December 31,
1999...................... $(159) $ 229,708
===== =========
</TABLE>
See notes to consolidated financial statements.
F-5
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------
1997 1998 1999
-------- --------- ---------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss.................................................. $(32,171) $(183,290) $ (16,789)
Adjustments to reconcile net loss to net cash provided by
(used in) operating activities:
Depreciation and amortization........................... 69,157 76,500 81,651
Deferred income taxes................................... (5,751) (14,797) (3,799)
Impairment charge....................................... -- 164,833 --
Compliance settlement costs............................. -- 20,000 14,000
Stock compensation expense.............................. -- -- 83
Other non-cash (income) expenses, net................... 146 (528) (570)
Changes in operating assets and liabilities, net of
effects of acquisitions and divestitures:
Patient accounts receivable......................... 4,526 (33,908) (42,973)
Supplies, prepaid expenses and other current
assets............................................ 11,076 (7,724) (17,598)
Accounts payable, accrued liabilities and income
taxes............................................. (17,184) 4,461 (28,071)
Other............................................... (8,255) (9,828) 2,320
-------- --------- ---------
Net cash provided by (used in) operating activities....... 21,544 15,719 (11,746)
-------- --------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES
Acquisitions of facilities, pursuant to purchase
agreements.............................................. (36,296) (172,597) (59,699)
Proceeds from sale of facilities.......................... 18,750 -- --
Purchases of property and equipment....................... (49,422) (52,880) (80,255)
Proceeds from sale of equipment........................... 596 1,531 121
Increase in other assets.................................. (10,279) (12,607) (15,708)
-------- --------- ---------
Net cash used in investing activities................... (76,651) (236,553) (155,541)
-------- --------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from issuance of common stock.................... 676 1,875 2,215
Common stock purchased for treasury....................... (1,041) (5,634) (2,780)
Borrowings under credit agreement......................... 73,404 242,491 436,300
Repayments of long-term indebtedness...................... (36,857) (18,842) (270,885)
-------- --------- ---------
Net cash provided by financing activities............... 36,182 219,890 164,850
-------- --------- ---------
NET CHANGE IN CASH AND CASH EQUIVALENTS..................... (18,925) (944) (2,437)
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD............ 26,588 7,663 6,719
-------- --------- ---------
CASH AND CASH EQUIVALENTS AT END OF PERIOD.................. $ 7,663 $ 6,719 $ 4,282
======== ========= =========
</TABLE>
See notes to consolidated financial statements.
F-6
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. BACKGROUND AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BUSINESS. In June 1996, Community Health Systems Inc. (formerly Community
Health Systems Holding Corp.) (the "Company") through its wholly-owned
subsidiary, FLCH Acquisition Corp. ("Acquisition Corp."), corporations formed by
affiliates of Forstmann Little & Co. ("FL&Co."), entered into an agreement to
acquire (the "Acquisition") all of the outstanding common stock of CHS/
Community Health Systems, Inc. ("CHS"). The aggregate purchase price for the
Acquisition was $1,100.2 million. The purchase price, the refinancing of certain
CHS debt obligations ($140.8 million) and payments for cancellation of CHS stock
options ($47.5 million) were funded by the issuance of $482.1 million of common
stock, $500 million of subordinated debentures and $415 million of Term Loans
under the Credit Agreement (see Note 5).
The Company owns, leases and operates acute care hospitals that are the
principal providers of primary healthcare services in non-urban communities. As
of December 31, 1999, the Company owned, leased or operated 46 hospitals,
licensed for 4,115 beds in 20 states.
USE OF ESTIMATES. The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
PRINCIPLES OF CONSOLIDATION. The consolidated financial statements include
the accounts of the Company and its subsidiaries. All significant intercompany
accounts and transactions have been eliminated. Certain of the subsidiaries have
minority stockholders. The amount of minority interest in equity and minority
interest in income or loss is not material and is included in other long-term
liabilities and other operating expenses.
CASH EQUIVALENTS. The Company considers highly liquid investments with
original maturities of three months or less to be cash equivalents.
SUPPLIES. Supplies, principally medical supplies, are stated at the lower
of cost (first-in, first-out basis) or market.
PROPERTY AND EQUIPMENT. Property and equipment are recorded at cost.
Depreciation is recognized using the straight-line method over the estimated
useful lives of the land improvements (2 to 15 years; weighted average useful
life is 11 years), buildings and improvements (5 to 40 years; weighted average
useful life is 33 years) and equipment and fixtures (5 to 20 years; weighted
average useful life is 7 years). Costs capitalized as construction in progress
were $17.9 million and $27.2 million at December 31, 1998 and 1999,
respectively, and are included in buildings and improvements. Expenditures for
renovations and other significant improvements are capitalized; however,
maintenance and repairs which do not improve or extend the useful lives of the
respective assets are charged to operations as incurred. Interest capitalized in
accordance with Statement of Financial Accounting Standards ("SFAS") No. 34,
"Capitalization of Interest Cost," was $0.6 million, $0.7 million and
$1.4 million for the years ended December 31, 1997, 1998, and 1999,
respectively.
The Company also leases certain facilities and equipment under capital
leases (see Notes 2 and 7). Such assets are amortized on a straight-line basis
over the lesser of the terms of the respective leases, or the remaining useful
lives of the assets.
F-7
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
1. BACKGROUND AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
GOODWILL. Goodwill represents the excess of cost over the fair value of net
assets acquired and is amortized on a straight-line basis generally over
40 years. Annually, as required by Accounting Principles Board ("APB") Opinion
No. 17, the Company reviews its total enterprise goodwill for possible
impairment, by comparing total projected undiscounted cash flows to the total
carrying amount of goodwill.
OTHER ASSETS. Other assets consist primarily of the noncurrent portion of
deferred income taxes and costs associated with the issuance of debt which are
amortized over the life of the related debt using the effective interest method.
Amortization of deferred financing costs is included in interest expense.
THIRD-PARTY REIMBURSEMENT. Net operating revenues include amounts estimated
by management to be reimbursable by Medicare and Medicaid under prospective
payment systems, provisions of cost-reimbursement and other payment methods.
Approximately 55% of net operating revenues for the year ended December 31,
1997, 49% for the year ended December 31, 1998, and 48% for the year ended
December 31, 1999, are related to services rendered to patients covered by the
Medicare and Medicaid programs. In addition, the Company is reimbursed by
non-governmental payors using a variety of payment methodologies. Amounts
received by the Company for treatment of patients covered by such programs are
generally less than the standard billing rates. The differences between the
estimated program reimbursement rates and the standard billing rates are
accounted for as contractual adjustments, which are deducted from gross revenues
to arrive at net operating revenues. Final settlements under certain of these
programs are subject to adjustment based on administrative review and audit by
third parties. Adjustments to the estimated billings are recorded in the periods
that such adjustments become known. Adjustments to previous program
reimbursement estimates are accounted for as contractual adjustments and
reported in future periods as final settlements are determined. Adjustments
related to final settlements or appeals increased revenue by an insignificant
amount in each of the years ended December 31, 1997, 1998 and 1999. Net amounts
due to third-party payors as of December 31, 1998 were $19.9 million and as of
December 31, 1999 were $9.1 million and are included in accrued
liabilities--other in the accompanying balance sheets. Substantially all
Medicare and Medicaid cost reports are final settled through 1996.
CONCENTRATIONS OF CREDIT RISK. The Company grants unsecured credit to its
patients, most of whom reside in the service area of the Company's facilities
and are insured under third-party payor agreements. Because of the geographic
diversity of the Company's facilities and non-governmental third-party payors,
Medicare and Medicaid represent the Company's only significant concentrations of
credit risk.
NET OPERATING REVENUES. Net operating revenues are recorded net of
provisions for contractual adjustments of approximately $586 million,
$829 million and $1,157 million in 1997, 1998 and 1999, respectively. Net
operating revenues are recognized when services are provided. In the ordinary
course of business the Company renders services to patients who are financially
unable to pay for hospital care. The value of these services to patients who are
unable to pay is not material to the Company's consolidated results of
operations.
PROFESSIONAL LIABILITY INSURANCE CLAIMS. The Company accrues, on a
quarterly basis, for estimated losses resulting from professional liability
claims to the extent they are not covered by insurance. The accrual, which
includes an estimate for incurred but not reported claims, is based on
historical loss
F-8
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
1. BACKGROUND AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
patterns and annual actual projections. To the extent that subsequent claims
information varies from management's estimates, the liability is adjusted
currently.
ACCOUNTING FOR THE IMPAIRMENT OF LONG-LIVED ASSETS. In accordance with SFAS
No. 121, "Accounting for Impairment of Long-Lived Assets and for Long-Lived
Assets to be Disposed Of," whenever events or changes in circumstances indicate
that the carrying values of certain long-lived assets and related intangible
assets may be impaired, the Company projects the undiscounted cash flows
expected to be generated by these assets. If the projections indicate that the
reported amounts are not expected to be recovered, such amounts are reduced to
their estimated fair value based on a quoted market price, if available, or an
estimate based on valuation techniques available in the circumstances.
INCOME TAXES. The Company accounts for income taxes under the asset and
liability method, in which deferred income tax assets and liabilities are
recognized for the tax consequences of "temporary differences" by applying
enacted statutory tax rates applicable to future years to differences between
the financial statement carrying amounts and the tax bases of existing assets
and liabilities. The effect on deferred taxes of a change in tax rates is
recognized in the statement of operations during the period in which the tax
rate change becomes law.
COMPREHENSIVE INCOME. In June 1997, the Financial Accounting Standards
Board ("FASB") issued SFAS No. 130, "Reporting Comprehensive Income," which is
effective for fiscal years beginning after December 15, 1997. Comprehensive
income is defined as the change in equity of a business enterprise during a
period from transactions and other events and circumstances from non-owner
sources. Comprehensive loss for 1997, 1998 and 1999 is equal to the net loss
reported.
STOCK-BASED COMPENSATION. The Company accounts for stock-based compensation
using the intrinsic value method prescribed in APB Opinion No. 25, "Accounting
for Stock Issued to Employees" and related interpretations. Compensation cost,
if any, is measured as the excess of the fair value of the Company's stock at
the date of grant over the amount an employee must pay to acquire the stock.
SFAS No. 123, "Accounting for Stock-Based Compensation," established accounting
and disclosure requirements using a fair value based method of accounting for
stock-based employee compensation plans; however, it allows an entity to
continue to measure compensation for those plans using the intrinsic value
method of accounting prescribed by APB Opinion No. 25. The Company has elected
to continue to measure compensation under the method of accounting as described
above, and has adopted the disclosure requirements of SFAS No. 123.
SEGMENT REPORTING. In June 1997, the FASB issued SFAS No. 131, "Disclosures
About Segments of an Enterprise and Related Information," which is effective for
fiscal years ending after December 15, 1997. This statement requires that a
public company report annual and interim financial and descriptive information
about its reportable operating segments. Operating segments, as defined, are
components of an enterprise about which separate financial information is
available that is evaluated regularly by the chief operating decision maker in
deciding how to allocate resources and in assessing performance. SFAS No. 131
allows aggregation of similar operating segments into a single operating segment
if the businesses have similar economic characteristics and are considered
similar under the criteria established by SFAS No. 131. The Company owns, leases
and operates 46 acute care hospitals in 46 different non-urban communities. All
of these hospitals have similar services, have similar types of patients,
operate in a consistent manner and have similar economic and regulatory
characteristics. Therefore, the Company has one reportable segment.
F-9
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
1. BACKGROUND AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
RECENT ACCOUNTING PRONOUNCEMENT NOT YET ADOPTED. During 1998, the FASB
issued SFAS No. 133, "Accounting for Derivative Instruments and Hedging
Activities." This statement specifies how to report and display derivative
instruments and hedging activities and is effective for fiscal years beginning
after June 15, 2000. The Company is currently evaluating the impact, if any, of
adopting SFAS No. 133.
PRO FORMA ADJUSTMENTS. The pro forma financial information gives effect to
the use of net proceeds from the offering to repay debt of $279.0 million, the
resultant reduction of interest expense of $21.5 million and an increase in the
provision for income taxes of $8.4 million resulting from the decrease in
interest expense, as if these events had occurred on January 1, 1999.
2. LONG-TERM LEASES AND PURCHASES OF HOSPITALS
During 1997, the Company exercised a purchase option under an existing
operating lease, effective in August, and acquired two hospitals through capital
lease transactions, effective in January and August, respectively. The
consideration for the three hospitals totaled $46.1 million, including working
capital. The consideration consisted of $36.3 million in cash, which was
borrowed under the acquisition loan facilities, and assumed liabilities of $9.8
million. The entire lease obligation relating to each lease transaction was
prepaid. The prepayment was included as part of the cash consideration. Licensed
beds at the two hospitals acquired totaled 122 beds.
During 1998, the Company acquired, through two purchase transactions,
effective in April and September, respectively, and two capital lease
transactions, effective in November, most of the assets, including working
capital, of four hospitals. The consideration for the four hospitals totaled
$218.6 million. The consideration consisted of $169.8 million in cash, which was
borrowed under the acquisition loan facilities, and assumed liabilities of $48.8
million. The entire lease obligation relating to each lease transaction was
prepaid. The prepayment was included as part of the cash consideration. Licensed
beds at these four hospitals totaled 360.
Also, effective December 1, 1998, the Company entered into an operating
agreement relating to, and purchased certain working capital accounts, primarily
accounts receivable, supplies and accounts payable, of a 38 licensed bed
hospital, for a cash payment of $2.8 million. Pursuant to this agreement, upon
certain conditions being met, the Company will be obligated to construct a
replacement hospital and to purchase for $0.9 million the remaining assets of
the hospital. Upon completion, all rights of ownership and operations will
transfer to the Company.
During 1999, the Company acquired, through three purchase transactions,
effective in March, September, and November, respectively, and one capital lease
transaction, effective in March, most of the assets, including working capital,
of four hospitals. The consideration for the four hospitals totaled
$77.8 million. The consideration consisted of $59.7 million in cash, which was
borrowed under the acquisition loan facilities, and assumed liabilities of $18.1
million. The entire lease obligation relating to the lease transaction was
prepaid. The prepayment was included as part of the cash consideration. The
Company also constructed and opened an additional hospital at a cost of
$15.3 million, which replaced a hospital we managed. Licensed beds at the four
hospitals acquired totaled 477.
The foregoing acquisitions were accounted for using the purchase method of
accounting. The allocation of the purchase price for acquisition transactions
closed in 1999 has been determined by the Company based upon available
information and is subject to obtaining final asset valuations prepared by
independent appraisers, and settling amounts related to purchased working
capital. Independent
F-10
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
2. LONG-TERM LEASES AND PURCHASES OF HOSPITALS (CONTINUED)
asset valuations are generally completed within 120 days of the date of
acquisition; working capital settlements are generally made within 180 days of
the date of acquisition. Adjustments to the purchase price allocation are not
expected to be material.
The table below summarizes the allocations of the purchase price (including
assumed liabilities) for these acquisitions (in thousands):
<TABLE>
<CAPTION>
1997 1998 1999
-------- -------- --------
<S> <C> <C> <C>
Current assets.................................. $ 4,309 $ 40,680 $15,514
Property and equipment.......................... 29,848 116,443 55,170
Goodwill........................................ 11,988 61,441 22,393
</TABLE>
The operating results of the foregoing hospitals have been included in the
consolidated statements of operations from their respective dates of
acquisition. The following pro forma combined summary of operations of the
Company gives effect to using historical information of the operations of the
hospitals purchased in 1998 and 1999 as if the acquisitions had occurred as of
January 1, 1998 (in thousands except per share data):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------
1998 1999
----------- -----------
<S> <C> <C>
Net operating revenue................................ $1,046,568 $1,119,664
Loss before cumulative effect of a change in
accounting principle............................... (190,174) (21,498)
Net loss............................................. (189,846) (21,498)
Net loss per share:
Total basic and diluted............................ $ (3.52) $ (0.40)
========== ==========
</TABLE>
3. IMPAIRMENT OF LONG-LIVED ASSETS
In December 1998, in connection with the Company's periodic review process,
it was determined that primarily as a result of adverse changes in physician
relationships, undiscounted cash flows from seven of the Company's hospitals
were below the carrying value of long-lived assets associated with those
hospitals. Therefore, in accordance with SFAS No. 121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of",
the Company adjusted the carrying value of the related long-lived assets to
their estimated fair value. The estimated fair values of these hospitals were
based on independently prepared specific market appraisals. The impairment
charge of $164.8 million was comprised of reductions to goodwill of
$134.3 million with the remaining amount related to reductions in tangible
assets.
Of the seven impaired hospitals, two are located in Georgia; two are located
in Texas; one is located in Florida; one is located in Louisiana; and one is
located in Kentucky. The events and circumstances leading to the impairment
charge were unique to each of the hospitals.
One of our Kentucky hospitals lost its only anesthesiologist due to
unexpected death and a leading surgeon due to illness. We have not been able to
successfully recruit a replacement surgeon. One of our Georgia hospitals lost a
key surgeon due to unexpected death and a leading specialist due to relocation
to another market. We have not been able to successfully recruit replacement
physicians.
F-11
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
3. IMPAIRMENT OF LONG-LIVED ASSETS (CONTINUED)
One of our Louisiana hospitals relies heavily on foreign physicians and,
following the departure of four foreign physicians from its market over a short
period of time, has had difficulties replacing these physicians because of
regulatory changes in recruiting foreign physicians. The skilled nursing and
home health reimbursement for one of our Texas hospitals was disproportionately
and adversely affected by the Balanced Budget Act of 1997. In addition, the
market in which this hospital operates relies on foreign physicians that have
been difficult to recruit because of regulatory changes. Our other Georgia
hospitals terminated an employed specialty surgeon who was responsible for over
5% of the hospital's revenue. We have not been able to replace the surgeon. In
addition, this hospital's skilled nursing reimbursement was disproportionately
and adversely affected by the Balanced Budget Act of 1997. Our other Texas
hospital lost market share and was excluded from several key managed care
contracts caused by the combination in 1998 of two larger competing hospitals.
This is our only hospital which competes with more than one hospital in its
primary service area. A Florida hospital we then owned terminated discussions in
1998 with an unrelated hospital, located in a contiguous county, to build a
combined replacement facility. The short and long-term success of this hospital
was in our view dependent upon the combination being effected.
Generally, we have not experienced difficulty in recruiting physicians and
specialists for our hospitals. However, for the four hospitals referred to above
we have experienced difficulty in recruiting physicians and specialists where
the number of physicians on staff is low. These four hospitals averaged
13 physicians per hospital as of December 31, 1998. The average number of
physicians on the medical staff of our other hospitals was 39 physicians at that
time. We continually monitor the relationships of our hospitals with their
physicians and any physician recruiting requirements. We have frequent
discussions with board members, chief executive officers and chief financial
officers of our hospitals. We are not aware of any significant adverse
relationships with physicians or any recurring physician recruitment needs that,
if not resolved in a timely manner, would have a material adverse effect on our
results of operations and financial position, either currently or in future
periods.
F-12
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
4. INCOME TAXES
The provision for (benefit from) income taxes consists of the following (in
thousands):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------
1997 1998 1999
-------- -------- --------
<S> <C> <C> <C>
Current
Federal........................................ $ 80 $ -- $ --
State.......................................... 1,170 1,204 2,815
------- -------- ------
1,250 1,204 2,815
Deferred
Federal........................................ (4,740) (11,036) 3,163
State.......................................... (1,011) (3,573) (425)
------- -------- ------
(5,751) (14,609) 2,738
------- -------- ------
Total provision for (benefit from) income
taxes.......................................... $(4,501) $(13,405) $5,553
======= ======== ======
</TABLE>
The following table reconciles the differences between the statutory federal
income tax rate and the effective tax rate (in thousands):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------------------------------
1997 1998 1999
------------------- ------------------- -------------------
AMOUNT % AMOUNT % AMOUNT %
-------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Benefit from income
taxes at statutory
federal rate.......... $(12,835) 35.0% $(68,843) 35.0% $(3,933) 35.0%
State income taxes, net
of federal income tax
benefit............... 456 (1.2) (1,379) 0.7 2,389 (21.3)
Non-deductible goodwill
amortization.......... 7,774 (21.2) 7,859 (4.0) 6,751 (60.1)
Impairment charge--
goodwill.............. -- -- 41,652 (21.2) -- --
Other................... 104 (0.3) 7,306 (3.7) 346 (3.0)
-------- ----- -------- ----- ------- -----
Provision for (benefit
from) income taxes and
effective tax rate.... $ (4,501) 12.3% $(13,405) 6.8% $ 5,553 (49.4)%
======== ===== ======== ===== ======= =====
</TABLE>
F-13
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
4. INCOME TAXES (CONTINUED)
Deferred income taxes are based on the estimated future tax effects of
differences between the financial statement and tax bases of assets and
liabilities under the provisions of the enacted tax laws. Deferred income taxes
as of December 31, consist of (in thousands):
<TABLE>
<CAPTION>
1998 1999
---------------------- ----------------------
ASSETS LIABILITIES ASSETS LIABILITIES
-------- ----------- -------- -----------
<S> <C> <C> <C> <C>
Net operating loss and credit
carryforwards...................... $ 68,269 $ -- $ 76,798 $ --
Property and equipment............... -- 28,567 -- 40,020
Self-insurance liabilities........... 7,740 -- 6,212 --
Intangibles.......................... -- 4,148 -- 9,385
Other liabilities.................... 2,368 -- -- 1,828
Long-term debt and interest.......... -- 4,476 -- 4,373
Accounts receivable.................. 2,173 -- 5,362 --
Accrued expenses..................... 9,311 -- 15,975 --
Other................................ 3,558 2,942 2,538 1,578
-------- ------- -------- -------
93,419 40,133 106,885 57,184
Valuation allowance.................. (18,260) -- (18,474) --
-------- ------- -------- -------
Total deferred income taxes.......... $ 75,159 $40,133 $ 88,411 $57,184
======== ======= ======== =======
</TABLE>
Management believes that the net deferred tax assets will ultimately be
realized, except as noted below. Management's conclusion is based on its
estimate of future taxable income and the expected timing of temporary
difference reversals. The Company has federal net operating loss carryforwards
of $150.4 million which expire from 2000 to 2019 and state net operating loss
carryforwards of $298.1 million which expire from 2000 to 2019.
The valuation allowance recognized at the date of the Acquisition
($13.2 million) relates primarily to state net operating losses and other tax
attributes. Any future decrease in this valuation allowance will be recorded as
a reduction in goodwill recorded in connection with the Acquisition. The
valuation allowance increased by $2.7 million and $0.2 million during the years
ended December 31, 1998 and 1999, respectively. These increases are primarily
related to net operating losses in certain state income tax jurisdictions not
expected to be realized.
The Company received refunds, net of payments, of $14 million during 1997
and paid income taxes, net of refunds received, of $0.3 million, and
$1.4 million during 1998 and 1999, respectively.
FEDERAL INCOME TAX EXAMINATIONS. The Internal Revenue Service ("IRS") is
examining the Company's filed federal income tax returns for the tax periods
between December 31, 1993 and December 31, 1996. The IRS has indicated that it
is considering a number of adjustments primarily involving "temporary" or timing
differences. To date, a Revenue Agent's Report has not been issued in connection
with the examination of these tax periods. In management's opinion, the ultimate
outcome of the IRS examinations will not have a material effect on the Company's
results of operations, financial condition or cash flows.
F-14
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
5. LONG-TERM DEBT
Long-term debt consists of the following (in thousands):
<TABLE>
<CAPTION>
AS OF DECEMBER 31,
-----------------------
1998 1999
---------- ----------
<S> <C> <C>
Credit Facilities:
Revolving Credit Loans............................. $ 104,199 $ 109,750
Acquisition Loans.................................. 202,251 138,551
Term Loans......................................... 394,000 624,345
Subordinated debentures.............................. 500,000 500,000
Taxable bonds........................................ 33,400 29,700
Tax-exempt bonds..................................... 8,000 8,000
Capital lease obligations (see Note 7)............... 21,948 20,828
Other................................................ 4,044 3,459
---------- ----------
Total debt......................................... 1,267,842 1,434,633
Less current maturities.............................. (21,248) (27,029)
---------- ----------
Total long-term debt............................... $1,246,594 $1,407,604
========== ==========
</TABLE>
CREDIT FACILITIES. In connection with the Acquisition, a $900 million
credit agreement was entered into with a consortium of creditors (the "Credit
Agreement"). The financing under the Credit Agreement consists of (i) a 6 1/2
year term loan facility (the "Tranche A Loan") in an aggregate principal amount
equal to $50 million, (ii) a 7 1/2 year term loan facility (the "Tranche B
Loan") in an aggregate principal amount equal to $132.5 million, (iii) an 8 1/2
year term loan facility (the "Tranche C Loan") in an aggregate principal amount
equal to $132.5 million, (iv) a 9 1/2 year term loan facility (the "Tranche D
Loan") in an original aggregate principal amount equal to $100 million and
amended to an aggregate principal amount of $350 million in March 1999
(collectively, the "Term Loans"), (v) a revolving credit facility (the
"Revolving Credit Loans") in an aggregate principal amount equal to
$200 million, of which up to $90 million may be used, to the extent available,
for standby and commercial letters of credit and up to $25 million is available
to the Company pursuant to a swingline facility and (vi) a reducing acquisition
loan facility (the "Acquisition Loans") in an aggregate principal amount of
$285 million, reduced to $282.5 million in July 1999.
The Term Loans are scheduled to be paid in consecutive quarterly
installments with aggregate principal payments for future years as follows (in
thousands):
<TABLE>
<S> <C>
2000........................................................ $ 20,655
2001........................................................ 21,155
2002........................................................ 48,905
2003........................................................ 129,655
2004........................................................ 169,662
2005........................................................ 234,313
--------
Total....................................................... $624,345
========
</TABLE>
Revolving Credit Loans may be made, and letters of credit may be issued, at
any time during the period between July 22, 1996, the loan origination date (the
"Origination Date"), and December 31,
F-15
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
5. LONG-TERM DEBT (CONTINUED)
2002 (the "Termination Date"). No letter of credit will have an expiration date
after the Termination Date. The Acquisition Loans may be made at any time during
the period preceding the Termination Date.
The Acquisition Loans facility will automatically be reduced and the
Acquisition Loans will be repaid to the following levels on each of the
following anniversaries of the Origination Date: fourth anniversary,
$263.2 million; fifth anniversary, $215.3 million; sixth anniversary,
$139.0 million; with payment of any remaining balance on the Termination Date.
The Company may elect that all or a portion of the borrowings under the
Credit Agreement bear interest at a rate per annum equal to (a) an annual
benchmark rate, which will be equal to the greatest of (i) "Prime Rate,"
(ii) the "Base" CD Rate plus 1% or (iii) the Federal Funds effective rate plus
50 basis points (the "ABR") or (b) the Eurodollar Rate, in each case increased
by the applicable margin (the "Applicable Margin") which will vary between 1.50%
and 3.75% per annum. The applicable margin on the Revolving Credit Loans,
Acquisition Loans and Tranche A Loan is subject to a reduction based on
achievement of certain levels of total senior indebtedness to annualized
consolidated EBITDA, as defined in the Credit Agreement. To date, the Company
has not achieved a level that provides for a reduction of the Applicable Margin.
Interest based on the ABR is payable on the last day of each calendar
quarter and interest based on the Eurodollar Rate is payable on set maturity
dates. The borrowings under the Credit Agreement bore interest at rates ranging
from 7.44% to 11.25% as of December 31, 1999.
The Company is also required to pay a quarterly commitment fee at a rate
which ranges from .375% to .500% based on the Eurodollar Applicable Margin for
Revolving Credit Loans. This rate is applied to unused commitments under the
Revolving Credit Loans and the Acquisition Loans.
The Company is also required to pay letters of credit fees at rates which
vary from 1.625% to 2.625%.
All or a portion of the outstanding borrowings under the Credit Agreement
may be prepaid at any time and the unutilized portion of the facility for the
Revolving Credit Loans or the Acquisition Loans may be terminated, in whole or
in part at the Company's option. Repaid Term Loans and permanent reductions to
the Acquisition Loans and Revolving Credit Loans may not be reborrowed.
Credit Facilities generally are required to be prepaid with the net proceeds
(in excess of $20 million) of certain permitted asset sales and the issuances of
debt obligations (other than certain permitted indebtedness) of the Company or
any of its subsidiaries.
Generally, prepayments of Term Loans will be applied to principal payments
due during the next twelve months with any excess being applied pro rata to
scheduled principal payments thereafter.
The terms of the Credit Agreement include certain restrictive covenants.
These covenants include restrictions on indebtedness, investments, asset sales,
capital expenditures, dividends, sale and leasebacks, contingent obligations,
transactions with affiliates, and fundamental change. The covenants also require
maintenance of certain ratios regarding senior indebtedness, senior interest,
and fixed charges. The Company was in compliance with all debt covenants at
December 31, 1999.
Under an amendment dated February 24, 2000, in the event of an initial
public offering of common stock, the Company is obligated to apply the first
$300 million of proceeds (net of expenses and underwriting commissions) and
proceeds in excess of $450 million first to repay the Acquisition and Revolving
Credit Loans and then to reduce the Term Loans. The proceeds in excess of
F-16
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
5. LONG-TERM DEBT (CONTINUED)
$300 million and less than $450 million may, under the terms of the Credit
Agreement, be applied to repay subordinated debentures if certain financial
covenants are met. In connection with any subsequent registered public offering,
the Company may, under the terms of the Credit Agreement, apply the proceeds to
the repayment of subordinated debentures if certain financial covenants are met.
As of December 31, 1998 and 1999, the Company had letters of credit issued,
primarily in support of its Taxable Bonds and Tax-Exempt Bonds, of approximately
$55 million and $43 million, respectively. Availability at December 31, 1998 and
1999 under the Revolving Credit Loans facility was approximately $41 million and
$47 million and under the Acquisition Loans facility was approximately $83
million and $144 million, respectively.
SUBORDINATED DEBENTURES. In connection with the Acquisition, the Company
issued its subordinated debentures to an affiliate of Forstmann Little & Co. for
$500 million in cash. The debentures are a general senior subordinated
obligation of the Company, are not subject to mandatory redemption and mature in
three equal annual installments beginning June 30, 2007, with the final payment
due on June 30, 2009. The debentures bear interest at a fixed rate of 7.50%
which is payable semi-annually in January and July. Total interest expense for
the debentures was $37.5 million for each of the years ended December 31, 1997,
1998 and 1999.
TAXABLE BONDS AND TAX-EXEMPT BONDS. Taxable Bonds bear interest at a
floating rate which averaged 5.73% and 5.29% during 1998 and 1999, respectively.
These bonds are subject to mandatory annual redemptions with the final payment
of $17.4 million due on October 1, 2003. Tax-Exempt Bonds bear interest at
floating rates which averaged 3.58% and 3.36% during 1998 and 1999,
respectively. These bonds are not subject to mandatory annual redemptions under
the bond provisions and are due in 2010. Taxable Bonds and Tax-Exempt Bonds are
both guaranteed by letters of credit
OTHER DEBT. As of December 31, 1999, other debt consisted primarily of an
industrial revenue bond and other obligations maturing in various installments
through 2014.
As of December 31, 1999, the scheduled maturities of long-term debt
outstanding including capital leases for each of the next five years and
thereafter are as follows (in thousands):
<TABLE>
<S> <C>
2000........................................................ $ 27,029
2001........................................................ 27,107
2002........................................................ 54,495
2003........................................................ 150,010
2004........................................................ 170,188
Thereafter.................................................. 1,005,804
----------
$1,434,633
==========
</TABLE>
The Company paid interest of $87 million, $101 million and $118 million on
borrowings during the years ended December 31, 1997, 1998 and 1999,
respectively.
6. FAIR VALUES OF FINANCIAL INSTRUMENTS
The fair value of financial instruments has been estimated by the Company
using available market information as of December 31, 1998 and 1999, and
valuation methodologies considered appropriate.
F-17
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
6. FAIR VALUES OF FINANCIAL INSTRUMENTS (CONTINUED)
The estimates presented are not necessarily indicative of amounts the Company
could realize in a current market exchange (in thousands):
<TABLE>
<CAPTION>
AS OF DECEMBER 31,
---------------------------------------------
1998 1999
--------------------- ---------------------
CARRYING ESTIMATED CARRYING ESTIMATED
AMOUNT FAIR VALUE VALUE FAIR VALUE
-------- ---------- -------- ----------
<S> <C> <C> <C> <C>
Assets:
Cash and cash equivalents......................... $ 6,719 $ 6,719 $ 4,282 $ 4,282
Liabilities:
Credit facilities................................. 700,450 692,045 872,646 862,174
Taxable Bonds..................................... 33,400 33,400 29,700 29,700
Tax-exempt Bonds.................................. 8,000 8,000 8,000 8,000
</TABLE>
Cash and cash equivalents: The carrying amount approximates fair value due
to the short term maturity of these instruments (less than three months).
Credit facilities: Estimated fair value is based on communications with the
Company's bankers regarding relevant pricing for trading activity among the
Company's lending institutions.
Taxable and Tax-exempt Bonds: The carrying amount approximates fair value as
a result of the weekly interest rate reset feature of these publically traded
instruments.
The Company believes that it is not practicable to estimate the fair value
of the subordinated debentures because of (i) the fact that the subordinated
debentures were issued in connection with the issuance of the original equity of
the Company at the date of Acquisition as an investment unit, (ii) the related
party nature of the subordinated debentures, (iii) the lack of comparable
securities, and (iv) the lack of a credit rating of the Company by an
established rating agency.
7. LEASES
The Company leases hospitals, medical office buildings, and certain
equipment under capital and operating lease agreements. All lease agreements
generally require the Company to pay maintenance, repairs, property taxes and
insurance costs. Commitments relating to noncancellable operating and capital
leases for each of the next five years and thereafter are as follows (in
thousands):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, OPERATING CAPITAL
- ----------------------- --------- --------
<S> <C> <C>
2000..................................................... $16,306 $ 3,140
2001..................................................... 14,237 4,110
2002..................................................... 11,332 3,504
2003..................................................... 8,968 2,959
2004..................................................... 8,408 2,600
Thereafter............................................... 20,769 27,525
------- -------
Total minimum future payments............................ $80,020 43,838
=======
Less debt discounts...................................... (23,010)
-------
20,828
Less current portion..................................... (2,472)
-------
Long-term capital lease obligations...................... $18,356
=======
</TABLE>
F-18
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
7. LEASES (CONTINUED)
Assets capitalized under capital leases as reflected in the accompanying
consolidated balance sheets were $5.1 million of land and improvements, and
$39.4 million of buildings and improvements, and $17.4 million of equipment and
fixtures as of December 31, 1998 and $5.8 million of land and improvements,
$55.7 million of buildings and improvements and $19.2 million of equipment and
fixtures as of December 31, 1999. The accumulated depreciation related to assets
under capital leases was $11.7 million and $15.1 million as of December 31, 1998
and 1999, respectively. Depreciation of assets under capital leases is included
in depreciation and amortization and amortization of debt discounts on capital
lease obligations is included in interest expense in the consolidated statements
of operations.
8. EMPLOYEE BENEFIT PLANS
The Company has a defined contribution plan that is qualified under
Section 401(k) of the Internal Revenue Code, which covers all eligible employees
at its hospitals, clinics, and the corporate offices. Participants may
contribute a portion of their compensation not exceeding a limit set annually by
the Internal Revenue Service. This plan includes a provision for the Company to
match a portion of employee contributions. The Company also provides a defined
contribution welfare benefit plan for post-termination benefits to executive and
middle management employees. Total expense under the 401(k) plan was
$2.2 million for each of the years ended December 31, 1997 and 1998 and $2.9
million for the year ended December 31, 1999. Total expense under the welfare
benefit plan was $0.8 million, $0.9 million and $0.8 million for the years ended
December 31, 1997, 1998 and 1999, respectively.
9. STOCKHOLDERS' EQUITY
Authorized capital shares of the Company include 400,000,000 shares of
capital stock consisting of 300,000,000 shares of common stock and 100,000,000
shares of Preferred Stock. Each of the aforementioned classes of capital stock
has a par value of $.01 per share. Shares of Preferred Stock, of which none are
outstanding as of December 31, 1999, may be issued in one or more series having
such rights, preferences and other provisions as determined by the Board of
Directors without approval by the holders of common stock.
Common shares held by employees are the subject of a stockholder's agreement
under which each share, until vested, is subject to repurchase, upon termination
of employment. Shares vest, on a cumulative basis, each year at a rate of 20% of
the total shares issued beginning after the first anniversary date of the
purchase. Further, under the stockholder's agreement shares of common stock held
by stockholders other than FL&Co. will only be transferable together with shares
transferred by FL&Co. until FL&Co.'s ownership falls below 25%.
During 1997, the Company granted options to purchase 189,944 shares of
common stock to non-employee directors at an exercise price of $9.04 per share.
One-third of such options are exercisable each year on a cumulative basis
beginning on the first anniversary of the date of grant and expiring ten years
from the date of grant. As of December 31, 1999, 126,669 non-employee director
options to purchase common stock were exercisable with a weighted average
remaining contractual life of 7.47 years.
In November 1996, the Board of Directors approved an Employee Stock Option
Plan (the "Plan") to provide incentives to key employees of the Company. Options
to purchase up to 801,325 shares of common stock are authorized under the Plan.
All options granted pursuant to the Plan are generally
F-19
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
9. STOCKHOLDERS' EQUITY (CONTINUED)
exercisable each year on a cumulative basis at a rate of 20% of the total number
of common shares covered by the option beginning one year from the date of grant
and expiring ten years from the date of grant. As of December 31, 1999, there
were 218,584 shares of unissued common stock reserved for issuance under the
Plan.
The options granted are "nonqualified" for tax purposes. For financial
reporting purposes, the exercise price of certain option grants were considered
to be below the fair value of the stock at the time of grant. The fair value was
determined based on an appraisal conducted by an independent appraisal firm as
of the relevant date. The aggregate differences between fair value and the
exercise price is being charged to compensation expense over the relevant
vesting periods. In 1999, such expense aggregated $83,000.
A summary of the number of shares of common stock issuable upon the exercise
of options under the Company's Employee Stock Option Plan for fiscal 1997, 1998
and 1999 and changes during those years is presented below:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------
1997 1998 1999
-------- -------- --------
<S> <C> <C> <C>
Outstanding at the beginning of the year.................... -- 456,755 646,848
Granted..................................................... 593,891 316,969 95,714
Exercised................................................... -- -- --
Forfeited or canceled....................................... (137,116) (126,876) (159,820)
-------- -------- --------
Outstanding at the end of the year.......................... 456,755 646,848 582,742
-------- -------- --------
</TABLE>
Of the options outstanding as of December 31, 1997, 1998 and 1999, none,
65,976 and 155,368, respectively, were exercisable. As of December 31, 1999, the
outstanding options had a weighted-average remaining contractual life of 7.84
years. All employee options outstanding as of December 31, 1999 had an exercise
price of $6.60 per share.
Under SFAS No. 123, the fair value of each option grant is estimated on the
date of grant using the Black-Scholes option-pricing model. The weighted-average
fair value of each option granted during 1997, 1998 and 1999 were $2.05, $1.94,
and $4.82, respectively. In 1997 and 1998, the exercise price of options granted
was the same as the fair value of the related stock. In 1999, the exercise price
of options granted was less than the fair value of the related stock. The
following weighted-average assumptions were used for grants in fiscal 1997, 1998
and 1999: risk-free interest rate of 6.10%, 5.14% and 5.49%; expected volatility
of the Company's common stock based on peer companies in the healthcare industry
of 35%, 34% and 45%, respectively; no dividend yields; and weighted-average
expected life of the options of 3 years for all years.
F-20
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
9. STOCKHOLDERS' EQUITY (CONTINUED)
Had the fair value of the options granted been recognized as compensation
expense on a straight-line basis over the vesting period of the grant, the
Company's net loss and loss per share would have been reduced to the pro forma
amounts indicated below (in thousands except per share data):
<TABLE>
<CAPTION>
1997 1998 1999
-------- --------- --------
<S> <C> <C> <C>
Net loss:
As reported............................................... $(32,171) $(183,290) $(16,789)
Pro forma................................................. $(32,333) $(183,513) $(17,010)
Net loss per share:
As reported--basic and diluted............................ $ (0.60) $ (3.40) $ (0.31)
Pro forma--basic and diluted.............................. $ (0.60) $ (3.41) $ (0.31)
</TABLE>
10. EARNINGS PER SHARE
The following table sets forth the computation of basic and diluted earnings
per share (in thousands, except share data):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------------
1997 1998 1999
----------- ----------- -----------
<S> <C> <C> <C>
NUMERATOR:
Loss before cumulative effect of a
change in accounting principle.... $ (32,171) $ (182,938) $ (16,789)
Cumulative effect of a change in
accounting principle.............. -- (352) --
----------- ----------- -----------
Net loss available to common--basic
and diluted....................... $ (32,171) $ (183,290) $ (16,789)
=========== =========== ===========
DENOMINATOR:
Weighted-average number of shares
outstanding--basic.................. 53,568,891 53,892,388 54,258,465
Effect of dilutive securities:
none................................ -- -- --
----------- ----------- -----------
Weighted-average number of shares
outstanding--diluted................ 53,568,891 53,892,388 54,258,465
=========== =========== ===========
Dilutive securities outstanding not
included in the computation of
earnings (loss) per share because
their effect is antidilutive:
Non-employee director options....... 189,944 189,944 189,944
Unvested common shares.............. 2,353,289 1,537,943 1,279,736
Employee options.................... 456,755 646,848 582,742
</TABLE>
11. ACCOUNTING CHANGE
In 1998, the Company adopted The American Institute of Certified Public
Accountants Statement of Position 98-5, "Reporting on the Costs of Start-Up
Activities," which affects the accounting for
F-21
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
11. ACCOUNTING CHANGE (CONTINUED)
start-up costs. The change involved expensing these costs as incurred, rather
than capitalizing and subsequently amortizing such costs. The cumulative effect
of the change on the accumulated deficit as of the beginning of 1998 is
reflected as a charge of $0.5 million ($0.4 million net of taxes) to 1998
earnings. The effect of the change to the new method on net loss or loss per
share for both Class A and Class B in 1997, 1998 and 1999 was not material.
12. COMMITMENTS AND CONTINGENCIES
CONSTRUCTION COMMITMENTS. As of December 31, 1999, the Company has
obligations under certain hospital agreements to construct three hospitals
through 2004 with an aggregate estimated construction cost of approximately
$85 million.
PROFESSIONAL LIABILITY RISKS. Substantially all of the Company's
professional and general liability risks are subject to a $0.5 million per
occurrence deductible (with an annual deductible cap of $5 million). The
Company's insurance is underwritten on a "claims-made basis." The Company
accrues an estimated liability for its uninsured exposure and self-insured
retention based on historical loss patterns and actuarial projections. The
Company's estimated liability for the self-insured portion of professional and
general liability claims was $15.7 million and $16.4 million as of December 31,
1998 and 1999, respectively. These estimated liabilities represent the present
value of estimated future professional liability claims payments based on
expected loss patterns using a discount rate of 4.51% and 5.72% in 1998 and
1999, respectively. The discount rate is based on an estimate of the risk-free
interest rate for the duration of the expected claim payments. The estimated
undiscounted claims liability was $18.3 million and $18.9 million as of
December 31, 1998 and 1999, respectively. The effect of discounting professional
and general liability claims was a $0.2 million increase in expense in 1997 and
a $0.1 million decrease to expense in both 1998 and 1999.
COMPLIANCE SETTLEMENT AND YEAR 2000 REMEDIATION COSTS. Year 2000
remediation costs totaled $0.2 million and $3.3 million for 1998 and 1999,
respectively. In regard to compliance settlement costs, the Company initiated a
voluntary review in 1997 of its inpatient medical records in order to determine
the extent it may have had coding inaccuracies under certain government
programs. At December 31, 1998, an estimate of the settlement was accrued based
on information available and additional costs were accrued at December 31, 1999.
In March 2000, the Company reached a settlement with appropriate governmental
agencies pursuant to which the Company agreed to pay approximately $31 million
to settle potential liabilities related to coding inaccuracies occurring from
October 1993 through September 1997.
LEGAL MATTERS. The Company is a party to legal proceedings incidental to
its business. In the opinion of management, any ultimate liability with respect
to these actions will not have a material adverse effect on the Company's
consolidated financial position, cash flows or results of operations.
13. RELATED PARTY TRANSACTIONS
Notes receivable for common shares held by employees, as disclosed on the
consolidated balance sheets, represent the outstanding balance of notes accepted
by the Company as partial payment for the purchase of the common shares from
senior management employees. These notes bear interest at 6.84%, are full
recourse promissory notes and are secured by the shares to which they relate.
Each of the full recourse promissory notes mature on the fifth anniversary date
of the note, with accelerated
F-22
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
13. RELATED PARTY TRANSACTIONS (CONTINUED)
maturities in case of employee termination, Company stock repurchases, or
stockholder's sale of common stock. Employees have fully paid for purchases of
common stock by cash or by a combination of cash and full recourse promissory
notes.
In 1999, the Company purchased marketing services and materials at a cost of
$268,000 from a company owned by the spouse of one of the Company's officers.
In 1996, in connection with the Company's relocation from Houston to
Nashville, the Company lent $100,000 to one of its executives. This loan is due
December 15, 2000 and bears no interest.
14. SUBSEQUENT EVENTS (UNAUDITED)
The Company currently is pursuing an initial public offering, which is
expected to be completed during the second quarter of 2000. In connection with
this contemplated public offering, the Company expects to effect a
recapitalization immediately prior to, or simultaneously with, the closing as
follows:
- each outstanding share of Class B common stock will be exchanged for .488
of a share of Class A common stock;
- each outstanding option to purchase a share of Class C common stock will
be exchanged for an option to purchase .750 of a share of Class A common
stock;
- the Class A common stock will be redesignated as common stock and adjusted
for a stock split on a 118.7148-for-1 basis; and
- the certificate of incorporation will be amended and restated to reflect a
single class of common stock, par value $.01 per share, and increase
authorized shares of common stock to 300,000,000 and preferred stock to
100,000,000.
- Vesting, repurchase and transfer provisions related to Class B and
Class C common shares will not be affected by the recapitalization.
The Company is obligated in connection with an initial public offering to
apply the first $300 million of proceeds (net of expenses and underwriting
commissions) and proceeds in excess of $450 million first to repay the Revolving
and Acquisition Credit Loans and then to reduce the Term Loans. The proceeds in
excess of $300 million and less than $450 million may, under the terms of the
Credit Agreement, be applied to repay subordinated debentures if certain
financial covenants are met. In connection with any subsequent registered public
offering, the Company may, under the terms of the Credit Agreement, apply the
proceeds to the repayment of subordinated debentures if certain financial
covenants are met.
All share and per share amounts have been restated to give effect to these
transactions. If the value of the Company changes significantly at the time of
the offering, the share and exchange amounts above will change.
F-23
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
UNAUDITED INTERIM CONDENSED CONSOLIDATED BALANCE SHEETS
AS OF MARCH 31, 2000
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<S> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents................................. $ 10,885
Patient accounts receivable, net.......................... 231,448
Supplies, prepaid expenses and other current assets....... 73,780
Prepaid and current deferred income taxes................. 1,688
----------
Total current assets.................................. 317,801
----------
PROPERTY AND EQUIPMENT...................................... 725,922
Less accumulated depreciation and amortization............ (101,594)
----------
property and equipment, net........................... 624,328
----------
GOODWILL, NET............................................... 876,716
----------
OTHER ASSETS, NET........................................... 116,885
----------
TOTAL ASSETS................................................ $1,935,730
==========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Current maturities of long-term debt...................... $ 20,955
Accounts payable.......................................... 58,557
Compliance settlement payable............................. 30,900
Interest payable.......................................... 10,685
Accrued liabilities....................................... 95,921
----------
Total current liabilities............................. 217,018
----------
LONG-TERM DEBT.............................................. 1,463,650
----------
OTHER LONG-TERM LIABILITIES................................. 24,368
----------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY
Preferred stock, $.01 par value per share, 100,000,000
shares authorized, none issued.......................... --
Common stock, $.01 par value per share, 300,000,000 shares
authorized; 56,793,489 shares issued and 55,592,832
shares outstanding at March 31, 2000.................... 568
Additional paid-in capital................................ 483,235
Accumulated deficit....................................... (244,431)
Treasury stock, at cost, 1,200,657 shares................. (6,587)
Notes receivable for common stock......................... (1,932)
Unearned stock compensation............................... (159)
----------
Total stockholders' equity............................ 230,694
----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY.................. $1,935,730
==========
</TABLE>
See notes to unaudited interim condensed consolidated financial statements.
F-24
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
UNAUDITED INTERIM CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31,
-----------------------------
1999 2000
----------- -----------
<S> <C> <C>
NET OPERATING REVENUES...................................... $ 263,004 $ 308,651
----------- -----------
OPERATING COSTS AND EXPENSES:
Salaries and benefits..................................... 101,493 120,407
Provision for bad debts................................... 22,555 27,955
Supplies.................................................. 31,746 35,979
Other operating expenses.................................. 49,128 57,130
Rent...................................................... 6,112 7,099
Depreciation and amortization............................. 13,033 16,380
Amortization of goodwill.................................. 5,677 6,168
----------- -----------
Total operating cost and expenses....................... 229,744 271,118
----------- -----------
INCOME FROM OPERATIONS...................................... 33,260 37,533
INTEREST EXPENSE, NET....................................... 26,762 32,683
----------- -----------
INCOME BEFORE INCOME TAXES.................................. 6,498 4,850
PROVISION FOR INCOME TAXES.................................. 4,580 3,929
----------- -----------
NET INCOME.................................................. $ 1,918 $ 921
=========== ===========
BASIC AND DILUTED NET INCOME PER COMMON SHARE:
Basic..................................................... $ 0.04 $ 0.02
=========== ===========
Diluted................................................... $ 0.03 $ 0.02
=========== ===========
WEIGHTED-AVERAGE NUMBER OF SHARES OUTSTANDING:
Basic..................................................... 54,128,085 54,369,202
=========== ===========
Diluted................................................... 55,607,631 55,857,980
=========== ===========
PRO FORMA INFORMATION:
Pro forma income per share:
Basic................................................... $ 0.06
===========
Diluted................................................. $ 0.06
===========
Pro forma weighted-average number of shares outstanding:
Basic................................................... 73,119,202
===========
Diluted................................................. 74,607,980
===========
</TABLE>
See notes to unaudited interim condensed consolidated financial statements.
F-25
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
UNAUDITED INTERIM CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
--------------------
1999 2000
--------- --------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income................................................ $ 1,918 $ 921
Adjustments to reconcile net income to net cash used in
operating activities:
Depreciation and amortization........................... 18,710 22,548
Changes in operating assets and liabilities, net of
effects of acquisitions and divestitures:
Patient accounts receivable......................... (24,206) (2,511)
Supplies, prepaid expenses and other current
assets............................................ 2,117 (4,595)
Accounts payable, accrued liabilities and income
taxes............................................. 472 (16,275)
Other............................................... (17,871) (5,033)
--------- --------
Net cash used in operating activities..................... (18,860) (4,945)
--------- --------
CASH FLOWS FROM INVESTING ACTIVITIES
Acquisitions of facilities, pursuant to purchase
agreements.............................................. (44,347) (21,392)
Purchases of property and equipment....................... (19,215) (12,002)
Proceeds from sale of equipment........................... 22 7
Increase in other assets.................................. (2,603) (5,036)
--------- --------
Net cash used in investing activities................... (66,143) (38,423)
--------- --------
CASH FLOWS FROM FINANCING ACTIVITIES
Borrowings under credit agreement......................... 339,100 67,400
Repayments of long-term indebtedness...................... (249,505) (17,429)
--------- --------
Net cash provided by financing activities............... 89,595 49,971
--------- --------
NET CHANGE IN CASH AND CASH EQUIVALENTS..................... 4,592 6,603
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD............ 6,719 4,282
--------- --------
CASH AND CASH EQUIVALENTS AT END OF PERIOD.................. $ 11,311 $ 10,885
========= ========
</TABLE>
See notes to unaudited interim condensed consolidated financial statements.
F-26
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC.
NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION
The unaudited interim condensed consolidated financial statements of
Community Health Systems, Inc. and its subsidiaries (the "Company") as of and
for the three month periods ended March 31, 1999 and March 31, 2000, have been
prepared in accordance with generally accepted accounting principles. In the
opinion of management, such information contains all adjustments, consisting
only of normal recurring adjustments, necessary for a fair presentation of the
results for such periods. All intercompany transactions and balances have been
eliminated. The results of operations for the three months ended March 31, 2000
are not necessarily indicative of the results to be expected for the full fiscal
year ending December 31, 2000.
Certain information and disclosures normally included in the notes to
consolidated financial statements have been condensed or omitted as permitted by
the rules and regulations of the Securities and Exchange Commission, although
the Company believes the disclosure is adequate to make the information
presented not misleading. The accompanying unaudited financial statements should
be read in conjunction with the financial statements of the Company for the year
ended December 31, 1999.
2. USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management of the Company to make
estimates and assumptions that affect the amounts reported in the consolidated
financial statements. Actual results could differ from the estimates.
3. PURCHASE OF HOSPITAL
Effective March 1, 2000, the Company acquired through a purchase transaction
the assets and working capital of a 105 bed hospital for aggregate consideration
of $13.4 million including liabilities assumed.
4. EARNINGS PER SHARE
The following table sets forth the computation of basic and diluted earnings
per share (in thousands, except per share date):
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
-----------------------------
1999 2000
----------- -----------
<S> <C> <C>
NUMERATOR:
Net income............................................ $ 1,918 $ 921
=========== ===========
DENOMINATOR:
Weighted-average number of shares
outstanding--basic.................................. 54,128,085 54,369,202
Effect of dilutive options............................ 1,479,546 1,488,778
----------- -----------
Weighted-average number of shares
outstanding--diluted................................ 55,607,631 55,857,980
=========== ===========
Basic earnings per share................................ $ 0.04 $ 0.02
=========== ===========
Diluted earnings per share.............................. $ 0.03 $ 0.02
=========== ===========
</TABLE>
F-27
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC.
NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(CONTINUED)
5. SUBSEQUENT EVENTS
Effective April 1, 2000, the Company acquired through separate purchase
transactions, the assets and working capital of two hospitals for aggregate
consideration of approximately $22.0 million. Licensed beds at these two
facilities totaled 124.
The Company currently is pursuing an initial public offering, which is
expected to be completed during the second quarter of 2000. In connection with
this contemplated public offering, the Company expects to effect a
recapitalization immediately prior to, or simultaneously with, the closing as
follows:
- each outstanding share of Class B common stock will be exchanged for .488
of a share of Class A common stock;
- each outstanding option to purchase a share of Class C common stock will
be exchanged for an option to purchase .750 of a share of Class A common
stock;
- the Class A common stock will be redesignated as common stock and adjusted
for a stock split on a 118.7148-for-1 basis;
- the certificate of incorporation will be amended and restated to reflect a
single class of common stock, par value $.01 per share, and increase
authorized shares of common stock to 300,000,000 and preferred stock to
100,000,000; and
- vesting, repurchase and transfer provisions related to Class B and
Class C common shares will not be affected by the recapitalization.
The Company is obligated in connection with an initial public offering to
apply the first $300 million of proceeds (net of expenses and underwriting
commissions) and proceeds in excess of $450 million first to repay the Revolving
and Acquisition Credit Loans and then to reduce the Term Loans. The proceeds in
excess of $300 million and less than $450 million may, under the terms of the
Credit Agreement, be applied to repay subordinated debentures if certain
financial covenants are met. In connection with any subsequent registered public
offering, the Company may, under the terms of the Credit Agreement, apply the
proceeds to the repayment of subordinated debentures if certain financial
covenants are met.
All share and per share amounts have been restated to give effect to these
transactions. If the value of the Company changes significantly at the time of
the offering, the share and exchange amounts above will change.
F-28
<PAGE>
[INSIDE BACK COVER PAGE]
[Description of artwork:
Photographs of four of our facilities:
Eastern New Mexico Medical Center,
Moberly Regional Medical Center,
Springs Memorial Hospital, and
North Okaloosa Medical Center]
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Through and including 2000 (the 25(th) day after the date of
this prospectus), all dealers effecting transactions in these securities,
whether or not participating in this offering, may be required to deliver a
prospectus. This is in addition to the dealers' obligation to deliver a
prospectus when acting as underwriters and with respect to their unsold
allotments or subscriptions.
18,750,000 SHARES
[LOGO]
COMMON STOCK
------------------
P R O S P E C T U S
------------------
MERRILL LYNCH & CO.
BANC OF AMERICA SECURITIES LLC
CHASE H&Q
CREDIT SUISSE FIRST BOSTON
GOLDMAN, SACHS & CO.
MORGAN STANLEY DEAN WITTER
, 2000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED MAY 2, 2000
PROSPECTUS
18,750,000 SHARES
[LOGO]
COMMON STOCK
--------------
This is Community Health Systems, Inc.'s initial public offering. We are
selling all of the shares. The international managers are offering 2,812,500
shares outside the U.S. and Canada and the U.S. underwriters are offering
15,937,500 shares in the U.S. and Canada.
We expect the public offering price to be between $15.00 and $17.00 per
share. Currently, no public market exists for the shares. After pricing of the
offering, we expect that the shares will trade on the New York Stock Exchange
under the symbol "CYH."
INVESTING IN THE COMMON STOCK INVOLVES RISKS WHICH ARE DESCRIBED IN THE
"RISK FACTORS" SECTION BEGINNING ON PAGE 8 OF THIS PROSPECTUS.
-----------------
<TABLE>
<CAPTION>
PER SHARE TOTAL
--------- -----
<S> <C> <C>
Public offering price....................................... $ $
Underwriting discount....................................... $ $
Proceeds before expenses to Community Health Systems........ $ $
</TABLE>
The international managers may also purchase up to an additional 421,875
shares from us at the public offering price, less the underwriting discount,
within 30 days from the date of this prospectus to cover over-allotments. The
U.S. underwriters may similarly purchase up to an additional 2,390,625 shares
from us.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The shares will be ready for delivery on or about , 2000.
-------------------
MERRILL LYNCH INTERNATIONAL
BANK OF AMERICA INTERNATIONAL LIMITED
CHASE H&Q
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
GOLDMAN SACHS INTERNATIONAL
MORGAN STANLEY DEAN WITTER
-------------------
The date of this prospectus is , 2000.
<PAGE>
UNDERWRITING
We intend to offer the shares outside the U.S. and Canada through the
international managers and in the U.S. and Canada through the U.S. underwriters.
Merrill Lynch International, Bank of America International Limited, Chase
Manhattan International Limited, Credit Suisse First Boston (Europe) Limited,
Goldman Sachs International, and Morgan Stanley & Co. International Limited are
acting as lead managers for the international managers named below. Subject to
the terms and conditions described in an international purchase agreement
between us and the international managers, and concurrently with the sale of
15,937,500 shares to the U.S. underwriters, we have agreed to sell to the
international managers, and the international managers severally have agreed to
purchase from us, the number of shares listed opposite their names below.
<TABLE>
<CAPTION>
NUMBER
INTERNATIONAL MANAGER OF SHARES
- --------------------- ---------
<S> <C>
Merrill Lynch International.................................
Bank of America International Limited.......................
Chase Manhattan International Limited.......................
Credit Suisse First Boston (Europe) Limited.................
Goldman Sachs International.................................
Morgan Stanley & Co. International Limited..................
---------
Total............................................. 2,812,500
=========
</TABLE>
We have also entered into a U.S. purchase agreement with the U.S.
underwriters for sale of the shares in the U.S. and Canada for whom Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Banc of America Securities LLC,
Chase Securities Inc., Credit Suisse First Boston Corporation, Goldman, Sachs &
Co., and Morgan Stanley & Co. Incorporated are acting as U.S. representatives.
Subject to the terms and conditions in the U.S. purchase agreement, and
concurrently with the sale of 2,812,500 shares to the pursuant to the
international purchase agreement, we have agreed to sell to the U.S.
underwriters, and U.S. underwriters severally have agreed to purchase 15,937,500
shares from us. The initial public offering price per share and the total
underwriting discount per share are identical under the international purchase
agreement and the U.S. purchase agreement.
The international managers and the U.S. underwriters have agreed to purchase
all of the shares sold under the international and U.S. purchase agreements if
any of these shares are purchased. If an underwriter defaults, the international
purchase agreements provide that the purchase commitments of the nondefaulting
underwriters may be increased or the purchase agreements may be terminated. The
closings for the sale of shares to be purchased by the international managers
and the U.S. underwriters are conditioned on one another.
We have agreed to indemnify the international managers and the U.S.
underwriters against certain liabilities, including liabilities under the
Securities Act, or to contribute to payments the international managers and U.S.
underwriters may be required to make in respect of those liabilities.
The underwriters are offering the shares, subject to prior sale, when, as,
and if issued to and accepted by them, subject to approval of legal matters by
their counsel, including the validity of the shares, and other conditions
contained in the purchase agreements, such as the receipt by the underwriters of
officer's certificates and legal opinions. The underwriters reserve the right to
withdraw, cancel or modify offers to the public and to reject orders in whole or
in part.
COMMISSIONS AND DISCOUNTS
The lead managers have advised us that the international managers propose
initially to offer the shares to the public at the initial public offering price
on the cover page of this prospectus and to dealers at that price less a
concession not in excess of $ per share. The international managers may
allow, and the dealers may reallow, a discount not in excess of $ per
share to other
<PAGE>
dealers. After the initial public offering, the public offering price,
concession and discount may be changed.
The following table shows the public offering price, underwriting discount,
and proceeds before our expenses. The information assumes either no exercise or
full exercise by the international managers and the U.S. underwriters of their
over-allotment options.
<TABLE>
<CAPTION>
PER SHARE WITHOUT OPTION WITH OPTION
--------- -------------- -----------
<S> <C> <C> <C>
Public offering price.................... $ $ $
Underwriting discount.................... $ $ $
Proceeds before expenses to Community
Health Systems......................... $ $ $
</TABLE>
The expenses of the offering, not including the underwriting discount, are
estimated at $ and are payable by us.
OVER-ALLOTMENT OPTION
We have granted options to the international managers to purchase up to
421,875 additional shares at the public offering price less the underwriting
discount. The international managers may exercise these options for 30 days from
the date of this prospectus solely to cover any overallotments. If the
international managers exercise these options, each will be obligated, subject
to conditions contained in the purchase agreements, to purchase a number of
additional shares proportionate to that international managers initial amount
reflected in the above table.
We have also granted options to the U.S. underwriters, exercisable for
30 days from the date of this prospectus, to purchase up to 2,390,625 additional
shares to cover any over-allotments on terms similar to those granted to the
international managers.
INTERSYNDICATE AGREEMENT
The international managers and the U.S. underwrites have entered into an
intersyndicate agreement that provides for the coordination of their activities.
Under the intersyndicate agreement, the international managers and the U.S.
underwriters may sell shares to each other for purposes of resale at the initial
public offering price, less an amount not greater than the selling concession.
Under the intersyndicate agreement, the international managers and any dealer to
whom they sell shares will not offer to sell or sell shares to persons who are
U.S. or Canadian persons or to persons they believe intend to resell to persons
who are U.S. or Canadian persons, except in the case of transactions under the
intersyndicate agreement. Similarly, the U.S. underwriters and any dealer to
whom they sell shares will not offer to sell or sell shares to non-U.S. persons
or non-Canadian persons or to persons they believe intend to resell to non-U.S.
or non-Canadian persons, except in the case of transactions under the
intersyndicate agreement.
RESERVED SHARES
At our request, the underwriters have reserved for sale, at the initial
public offering price, up to 5% of the shares offered for sale in this offering
for sale to some of our directors, officers, employees, business associates, and
related persons. If these persons purchase reserved shares, this will reduce the
number of shares available for sale to the general public. Any reserved shares
that are not orally confirmed for purchase within one day of the pricing of this
offering will be offered by the underwriters to the general public on the same
terms as the other shares offered by this prospectus.
NO SALES OF SIMILAR SECURITIES
We and our executive officers and directors and all existing stockholders
have agreed, with exceptions, not to sell or transfer any common stock for
180 days after the date of this prospectus
<PAGE>
without first obtaining the written consent of Merrill Lynch. Specifically, we
and these other individuals have agreed not to directly or indirectly
- offer, pledge, sell, or contract to sell any common stock;
- sell any option or contract to purchase any common stock;
- purchase any option or contract to sell any common stock;
- grant any option, right, or warrant for the sale of any common stock;
- lend or otherwise dispose of or transfer any common stock;
- request or demand that we file a registration statement related to the
common stock; or
- enter into any swap or other agreement that transfers, in whole or in
part, the economic consequence of ownership of any common stock whether
any such swap or transaction is to be settled by delivery of shares or
other securities, in cash or otherwise.
This lockup provision applies to common stock and to securities convertible
into or exchangeable or exercisable for or repayable with common stock. It also
applies to common stock owned now or acquired later by the person executing the
agreement or for which the person executing the agreement later acquires the
power of disposition. This lockup provision does not limit our ability to grant
options to purchase common stock under stock option plans or to issue common
stock under our employee stock purchase plan.
NEW YORK STOCK EXCHANGE LISTING
We expect the shares to be approved for listing on the New York Stock
Exchange under the symbol "CYH." In order to meet the requirements for listing
on that exchange, the international managers and the U.S. underwriters have
undertaken to sell a minimum number of shares to a minimum number of beneficial
owners as required by that exchange.
Before this offering, there has been no public market for our common stock.
The initial public offering price will be determined through negotiations among
us and the U.S. representatives and lead managers. In addition to prevailing
market conditions, the factors to be considered in determining the initial
public offering price are
- the valuation multiples of publicly traded companies that the U.S.
representatives and the lead managers believe to be comparable to us;
- our financial information;
- the history of, and the prospects for, our company and the industry in
which we compete;
- an assessment of our management, its past and present operations, and the
prospects for, and timing of, our future revenues;
- the present state of our development; and
- the above factors in relation to market values and various valuation
measures of other companies engaged in activities similar to ours.
An active trading market for the shares may not develop. It is also possible
that after the offering the shares will not trade in the public market at or
above the initial public offering price.
The underwriters do not expect to sell more than 5% of the shares in the
aggregate to accounts over which they exercise discretionary authority.
PRICE STABILIZATION, SHORT POSITIONS AND PENALTY BIDS
Until the distribution of the shares is completed, SEC rules may limit
underwriters and selling group members from bidding for and purchasing our
common stock. However, the U.S. representatives
<PAGE>
and the lead managers may engage in transactions that stabilize the price of the
common stock, such as bids or purchases to peg, fix, or maintain that price.
If the underwriters create a short position in the common stock in
connection with the offering, i.e., if they sell more shares than are listed on
the cover of this prospectus, the U.S. representatives and the lead managers may
reduce that short position by purchasing shares in the open market. The U.S.
representatives and the lead managers may also elect to reduce any short
position by exercising all or part of the over-allotment option described above.
Purchases of the common stock to stabilize its price or to reduce a short
position may cause the price of the common stock to be higher than it might be
in the absence of such purchases.
The U.S. representatives and the lead managers may also impose a penalty bid
on underwriters. This means that if the U.S. representatives and the lead
managers purchase shares in the open market to reduce the underwriter's short
position or to stabilize the price of such shares, they may reclaim the amount
of the selling concession from the underwriters who sold those shares. The
imposition of a penalty bid may also affect the price of the shares in that it
discourages resales of those shares.
Neither we nor any of the underwriters makes any representation or
prediction as to the direction or magnitude of any effect that the transactions
described above may have on the price of the common stock. In addition, neither
we nor any of the underwriters makes any representation that the U.S.
representatives or the lead managers will engage in these transactions or that
these transactions, once commenced, will not be discontinued without notice.
UK SELLING RESTRICTIONS
Each international manager has agreed that
- it has not offered or sold and will not offer or sell any shares of common
stock to persons in the United Kingdom, except to persons whose ordinary
activities involve them in acquiring, holding, managing, or disposing of
investments (as principal or agent) for the purposes of their businesses
or otherwise in circumstances which do not constitute an offer to the
public in the United Kingdom with the meaning of the Public Offers of
Securities Regulations 1995;
- it has complied and will comply with all applicable provisions of the
Financial Services Act 1986 with respect to anything done by it in
relation to the common stock in, from, or otherwise involving the United
Kingdom; and
- it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issuance
of common stock to a person who is of a kind described in Article 11(3) of
the Financial Services Act 1986 (Investment Advertisements)(Exemptions)
Order 1996 as amended by the Financial Services Act of 1986 (Investment
Advertisements)(Exemptions) Order 1997 or is a person to whom such
document may otherwise lawfully be issued or passed on.
NO PUBLIC OFFERING OUTSIDE THE UNITED STATES
No action has been or will be taken in any jurisdiction (except in the
United States) that would permit a public offering of the shares of common
stock, or the possession, circulation, or distribution of this prospectus or any
other material relating to our company, or shares of our common stock in any
jurisdiction where action for that purpose is required. Accordingly, the shares
of our common stock may not be offered or sold, directly or indirectly, and
neither this prospectus nor any other offering materials or advertisements in
connection with the shares of common stock may be distributed or published, in
or from any country or jurisdiction except in compliance with any applicable
rules and regulations or any such country or jurisdiction.
Purchasers or the shares offered by this prospectus may be required to pay
stamp taxes and other charges in accordance with the laws and practices of the
country of purchase in addition to the offering price on the cover page of this
prospects.
<PAGE>
NASD REGULATIONS
It is anticipated that more than ten percent of the proceeds of the offering
will be applied to pay down debt obligations owed to affiliates of Chase
Securities Inc., Bank of America International Limited, Merrill Lynch
International, and Morgan Stanley & Co. International Limited. Because more than
ten percent of the net proceeds of the offering may be paid to members or
affiliates of members of the National Association of Securities Dealers, Inc.
participating in the offering, the offering will be conducted in accordance with
NASD Conduct Rule 2710(c)(8). This rule requires that the public offering price
of an equity security be no higher than the price recommended by a qualified
independent underwriter which has participated in the preparation of the
registration statement and performed its usual standard of due diligence with
respect to that registration statement. Merrill Lynch, Pierce, Fenner & Smith
Incorporated has agreed to act as qualified independent underwriter for the
offering. The price of the shares will be no higher than that recommended by
Merrill Lynch, Pierce, Fenner & Smith Incorporated.
OTHER RELATIONSHIPS
Some of the underwriters and their affiliates have engaged in, and may in
the future engage in, investment banking and other commercial dealings in the
ordinary course of business with us. They have received customary fees and
commissions for these transactions. In particular, an affiliate of Chase
Securities Inc. acts as an administrative agent for our credit facility and
affiliates of Chase Securities Inc., Banc of America Securities LLC, Merrill
Lynch, Pierce, Fenner & Smith Incorporated, and Morgan Stanley & Co.
Incorporated are lenders under our credit facility. Michael A. Miles, our
Chairman of the Board, is a director of Morgan Stanley Dean Witter and receives
customary compensation therefrom.
Merrill Lynch will be facilitating Internet distribution for this offering
to certain of its internet subscription customers. Merrill Lynch intends to
allocate a limited number of shares for sale to its online brokerage customers.
An electronic prospectus is available on the website maintained by Merrill
Lynch. Other than the prospectus in electronic format, the information on the
Merrill Lynch website relating to this offering is not a part of this
prospectus.
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Through and including 2000 (the 25(th) day after the date of this
prospectus), all dealers effecting transactions in these securities, whether or
not participating in this offering, may be required to deliver a prospectus.
This is in addition to the dealers' obligation to deliver a prospectus when
acting as underwriters and with respect to their unsold allotments or
subscriptions.
18,750,000 SHARES
[LOGO]
COMMON STOCK
------------------
P R O S P E C T U S
------------------
MERRILL LYNCH INTERNATIONAL
BANK OF AMERICA INTERNATIONAL LIMITED
CHASE H&Q
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
GOLDMAN SACHS INTERNATIONAL
MORGAN STANLEY DEAN WITTER
, 2000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses expected to be incurred in
connection with the issuance and distribution of common stock registered hereby,
all of which expenses, except for the Securities and Exchange Commission
registration fee, the National Association of Securities Dealers, Inc. filing
fee, and the New York Stock Exchange listing application fee, are estimated.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $
National Association of Securities Dealers, Inc. filing
fee.......................................................
New York Stock Exchange listing application fee.............
Printing and engraving fees and expenses....................
Legal fees and expenses.....................................
Accounting fees and expenses................................
Blue Sky fees and expenses..................................
Transfer Agent and Registrar fees and expenses..............
Miscellaneous expenses......................................
Total.....................................................
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Certificate of Incorporation and By-Laws provide that the directors and
officers of the Registrant shall be indemnified by the Registrant to the fullest
extent authorized by Delaware law, as it now exists or may in the future be
amended, against all expenses and liabilities reasonably incurred in connection
with service for or on behalf of the Registrant, except with respect to any
matter that such director or officer has been adjudicated not to have acted in
good faith or in the reasonable belief that his action was in the best interests
of the Registrant.
The Registrant has entered into agreements to indemnify its directors and
officers in addition to the indemnification provided for in the Certificate of
Incorporation and By-Laws. These agreements, among other things, indemnify
directors and officers of the Registrant to the fullest extent permitted by
Delaware law for certain expenses (including attorneys' fees), liabilities,
judgments, fines and settlement amounts incurred by such person arising out of
or in connection with such person's service as a director or officer of the
Registrant or an affiliate of the Registrant.
Policies of insurance are maintained by the Registrant under which its
directors and officers are insured, within the limits and subject to the
limitations of the policies, against certain expenses in connection with the
defense of, and certain liabilities which might be imposed as a result of,
actions, suits or proceedings to which they are parties by reason of being or
having been such directors or officers.
The form of Underwriting Agreement filed as Exhibit 1.1 hereto provides for
the indemnification of the registrant, its controlling persons, its directors
and certain of its officers by the underwriters against certain liabilities,
including liabilities under the Securities Act.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
During the three years preceding the filing of this registration statement,
the Registrant has not sold shares of its common stock without registration
under the Securities Act of 1933, except as described below.
During 1997, the Registrant sold an aggregate of 3,631 shares of its
Class B common stock to employees of the Registrant for an aggregate purchase
price of $1,310,317. During 1998, the Registrant
II-1
<PAGE>
sold an aggregate of 7,754 shares of its Class B common stock to employees of
the Registrant for an aggregate purchase price of $2,774,691.36. During 1999,
the Registrant sold an aggregate of 6,733 shares of its Class B common stock to
employees of the Registrant for an aggregate purchase price of $2,654,848. These
issuances were exempt from registration under the Securities Act pursuant to
section 4(2) thereof because they did not involve a public offering as the
shares were offered and sold only to a small group of employees.
Immediately before the closing of this offering, we will be recapitalized as
follows:
- each outstanding share of Class B common stock will be exchanged for .488
of a share of Class A common stock;
- each outstanding option to purchase a share of Class C common stock will
be exchanged for an option to purchase .750 of a share of Class A common
stock;
- the Class A common stock will be redesignated as common stock and adjusted
for a stock split on a 118.7148-for-1 basis; and
- the certificate of incorporation will be amended and restated to reflect a
single class of common stock, par value $.01 per share, and the number of
authorized shares of common stock and preferred stock will be increased.
Registration under the Securities Act will not be required in respect of
issuances pursuant to this recapitalization because they will be made
exclusively to existing holders of our securities and will not involve any
solicitation. Therefore, these issuances will be exempt from registration under
the Securities Act pursuant to section 3(a)(9) of the Securities Act.
No other sales of our securities have taken place within the last three
years.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
The following exhibits are filed with this registration statement.
<TABLE>
<CAPTION>
NO. DESCRIPTION
- --- -----------
<C> <S>
1.1 Form of U.S. Purchase Agreement, by and among the
Registrant, and the underwriters named therein.**
1.2 Form of International Purchase Agreement, by and among the
Registrant, and the underwriters named therein.**
2.1 Agreement and Plan of Merger between the Registrant, FLCH
Acquisition Corp. and Community Health Systems, Inc. (now
known as CHS/Community Health Systems, Inc.), dated June 9,
1996*
3.1 Form of Restated Certificate of Incorporation of the
Registrant.***
3.2 Form of Restated By-laws of the Registrant.***
4.1 Form of Common Stock Certificate.***
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson.**
10.1 Form of outside director Stock Option Agreement.*
10.2 Form of Stockholder's Agreement between the Registrant and
outside directors.*
10.3 Form of Employee Stockholder's Agreement.*
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
NO. DESCRIPTION
- --- -----------
<C> <S>
10.4 The Registrant's Employee Stock Option Plan and form of
Stock Option Agreement.*
10.5 The Registrant's 2000 Stock Option and Award Plan.***
10.6 Form of Stockholder's Agreement between the Registrant and
employees.*
10.7 Registration Rights Agreement, dated July 9, 1996, among the
Registrant, FLCH Acquisition Corp., Forstmann Little & Co.
Equity Partnership--V, L.P. and Forstmann Little & Co.
Subordinated Debt and Equity Management Buyout
Partnership--VI, L.P.*
10.8 Form of Indemnification Agreement between the Registrant and
its directors and executive officers.***
10.9 Amended and Restated Credit Agreement, dated as of March 26,
1999, among Community Health Systems, Inc. (now known as
CHS/Community Health Systems, Inc.), the Registrant, certain
lenders, The Chase Manhattan Bank, as Administrative Agent,
and Nationsbank, N.A. and The Bank of Nova Scotia, as
Co-Agents.*
10.10 First Amendment, dated February 24, 2000, to the Amended and
Restated Credit Agreement, dated as of March 26, 1999, among
Community Health Systems, Inc. (now known as CHS/ Community
Health Systems, Inc.), the Registrant, certain lenders, The
Chase Manhattan Bank, as Administrative Agent, and
Nationsbank, N.A. and The Bank of Nova Scotia, as
Co-Agents.*
10.11 Form of Management Rights Letter between the Registrant and
the partnerships affiliated with Forstmann Little & Co.***
10.12 Form of Series A 7 1/2% Subordinated Debenture.*
10.13 Form of Series B 7 1/2% Subordinated Debenture.*
10.14 Form of Series C 7 1/2% Subordinated Debenture.*
10.15 Corporate Compliance Agreement between the Office of
Inspector General of the Department of Health and Human
Services and the Registrant.**
10.16 Tenet BuyPower Purchasing Assistance Agreement, dated
June 13, 1997, between Community Health Systems, Inc. and
Tenet HealthSystem Inc., Addendum, dated September 19, 1997
and First Amendment, dated March 15, 2000.*
10.17 The Registrant's 2000 Employee Stock Purchase Plan***
21 List of subsidiaries.*
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in the opinion filed as Exhibit 5.1).**
23.2 Consent of Deloitte & Touche LLP.***
24 Powers of Attorney.*
27 Financial Data Schedule.*
</TABLE>
- ------------------------
* Previously filed.
** To be filed by amendment.
*** Filed herewith.
II-3
<PAGE>
(b) Financial Statement Schedules
Auditors' Report on Schedule
Schedule II--Valuation and Qualifying Accounts
All schedules not identified above have been omitted because they are not
required, are not applicable or the information is included in the selected
consolidated financial data or notes contained in this Registration Statement.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes to provide to the
underwriters at the closing specified in the underwriting agreement,
certificates in such denominations and registered in such names as required by
the underwriters to permit prompt delivery to each purchaser.
(b) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by the director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
(c) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the time it
was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Brentwood, State of
Tennessee, on the 2nd day of May, 2000.
<TABLE>
<S> <C> <C>
COMMUNITY HEALTH SYSTEMS, INC.
By: /s/ WAYNE T. SMITH
-----------------------------------------
Wayne T. Smith
President and Chief Executive Officer
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the registration statement has been signed below by the following
persons in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------------------------- ------------------------------- --------------
<C> <S> <C>
/s/ WAYNE T. SMITH President and Chief Executive
------------------------------------------- Officer and Director May 2, 2000
Wayne T. Smith (principal executive officer)
* Executive Vice President and
------------------------------------------- Chief Financial Officer May 2, 2000
W. Larry Cash (principal financial officer)
Vice President and Corporate
* Controller
------------------------------------------- (principal accounting May 2, 2000
T. Mark Buford officer)
*
------------------------------------------- Director May 2, 2000
Sheila P. Burke
*
------------------------------------------- Director May 2, 2000
Robert J. Dole
*
------------------------------------------- Director May 2, 2000
J. Anthony Forstmann
*
------------------------------------------- Director May 2, 2000
Nicholas C. Forstmann
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------------------------- ------------------------------- --------------
<C> <S> <C>
*
------------------------------------------- Director May 2, 2000
Theodore J. Forstmann
*
------------------------------------------- Director May 2, 2000
Dale F. Frey
*
------------------------------------------- Director May 2, 2000
Sandra J. Horbach
*
------------------------------------------- Director May 2, 2000
Michael A. Miles
*
------------------------------------------- Director May 2, 2000
Samuel A. Nunn
*By: /s/ WAYNE T. SMITH
Wayne T. Smith
as Attorney-in-Fact
</TABLE>
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Sandra J. Horbach, Wayne T. Smith and W. Larry
Cash his true and lawful attorney-in-fact and agents, each acting alone, with
full powers of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any or all amendments to this
registration statement, including post-effective amendments and a registration
statement registering additional securities pursuant to Rule 462 (b) under the
Securities Act of 1933, and to file the same, with all exhibits thereto, and to
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, and hereby ratifies and confirms all his said
attorneys-in-fact and agents, each acting alone, or his substitute or
substitutes may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the registration statement has been signed below by the following
person in the capacity indicated.
<TABLE>
<C> <S> <C>
/s/ THOMAS H. LISTER
------------------------------------------- Director May 2, 2000
Thomas H. Lister
</TABLE>
II-6
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Stockholders of
Community Health Systems, Inc.
Brentwood, Tennessee
We have audited the consolidated financial statements of Community Health
Systems, Inc. (formerly Community Health Systems Holdings Corp.) and
subsidiaries as of December 31, 1998 and 1999, and for each of the three years
in the period ended December 31, 1999, and have issued our report thereon dated
February 25, 2000 (May , 2000 as to Notes 9, 10, 14 and a portion of Note 1)
(included elsewhere in this Registration Statement). Our audits also included
the consolidated financial statement schedule listed in Item 16 of this
Registration Statement. The consolidated financial statement schedule is the
responsibility of the Company's management. Our responsibility is to express an
opinion based on our audits. In our opinion, the consolidated financial
statement schedule, when considered in relation to the basic consolidated
financial statement taken as a whole, presents fairly in all material respects
the information set forth therein.
Nashville, Tennessee
February 25, 2000 (May , 2000 as to Notes 9, 10, 14 and a portion of Note 1)
The foregoing Report on Schedule is in the form which will be furnished by
Deloitte & Touche LLP upon completion of the recapitalization and exchange
described in Note 14 to the consolidated financial statements and assuming that
from December 31, 1999 to the date of such completion no other material events
have occurred that would affect the accompanying consolidated financial
statements or required disclosures therein.
/s/ Deloitte & Touche LLP
Nashville, Tennessee
February 25, 2000
<PAGE>
COMMUNITY HEALTH SYSTEMS, INC. AND SUBSIDIARIES
SCHEDULE II--VALUATION AND QUALIFYING ACCOUNTS
(IN THOUSANDS)
<TABLE>
<CAPTION>
BALANCE AT CHARGED TO BALANCE
BEGINNING COSTS AND AT END
DESCRIPTION OF YEAR EXPENSES WRITE-OFFS OF YEAR
----------- ---------- ---------- ---------- --------
<S> <C> <C> <C> <C>
Year ended December 31, 1999 allowance for
doubtful accounts......................... $ 28,771 $ 95,149 $ (89,421) $ 34,499
Year ended December 31, 1998 allowance for
doubtful accounts......................... 20,873 69,005 (61,107) 28,771
Year ended December 31, 1997 allowance for
doubtful accounts......................... 33,200 57,376 (69,703) 20,873
</TABLE>
S-1
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
NO. DESCRIPTION PAGE
- --------------------- ----------- --------
<C> <S> <C>
1.1 Form of U.S. Purchase Agreement, by and among the
Registrant, and the underwriters named therein.**
1.2 Form of International Purchase Agreement, by and among the
Registrant, and the underwriters named therein.**
2.1 Agreement and Plan of Merger between the Registrant, FLCH
Acquisition Corp. and Community Health Systems, Inc. (now
known as CHS/Community Health Systems, Inc.) dated June 9,
1996*
3.1 Form of Restated Certificate of Incorporation of the
Registrant***
3.2 Form of Restated By-laws of the Registrant***
4.1 Form of Common Stock Certificate.***
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson.**
10.1 Form of outside director Stock Option Agreement.*
10.2 Form of Stockholder's Agreement between the Registrant and
outside directors.*
10.3 Form of Employee Stockholder's Agreement.*
10.4 The Registrant's Employee Stock Option Plan and form of
Stock Option Agreement.*
10.5 The Registrant's 2000 Stock Option and Award Plan.***
10.6 Form of Stockholder's Agreement between the Registrant and
employees.*
10.7 Registration Rights Agreement, dated July 9, 1996, among the
Registrant, FLCH Acquisition Corp., Forstmann Little & Co.
Equity Partnership--V, L.P. and Forstmann Little & Co.
Subordinated Debt and Equity Management Buyout
Partnership--VI, L.P.*
10.8 Form of Indemnification Agreement between the Registrant and
its directors and executive officers.***
10.9 Amended and Restated Credit Agreement, dated as of March 26,
1999, among Community Health Systems, Inc. (now known as
CHS/Community Health Systems, Inc.), the Registrant, certain
lenders, The Chase Manhattan Bank, as Administrative Agent,
and Nationsbank, N.A. and The Bank of Nova Scotia, as
Co-Agents.*
10.10 First Amendment, dated February 24, 2000, to the Amended and
Restated Credit Agreement, dated as of March 26, 1999, among
Community Health Systems, Inc. (now known as CHS/Community
Health Systems, Inc.), the Registrant, certain lenders, The
Chase Manhattan Bank, as Administrative Agent, and
Nationsbank, N.A. and The Bank of Nova Scotia, as
Co-Agents.*
10.11 Form of Management Rights Letter between the Registrant and
the partnerships affiliated with Forstmann Little & Co.***
10.12 Form of Series A 7 1/2% Subordinated Debenture.*
10.13 Form of Series B 7 1/2% Subordinated Debenture.*
10.14 Form of Series C 7 1/2% Subordinated Debenture.*
10.15 Corporate Compliance Agreement between the Office of
Inspector General of the Department of Health and Human
Services and the Registrant.**
10.16 Tenet BuyPower Purchasing Assistance Agreement, dated
June 13, 1997, between Community Health Systems, Inc. and
Tenet HealthSystem Inc., Addendum, dated September 19, 1997
and First Amendment, dated March 15, 2000.*
10.17 The Registrant's 2000 Employee Stock Purchase Plan.***
21 List of subsidiaries.*
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in the opinion filed as Exhibit 5.1).**
23.2 Consent of Deloitte & Touche LLP.***
24 Powers of Attorney.*
27 Financial Data Schedule.*
</TABLE>
- ------------------------
* Previously filed.
** To be filed by amendment.
*** Filed herewith.
<PAGE>
EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
COMMUNITY HEALTH SYSTEMS, INC.
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
The undersigned, Wayne T. Smith, certifies that he is the President
and Chief Executive Officer of Community Health Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware (the
"Corporation"), and does hereby further certify as follows:
(1) The name of the Corporation is Community Health Systems, Inc.
The name under which the Corporation was originally incorporated was FLCH
Holdings Corp.
(2) The Corporation's original certificate of incorporation was
filed with the Secretary of the State of Delaware on June 6, 1996.
(3) This Restated Certificate of Incorporation, which restates,
integrates and further amends the certificate of incorporation of the
Corporation, was duly adopted in accordance with Sections 228, 242 and 245 of
the General Corporation Law of the State of Delaware (the "GCL").
(4) Pursuant to Section 103(d) of the GCL, this Restated
Certificate of Incorporation shall become effective at [ ] on [ ], 2000 (the
"Effective Time")
(5) The text of the Restated Certificate of Incorporation of the
Corporation as further amended hereby is restated to read in its entirety as
follows:
FIRST: The name of the Corporation is Community Health Systems,
Inc. (the "Corporation").
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 1013 Centre Road, in the City of Wilmington, County of
New Castle, Delaware 19805. The name of its registered agent at that address is
Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which a corporation may be organized under the GCL.
<PAGE>
FOURTH: The total number of all shares of all classes of capital
stock which the Corporation shall have the authority to issue is 400,000,000
shares, divided into two classes, of which 300,000,000 shares of par value $.01
per share shall be designated Common Stock, and 100,000,000 shares of par value
$.01 per share shall be designated Preferred Stock. At the Effective Time, the
terms of the Class A Common Stock shall be amended pursuant to this Restated
Certificate of Incorporation and the Class A Common Stock shall be redesignated
as Common Stock, and each issued share of such Common Stock shall be subdivided
into 118.7148 shares of Common Stock, with a par value of $.01 per share.
A. Common Stock
1. DIVIDENDS. Subject to the preferential rights, if any, of
the Preferred Stock, the holders of shares of Common Stock shall be entitled to
receive, when and if declared by the Board of Directors, out of the assets of
the Corporation which are by law available therefor, dividends payable either in
cash, in property, or in shares of Common Stock.
2. VOTING RIGHTS. Except as otherwise required by law, or
this Restated Certificate of Incorporation, every holder of Common Stock shall
be entitled to one vote on each matter properly submitted to the stockholders of
the Corporation for their vote, in person or by proxy, for each share of Common
Stock standing in such holder's name on the books of the Corporation; provided,
however, that, except as otherwise required by law, holders of Common Stock
shall not be entitled to vote on any amendment to this Restated Certificate of
Incorporation (including any Certificate of Designations relating to any series
of Preferred Stock) that relates solely to the terms of one or more outstanding
series of Preferred Stock if the holders of such affected series are entitled,
either separately or together as a class with the holders of one or more other
such series, to vote thereon by law or pursuant to this Restated Certificate of
Incorporation (including any Certificate of Designations relating to any series
of Preferred Stock).
B. Preferred Stock
1. ISSUANCE. The Board of Directors of the Corporation is
authorized, subject to limitations prescribed by law, to provide for the
issuance of shares of the Preferred Stock of the Corporation from time to time
in one or more series, each of which series shall have such distinctive
designation or title as shall be fixed by the Board of Directors prior to the
issuance of any shares thereof. Each such series of Preferred Stock shall have
such voting powers, full or limited, or no voting powers, and such preferences
and relative, participating, optional or other special rights and such
qualifications, limitations or restrictions thereof, as shall be stated in such
resolution or resolutions providing for the issue of such series of Preferred
Stock as may be adopted
- 2 -
<PAGE>
from time to time by the Board of Directors prior to the issuance of any shares
thereof pursuant to the authority hereby expressly vested in it, all in
accordance with the laws of the State of Delaware. The number of authorized
shares of Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote of the
holders of a majority of the Common Stock, without a vote of the holders of the
Preferred Stock, or of any series thereof, unless a vote of any such holders is
required pursuant to the terms of any Certificate of Designation relating to any
series of Preferred Stock.
2. AMENDMENT. Except as may otherwise be required by law or
this Restated Certificate of Incorporation, the terms of any series of Preferred
Stock may be amended without consent of the holders of any other series of
Preferred Stock or of any class of Common Stock of the Corporation.
FIFTH: The business and affairs of the Corporation shall be managed
by and under the direction of the Board of Directors. The Board of Directors may
exercise all such authority and powers of the Corporation and do all such lawful
acts and things as are not by statute or this Restated Certificate of
Incorporation directed or required to be exercised or done by the stockholders.
A. NUMBER OF DIRECTORS. Except as otherwise fixed by or
pursuant to the provisions of this Restated Certificate of Incorporation
relating to the rights of the holders of Preferred Stock to elect directors
under specified circumstances, the number of directors shall be fixed from time
to time exclusively by the Board of Directors pursuant to a resolution adopted
by a majority of the then authorized number of directors of the Corporation,
whether or not there exist any vacancies in previously authorized directorships,
but in no event shall the number of directors be fewer than three. No director
need be a stockholder.
B. CLASSES AND TERMS OF DIRECTORS. The directors, other than
those who may be elected by the holders of any series of Preferred Stock under
specified circumstances, shall be divided into three classes (I, II and III), as
nearly equal in number as possible, and no class shall include less than one
director. The initial term of office for members of Class I shall expire at the
annual meeting of stockholders in 2001; the initial term of office for members
of Class II shall expire at the annual meeting of stockholders in 2002; and the
initial term of office for members of Class III shall expire at the annual
meeting of stockholders in 2003. At each annual meeting of stockholders
beginning in 2001, directors elected to succeed those directors whose terms
expire shall be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election, and shall continue to hold
office until their respective successors are elected and qualified.
- 3 -
<PAGE>
C. NEWLY-CREATED DIRECTORSHIPS AND VACANCIES. Subject to the
rights of the holders of any series of Preferred Stock then outstanding, newly
created directorships resulting from any increase in the number of directors or
any vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or any other cause shall,
unless otherwise provided by law or by resolution of the Board of Directors, be
filled only by a majority vote of the directors then in office, even if less
than a quorum is then in office, or by the sole remaining director, and shall
not be filled by stockholders. Directors elected to fill a newly created
directorship or other vacancies shall hold office for the remainder of the full
term of the class of directors in which the new directorship was created or the
vacancy occurred and until such director's successor has been elected and has
qualified.
D. REMOVAL OF DIRECTORS. Subject to the rights of the holders of
any series of Preferred Stock then outstanding, the directors or any director
may be removed from office at any time, but only for cause, at a meeting called
for that purpose, and only by the affirmative vote of the holders of at least a
majority of the voting power of all issued and outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class.
E. RIGHTS OF HOLDERS OF PREFERRED STOCK. Notwithstanding the
foregoing provisions of this Article FIFTH, whenever the holders of any one or
more series of Preferred Stock issued by the Corporation shall have the right,
voting separately by series, to elect directors at an annual or special meeting
of stockholders, the election, term of office, filling of vacancies and other
features of such directorships shall be governed by the rights and preferences
of such Preferred Stock as set forth in this Restated Certificate of
Incorporation or in the resolution or resolutions of the Board of Directors
relating to the issuance of such Preferred Stock, and such directors so elected
shall not be divided into classes pursuant to this Article FIFTH unless
expressly provided by such rights and preferences.
F. WRITTEN BALLOT NOT REQUIRED. Elections of directors need not
to be by written ballot unless the By-laws of the Corporation shall otherwise
provide.
G. ADVANCE NOTICE. Advance notice of stockholder nominations for
the election of directors and of business to be brought by stockholders before
any meeting of the stockholders of the Corporation shall be given in the manner
provided in the By-laws of the Corporation.
SIXTH: To the fullest extent permitted under the law of the State of
Delaware, including the GCL, a director of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages
for any breach of fiduciary duty as a director. Any amendment to or repeal of
this Article SIXTH shall not adversely
- 4 -
<PAGE>
affect any right or protection of any director of the Corporation with respect
to any acts or omissions of such director occurring prior to such amendment or
repeal. In the event that the GCL is hereafter amended to permit further
elimination or limitation of the personal liability of directors, then the
liability of a director of the Corporation shall be so eliminated or limited to
the fullest extent permitted by the GCL as so amended without further action by
either the Board of Directors or the stockholders of the Corporation.
SEVENTH: Each person who was or is made a party or is threatened to
be made a party to or is involved (including, without limitation, as a witness)
in any threatened, pending or completed action, suit, arbitration, alternative
dispute resolution mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative
("Proceeding"), brought by reason of the fact that such person (the
"Indemnitee") is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director or officer of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan, whether the basis of
such Proceeding is alleged action in an official capacity as a director or
officer or in any other capacity while serving as such a director or officer,
shall be indemnified and held harmless by the Corporation to the fullest extent
permitted by the laws of the State of Delaware in effect on the date hereof, or
as such laws may from time to time hereafter be amended to increase the scope of
such permitted indemnification, against all expense, liability, losses and
claims (including attorneys' fees, judgments, fines, excise taxes under the
Employee Retirement Income Security Act of 1974, as amended from time to time,
penalties and amounts to be paid in settlement) actually incurred or suffered by
such Indemnitee in connection with such Proceeding.
EIGHTH: The Corporation elects not to be governed by Section 203
of the GCL.
NINTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to adopt, repeal,
alter, amend or rescind the By-laws of the Corporation. In addition, the By-laws
of the Corporation may be adopted, repealed, altered, amended or rescinded by
the affirmative vote of the holders of at least a majority of the voting power
of all of the issued and outstanding shares of capital stock of the Corporation
entitled to vote thereon.
TENTH: The Corporation reserves the right to repeal, alter, amend or
rescind any provision contained in this Restated Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
on stockholders herein are granted subject to this reservation.
- 5 -
<PAGE>
IN WITNESS WHEREOF, Community Health Systems, Inc. has caused this
Restated Certificate of Incorporation to be signed by Wayne T. Smith, its
President and Chief Executive Officer, on this __ day of April, 2000.
COMMUNITY HEALTH SYSTEMS, INC.
By:
------------------------
Name: Wayne T. Smith
Title: President and Chief Executive
Officer
<PAGE>
EXHIBIT 3.2
RESTATED BY-LAWS
OF
COMMUNITY HEALTH SYSTEMS, INC.
(hereinafter called the "Corporation")
(As of [ ], 2000)
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the
Corporation within the State of Delaware shall be in the City of Wilmington,
County of New Castle.
SECTION 2. OTHER OFFICES. The Corporation may also have an office or
offices other than said registered office at such place or places, either within
or without the State of Delaware, as the Board of Directors shall from time to
time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. All meetings of the stockholders for
the election of directors or for any other purpose shall be held at any such
time and place, either within or without the State of Delaware as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
SECTION 2. ANNUAL MEETINGS. Annual meetings of stockholders shall be
held on such date and at such time as shall be designated from time to time by
the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver thereof. At such annual meetings, the stockholders shall elect
by a plurality vote the directors standing for election and transact such other
business as may properly be brought before the meeting in accordance with these
Restated By-Laws.
SECTION 3. SPECIAL MEETINGS. Special meetings of stockholders, for
any purpose or purposes, unless otherwise prescribed by statute may be called by
the Board of
<PAGE>
Directors, the Chairman of the Board of Directors, if one shall have been
elected, or the President.
SECTION 4. NOTICE OF MEETINGS. Except as otherwise expressly
required by statute, notice of each annual and special meeting of stockholders
stating the date, place and hour of the meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be given
to each stockholder of record entitled to vote thereat not less than ten nor
more than sixty days before the date of the meeting. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice. Notice of any meeting shall not be required to be given to any person
who attends such meeting (except when such person attends the meeting in person
or by proxy for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened) or who, either before or after the meeting, shall submit a
signed written waiver of notice, in person or by proxy. Neither the business to
be transacted at, nor the purpose of, an annual or special meeting of
stockholders need be specified in any written waiver of notice.
SECTION 5. ORGANIZATION. At each meeting of stockholders, the
Chairman of the Board, if one shall have been elected, or, in the event of such
person's absence or if one shall not have been elected, the President, shall act
as chairman of the meeting. The Secretary or, in the event of such person's
absence or inability to act, the person whom the chairman of the meeting shall
appoint secretary of the meeting, shall act as secretary of the meeting and keep
the minutes thereof.
SECTION 6. CONDUCT OF BUSINESS. The chairman of any meeting of
stockholders shall determine the order of business and the procedure at the
meeting, including such regulation of the manner of voting and the conduct of
discussion as seems to him or her in order. The date and time of the opening and
closing of the polls for each matter upon which the stockholders will vote at a
meeting shall be announced at the meeting.
SECTION 7. QUORUM, ADJOURNMENTS. The holders of a majority of the
voting power of the issued and outstanding shares of capital stock of the
Corporation entitled to vote thereat, present in person or represented by proxy,
shall constitute a quorum for the transaction of business at all meetings of
stockholders, except as otherwise provided by statute or by the Restated
Certificate of Incorporation. If, however, such quorum shall not be present or
represented by proxy at any meeting of stockholders, the stockholders entitled
to vote thereat, present in person or represented by proxy, shall have the power
to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented by proxy. At such
adjourned meeting at which a quorum shall be present or represented by
- 2 -
<PAGE>
proxy, any business may be transacted which might have been transacted at the
meeting as originally called. If the adjournment is for more than thirty days,
or, if after adjournment a new record date is set, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
SECTION 8. VOTING. Except as otherwise provided by statute or the
Restated Certificate of Incorporation and these Restated By-Laws, each
stockholder of the Corporation shall be entitled at each meeting of stockholders
to one vote for each share of capital stock of the Corporation standing in such
stockholder's name on the record of stockholders of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 7
of Article V of these Restated By-Laws as the record date for the
determination of the stockholders who shall be entitled to notice of
and to vote at such meeting; or
(b) if no such record date shall have been so fixed, then at
the close of business on the day next preceding the day on which
notice thereof shall be given, or, if notice is waived, at the close
of business on the date next preceding the day on which the meeting
is held.
Each stockholder entitled to vote at any meeting of stockholders may authorize
another person or persons to act for such stockholder by a proxy signed by such
stockholder or such stockholder's attorney-in-fact, or as otherwise authorized
in accordance with the Delaware General Corporation Law, but no proxy shall be
voted after three years from its date, unless the proxy provides for a longer
period. Any such proxy shall be delivered to the secretary of the meeting at or
prior to the time designated in the order of business for so delivering such
proxies. When a quorum is present at any meeting, the affirmative vote of the
holders of a majority of the voting power of the shares of the Corporation which
are present in person or represented by proxy at the meeting and entitled to
vote thereon, shall decide any question brought before such meeting, unless the
question is one upon which by express provision of statute or of the Restated
Certificate of Incorporation or of these Restated By-Laws, a different vote is
required, in which case such express provision shall govern and control the
decision of such question. Unless required by statute, or determined by the
chairman of the meeting to be advisable, the vote on any question need not be by
ballot. On a vote by ballot, each ballot shall be signed by the stockholder
voting, or by such stockholder's proxy, if there be such proxy.
SECTION 9. LIST OF STOCKHOLDERS ENTITLED TO VOTE. At least ten days
before each meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder shall be prepared. Such
- 3 -
<PAGE>
list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, as required by the Delaware General Corporation
Law. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
of the Corporation who is present.
SECTION 10. INSPECTORS. The Board of Directors shall, in advance of
any meeting of stockholders, appoint one or more inspectors to act at such
meeting or any adjournment thereof. If any of the inspectors so appointed shall
fail to appear or act, the chairman of the meeting shall, or if inspectors shall
not have been appointed, the chairman of the meeting may appoint one or more
inspectors. Each inspector, before entering upon the discharge of such
inspector's duties, shall take and sign an oath faithfully to execute the duties
of inspector at such meeting with strict impartiality and according to the best
of such inspector's ability. The inspectors shall determine the number of shares
of capital stock of the Corporation outstanding and the voting power of each,
the number of shares represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall receive votes, ballots or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents, determine the
results, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the chairman of the meeting, the
inspectors shall make a report in writing of any challenge, request or matter
determined by them and shall execute a certificate of any fact found by them. No
director or candidate for the office of director shall act as an inspector of an
election of directors. Inspectors need not be stockholders.
SECTION 11. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Unless
otherwise provided by statute or in the Restated Certificate of Incorporation,
any action required to be taken or which may be taken at any annual or special
meeting of the stockholders of the Corporation may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of any such corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
SECTION 12. ADVANCE NOTICE PROVISIONS FOR ELECTION OF DIRECTORS.
Only persons who are nominated in accordance with the following procedures shall
be eligible for election as directors of the Corporation. Nominations of persons
for election to the Board of Directors may be made at any annual meeting of
stockholders, or at any special meeting of stockholders called for the purpose
of electing directors, (a) by or at the direction of the Board of Directors (or
any duly authorized committee thereof) or (b) by
- 4 -
<PAGE>
any stockholder of the Corporation (i) who is a stockholder of record on the
date of the giving of the notice provided for in this Section 12 and on the
record date for the determination of stockholders entitled to vote at such
meeting and (ii) who complies with the notice procedures set forth in this
Section 12.
In addition to any other applicable requirements, for a nomination
to be made by a stockholder such stockholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation (a) in the case of an annual meeting, not less than 45 or more than
75 days prior to the first anniversary of the date on which the Corporation
first mailed its proxy materials for the preceding year's annual meeting of
stockholders; provided, however, that if the date of the annual meeting is
advanced more than 30 days prior to or delayed by more than 30 days after the
anniversary of the preceding year's annual meeting, to be timely, notice by the
stockholder must be so delivered not later than the close of business on the
later of the 90th day prior to such annual meeting or the 10th day following the
day on which public announcement of the date of such meeting is first made; and
(b) in the case of a special meeting of stockholders called for the purpose of
electing directors, not later than the close of business on the later of the
90th day prior to such special meeting or the 10th day following the day on
which public announcement is first made of the date of the special meeting. For
purposes of this Section 12 and Section 13, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or a comparable national news service or in a document publicly filed by
the Corporation with the Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder proposes to
nominate for election as a director (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment of
the person, (iii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by the person and (iv)
any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Exchange Act, and the rules and regulations promulgated
thereunder; and (b) as to the stockholder giving the notice (i) the name and
record address of such stockholder, (ii) the class or series and number of
shares of capital stock of the Corporation which are owned beneficially or of
record by such stockholder, (iii) a description of all arrangements or
understandings between such stockholder and each proposed nominee and any other
person or persons (including their names) pursuant to which the nomination(s)
are to be
- 5 -
<PAGE>
made by such stockholder, (iv) a representation that such stockholder intends to
appear in person or by proxy at the meeting to nominate the persons named in its
notice and (v) any other information relating to such stockholder that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written consent of
each proposed nominee to be named as a nominee and to serve as a director if
elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 12. If the Chairman of the meeting determines that a nomination was not
made in accordance with the foregoing procedures, the Chairman shall declare to
the meeting that the nomination was defective and such defective nomination
shall be disregarded.
SECTION 13. ADVANCE NOTICE PROVISIONS FOR BUSINESS TO BE TRANSACTED
AT ANNUAL MEETING. No business may be transacted at an annual meeting of
stockholders, other than business that is either (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), (b) otherwise properly
brought before the annual meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (c) otherwise properly
brought before the annual meeting by any stockholder of the Corporation (i) who
is a stockholder of record on the date of the giving of the notice provided for
in this Section 13 and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies with the notice
procedures set forth in this Section 13.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than 45 or more than 75 days prior to the first anniversary
of the date on which the Corporation first mailed its proxy materials for the
preceding year's annual meeting of stockholders; provided, however, that if the
date of the annual meeting is advanced more than 30 days prior to or delayed by
more than 30 days after the anniversary of the preceding year's annual meeting,
to be timely notice by the stockholder must be so delivered not later than the
close of business on the later of the 90th day prior to such annual meeting or
the 10th day following the day on which public announcement of the date of such
meeting is first made.
- 6 -
<PAGE>
To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder proposes to bring
before the annual meeting (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (ii) the name and record address of such stockholder,
(iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such stockholder, (iv)
a description of all arrangements or understandings between such stockholder and
any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of such
stockholder in such business and (v) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting.
No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 13. If the Chairman of an annual meeting
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
ARTICLE III
DIRECTORS
SECTION 1. PLACE OF MEETINGS. Meetings of the Board of Directors
shall be held at such place or places, within or without the State of Delaware,
as the Board of Directors may from time to time determine or as shall be
specified in the notice of any such meeting.
SECTION 2. ANNUAL MEETING. The Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of other
business, as soon as practicable after each annual meeting of stockholders, on
the same day and at the same place where such annual meeting shall be held.
Notice of such meeting need not be given. In the event such annual meeting is
not so held, the annual meeting of the Board of Directors may be held at such
other time or place (within or without the State of Delaware) as shall be
specified in a notice thereof given as hereinafter provided in Section 5 of this
Article III.
SECTION 3. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such time and place as the Board of Directors may
fix. If any day fixed for a regular meeting shall be a legal holiday at the
place where the meeting is to be held, then the meeting which would otherwise be
held on that day shall be held at the same hour on the next succeeding business
day.
- 7 -
<PAGE>
SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board, if one shall have been
elected, or by two or more directors of the Corporation or by the President.
SECTION 5. NOTICE OF MEETINGS. Notice of regular meetings of the
Board of Directors need not be given except as otherwise required by law or
these Restated By-Laws. Notice of each special meeting of the Board of Directors
for which notice shall be required, shall be given by the Secretary as
hereinafter provided in this Section 5, in which notice shall be stated the time
and place of the meeting. Except as otherwise required by these By-Laws, such
notice need not state the purposes of such meeting. Notice of any special
meeting, and of any regular or annual meeting for which notice is required,
shall be given to each director at least (a) four hours before the meeting if by
telephone or by being personally delivered or sent by telex, telecopy, or
similar means or (b) two days before the meeting if delivered by mail to the
director's residence or usual place of business. Such notice shall be deemed to
be delivered when deposited in the United States mail so addressed, with postage
prepaid, or when transmitted if sent by telex, telecopy, or similar means.
Neither the business to be transacted at, nor the purpose of, any special
meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting. Any director may waive notice of any meeting by a
writing signed by the director entitled to the notice and filed with the minutes
or corporate records. The attendance at or participation of the director at a
meeting shall constitute waiver of notice of such meeting, unless the director
at the beginning of the meeting or promptly upon such director's arrival objects
to holding the meeting or transacting business at the meeting.
SECTION 6. ORGANIZATION. At each meeting of the Board of Directors,
the Chairman of the Board, if one shall have been elected, or, in the absence of
the Chairman of the Board or if one shall not have been elected, the President
(or, in the President's absence, another director chosen by a majority of the
directors present) shall act as chairman of the meeting and preside thereat. The
Secretary or, in such person's absence, any person appointed by the chairman
shall act as secretary of the meeting and keep the minutes thereof.
SECTION 7. QUORUM AND MANNER OF ACTING. A majority of the entire
Board of Directors shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors, and, except as otherwise expressly
required by statute or the Restated Certificate of Incorporation or these
Restated By-Laws, the affirmative vote of a majority of the directors present at
any meeting at which a quorum is present shall be the act of the Board of
Directors. In the absence of a quorum at any meeting of the Board of Directors,
a majority of the directors present thereat may adjourn such meeting to another
time and place. Notice of the time and place of any such adjourned meeting shall
be given to all of the directors unless such time and place were announced
- 8 -
<PAGE>
at the meeting at which the adjournment was taken, in which case such notice
need only be given to the directors who were not present thereat. At any
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the meeting as originally called. The
directors shall act only as a Board and the individual directors shall have no
power as such.
SECTION 8. ACTION BY CONSENT. Unless restricted by the Restated
Certificate of Incorporation, any action required or permitted to be taken by
the Board of Directors or any committee thereof may be taken without a meeting
if all members of the Board of Directors or such committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of the proceedings of the Board of Directors or such committee, as the
case may be.
SECTION 9. TELEPHONIC MEETING. Unless restricted by the Restated
Certificate of Incorporation, any one or more members of the Board of Directors
or any committee thereof may participate in a meeting of the Board of Directors
or such committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other. Participation by such means shall constitute presence in person at a
meeting.
SECTION 10. COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the entire Board of Directors, designate one or more
committees, including an executive committee, each committee to consist of one
or more of the directors of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In
the absence of disqualification of any member of a committee, the member or
members present at any meeting and not disqualified from voting, whether or not
such members constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
Each such committee, to the extent provided in the resolution
creating it, shall have and may exercise all the powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which require it; provided, however, that no such committee shall have
the power or authority in reference to the following matters: (a) approving or
adopting, or recommending to the stockholders, any action or matter expressly
required by the Delaware General Corporation Law to be submitted to stockholders
for approval or (b) adopting, amending or repealing any by-law of the
Corporation. Each such committee shall serve at the pleasure of the Board of
Directors and have such name as may be determined from time to time by
resolution adopted by the
- 9 -
<PAGE>
Board of Directors. Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors.
SECTION 11. FEES AND COMPENSATION. Directors and members of
committees may receive such compensation, if any, for their services, and such
reimbursement for expenses, as may be fixed or determined by the Board of
Directors. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
SECTION 12. RESIGNATIONS. Any director of the Corporation may resign
at any time by giving written notice of such director's resignation to the
Corporation. Any such resignation shall take effect at the time specified
therein or, if the time when it shall become effective shall not be specified
therein, immediately upon its receipt. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
ARTICLE IV
OFFICERS
SECTION 1. GENERAL. The officers of the Corporation shall be chosen
by the Board of Directors and shall include a President, one or more Vice
Presidents (including Senior, Executive, Group or other classifications of Vice
Presidents) and a Secretary. The Board of Directors, in its discretion, may also
choose as an officer of the Corporation the Chairman of the Board and any Vice
Chairman of the Board and may choose other officers (including a Treasurer, one
or more Assistant Secretaries and one or more Assistant Treasurers) as may be
necessary or desirable. Such officers as the Board of Directors may choose shall
perform such duties and have such powers as from time to time may be assigned to
them by the Board of Directors. The Board of Directors may delegate to any
officer of the Corporation the power to choose such other officers and to
proscribe their respective duties and powers. Any number of offices may be held
by the same person, unless otherwise prohibited by law, the Restated Certificate
of Incorporation or these Restated By-Laws. The officers of the Corporation need
not be stockholders of the Corporation nor, except in the case of the Chairman
of the Board and Vice Chairman of the Board of Directors, need such officers be
directors of the Corporation.
SECTION 2. TERM. All officers of the Corporation shall hold office
until their successors are chosen and qualified, or until their earlier
resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors.
- 10 -
<PAGE>
SECTION 3. RESIGNATIONS. Any officer of the Corporation may resign
at any time by giving written notice of such officer's resignation to the
Corporation. Any such resignation shall take effect at the time specified
therein or, if the time when it shall become effective shall not be specified
therein, immediately upon receipt. Unless otherwise specified therein, the
acceptance of any such resignation shall not be necessary to make it effective.
SECTION 4. REMOVAL. Any officer may be removed at any time by
the Board of Directors with or without cause.
SECTION 5. COMPENSATION. The compensation of the officers of the
Corporation for their services as such officers shall be fixed from time to time
by the Board of Directors. An officer of the Corporation shall not be prevented
from receiving compensation by reason of the fact that such officer is also a
director of the Corporation.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if one
shall have been elected, shall be a member of the Board, an officer of the
Corporation (if the Board of Directors, in its discretion, chooses to make the
Chairman of the Board an officer of the Corporation) and, if present, shall
preside at each meeting of the Board of Directors or the stockholders. The
Chairman of the Board shall advise and counsel with the President, and in the
President's absence with other executives of the Corporation, and shall perform
such other duties as may from time to time be assigned to the Chairman of the
Board by the Board of Directors.
ARTICLE V
STOCK CERTIFICATES AND THEIR TRANSFER
SECTION 1. STOCK CERTIFICATES. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by, or in the name
of the Corporation by, the Chairman of the Board or a Vice Chairman of the Board
or the President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by such holder in the Corporation. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restriction of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate which the Corporation shall issue to represent such class or
series of stock, provided that, except as otherwise provided in Section 202 of
the Delaware General Corporation Law, in lieu of the foregoing requirements,
there may be set forth on the face or back of the certificate which the
Corporation shall issue to represent such class or series of stock, a statement
that the
- 11 -
<PAGE>
Corporation will furnish without charge to each stockholder who so requests the
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
SECTION 2. FACSIMILE SIGNATURES. Any or all of the signatures on a
certificate may be a facsimile, engraved or printed. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if such person was such officer, transfer
agent or registrar at the date of issue.
SECTION 3. LOST CERTIFICATES. The Board of Directors may direct a
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen, or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen, or
destroyed certificate or certificates, or the owner's legal representative, to
give the Corporation a bond in such sum as it may direct sufficient to indemnify
it against any claim that may be made against the Corporation on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate.
SECTION 4. TRANSFERS OF STOCK. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its records; provided, however, that the Corporation shall be
entitled to recognize and enforce any lawful restriction on transfer. Whenever
any transfer of stock shall be made for collateral security, and not absolutely,
it shall be so expressed in the entry of transfer if, when the certificates are
presented to the Corporation for transfer, both the transferor and the
transferee request the Corporation to do so.
SECTION 5. TRANSFER AGENTS AND REGISTRARS. The Board of Directors
may appoint, or authorize any officer or officers to appoint, one or more
transfer agents and one or more registrars.
SECTION 6. REGULATIONS. The Board of Directors may make such
additional rules and regulations, not inconsistent with these Restated By-Laws,
as it may deem expedient concerning the issue, transfer and registration of
certificates for shares of stock of the Corporation.
- 12 -
<PAGE>
SECTION 7. FIXING THE RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than 60 nor less than 10 days
before the date of such meeting, nor more than 60 days prior to any other
action. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which record date shall be not more than 10 days after the date upon which the
resolution fixing the record date is adopted. If no record date has been fixed
by the Board of Directors and no prior action by the Board of Directors is
required by the Delaware General Corporation Law, the record date shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Secretary of the Corporation at the
Corporation's principal executive offices. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required by
the Delaware General Corporation Law with respect to the proposed action by
written consent of the stockholders, the record date for determining
stockholders entitled to consent to corporate action in writing shall be at the
close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
SECTION 8. REGISTERED STOCKHOLDERS. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its records
as the owner of shares of stock to receive dividends and to vote as such owner,
and shall not be bound to recognize any equitable or other claim to or interest
in such share or shares of stock on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
law.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. GENERAL. Each person who was or is made a party or is
threatened to be made a party to or is involved (including, without limitation,
as a witness) in any threatened, pending or completed action, suit, arbitration,
alternative
- 13 -
<PAGE>
dispute resolution mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative
("Proceeding") brought by reason of the fact that such person (the "Indemnitee")
is or was a director or officer of the Corporation or is or was serving at the
request of the Corporation as a director or officer of another corporation or of
a partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan, whether the basis of such Proceeding is
alleged action in an official capacity as a director or officer or in any other
capacity while serving as such a director or officer, shall be indemnified and
held harmless by the Corporation (unless such Proceeding was brought by or in
the right of the Indemnitee without the prior written approval of the Board of
Directors) to the fullest extent permitted by the laws of the State of Delaware
in effect on the date hereof or as such laws may from time to time hereafter be
amended to increase the scope of such permitted indemnification, against all
expenses, liabilities, losses and claims (including attorneys' fees, judgments,
fines, excise taxes under the Employee Retirement Income Security Act of 1974,
as amended from time to time, penalties and amounts to be paid in settlement)
actually incurred or suffered by such Indemnitee in connection with such
Proceeding (collectively, "Losses"). Without diminishing the scope of the
indemnification provided by this Section 1, the rights of indemnification of an
Indemnitee provided hereunder shall include but not be limited to those rights
set forth in this Article VI.
SECTION 2. DERIVATIVE ACTIONS. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to or is
involved (including, without limitation, as a witness) in any Proceeding brought
by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that such person (also an "Indemnitee") is or was a director
or officer of the Corporation, or is or was serving at the request of the
Corporation as a director or officer of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan, against Losses actually incurred or suffered by the
Indemnitee in connection with the defense or settlement of such action or suit
if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably
believed to be in or not opposed to the best interests of the Corporation,
provided that no indemnification shall be made in respect of any claim, issue or
matter as to which Delaware law expressly prohibits such indemnification by
reason of an adjudication of liability of the Indemnitee unless and only to the
extent that the Court of Chancery of the State of Delaware or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
the Indemnitee is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
SECTION 3. INDEMNIFICATION IN CERTAIN CASES. Notwithstanding any
other provision of this Article VI, to the extent that an Indemnitee has been
wholly successful
- 14 -
<PAGE>
on the merits or otherwise in any Proceeding referred to in Sections 1 or 2 of
this Article VI on any claim, issue or matter therein, the Indemnitee shall be
indemnified against Losses actually incurred or suffered by the Indemnitee in
connection therewith. If the Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding, the Corporation
shall indemnify the Indemnitee, against Losses actually incurred or suffered by
the Indemnitee in connection with each successfully resolved claim, issue or
matter. In any review or Proceeding to determine such extent of indemnification,
the Corporation shall bear the burden of proving any lack of success and which
amounts sought in indemnity are allocable to claims, issues or matters which
were not successfully resolved. For purposes of this Section 3 and without
limitation, the termination of any such claim, issue or matter by dismissal with
or without prejudice shall be deemed to be a successful resolution as to such
claim, issue or matter.
SECTION 4. PROCEDURE. (a) Any indemnification under Sections 1 and 2
of this Article VI (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the Indemnitee is proper (except that the right of the
Indemnitee to receive payments pursuant to Section 5 of this Article VI shall
not be subject to this Section 4) in the circumstances because the Indemnitee
has met the applicable standard of conduct. Such determination shall be made
promptly, but in no event later than 60 days after receipt by the Corporation of
the Indemnitee's written request for indemnification. The Secretary of the
Corporation shall, promptly upon receipt of the Indemnitee's request for
indemnification, advise the Board of Directors that the Indemnitee has made such
request for indemnification.
(b) The entitlement of the Indemnitee to indemnification shall be
determined, with respect to a person who is a director or officer at the time of
such determination, in the specific case (1) by the Board of Directors by a
majority vote of the directors who are not parties to such Proceeding (the
"Disinterested Directors"), even though less than a quorum, or (2) by a
committee of the Disinterested Directors designated by majority vote of the
Disinterested Directors, even though less than a quorum, or (3) if there are no
Disinterested Directors, or if such Disinterested Directors so direct, by
independent legal counsel, or (4) by the stockholders. The entitlement of the
Indemnitee to indemnification shall be determined with respect to any person who
is not a director or officer at the time of such determination by any means
reasonably determined by the Corporation.
(c) In the event the determination of entitlement is to be made by
independent legal counsel, such independent legal counsel shall be selected by
the Board of Directors and approved by the Indemnitee. Upon failure of the Board
of Directors to so select such independent legal counsel or upon failure of the
Indemnitee to so approve, such independent legal counsel shall be selected by
the American Arbitration Association
- 15 -
<PAGE>
in New York, New York or such other person as such Association shall designate
to make such selection.
(d) If a determination is made pursuant to Section 4(b) of this
Article VI that the Indemnitee is not entitled to indemnification to the full
extent of the Indemnitee's request, the Indemnitee shall have the right to seek
entitlement to indemnification in accordance with the procedures set forth in
Section 6 of this Article VI.
(e) If a determination pursuant to Section 4(b) of this Article VI
with respect to entitlement to indemnification shall not have been made within
60 days after receipt by the Corporation of such request, the requisite
determination of entitlement to indemnification shall be deemed to have been
made and the Indemnitee shall be absolutely entitled to such indemnification,
absent (i) misrepresentation by the Indemnitee of a material fact in the request
for indemnification or (ii) a final judicial determination that all or any part
of such indemnification is expressly prohibited by law.
(f) The termination of any proceeding by judgment, order, settlement
or conviction, or upon a plea of nolo contendere or its equivalent, shall not,
of itself, adversely affect the rights of the Indemnitee to indemnification
hereunder except as may be specifically provided herein, or create a presumption
that the Indemnitee did not act in good faith and in a manner which the
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Corporation or create a presumption that (with respect to any criminal
action or proceeding) the Indemnitee had reasonable cause to believe that the
Indemnitee's conduct was unlawful.
(g) For purposes of any determination of good faith hereunder, the
Indemnitee shall be deemed to have acted in good faith if the Indemnitee's
action is based on the records or books of account of the Corporation or an
affiliate, including financial statements, or on information supplied to the
Indemnitee by the officers of the Corporation or an affiliate in the course of
their duties, or on the advice of legal counsel for the Corporation or an
affiliate or on information or records given or reports made to the Corporation
or an affiliate by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care to the Corporation or an
affiliate. The Corporation shall have the burden of establishing the absence of
good faith. The provisions of this Section 4(g) of this Article VI shall not be
deemed to be exclusive or to limit in any way the other circumstances in which
the Indemnitee may be deemed to have met the applicable standard of conduct set
forth in these Restated By-Laws.
(h) The knowledge and/or actions, or failure to act, of any other
director, officer, agent or employee of the Corporation or an affiliate shall
not be imputed to the Indemnitee for purposes of determining the right to
indemnification under these Restated By-Laws.
- 16 -
<PAGE>
SECTION 5. ADVANCES FOR EXPENSES AND COSTS. All expenses (including
attorneys fees) incurred by or on behalf of the Indemnitee (or reasonably
expected by the Indemnitee to be incurred by the Indemnitee within three months)
in connection with any Proceeding shall be paid by the Corporation in advance of
the final disposition of such Proceeding within twenty days after the receipt by
the Corporation of a statement or statements from the Indemnitee requesting from
time to time such advance or advances whether or not a determination to
indemnify has been made under Section 4 of this Article VI. The Indemnitee's
entitlement to such advancement of expenses shall include those incurred in
connection with any Proceeding by the Indemnitee seeking an adjudication or
award in arbitration pursuant to these By-Laws. The financial ability of an
Indemnitee to repay an advance shall not be a prerequisite to the making of such
advance. Such statement or statements shall reasonably evidence such expenses
incurred (or reasonably expected to be incurred) by the Indemnitee in connection
therewith and shall include or be accompanied by a written undertaking by or on
behalf of the Indemnitee to repay such amount if it shall ultimately be
determined that the Indemnitee is not entitled to be indemnified therefor
pursuant to the terms of this Article VI.
SECTION 6. REMEDIES IN CASES OF DETERMINATION NOT TO INDEMNIFY OR TO
ADVANCE EXPENSES. (a) In the event that (i) a determination is made that the
Indemnitee is not entitled to indemnification hereunder, (ii) advances are not
made pursuant to Section 5 of this Article VI or (iii) payment has not been
timely made following a determination of entitlement to indemnification pursuant
to Section 4 of this Article VI, the Indemnitee shall be entitled to seek a
final adjudication either through an arbitration proceeding or in an appropriate
court of the State of Delaware or any other court of competent jurisdiction of
the Indemnitee's entitlement to such indemnification or advance.
(b) In the event a determination has been made in accordance with
the procedures set forth in Section 4 of this Article VI, in whole or in part,
that the Indemnitee is not entitled to indemnification, any judicial proceeding
or arbitration referred to in paragraph (a) of this Section 6 shall be de novo
and the Indemnitee shall not be prejudiced by reason of any such prior
determination that the Indemnitee is not entitled to indemnification, and the
Corporation shall bear the burdens of proof specified in Sections 3 and 4 of
this Article VI in such proceeding.
(c) If a determination is made or deemed to have been made pursuant
to the terms of Sections 4 or 6 of this Article VI that the Indemnitee is
entitled to indemnification, the Corporation shall be bound by such
determination in any judicial proceeding or arbitration in the absence of (i) a
misrepresentation of a material fact by the Indemnitee or (ii) a final judicial
determination that all or any part of such indemnification is expressly
prohibited by law.
- 17 -
<PAGE>
(d) To the extent deemed appropriate by the court, interest shall be
paid by the Corporation to the Indemnitee at a reasonable interest rate for
amounts which the Corporation indemnifies or is obliged to indemnify the
Indemnitee for the period commencing with the date on which the Indemnitee
requested indemnification (or reimbursement or advancement of expenses) and
ending with the date on which such payment is made to the Indemnitee by the
Corporation.
SECTION 7. RIGHTS NON-EXCLUSIVE. The indemnification and advancement
of expenses provided by, or granted pursuant to, the other Sections of this
Article VI shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
law, by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as to action
in another capacity while holding such office.
SECTION 8. INSURANCE. The Corporation shall have power to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan, against any liability asserted
against such person and incurred by such person in any such capacity, or arising
out of such person's status as such, whether or not the Corporation would have
the power to indemnify such person against such liability under the provisions
of this Article VI.
SECTION 9. DEFINITION OF CORPORATION. For purposes of this Article
VI, references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit
plan, shall stand in the same position under this Article VI with respect to the
resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had continued.
SECTION 10. OTHER DEFINITIONS. For purposes of this Article VI,
references to "fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director, officer, employee
or agent of the corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with
- 18 -
<PAGE>
respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner such person reasonably believed
to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to the best
interests of the Corporation" as referred to in this Article VI.
SECTION 11. SURVIVAL OF RIGHTS. The indemnification and advancement
of expenses provided by, or granted pursuant to this Article VI shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person. No
amendment, alteration, rescission or replacement of these By-Laws or any
provision hereof shall be effective as to an Indemnitee with respect to any
action taken or omitted by such Indemnitee in Indemnitee's position with the
Corporation or any other entity which the Indemnitee is or was serving at the
request of the Corporation prior to such amendment, alteration, rescission or
replacement.
SECTION 12. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE
CORPORATION. The Corporation may, by action of the Board of Directors from time
to time, grant rights to indemnification and advancement of expenses to
employees and agents of the Corporation with the same scope and effect as the
provisions of this Article VI with respect to the indemnification of directors
and officers of the Corporation.
SECTION 13. SAVINGS CLAUSE. If this Article VI or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each person entitled to
indemnification under the first paragraph of this Article VI as to all losses
actually and reasonably incurred or suffered by such person and for which
indemnification is available to such person pursuant to this Article VI to the
full extent permitted by any applicable portion of this Article VI that shall
not have been invalidated and to the full extent permitted by applicable law.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. Subject to the provisions of statute and the
Restated Certificate of Incorporation, dividends upon the shares of capital
stock of the Corporation may be declared by the Board of Directors at any
regular or special meeting. Dividends may be paid in cash, in property or in
shares of stock of the Corporation, unless otherwise provided by statute or the
Restated Certificate of Incorporation.
SECTION 2. RESERVES. Before payment of any dividend, there may be
set aside out of any funds of the Corporation available for dividends such sum
or sums as the
- 19 -
<PAGE>
Board of Directors may, from time to time, in its absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation or
for such other purpose as the Board of Directors may think conducive to the
interests of the Corporation. The Board of Directors may modify or abolish any
such reserve in the manner in which it was created.
SECTION 3. SEAL. The seal of the Corporation shall be in such
form as shall be approved by the Board of Directors.
SECTION 4. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed, and once fixed, may thereafter be changed, by resolution of the Board of
Directors.
SECTION 5. CHECKS, NOTES, DRAFTS, ETC. All checks, notes, drafts or
other orders for the payment of money of the Corporation shall be signed,
endorsed or accepted in the name of the Corporation by such officer, officers,
person or persons as from time to time may be designated by the Board of
Directors or by an officer or officers authorized by the Board of Directors to
make such designation.
SECTION 6. EXECUTION OF CONTRACTS, DEEDS, ETC. The Board of
Directors may authorize any officer or officers, agent or agents, in the name
and on behalf of the Corporation to enter into or execute and deliver any and
all deeds, bonds, mortgages, contracts and other obligations or instruments, and
such authority may be general or confined to specific instances.
SECTION 7. VOTING OF STOCK IN OTHER CORPORATIONS. Unless otherwise
provided by resolution of the Board of Directors, the Chairman of the Board or
the President, from time to time, may (or may appoint one or more attorneys or
agents to) cast the votes which the Corporation may be entitled to cast as a
shareholder or otherwise in any other corporation, any of whose shares or
securities may be held by the Corporation, at meetings of the holders of the
shares or other securities of such other corporation. In the event one or more
attorneys or agents are appointed, the Chairman of the Board or the President
may instruct the person or persons so appointed as to the manner of casting such
votes or giving such consent. The Chairman of the Board or the President may, or
may instruct the attorneys or agents appointed to, execute or cause to be
executed in the name and on behalf of the Corporation and under its seal or
otherwise, such written proxies, consents, waivers or other instruments as may
be necessary or proper in the circumstances.
- 20 -
<PAGE>
ARTICLE VIII
AMENDMENTS
These Restated By-Laws may be repealed, altered, amended or
rescinded in whole or in part, or new By-Laws may be adopted by either the
affirmative vote of the holders of at least a majority of the voting power of
all of the issued and outstanding shares of capital stock of the Corporation
entitled to vote thereon or by the Board of Directors.
- 21 -
<PAGE>
Exhibit 4.1
COMMON STOCK
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
COMMON STOCK
$.01 PAR VALUE
THIS CERTIFICATE IS TRANSFERABLE IN NEW YORK, N.Y. AND RIDGEFIELD PARK, N.J.
CUSIP 203668 10 8
SEE REVERSE FOR CERTAIN DEFINITIONS
CHS
COMMUNITY HEALTH SYSTEMS, INC.
THIS CERTIFIES THAT
is the owner of
FULLY PAID AND NONASSESSABLE SHARES OF COMMON STOCK OF COMMUNITY HEALTH SYSTEMS,
INC (the "Corporation"), transferable on the books of the Corporation, in person
or by duly authorized attorneys upon the surrender of this Certificate properly
endorsed. This Certificate and the shares represented hereby are issued under
and shall be subject to all the provisions of the Certificate of Incorporation
and Bylaws of the Corporation and any amendments thereto, copies of which are on
file with the Corporation and the Transfer Agent, to all of which the holder by
acceptance hereof, assents. This Certificate is not valid unless countersigned
and registered by the Transfer Agent and Registrar.
In Witness Whereof, the Corporation has caused this certificate to be
signed in facsimile by its duly authorized officers and the facsimile corporate
seal to be duly affixed hereto.
DATED:
PRESIDENT AND CHIEF EXECUTIVE OFFICER
<PAGE>
VICE PRESIDENT AND SECRETARY
COUNTERSIGNED AND REGISTERED:
ChaseMellon Shareholder Services, L.L.C.
Transfer Agent and Registrar
By:
Authorized Signature
COMMUNITY HEALTH SYSTEMS, INC.
A full statement of the designations, preferences and relative,
participating, optional or other special rights of each class of stock of the
Corporation or series thereof and the qualifications, limitations or
restrictions of such preferences and /or rights will be furnished by the
Corporation, without charge, to any stockholder who so requests, upon
application to the Transfer Agent named on the face hereof or in the office of
the Corporation.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT - Custodian under Uniform Gifts to Minors Act
Additional abbreviations may also be used though not in the above list.
For Value Received hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE)
<PAGE>
Shares of the capital stock represented by the within Certificate, and
do hereby irrevocably constitute and appoint Attorney,
to transfer the said stock on the books of the within named Company with full
power of substitution in the premises.
Dated
NOTICE:
THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS WRITTEN
UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER.
THIS SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17AD-15.
Signature(s) Guaranteed By:
<PAGE>
Exhibit 10.5
COMMUNITY HEALTH SYSTEMS, Inc.
2000 STOCK OPTION AND AWARD PLAN
(As Adopted April 25, 2000)
<PAGE>
Community Health Systems, Inc.
2000 STOCK OPTION AND AWARD PLAN
1. PURPOSE.
The purpose of this Plan is to strengthen Community Health
Systems, Inc., a Delaware corporation (the "Company") and its Subsidiaries, by
providing an incentive to its employees, officers, consultants and directors and
thereby encouraging them to devote their abilities and industry to the success
of the Company's business enterprise. It is intended that this purpose be
achieved by extending to employees (including future employees who have received
a formal written offer of employment), officers, consultants and directors of
the Company and its Subsidiaries an added long-term incentive for high levels of
performance and unusual efforts through the grant of Incentive Stock Options,
Nonqualified Stock Options, Stock Appreciation Rights, Performance Units and
Performance Shares, Share Awards, Phantom Stock and Restricted Stock (as each
term is herein defined).
2. DEFINITIONS.
For purposes of the Plan:
2.1 "Affiliate" means any entity, directly or indirectly,
controlled by, controlling or under common control with the Company or any
corporation or other entity acquiring, directly or indirectly, all or
substantially all the assets and business of the Company, whether by operation
of law or otherwise.
2.2 "Agreement" means the written agreement between the
Company and an Optionee or Grantee evidencing the grant of an Option or Award
and setting forth the terms and conditions thereof.
2.3 "Award" means a grant of Restricted Stock, Phantom Stock,
a Stock Appreciation Right, a Performance Award, a Share Award or any or all of
them.
2.4 "Board" means the Board of Directors of the Company.
2.5 "Cause" means:
(a) in the case of an Optionee or Grantee whose employment
with the Company or a Subsidiary is subject to the terms of an employment
agreement between such Optionee or Grantee and the Company or Subsidiary, which
employment agreement includes a definition of "Cause", the term "Cause" as used
in this Plan or any Agreement
-1-
<PAGE>
shall have the meaning set forth in such employment agreement during the period
that such employment agreement remains in effect; and
(b) in all other cases, (i) intentional failure to perform
reasonably assigned duties, (ii) dishonesty or willful misconduct in the
performance of duties, (iii) involvement in a transaction in connection with the
performance of duties to the Company or any of its Subsidiaries which
transaction is adverse to the interests of the Company or any of its
Subsidiaries and which is engaged in for personal profit or (iv) willful
violation of any law, rule or regulation in connection with the performance of
duties (other than traffic violations or similar offenses); PROVIDED, HOWEVER,
that following a Change in Control clause (i) of this Section 2.5(b) shall not
constitute "Cause."
2.6 "Change in Capitalization" means any increase or reduction
in the number of Shares, or any change (including, but not limited to, in the
case of a spin-off, dividend or other distribution in respect of Shares, a
change in value) in the Shares or exchange of Shares for a different number or
kind of shares or other securities of the Company or another corporation, by
reason of a reclassification, recapitalization, merger, consolidation,
reorganization, spin-off, split-up, issuance of warrants or rights or
debentures, stock dividend, stock split or reverse stock split, cash dividend,
property dividend, combination or exchange of shares, repurchase of shares,
change in corporate structure or otherwise.
2.7 A "Change in Control" shall mean the occurrence of any of
the following:
(a) An acquisition (other than directly from the Company)
of any voting securities of the Company (the "Voting Securities") by any
"Person" (as the term person is used for purposes of Section 13(d) or 14(d) of
the Exchange Act), other than Forstmann Little & Co. Equity Partnership - V,
L.P. and Forstmann Little & Co. Subordinated Debt and Equity Management Buyout
Partnership - VI, L.P. or any of their Affiliates, immediately after which such
Person has "Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of more than fifty percent (50%) of the then outstanding
Shares or the combined voting power of the Company's then outstanding Voting
Securities; PROVIDED, HOWEVER, in determining whether a Change in Control has
occurred pursuant to this Section 2.7(a), Shares or Voting Securities which are
acquired in a "Non-Control Acquisition" (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (i) an employee benefit plan (or a
trust forming a part thereof) maintained by (A) the Company or (B) any
corporation or other Person of which a majority of its voting power or its
voting equity securities or equity interest is owned, directly or indirectly, by
the Company (for purposes of this definition, a "Related Entity"),
-2-
<PAGE>
(ii) the Company or any Related Entity, or (iii) any Person in connection with a
"Non-Control Transaction" (as hereinafter defined);
(b) The individuals who, as of April 25, 2000 are members
of the Board (the "Incumbent Board"), cease for any reason to constitute at
least a majority of the members of the Board or, following a Merger which
results in a Parent Corporation, the board of directors of the ultimate Parent
Corporation; PROVIDED, HOWEVER, that if the election, or nomination for election
by the Company's common stockholders, of any new director was approved by a vote
of at least two-thirds of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the Incumbent Board;
PROVIDED FURTHER, HOWEVER, that no individual shall be considered a member of
the Incumbent Board if such individual initially assumed office as a result of
either an actual or threatened "Election Contest" (as described in Rule 14a-11
promulgated under the Exchange Act) or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than the Board (a
"Proxy Contest") including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(c) The consummation of:
(i) A merger, consolidation or reorganization with or
into the Company or in which securities of the Company are issued (a "Merger"),
unless such Merger, is a "Non-Control Transaction." A "Non-Control Transaction"
shall mean a Merger where:
(A) the stockholders of the Company, immediately
before such Merger own directly or indirectly immediately following such Merger,
at least fifty percent (50%) of the combined voting power of the outstanding
voting securities of (x) the corporation resulting from such Merger (the
"Surviving Corporation"), if fifty percent (50%) or more of the combined voting
power of the then outstanding voting securities of the Surviving Corporation is
not Beneficially Owned, directly or indirectly by another Person (a "Parent
Corporation"), or (y) if there are one or more Parent Corporations, the ultimate
Parent Corporation; and
(B) the individuals who were members of the
Incumbent Board immediately prior to the execution of the agreement providing
for such Merger, constitute at least a majority of the members of the board of
directors of (x) the Surviving Corporation, if there is no Parent Corporation,
or (y) if there are one or more Parent Corporations, the ultimate Parent
Corporation.
(ii) A complete liquidation or dissolution of the
Company; or
(iii) The sale or other disposition of all or
substantially all of the assets of the Company to any Person (other than a
transfer to a Related Entity or
-3-
<PAGE>
under conditions that would constitute a Non-Control Transaction with the
disposition of assets being regarded as a Merger for this purpose or the
distribution to the Company's stockholders of the stock of a Related Entity or
any other assets).
Notwithstanding the foregoing, a Change in Control shall not
be deemed to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the then outstanding
Shares or Voting Securities as a result of the acquisition of Shares or Voting
Securities by the Company which, by reducing the number of Shares or Voting
Securities then outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Persons, provided that if a Change in Control
would occur (but for the operation of this sentence) as a result of the
acquisition of Shares or Voting Securities by the Company, and after such share
acquisition by the Company, the Subject Person becomes the Beneficial Owner of
any additional Shares or Voting Securities which increases the percentage of the
then outstanding Shares or Voting Securities Beneficially Owned by the Subject
Person, then a Change in Control shall occur.
If an Eligible Individual's employment is terminated by the
Company without Cause prior to the date of a Change in Control but the Eligible
Individual reasonably demonstrates that the termination (A) was at the request
of a third party who has indicated an intention or taken steps reasonably
calculated to effect a change in control or (B) otherwise arose in connection
with, or in anticipation of, a Change in Control which has been threatened or
proposed, such termination shall be deemed to have occurred after a Change in
Control for purposes of this Plan provided a Change in Control shall actually
have occurred.
2.8 "Code" means the Internal Revenue Code of 1986, as
amended.
2.9 "Committee" means a committee, as described in Section
3.1, appointed by the Board from time to time to administer the Plan and to
perform the functions set forth herein.
2.10 "Company" means Community Health Systems, Inc.
2.11 "Director" means a director of the Company.
2.12 "Disability" means:
(a) in the case of an Optionee or Grantee whose
employment with the Company or a Subsidiary is subject to the terms of an
employment agreement between such Optionee or Grantee and the Company or
Subsidiary, which employment agreement includes a definition of "Disability",
the term "Disability" as used in this Plan or any
-4-
<PAGE>
Agreement shall have the meaning set forth in such employment agreement during
the period that such employment agreement remains in effect; or
(b) the term "Disability" as used in the Company's
long-term disability plan, if any; or
(c) in all other cases, the term "Disability" as used in
this Plan or any Agreement shall mean a physical or mental infirmity which
impairs the Optionee's or Grantee's ability to perform substantially his or her
duties for a period of one hundred eighty (180) consecutive days.
2.13 "Division" means any of the operating units or divisions
of the Company designated as a Division by the Committee.
2.14 "Dividend Equivalent Right" means a right to receive all
or some portion of the cash dividends that are or would be payable with respect
to Shares.
2.15 "Eligible Individual" means any of the following
individuals who is designated by the Committee as eligible to receive Options or
Awards subject to the conditions set forth herein: (a) any director, officer or
employee of the Company or a Subsidiary, (b) any individual to whom the Company
or a Subsidiary has extended a formal, written offer of employment, or (c) any
consultant or advisor of the Company or a Subsidiary.
2.16 "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
2.17 "Fair Market Value" on any date means the closing sales
prices of the Shares on such date on the principal national securities exchange
on which such Shares are listed or admitted to trading, or, if such Shares are
not so listed or admitted to trading, the average of the per Share closing bid
price and per Share closing asked price on such date as quoted on the National
Association of Securities Dealers Automated Quotation System or such other
market in which such prices are regularly quoted, or, if there have been no
published bid or asked quotations with respect to Shares on such date, the Fair
Market Value shall be the value established by the Board in good faith and, in
the case of an Incentive Stock Option, in accordance with Section 422 of the
Code.
2.18 "Grantee" means a person to whom an Award has been
granted under the Plan.
2.19 "Incentive Stock Option" means an Option satisfying the
requirements of Section 422 of the Code and designated by the Committee as an
Incentive Stock Option.
-5-
<PAGE>
2.20 "Initial Public Offering" means the consummation of the
first public offering of Shares pursuant to a registration statement (other than
a Form S-8 or successor forms) filed with, and declared effective by, the
Securities and Exchange Commission.
2.21 "Nonemployee Director" means a director of the Company
who is a "nonemployee director" within the meaning of Rule 16b-3 promulgated
under the Exchange Act.
2.22 "Nonqualified Stock Option" means an Option which is not
an Incentive Stock Option.
2.23 "Option" means a Nonqualified Stock Option, an Incentive
Stock Option, or any or all of them.
2.24 "Optionee" means a person to whom an Option has been
granted under the Plan.
2.25 "Outside Director" means a director of the Company who is
an "outside director" within the meaning of Section 162(m) of the Code and the
regulations promulgated thereunder.
2.26 "Parent" means any corporation which is a parent
corporation within the meaning of Section 424(e) of the Code with respect to the
Company.
2.27 "Performance Awards" means Performance Units, Performance
Shares or either or both of them.
2.28 "Performance-Based Compensation" means any Option or
Award that is intended to constitute "performance based compensation" within the
meaning of Section 162(m)(4)(C) of the Code and the regulations promulgated
thereunder.
2.29 "Performance Cycle" means the time period specified by
the Committee at the time Performance Awards are granted during which the
performance of the Company, a Subsidiary or a Division will be measured.
2.30 "Performance Objectives" has the meaning set forth in
Section 8.
2.31 "Performance Shares" means Shares issued or transferred
to an Eligible Individual under Section 8.
2.32 "Performance Units" means Performance Units granted to an
Eligible Individual under Section 8.
2.33 "Phantom Stock" means a right granted to an Eligible
Individual under Section 9 representing a number of hypothetical Shares.
-6-
<PAGE>
2.34 "Plan" means Community Health Systems, Inc. 1999 Stock
Option and Award Plan, as amended and restated from time to time.
2.35 "Pooling Transaction" means an acquisition of the Company
in a transaction which is intended to be treated as a "pooling of interests"
under generally accepted accounting principles.
2.36 "Restricted Stock" means Shares issued or transferred to
an Eligible Individual pursuant to Section 7.
2.37 "Share Award" means an Award of Shares granted pursuant
to Section 9.
2.38 "Shares" means the Class A Common Stock of the Company,
par value $.01 per share, and any other securities into which such shares are
changed or for which such shares are exchanged.
2.39 "Stock Appreciation Right" means a right to receive all
or some portion of the increase in the value of the Shares as provided in
Section 6 hereof.
2.40 "Subsidiary" means (i) except as provided in subsection
(ii) below, any corporation which is a subsidiary corporation within the meaning
of Section 424(f) of the Code with respect to the Company, and (ii) in relation
to the eligibility to receive Options or Awards other than Incentive Stock
Options and continued employment for purposes of Options and Awards (unless the
Committee determines otherwise), any entity, whether or not incorporated, in
which the Company directly or indirectly owns 50% or more of the outstanding
equity or other ownership interests.
2.41 "Successor Corporation" means a corporation, or a Parent
or Subsidiary thereof within the meaning of Section 424(a) of the Code, which
issues or assumes a stock option in a transaction to which Section 424(a) of the
Code applies.
2.42 "Ten-Percent Stockholder" means an Eligible Individual,
who, at the time an Incentive Stock Option is to be granted to him or her, owns
(within the meaning of Section 422(b)(6) of the Code) stock possessing more than
ten percent (10%) of the total combined voting power of all classes of stock of
the Company, or of a Parent or a Subsidiary.
2.43 "Transition Period" means the period beginning with an
Initial Public Offering and ending as of the earlier of (i) the date of the
first annual meeting of shareholders of the Company at which directors are to be
elected that occurs after the close of the third calendar year following the
calendar year in which the Initial Public Offering occurs, or (ii) the
expiration of the "reliance period" under Treasury Regulation ss.
1.162-27(f)(2).
-7-
<PAGE>
3. ADMINISTRATION.
3.1 The Plan shall be administered by the Committee, which
shall hold meetings at such times as may be necessary for the proper
administration of the Plan. The Committee shall keep minutes of its meetings. If
the Committee consists of more than one (1) member, a quorum shall consist of
not fewer than two (2) members of the Committee and a majority of a quorum may
authorize any action. Any decision or determination reduced to writing and
signed by a majority of all of the members of the Committee shall be as fully
effective as if made by a majority vote at a meeting duly called and held. The
Committee shall consist of at least one (1) Director and may consist of the
entire Board; PROVIDED, HOWEVER, that from and after the date of an Initial
Public Offering, (A) if the Committee consists of less than the entire Board,
then with respect to any Option or Award to an Eligible Individual who is
subject to Section 16 of the Exchange Act, the Committee shall consist of at
least two (2) Directors each of whom shall be a Nonemployee Director and (B) to
the extent necessary for any Option or Award intended to qualify as
Performance-Based Compensation to so qualify, the Committee shall consist of at
least two (2) Directors, each of whom shall be an Outside Director. For purposes
of the preceding sentence, if one or more members of the Committee is not a
Nonemployee Director and an Outside Director but recuses himself or herself or
abstains from voting with respect to a particular action taken by the Committee,
then the Committee, with respect to that action, shall be deemed to consist only
of the members of the Committee who have not recused themselves or abstained
from voting. Subject to applicable law, the Committee may delegate its authority
under the Plan to any other person or persons.
3.2 No member of the Committee shall be liable for any action,
failure to act, determination or interpretation made in good faith with respect
to this Plan or any transaction hereunder. The Company hereby agrees to
indemnify each member of the Committee for all costs and expenses and, to the
extent permitted by applicable law, any liability incurred in connection with
defending against, responding to, negotiating for the settlement of or otherwise
dealing with any claim, cause of action or dispute of any kind arising in
connection with any actions in administering this Plan or in authorizing or
denying authorization to any transaction hereunder.
3.3 Subject to the express terms and conditions set forth
herein, the Committee shall have the power from time to time to:
(a) determine those Eligible Individuals to whom Options
shall be granted under the Plan and the number of such Options to be granted and
to prescribe the terms and conditions (which need not be identical) of each such
Option, including the exercise price per Share, the vesting schedule and the
duration of each Option, and make any amendment or modification to any Option
Agreement consistent with the terms of the Plan;
-8-
<PAGE>
(b) select those Eligible Individuals to whom Awards shall
be granted under the Plan and to determine the number of Shares in respect of
which each Award is granted, the terms and conditions (which need not be
identical) of each such Award, and make any amendment or modification to any
Award Agreement consistent with the terms of the Plan;
(c) to construe and interpret the Plan and the Options and
Awards granted hereunder and to establish, amend and revoke rules and
regulations for the administration of the Plan, including, but not limited to,
correcting any defect or supplying any omission, or reconciling any
inconsistency in the Plan or in any Agreement, in the manner and to the extent
it shall deem necessary or advisable, including so that the Plan and the
operation of the Plan complies with Rule 16b-3 under the Exchange Act, the Code
to the extent applicable and other applicable law, and otherwise to make the
Plan fully effective. All decisions and determinations by the Committee in the
exercise of this power shall be final, binding and conclusive upon the Company,
its Subsidiaries, the Optionees and Grantees, and all other persons having any
interest therein;
(d) to determine the duration and purposes for leaves of
absence which may be granted to an Optionee or Grantee on an individual basis
without constituting a termination of employment or service for purposes of the
Plan;
(e) to exercise its discretion with respect to the powers
and rights granted to it as set forth in the Plan; and
(f) generally, to exercise such powers and to perform such
acts as are deemed necessary or advisable to promote the best interests of the
Company with respect to the Plan.
4. STOCK SUBJECT TO THE PLAN; GRANT LIMITATIONS.
4.1 The maximum number of Shares that may be made the subject
of Options and Awards granted under the Plan is __________.* The Company shall
reserve for the purposes of the Plan, out of its authorized but unissued Shares
or out of Shares
- --------
* 6% of the sum of the number of shares of Class A common stock (i)
outstanding on a fully diluted basis as of the date the Plan is adopted by
the Board and (ii) issued after the date hereof as a result of the
Company's recapitalization and registered public offering (each as
described in Amendment No. 1 of the Form S-1 filed by the Company with the
Securities and Exchange Commission on April 19, 2000); it being understood
that in connection with the Company's recapitalization, the shares of Class
A common stock are being redesignated as "Common Stock" (whereupon the
shares of capital stock issuable upon options granted under this Plan or
otherwise shall be the Common Stock).
-9-
<PAGE>
held in the Company's treasury, or partly out of each, such number of Shares as
shall be determined by the Board.
4.2 Upon the granting of an Option or an Award, the number of
Shares available under Section 4.1 for the granting of further Options and
Awards shall be reduced as follows:
(a) In connection with the granting of an Option or an
Award (other than the granting of a Performance Unit denominated in dollars),
the number of Shares shall be reduced by the number of Shares in respect of
which the Option or Award is granted or denominated; PROVIDED, HOWEVER, that if
any Option is exercised by tendering Shares, either actually or by attestation,
to the Company as full or partial payment of the exercise price, the maximum
number of Shares available under Section 4.1 shall be increased by the number of
Shares so tendered.
(b) In connection with the granting of a Performance Unit
denominated in dollars, the number of Shares shall be reduced by an amount equal
to the quotient of (i) the dollar amount in which the Performance Unit is
denominated, divided by (ii) the Fair Market Value of a Share on the date the
Performance Unit is granted.
4.3 Whenever any outstanding Option or Award or portion
thereof, expires, is canceled, is settled in cash (including the settlement of
tax withholding obligations using Shares) or is otherwise terminated for any
reason without having been exercised or payment having been made in respect of
the entire Option or Award, the Shares allocable to the expired, canceled,
settled or otherwise terminated portion of the Option or Award may again be the
subject of Options or Awards granted hereunder.
4.4 In no event may more than 30,000 Shares be issued upon the
exercise of Incentive Stock Options granted under the Plan.
5. OPTION GRANTS FOR ELIGIBLE INDIVIDUALS.
5.1 AUTHORITY OF COMMITTEE. Subject to the provisions of the
Plan, the Committee shall have full and final authority to select those Eligible
Individuals who will receive Options, and the terms and conditions of the grant
to such Eligible Individuals shall be set forth in an Agreement. Incentive Stock
Options may be granted only to Eligible Individuals who are employees of the
Company or any Subsidiary.
5.2 EXERCISE PRICE. The purchase price or the manner in which
the exercise price is to be determined for Shares under each Option shall be
determined by the Committee and set forth in the Agreement; PROVIDED, HOWEVER,
that the exercise price per Share under each Incentive Stock Option shall not be
less than 100% of the Fair
-10-
<PAGE>
Market Value of a Share on the date the Option is granted (110% in the case of
an Incentive Stock Option granted to a Ten-Percent Stockholder).
5.3 MAXIMUM DURATION. Options granted hereunder shall be for
such term as the Committee shall determine, provided that an Incentive Stock
Option shall not be exercisable after the expiration of ten (10) years from the
date it is granted (five (5) years in the case of an Incentive Stock Option
granted to a Ten-Percent Stockholder) and a Nonqualified Stock Option shall not
be exercisable after the expiration of ten (10) years from the date it is
granted; PROVIDED, HOWEVER, that unless the Committee provides otherwise, an
Option (other than an Incentive Stock Option) may, upon the death of the
Optionee prior to the expiration of the Option, be exercised for up to one (1)
year following the date of the Optionee's death even if such period extends
beyond ten (10) years from the date the Option is granted. The Committee may,
subsequent to the granting of any Option, extend the term thereof, but in no
event shall the term as so extended exceed the maximum term provided for in the
preceding sentence.
5.4 VESTING. Subject to Section 5.10, each Option shall become
exercisable in such installments (which need not be equal) and at such times as
may be designated by the Committee and set forth in the Agreement. To the extent
not exercised, installments shall accumulate and be exercisable, in whole or in
part, at any time after becoming exercisable, but not later than the date the
Option expires. The Committee may accelerate the exercisability of any Option or
portion thereof at any time.
5.5 DEFERRED DELIVERY OF OPTION SHARES. The Committee may, in
its discretion permit Optionees to elect to defer the issuance of Shares upon
the exercise of one or more Nonqualified Stock Options granted pursuant to the
Plan. The terms and conditions of such deferral shall be determined at the time
of the grant of the Option or thereafter and shall be set forth in the Agreement
evidencing the Option.
5.6 LIMITATIONS ON INCENTIVE STOCK OPTIONS. To the extent that
the aggregate Fair Market Value (determined as of the date of the grant) of
Shares with respect to which Incentive Stock Options granted under the Plan and
"incentive stock options" (within the meaning of Section 422 of the Code)
granted under all other plans of the Company or its Subsidiaries (in either case
determined without regard to this Section 5.6) are exercisable by an Optionee
for the first time during any calendar year exceeds $100,000, such Incentive
Stock Options shall be treated as Nonqualified Stock Options. In applying the
limitation in the preceding sentence in the case of multiple Option grants,
Options which were intended to be Incentive Stock Options shall be treated as
Nonqualified Stock Options according to the order in which they were granted
such that the most recently granted Options are first treated as Nonqualified
Stock Options.
5.7 NON-TRANSFERABILITY. No Option shall be transferable by
the Optionee otherwise than by will or by the laws of descent and distribution
or, in the case
-11-
<PAGE>
of an Option other than an Incentive Stock Option, pursuant to a domestic
relations order (within the meaning of Rule 16a-12 promulgated under the
Exchange Act), and an Option shall be exercisable during the lifetime of such
Optionee only by the Optionee or his or her guardian or legal representative.
Notwithstanding the foregoing, the Committee may set forth in the Agreement
evidencing an Option (other than an Incentive Stock Option) at the time of grant
or thereafter, that the Option may be transferred to members of the Optionee's
immediate family, to trusts solely for the benefit of such immediate family
members and to partnerships in which such family members and/or trusts are the
only partners, and for purposes of this Plan, a transferee of an Option shall be
deemed to be the Optionee. For this purpose, immediate family means the
Optionee's spouse, parents, children, stepchildren and grandchildren and the
spouses of such parents, children, stepchildren and grandchildren. The terms of
an Option shall be final, binding and conclusive upon the beneficiaries,
executors, administrators, heirs and successors of the Optionee.
5.8 METHOD OF EXERCISE. The exercise of an Option shall be
made only by a written notice delivered in person or by mail to the Secretary of
the Company at the Company's principal executive office, specifying the number
of Shares to be exercised and, to the extent applicable, accompanied by payment
therefor and otherwise in accordance with the Agreement pursuant to which the
Option was granted; PROVIDED, HOWEVER, that Options may not be exercised by an
Optionee for twelve months following a hardship distribution to the Optionee, to
the extent such exercise is prohibited under Treasury Regulation ss.
1.401(k)-1(d)(2)(iv)(B)(4). The exercise price for any Shares purchased pursuant
to the exercise of an Option shall be paid in either of the following forms (or
any combination thereof): (a) cash or (b) the transfer, either actually or by
attestation, to the Company of Shares that have been held by the Optionee for at
least six (6) months (or such lesser period as may be permitted by the
Committee) prior to the exercise of the Option, such transfer to be upon such
terms and conditions as determined by the Committee or (c) a combination of cash
and the transfer of Shares; PROVIDED, HOWEVER, that the Committee may determine
that the exercise price shall be paid only in cash. In addition, Options may be
exercised through a registered broker-dealer pursuant to such cashless exercise
procedures which are, from time to time, deemed acceptable by the Committee. Any
Shares transferred to the Company as payment of the exercise price under an
Option shall be valued at their Fair Market Value on the day of exercise of such
Option. If requested by the Committee, the Optionee shall deliver the Agreement
evidencing the Option to the Secretary of the Company who shall endorse thereon
a notation of such exercise and return such Agreement to the Optionee. No
fractional Shares (or cash in lieu thereof) shall be issued upon exercise of an
Option and the number of Shares that may be purchased upon exercise shall be
rounded to the nearest number of whole Shares.
-12-
<PAGE>
5.9 RIGHTS OF OPTIONEES. No Optionee shall be deemed for any
purpose to be the owner of any Shares subject to any Option unless and until (a)
the Option shall have been exercised pursuant to the terms thereof, (b) the
Company shall have issued and delivered Shares to the Optionee, and (c) the
Optionee's name shall have been entered as a stockholder of record on the books
of the Company. Thereupon, the Optionee shall have full voting, dividend and
other ownership rights with respect to such Shares, subject to such terms and
conditions as may be set forth in the applicable Agreement.
5.10 EFFECT OF CHANGE IN CONTROL. In the event an Optionee's
employment with the Company and its Subsidiaries is terminated by the Company
without Cause following a Change in Control, or in the case of a Director who is
not an employee of the Company or any Subsidiary, his services as a Director of
the Company ceases following a Change in Control, each Option held by the
Optionee as of the date of termination of the Optionee's employment or service
shall become immediately and fully exercisable and shall, notwithstanding any
shorter period set forth in the Agreement evidencing the Option, remain
exercisable for a period ending not before the earlier of (x) the six (6) month
anniversary of the termination of the Optionee's employment or service or (y)
the expiration of the stated term of the Option. In addition, the Agreement
evidencing the grant of an Option may provide for any other treatment of the
Option in the event of a Change in Control.
6. STOCK APPRECIATION RIGHTS.
The Committee may in its discretion, either alone or in
connection with the grant of an Option, grant Stock Appreciation Rights in
accordance with the Plan, the terms and conditions of which shall be set forth
in an Agreement. If granted in connection with an Option, a Stock Appreciation
Right shall cover the same Shares covered by the Option (or such lesser number
of Shares as the Committee may determine) and shall, except as provided in this
Section 6, be subject to the same terms and conditions as the related Option.
6.1 TIME OF GRANT. A Stock Appreciation Right may be granted
(a) at any time if unrelated to an Option, or (b) if related to an Option,
either at the time of grant or at any time thereafter during the term of the
Option.
6.2 STOCK APPRECIATION RIGHT RELATED TO AN OPTION.
(a) EXERCISE. A Stock Appreciation Right granted in
connection with an Option shall be exercisable at such time or times and only to
the extent that the related Options are exercisable, and will not be
transferable except to the extent the related Option may be transferable. A
Stock Appreciation Right granted in connection with an Incentive Stock Option
shall be exercisable only if the Fair Market Value of a
-13-
<PAGE>
Share on the date of exercise exceeds the exercise price specified in the
related Incentive Stock Option Agreement.
(b) AMOUNT PAYABLE. Upon the exercise of a Stock
Appreciation Right related to an Option, the Grantee shall be entitled to
receive an amount determined by multiplying (i) the excess of the Fair Market
Value of a Share on the date of exercise of such Stock Appreciation Right over
the per Share exercise price under the related Option, by (ii) the number of
Shares as to which such Stock Appreciation Right is being exercised.
Notwithstanding the foregoing, the Committee may limit in any manner the amount
payable with respect to any Stock Appreciation Right by including such a limit
in the Agreement evidencing the Stock Appreciation Right at the time it is
granted.
(c) TREATMENT OF RELATED OPTIONS AND STOCK APPRECIATION
RIGHTS UPON EXERCISE. Upon the exercise of a Stock Appreciation Right granted in
connection with an Option, the Option shall be canceled to the extent of the
number of Shares as to which the Stock Appreciation Right is exercised, and upon
the exercise of an Option granted in connection with a Stock Appreciation Right,
the Stock Appreciation Right shall be canceled to the extent of the number of
Shares as to which the Option is exercised or surrendered.
6.3 STOCK APPRECIATION RIGHT UNRELATED TO AN OPTION. The
Committee may grant to Eligible Individuals Stock Appreciation Rights unrelated
to Options. Stock Appreciation Rights unrelated to Options shall contain such
terms and conditions as to exercisability (subject to Section 6.7), vesting and
duration as the Committee shall determine, but in no event shall they have a
term of greater than ten (10) years; provided, however, that the Committee may
provide that Stock Appreciation right may, upon the death of the Grantee, be
exercised for up to one (1) year following the date of the Grantee's death even
if such period extends beyond ten (10) years from the date the Stock
Appreciation Right is granted. Upon exercise of a Stock Appreciation Right
unrelated to an Option, the Grantee shall be entitled to receive an amount
determined by multiplying (a) the excess of the Fair Market Value of a Share on
the date of exercise of such Stock Appreciation Right over the Fair Market Value
of a Share on the date the Stock Appreciation Right was granted, by (b) the
number of Shares as to which the Stock Appreciation Right is being exercised.
Notwithstanding the foregoing, the Committee may limit in any manner the amount
payable with respect to any Stock Appreciation Right by including such a limit
in the Agreement evidencing the Stock Appreciation Right at the time it is
granted.
6.4 NON-TRANSFERABILITY. No Stock Appreciation Right shall be
transferable by the Grantee otherwise than by will or by the laws of descent and
distribution or pursuant to a domestic relations order (within the meaning of
Rule 16a-12 promulgated under the Exchange Act), and such Stock Appreciation
Right shall be exercisable during the lifetime of such Grantee only by the
Grantee or his or her guardian
-14-
<PAGE>
or legal representative. The terms of such Stock Appreciation Right shall be
final, binding and conclusive upon the beneficiaries, executors, administrators,
heirs and successors of the Grantee.
6.5 METHOD OF EXERCISE. Stock Appreciation Rights shall be
exercised by a Grantee only by a written notice delivered in person or by mail
to the Secretary of the Company at the Company's principal executive office,
specifying the number of Shares with respect to which the Stock Appreciation
Right is being exercised. If requested by the Committee, the Grantee shall
deliver the Agreement evidencing the Stock Appreciation Right being exercised
and the Agreement evidencing any related Option to the Secretary of the Company
who shall endorse thereon a notation of such exercise and return such Agreement
to the Grantee.
6.6 FORM OF PAYMENT. Payment of the amount determined under
Sections 6.2(b) or 6.3 may be made in the discretion of the Committee solely in
whole Shares in a number determined at their Fair Market Value on the date of
exercise of the Stock Appreciation Right, or solely in cash, or in a combination
of cash and Shares. If the Committee decides to make full payment in Shares and
the amount payable results in a fractional Share, payment for the fractional
Share will be made in cash.
6.7 EFFECT OF CHANGE IN CONTROL. In the event a Grantee's
employment with the Company is terminated by the Company without Cause following
a Change in Control, each Stock Appreciation Right held by the Grantee shall
become immediately and fully exercisable and shall, notwithstanding any shorter
period set forth in the Agreement evidencing the Stock Appreciation Right,
remain exercisable for a period ending not before the earlier of the six (6)
month anniversary of (x) the termination of the Grantee's employment or (y) the
expiration of the stated term of the Stock Appreciation Right. In addition, the
Agreement evidencing the grant of a Stock Appreciation Right unrelated to an
Option may provide for any other treatment of the Stock Appreciation Rights in
the event of a Change in Control.
7. RESTRICTED STOCK.
7.1 GRANT. The Committee may grant Awards to Eligible
Individuals of Restricted Stock, which shall be evidenced by an Agreement
between the Company and the Grantee. Each Agreement shall contain such
restrictions, terms and conditions as the Committee may, in its discretion,
determine and (without limiting the generality of the foregoing) such Agreements
may require that an appropriate legend be placed on Share certificates. Awards
of Restricted Stock shall be subject to the terms and provisions set forth below
in this Section 7.
7.2 RIGHTS OF GRANTEE. Shares of Restricted Stock granted
pursuant to an Award hereunder shall be issued in the name of the Grantee as
soon as reasonably
-15-
<PAGE>
practicable after the Award is granted provided that the Grantee has executed an
Agreement evidencing the Award, the appropriate blank stock powers and, in the
discretion of the Committee, an escrow agreement and any other documents which
the Committee may require as a condition to the issuance of such Shares. If a
Grantee shall fail to execute the Agreement evidencing a Restricted Stock Award,
or any documents which the Committee may require within the time period
prescribed by the Committee at the time the Award is granted, the Award shall be
null and void. At the discretion of the Committee, Shares issued in connection
with a Restricted Stock Award shall be deposited together with the stock powers
with an escrow agent (which may be the Company) designated by the Committee.
Unless the Committee determines otherwise and as set forth in the Agreement,
upon delivery of the Shares to the escrow agent, the Grantee shall have all of
the rights of a stockholder with respect to such Shares, including the right to
vote the Shares and to receive all dividends or other distributions paid or made
with respect to the Shares.
7.3 NON-TRANSFERABILITY. Until all restrictions upon the
Shares of Restricted Stock awarded to a Grantee shall have lapsed in the manner
set forth in Section 7.4, such Shares shall not be sold, transferred or
otherwise disposed of and shall not be pledged or otherwise hypothecated.
7.4 LAPSE OF RESTRICTIONS.
(a) GENERALLY. Restrictions upon Shares of Restricted
Stock awarded hereunder shall lapse at such time or times and on such terms and
conditions as the Committee may determine. The Agreement evidencing the Award
shall set forth any such restrictions.
(b) EFFECT OF CHANGE IN CONTROL. The Committee may
determine at the time of the grant of an Award of Restricted Stock the extent to
which the restrictions upon Shares of Restricted Stock shall lapse upon a Change
in Control. The Agreement evidencing the Award shall set forth any such
provisions.
7.5 TREATMENT OF DIVIDENDS. At the time an Award of Shares of
Restricted Stock is granted, the Committee may, in its discretion, determine
that the payment to the Grantee of dividends, or a specified portion thereof,
declared or paid on such Shares by the Company shall be (a) deferred until the
lapsing of the restrictions imposed upon such Shares and (b) held by the Company
for the account of the Grantee until such time. In the event that dividends are
to be deferred, the Committee shall determine whether such dividends are to be
reinvested in Shares (which shall be held as additional Shares of Restricted
Stock) or held in cash. If deferred dividends are to be held in cash, there may
be credited at the end of each year (or portion thereof) interest on the amount
of the account at the beginning of the year at a rate per annum as the
Committee, in its discretion, may determine. Payment of deferred dividends in
respect of Shares of
-16-
<PAGE>
Restricted Stock (whether held in cash or as additional Shares of Restricted
Stock), together with interest accrued thereon, if any, shall be made upon the
lapsing of restrictions imposed on the Shares in respect of which the deferred
dividends were paid, and any dividends deferred (together with any interest
accrued thereon) in respect of any Shares of Restricted Stock shall be forfeited
upon the forfeiture of such Shares.
7.6 DELIVERY OF SHARES. Upon the lapse of the restrictions on
Shares of Restricted Stock, the Committee shall cause a stock certificate to be
delivered to the Grantee with respect to such Shares, free of all restrictions
hereunder.
8. PERFORMANCE AWARDS.
8.1 PERFORMANCE UNITS. The Committee, in its discretion, may
grant Awards of Performance Units to Eligible Individuals, the terms and
conditions of which shall be set forth in an Agreement between the Company and
the Grantee. Performance Units may be denominated in Shares or a specified
dollar amount and, contingent upon the attainment of specified Performance
Objectives within the Performance Cycle, represent the right to receive payment
as provided in Section 8.3(c) of (i) in the case of Share-denominated
Performance Units, the Fair Market Value of a Share on the date the Performance
Unit was granted, the date the Performance Unit became vested or any other date
specified by the Committee, (ii) in the case of dollar-denominated Performance
Units, the specified dollar amount or (iii) a percentage (which may be more than
100%) of the amount described in clause (i) or (ii) depending on the level of
Performance Objective attainment; PROVIDED, HOWEVER, that, the Committee may at
the time a Performance Unit is granted specify a maximum amount payable in
respect of a vested Performance Unit. Each Agreement shall specify the number of
Performance Units to which it relates, the Performance Objectives which must be
satisfied in order for the Performance Units to vest and the Performance Cycle
within which such Performance Objectives must be satisfied.
(a) VESTING AND FORFEITURE. Subject to Sections 8.3(c) and
8.4, a Grantee shall become vested with respect to the Performance Units to the
extent that the Performance Objectives set forth in the Agreement are satisfied
for the Performance Cycle.
(b) PAYMENT OF AWARDS. Subject to Section 8.3(c), payment
to Grantees in respect of vested Performance Units shall be made as soon as
practicable after the last day of the Performance Cycle to which such Award
relates unless the Agreement evidencing the Award provides for the deferral of
payment, in which event the terms and conditions of the deferral shall be set
forth in the Agreement. Subject to Section 8.4, such payments may be made
entirely in Shares valued at their Fair Market Value, entirely in cash, or in
such combination of Shares and cash as the Committee in its discretion shall
determine at any time prior to such payment; PROVIDED, HOWEVER, that if
-17-
<PAGE>
the Committee in its discretion determines to make such payment entirely or
partially in Shares of Restricted Stock, the Committee must determine the extent
to which such payment will be in Shares of Restricted Stock and the terms of
such Restricted Stock at the time the Award is granted.
8.2 PERFORMANCE SHARES. The Committee, in its discretion, may
grant Awards of Performance Shares to Eligible Individuals, the terms and
conditions of which shall be set forth in an Agreement between the Company and
the Grantee. Each Agreement may require that an appropriate legend be placed on
Share certificates. Awards of Performance Shares shall be subject to the
following terms and provisions:
(a) RIGHTS OF GRANTEE. The Committee shall provide at the
time an Award of Performance Shares is made the time or times at which the
actual Shares represented by such Award shall be issued in the name of the
Grantee; PROVIDED, HOWEVER, that no Performance Shares shall be issued until the
Grantee has executed an Agreement evidencing the Award, the appropriate blank
stock powers and, in the discretion of the Committee, an escrow agreement and
any other documents which the Committee may require as a condition to the
issuance of such Performance Shares. If a Grantee shall fail to execute the
Agreement evidencing an Award of Performance Shares, the appropriate blank stock
powers and, in the discretion of the Committee, an escrow agreement and any
other documents which the Committee may require within the time period
prescribed by the Committee at the time the Award is granted, the Award shall be
null and void. At the discretion of the Committee, Shares issued in connection
with an Award of Performance Shares shall be deposited together with the stock
powers with an escrow agent (which may be the Company) designated by the
Committee. Except as restricted by the terms of the Agreement, upon delivery of
the Shares to the escrow agent, the Grantee shall have, in the discretion of the
Committee, all of the rights of a stockholder with respect to such Shares,
including the right to vote the Shares and to receive all dividends or other
distributions paid or made with respect to the Shares.
(b) NON-TRANSFERABILITY. Until any restrictions upon the
Performance Shares awarded to a Grantee shall have lapsed in the manner set
forth in Sections 8.2(c) or 8.4, such Performance Shares shall not be sold,
transferred or otherwise disposed of and shall not be pledged or otherwise
hypothecated, nor shall they be delivered to the Grantee. The Committee may also
impose such other restrictions and conditions on the Performance Shares, if any,
as it deems appropriate.
(c) LAPSE OF RESTRICTIONS. Subject to Sections 8.3(c) and
8.4, restrictions upon Performance Shares awarded hereunder shall lapse and such
Performance Shares shall become vested at such time or times and on such terms,
conditions and satisfaction of Performance Objectives as the Committee may, in
its discretion, determine at the time an Award is granted.
-18-
<PAGE>
(d) TREATMENT OF DIVIDENDS. At the time the Award of
Performance Shares is granted, the Committee may, in its discretion, determine
that the payment to the Grantee of dividends, or a specified portion thereof,
declared or paid on Shares represented by such Award which have been issued by
the Company to the Grantee shall be (i) deferred until the lapsing of the
restrictions imposed upon such Performance Shares and (ii) held by the Company
for the account of the Grantee until such time. In the event that dividends are
to be deferred, the Committee shall determine whether such dividends are to be
reinvested in shares of Stock (which shall be held as additional Performance
Shares) or held in cash. If deferred dividends are to be held in cash, there may
be credited at the end of each year (or portion thereof) interest on the amount
of the account at the beginning of the year at a rate per annum as the
Committee, in its discretion, may determine. Payment of deferred dividends in
respect of Performance Shares (whether held in cash or in additional Performance
Shares), together with interest accrued thereon, if any, shall be made upon the
lapsing of restrictions imposed on the Performance Shares in respect of which
the deferred dividends were paid, and any dividends deferred (together with any
interest accrued thereon) in respect of any Performance Shares shall be
forfeited upon the forfeiture of such Performance Shares.
(e) DELIVERY OF SHARES. Upon the lapse of the restrictions
on Performance Shares awarded hereunder, the Committee shall cause a stock
certificate to be delivered to the Grantee with respect to such Shares, free of
all restrictions hereunder.
8.3 PERFORMANCE OBJECTIVES
(a) ESTABLISHMENT. Performance Objectives for Performance
Awards may be expressed in terms of (i) earnings per Share, (ii) Share price,
(iii) pre-tax profits, (iv) net earnings, (v) return on equity or assets, (vi)
sales, (vii) any combination of the foregoing or (viii) prior to the end of the
Transition Period, such other criteria as the Committee may determine.
Performance Objectives may be in respect of the performance of the Company, any
of its Subsidiaries, any of its Divisions or any combination thereof.
Performance Objectives may be absolute or relative (to prior performance of the
Company or to the performance of one or more other entities or external indices)
and may be expressed in terms of a progression within a specified range. The
Performance Objectives with respect to a Performance Cycle shall be established
in writing by the Committee by the earlier of (x) the date on which a quarter of
the Performance Cycle has elapsed or (y) the date which is ninety (90) days
after the commencement of the Performance Cycle, and in any event while the
performance relating to the Performance Objectives remain substantially
uncertain.
(b) EFFECT OF CERTAIN EVENTS. At the time of the granting
of a Performance Award, or at any time thereafter, in either case to the extent
permitted under Section 162(m) of the Code and the regulations thereunder
without adversely affecting the treatment of the Performance Award as
Performance-Based Compensation, the
-19-
<PAGE>
Committee may provide for the manner in which performance will be measured
against the Performance Objectives (or may adjust the Performance Objectives) to
reflect the impact of specified corporate transactions, accounting or tax law
changes and other extraordinary or nonrecurring events.
(c) DETERMINATION OF PERFORMANCE. Prior to the vesting,
payment, settlement or lapsing of any restrictions with respect to any
Performance Award that is intended to constitute Performance-Based Compensation
made to a Grantee who is subject to Section 162(m) of the Code, the Committee
shall certify in writing that the applicable Performance Objectives have been
satisfied to the extent necessary for such Award to qualify as Performance Based
Compensation.
8.4 EFFECT OF CHANGE IN CONTROL. The Agreements evidencing
Performance Shares and Performance Units may provide for the treatment of such
Awards (or portions thereof) in the event of a Change in Control, including, but
not limited to, provisions for the adjustment of applicable Performance
Objectives.
8.5 NON-TRANSFERABILITY. Until the vesting of Performance
Units or the lapsing of any restrictions on Performance Shares, as the case may
be, such Performance Units or Performance Shares shall not be sold, transferred
or otherwise disposed of and shall not be pledged or otherwise hypothecated.
9. OTHER SHARE BASED AWARDS.
9.1 SHARE AWARDS. The Committee may grant a Share Award to any
Eligible Individual on such terms and conditions as the Committee may determine
in its sole discretion. Share Awards may be made as additional compensation for
services rendered by the Eligible Individual or may be in lieu of cash or other
compensation to which the Eligible Individual is entitled from the Company.
9.2 PHANTOM STOCK AWARDS.
(a) GRANT. The Committee may, in its discretion, grant
shares of Phantom Stock to any Eligible Individuals. Such Phantom Stock shall be
subject to the terms and conditions established by the Committee and set forth
in the applicable Agreement.
(b) PAYMENT OF AWARDS. Upon the vesting of a Phantom Stock
Award, the Grantee shall be entitled to receive a cash payment in respect of
each share of Phantom Stock which shall be equal to the Fair Market Value of a
Share as of the date the Phantom Stock Award was granted, or such other date as
determined by the Committee at the time the Phantom Stock Award was granted. The
Committee may, at the time a Phantom Stock Award is granted, provide a
limitation on the amount payable in respect of
-20-
<PAGE>
each share of Phantom Stock. In lieu of a cash payment, the Committee may settle
Phantom Stock Awards with Shares having a Fair Market Value equal to the cash
payment to which the Grantee has become entitled.
10. EFFECT OF A TERMINATION OF EMPLOYMENT.
The Agreement evidencing the grant of each Option and each
Award shall set forth the terms and conditions applicable to such Option or
Award upon a termination or change in the status of the employment of the
Optionee or Grantee by the Company, a Subsidiary or a Division (including a
termination or change by reason of the sale of a Subsidiary or a Division),
which shall be as the Committee may, in its discretion, determine at the time
the Option or Award is granted or thereafter.
11. ADJUSTMENT UPON CHANGES IN CAPITALIZATION.
(a) In the event of a Change in Capitalization, the
Committee shall conclusively determine the appropriate adjustments, if any, to
(i) the maximum number and class of Shares or other stock or securities with
respect to which Options or Awards may be granted under the Plan, (ii) the
number and class of Shares or other stock or securities which are subject to
outstanding Options or Awards granted under the Plan and the exercise price
therefor, if applicable, and (iii) the Performance Objectives.
(b) Any such adjustment in the Shares or other stock or
securities (i) subject to outstanding Incentive Stock Options (including any
adjustments in the exercise price) shall be made in such manner as not to
constitute a modification as defined by Section 424(h)(3) of the Code and only
to the extent otherwise permitted by Sections 422 and 424 of the Code, or (ii)
subject to outstanding Options or Awards that are intended to qualify as
Performance-Based Compensation shall be made in such a manner as not to
adversely affect the treatment of the Option or Award as Performance-Based
Compensation.
(c) If, by reason of a Change in Capitalization, a Grantee
of an Award shall be entitled to, or an Optionee shall be entitled to exercise
an Option with respect to, new, additional or different shares of stock or
securities of the Company or any other corporation, such new, additional or
different shares shall thereupon be subject to all of the conditions,
restrictions and performance criteria which were applicable to the Shares
subject to the Award or Option, as the case may be, prior to such Change in
Capitalization.
12. EFFECT OF CERTAIN TRANSACTIONS.
Subject to Sections 5.10, 6.7, 7.4(b) and 8.4 or as otherwise
provided in an Agreement, in the event of (a) the liquidation or dissolution of
the Company or (b) a
-21-
<PAGE>
merger or consolidation of the Company (a "Transaction"), the Plan and the
Options and Awards issued hereunder shall continue in effect in accordance with
their respective terms, except that following a Transaction either (i) each
outstanding Option or Award shall be treated as provided for in the agreement
entered into in connection with the Transaction or (ii) if not so provided in
such agreement, each Optionee and Grantee shall be entitled to receive in
respect of each Share subject to any outstanding Options or Awards, as the case
may be, upon exercise of any Option or payment or transfer in respect of any
Award, the same number and kind of stock, securities, cash, property or other
consideration that each holder of a Share was entitled to receive in the
Transaction in respect of a Share; PROVIDED, HOWEVER, that such stock,
securities, cash, property, or other consideration shall remain subject to all
of the conditions, restrictions and performance criteria which were applicable
to the Options and Awards prior to such Transaction. The treatment of any Option
or Award as provided in this Section 12 shall be conclusively presumed to be
appropriate for purposes of Section 11.
13. INTERPRETATION.
Following the required registration of any equity security of
the Company pursuant to Section 12 of the Exchange Act:
(a) The Plan is intended to comply with Rule 16b-3
promulgated under the Exchange Act and the Committee shall interpret and
administer the provisions of the Plan or any Agreement in a manner consistent
therewith. Any provisions inconsistent with such Rule shall be inoperative and
shall not affect the validity of the Plan.
(b) Unless otherwise expressly stated in the relevant
Agreement, each Option, Stock Appreciation Right and Performance Award granted
under the Plan is intended to be Performance-Based Compensation. The Committee
shall not be entitled to exercise any discretion otherwise authorized hereunder
with respect to such Options or Awards if the ability to exercise such
discretion or the exercise of such discretion itself would cause the
compensation attributable to such Options or Awards to fail to qualify as
Performance-Based Compensation.
(c) To the extent that any legal requirement of Section 16
of the Exchange Act or Section 162(m) of the Code as set forth in the Plan
ceases to be required under Section 16 of the Exchange Act or Section 162(m) of
the Code, that Plan provision shall cease to apply.
14. POOLING TRANSACTIONS.
Notwithstanding anything contained in the Plan or any
Agreement to the contrary, in the event of a Change in Control which is also
intended to constitute a
-22-
<PAGE>
Pooling Transaction, the Committee shall take such actions, if any, as are
specifically recommended by an independent accounting firm retained by the
Company to the extent reasonably necessary in order to assure that the Pooling
Transaction will qualify as such, including but not limited to (a) deferring the
vesting, exercise, payment, settlement or lapsing of restrictions with respect
to any Option or Award, (b) providing that the payment or settlement in respect
of any Option or Award be made in the form of cash, Shares or securities of a
successor or acquirer of the Company, or a combination of the foregoing, and (c)
providing for the extension of the term of any Option or Award to the extent
necessary to accommodate the foregoing, but not beyond the maximum term
permitted for any Option or Award.
15. TERMINATION AND AMENDMENT OF THE PLAN OR MODIFICATION OF
OPTIONS AND AWARDS.
15.1 PLAN AMENDMENT OR TERMINATION. Plan shall terminate on
the day preceding the tenth anniversary of the date of its adoption by the Board
and no Option or Award may be granted thereafter. The Board may sooner terminate
the Plan and the Board may at any time and from time to time amend, modify or
suspend the Plan; PROVIDED, HOWEVER, that:
(a) no such amendment, modification, suspension or
termination shall impair or adversely alter any Options or Awards theretofore
granted under the Plan, except with the consent of the Optionee or Grantee, nor
shall any amendment, modification, suspension or termination deprive any
Optionee or Grantee of any Shares which he or she may have acquired through or
as a result of the Plan; and
(b) to the extent necessary under any applicable law,
regulation or exchange requirement no amendment shall be effective unless
approved by the stockholders of the Company in accordance with applicable law,
regulation or exchange requirement.
15.2 MODIFICATION OF OPTIONS AND AWARDS. No modification of an
Option or Award shall adversely alter or impair any rights or obligations under
the Option or Award without the consent of the Optionee or Grantee, as the case
may be.
16. NON-EXCLUSIVITY OF THE PLAN.
The adoption of the Plan by the Board shall not be construed
as amending, modifying or rescinding any previously approved incentive
arrangement or as creating any limitations on the power of the Board to adopt
such other incentive arrangements as it may deem desirable, including, without
limitation, the granting of stock options otherwise than under the Plan, and
such arrangements may be either applicable generally or only in specific cases.
-23-
<PAGE>
17. LIMITATION OF LIABILITY.
As illustrative of the limitations of liability of the
Company, but not intended to be exhaustive thereof, nothing in the Plan shall be
construed to:
(a) give any person any right to be granted an Option or
Award other than at the sole discretion of the Committee;
(b) give any person any rights whatsoever with respect to
Shares except as specifically provided in the Plan;
(c) limit in any way the right of the Company or any
Subsidiary to terminate the employment of any person at any time; or
(d) be evidence of any agreement or understanding,
expressed or implied, that the Company will employ any person at any particular
rate of compensation or for any particular period of time.
18. REGULATIONS AND OTHER APPROVALS; GOVERNING LAW.
18.1 Except as to matters of federal law, the Plan and the
rights of all persons claiming hereunder shall be construed and determined in
accordance with the laws of the State of Delaware without giving effect to
conflicts of laws principles thereof.
18.2 The obligation of the Company to sell or deliver Shares
with respect to Options and Awards granted under the Plan shall be subject to
all applicable laws, rules and regulations, including all applicable federal and
state securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Committee.
18.3 The Board may make such changes as may be necessary or
appropriate to comply with the rules and regulations of any government
authority, or to obtain for Eligible Individuals granted Incentive Stock Options
the tax benefits under the applicable provisions of the Code and regulations
promulgated thereunder.
18.4 Each Option and Award is subject to the requirement that,
if at any time the Committee determines, in its discretion, that the listing,
registration or qualification of Shares issuable pursuant to the Plan is
required by any securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory body is necessary or
desirable as a condition of, or in connection with, the grant of an Option or
Award or the issuance of Shares, no Options or Awards shall be granted or
payment made or Shares issued, in whole or in part, unless listing,
registration, qualification, consent or approval has been effected or obtained
free of any conditions as acceptable to the Committee.
-24-
<PAGE>
18.5 Notwithstanding anything contained in the Plan or any
Agreement to the contrary, in the event that the disposition of Shares acquired
pursuant to the Plan is not covered by a then current registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), and is not
otherwise exempt from such registration, such Shares shall be restricted against
transfer to the extent required by the Securities Act and Rule 144 or other
regulations thereunder. The Committee may require any individual receiving
Shares pursuant to an Option or Award granted under the Plan, as a condition
precedent to receipt of such Shares, to represent and warrant to the Company in
writing that the Shares acquired by such individual are acquired without a view
to any distribution thereof and will not be sold or transferred other than
pursuant to an effective registration thereof under said Act or pursuant to an
exemption applicable under the Securities Act or the rules and regulations
promulgated thereunder. The certificates evidencing any of such Shares shall be
appropriately amended or have an appropriate legend placed thereon to reflect
their status as restricted securities as aforesaid.
19. MISCELLANEOUS.
19.1 MULTIPLE AGREEMENTS. The terms of each Option or Award
may differ from other Options or Awards granted under the Plan at the same time,
or at some other time. The Committee may also grant more than one Option or
Award to a given Eligible Individual during the term of the Plan, either in
addition to, or in substitution for, one or more Options or Awards previously
granted to that Eligible Individual.
19.2 WITHHOLDING OF TAXES.
(a) At such times as an Optionee or Grantee
recognizes taxable income in connection with the receipt of Shares or cash
hereunder (a "Taxable Event"), the Optionee or Grantee shall pay to the Company
an amount equal to the federal, state and local income taxes and other amounts
as may be required by law to be withheld by the Company in connection with the
Taxable Event (the "Withholding Taxes") prior to the issuance, or release from
escrow, of such Shares or the payment of such cash. The Company shall have the
right to deduct from any payment of cash to an Optionee or Grantee an amount
equal to the Withholding Taxes in satisfaction of the obligation to pay
Withholding Taxes. The Committee may provide in an Agreement evidencing an
Option or Award at the time of grant or thereafter, that the Optionee or
Grantee, in satisfaction of the obligation to pay Withholding Taxes to the
Company, may elect to have withheld a portion of the Shares issuable to him or
her pursuant to the Option or Award having an aggregate Fair Market Value equal
to the Withholding Taxes.
(b) If an Optionee makes a disposition, within the
meaning of Section 424(c) of the Code and regulations promulgated thereunder, of
any Share or Shares issued to such Optionee pursuant to the exercise of an
Incentive Stock Option within the two-year period commencing on the day after
the date of the grant or within the
-25-
<PAGE>
one-year period commencing on the day after the date of transfer of such Share
or Shares to the Optionee pursuant to such exercise, the Optionee shall, within
ten (10) days of such disposition, notify the Company thereof, by delivery of
written notice to the Company at its principal executive office.
19.3 EFFECTIVE DATE. The effective date of this Plan shall be
as determined by the Board, subject only to the approval by the holders of a
majority of the securities of the Company entitled to vote thereon, in
accordance with the applicable laws within twelve (12) months of the adoption of
the Plan by the Board.
19.4 POST-TRANSITION PERIOD. Following the Transition Period,
any Option, Stock Appreciation Right or Performance Award granted under the Plan
which is intended to be Performance-Based Compensation, shall be subject to the
approval of the material terms of the Plan by a majority of the shareholders of
the Company in accordance with Section 162(m) of the Code and the regulations
promulgated thereunder.
-26-
<PAGE>
EXHIBIT 10.8
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of [ ], 2000, by and among
Community Health Systems, Inc. (formerly known as Community Health Systems
Holdings Corp.), a Delaware corporation (the "Company"), CHS/Community Health
Systems, Inc., a Delaware corporation and a wholly-owned subsidiary of the
Company ("CHS/Community Health Systems, Inc."), and the director and/or officer
of the Company whose name appears on the signature page of this Agreement
("Indemnitee").
RECITALS
A. Highly competent persons are becoming more reluctant to serve
publicly-held corporations as directors or officers or in other capacities
unless they are provided with reasonable protection through insurance or
indemnification against risks of claims and actions against them arising out of
their service to and activities on behalf of the corporations.
B. The Board of Directors of the Company (the "Board") has determined that
the Company should act to assure its directors and officers that there will be
increased certainty of such protection in the future.
C. It is reasonable, prudent and necessary for the Company contractually
to obligate itself to indemnify such persons to the fullest extent permitted by
applicable law so that they will serve or continue to serve the Company free
from undue concern that they will not be so indemnified.
D. Indemnitee is willing to serve, to continue to serve and to take on
additional service for or on behalf of the Company on the condition that
Indemnitee be so indemnified.
E. In consideration of the benefits received and to be received by
CHS/Community Health Systems, Inc. in connection with actions taken and to be
taken by the Board and by the officers of the Company, CHS/Community Health
Systems, Inc. has determined that it is in the best interest of CHS/Community
Health Systems, Inc. for the reasons set forth above to be a party to this
Agreement and to provide indemnification to the directors and officers of the
Company in connection with their service to and activities on behalf of the
Company, CHS/Community Health Systems, Inc. and their respective subsidiaries.
F. CHS/Community Health Systems, Inc. acknowledges that for purposes of
this Agreement the directors and officers of the Company who enter into this
Agreement are serving in such capacities at the request of CHS/Community Health
Systems, Inc.
G. CHS/Community Health Systems, Inc. further acknowledges that such
directors and officers are willing to serve, to continue to serve and to take on
additional service for or on behalf of the Company, thereby benefiting
CHS/Community Health Systems, Inc. and its
<PAGE>
subsidiaries, on the condition that CHS/Community Health Systems, Inc. enter
into, and provide indemnification pursuant to, this Agreement.
AGREEMENT
In consideration of the premises and the covenants contained herein,
the Company, CHS/Community Health Systems, Inc. and Indemnitee do hereby
covenant and agree as follows:
1. DEFINITIONS.
(a) For purposes of this Agreement:
(i) "Affiliate" shall mean any corporation, partnership,
joint venture, trust or other enterprise in respect of which Indemnitee is or
was or will be serving as a director or officer directly or indirectly at the
request of the Company or CHS/Community Health Systems, Inc., and including, but
not limited to, service with respect to an employee benefit plan.
(ii) "Disinterested Director" shall mean a director of
the Company who is not or was not a party to the Proceeding in respect of which
indemnification is being sought by Indemnitee.
(iii) "Expenses" shall include all attorneys' fees and
costs, retainers, court costs, transcripts, fees of experts, witness fees,
travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees and all other disbursements or expenses
incurred in connection with asserting or defending claims.
(iv) "fines" shall include any excise taxes assessed on
Indemnitee with respect to any employee benefit plan.
(v) "Independent Counsel" shall mean a law firm or
lawyer that neither is presently nor in the past year has been retained to
represent: (i) the Company, CHS/Community Health Systems, Inc. or Indemnitee in
any matter material to any such party or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder in any matter material to
such other party. Notwithstanding the foregoing, the term "Independent Counsel"
shall not include any firm or person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing any of the Company, CHS/Community Health Systems, Inc. or
Indemnitee in an action to determine Indemnitee's right to indemnification under
this Agreement. All Expenses of the Independent Counsel incurred in connection
with acting pursuant to this Agreement shall be borne by the Company.
(vi) "Losses" shall mean all expenses, liabilities,
losses and claims (including attorneys' fees, judgments, fines, excise taxes
under the Employee Retirement Income Security Act of 1974, as amended from time
to time, penalties and amounts to be paid in settlement) incurred in connection
with any Proceeding.
-2-
<PAGE>
(vii) "Proceeding" shall include any threatened, pending
or completed action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding, whether civil,
criminal, administrative or investigative.
(b) For purposes of this Agreement, a person who acted in good
faith and in a manner such person reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the Company" as
referred to in this Agreement; the term "serving at the request of the Company
or CHS/Community Health Systems, Inc." shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on, or
involves services by, such director, officer, employee or agent with respect to
an employee benefit plan, its participants or beneficiaries; and references to
the "Company" or "CHS/Community Health Systems, Inc." shall include, in addition
to the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify Indemnitee in its capacity as a director, officer, or employee or
agent, so that Indemnitee shall stand in the same position under this Agreement
with respect to the resulting or surviving corporation as Indemnitee would have
with respect to such constituent corporation if its separate existence had
continued.
2. SERVICE BY INDEMNITEE. Indemnitee agrees to begin or continue to
serve the Company or any Affiliate as a director and/or officer. Notwithstanding
anything contained herein, this Agreement shall not create a contract of
employment between the Company or CHS/Community Health Systems, Inc. and
Indemnitee, and the termination of Indemnitee's relationship with the Company or
CHS/Community Health Systems, Inc. or an Affiliate by either party hereto shall
not be restricted by this Agreement.
3. INDEMNIFICATION. The Company and CHS/Community Health Systems,
Inc. jointly and severally agree to indemnify Indemnitee for, and hold
Indemnitee harmless from and against, any Losses or Expenses at any time
incurred by or assessed against Indemnitee arising out of or in connection with
the service of Indemnitee as a director or officer of the Company or of an
Affiliate (collectively referred to as an "Officer or Director of the Company")
to the fullest extent permitted by the laws of the State of Delaware in effect
on the date hereof or as such laws may from time to time hereafter be amended to
increase the scope of such permitted indemnification. Without diminishing the
scope of the indemnification provided by this Section, the rights of
indemnification of Indemnitee provided hereunder shall include but shall not be
limited to those rights set forth hereinafter.
4. ACTION OR PROCEEDING OTHER THAN AN ACTION BY OR IN THE RIGHT OF
THE COMPANY OR CHS/COMMUNITY HEALTH SYSTEMS, INC. Indemnitee shall be entitled
to the indemnification rights provided herein if Indemnitee is a person who was
or is made a party or is threatened to be made a party to or is involved
(including, without limitation, as a witness) in any Proceeding (other than an
action by or in the right of the Indemnitee (unless approved in advance in
writing by the Company's Board of Directors), the Company or CHS/Community
Health
-3-
<PAGE>
Systems, Inc., as the case may be) by reason of (a) the fact that Indemnitee is
or was an Officer or Director of the Company or any other entity which
Indemnitee is or was or will be serving at the request of the Company or
CHS/Community Health Systems, Inc., as the case may be, or (b) anything done or
not done by Indemnitee in any such capacity.
5. ACTIONS BY OR IN THE RIGHT OF THE COMPANY. Indemnitee shall be
entitled to the indemnification rights provided herein if Indemnitee is a person
who was or is a party or is threatened to be made a party to or is involved
(including, without limitation, as a witness) in any Proceeding brought by or in
the right of the Company or CHS/Community Health Systems, Inc. to procure a
judgment in its favor by reason of (a) the fact that Indemnitee is or was an
Officer or Director of the Company or any Affiliate, or (b) anything done or not
done by Indemnitee in any such capacity. Pursuant to this Section, Indemnitee
shall be indemnified against Losses or Expenses incurred or suffered by
Indemnitee or on Indemnitee's behalf in connection with the defense or
settlement of any Proceeding if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company or CHS/Community Health Systems, Inc. Notwithstanding the foregoing
provisions of this Section, no such indemnification shall be made in respect of
any claim, issue or matter as to which Delaware law expressly prohibits such
indemnification by reason of an adjudication of liability of Indemnitee to the
Company or CHS/Community Health Systems, Inc. unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for such Losses and
Expenses which the Court of Chancery or such other court shall deem proper.
6. INDEMNIFICATION FOR LOSSES AND EXPENSES OF PARTY WHO IS WHOLLY OR
PARTLY SUCCESSFUL. Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee has been wholly successful on the merits or otherwise in
any Proceeding referred to in Sections 3, 4 or 5 hereof on any claim, issue or
matter therein, Indemnitee shall be indemnified against all Losses and Expenses
incurred by Indemnitee or on Indemnitee's behalf in connection therewith. If
Indemnitee is not wholly successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims, issues or
matters in such Proceeding, the Company and CHS/Community Health Systems, Inc.
jointly and severally agree to indemnify Indemnitee to the maximum extent
permitted by law against all Losses and Expenses incurred by Indemnitee in
connection with each successfully resolved claim, issue or matter. In any review
or Proceeding to determine the extent of indemnification, the Company shall bear
the burden of proving any lack of success and which amounts sought in indemnity
are allocable to claims, issues or matters which were not successfully resolved.
For purposes of this Section and without limitation, the termination of any such
claim, issue or matter by dismissal with or without prejudice shall be deemed to
be a successful resolution as to such claim, issue or matter.
7. PAYMENT FOR EXPENSES OF A WITNESS. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by reason of the
fact that Indemnitee is or was an Officer or Director of the Company or any
Affiliate, as the case may be, a witness in any
-4-
<PAGE>
Proceeding, the Company and CHS/Community Health Systems, Inc. jointly and
severally agree to pay to Indemnitee all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee's behalf in connection therewith.
8. ADVANCEMENT OF EXPENSES AND COSTS. All Expenses incurred by or on
behalf of Indemnitee (or reasonably expected by Indemnitee to be incurred by
Indemnitee within three months) in connection with any Proceeding shall be paid
by the Company or CHS/Community Health Systems, Inc. in advance of the final
disposition of such Proceeding within twenty days after the receipt by the
Company or CHS/Community Health Systems, Inc. of a statement or statements from
Indemnitee requesting from time to time such advance or advances, whether or not
a determination to indemnify has been made under Section 9. Indemnitee's
entitlement to such advancement of Expenses shall include those incurred in
connection with any Proceeding by Indemnitee seeking an adjudication or award in
arbitration pursuant to this Agreement. The financial ability of Indemnitee to
repay an advance shall not be a prerequisite to the making of such advance. Such
statement or statements shall reasonably evidence such Expenses incurred (or
reasonably expected to be incurred) by Indemnitee in connection therewith and
shall include or be accompanied by a written undertaking by or on behalf of
Indemnitee to repay such amount if it shall ultimately be determined that
Indemnitee is not entitled to be indemnified therefor pursuant to the terms of
this Agreement.
9. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) When seeking indemnification under this Agreement (which
shall not include in any case the right of Indemnitee to receive payments
pursuant to Section 7 and Section 8 hereof, which shall not be subject to this
Section 9), Indemnitee shall submit a written request for indemnification to the
Company and CHS/Community Health Systems, Inc. Determination of Indemnitee's
entitlement to indemnification shall be made promptly, but in no event later
than 60 days after receipt by the Company and CHS/Community Health Systems, Inc.
of Indemnitee's written request for indemnification. The Secretary of the
Company shall, promptly upon receipt of Indemnitee's request for
indemnification, advise the Board that Indemnitee has made such request for
indemnification.
(b) The entitlement of Indemnitee to indemnification under
this Agreement shall be determined, with respect to a person who is a director
or officer at the time of such determination, in the specific case (1) by the
Board of Directors by a majority vote of the Disinterested Directors, even
though less than a quorum, or (2) by a committee of the Disinterested Directors
designated by majority vote of the Disinterested Directors, even though less
than a quorum, or (3) if there are no Disinterested Directors, or if such
Disinterested Directors so direct, by Independent Counsel, or (4) by the
stockholders. The entitlement of the Indemnitee to indemnification shall be
determined with respect to any person who is not a director or officer at the
time of such determination by any means reasonably determined by the Company.
-5-
<PAGE>
(c) In the event the determination of entitlement is to be
made by Independent Counsel, such Independent Counsel shall be selected by the
Board and the Board of Directors of CHS/Community Health Systems, Inc. and
approved by Indemnitee. Upon failure of the Board and the Board of Directors of
CHS/Community Health Systems, Inc. to so select such Independent Counsel or upon
failure of Indemnitee to so approve, such Independent Counsel shall be selected
by the American Arbitration Association of New York, New York or such other
person as such Association shall designate to make such selection.
(d) If a determination is made pursuant to Section 9(b) is
that Indemnitee is not entitled to indemnification to the full extent of
Indemnitee's request, Indemnitee shall have the right to seek entitlement to
indemnification in accordance with the procedures set forth in Section 10
hereof.
(e) If a determination with respect to entitlement to
indemnification shall not have been made within 60 days after receipt by the
Company and CHS/Community Health Systems, Inc. of such request, the requisite
determination of entitlement to indemnification shall be deemed to have been
made and Indemnitee shall be absolutely entitled to such indemnification, absent
(i) misrepresentation by Indemnitee of a material fact in the request for
indemnification or (ii) a final judicial determination that all or any part of
such indemnification is expressly prohibited by law.
(f) The termination of any Proceeding by judgment, order,
settlement or conviction, or upon a plea of NOLO CONTENDERE or its equivalent,
shall not, of itself, adversely affect the rights of Indemnitee to
indemnification hereunder except as may be specifically provided herein, or
create a presumption that Indemnitee did not act in good faith and in a manner
which Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company or CHS/Community Health Systems, Inc., as the case may
be, or create a presumption that (with respect to any criminal action or
proceeding) Indemnitee had reasonable cause to believe that Indemnitee's conduct
was unlawful.
(g) For purposes of any determination of good faith hereunder,
Indemnitee shall be deemed to have acted in good faith if in taking such action
Indemnitee relied on the records or books of account of the Company or an
Affiliate, including financial statements, or on information supplied to
Indemnitee by the officers of the Company or an Affiliate in the course of their
duties, or on the advice of legal counsel for the Company or an Affiliate or on
information or records given or reports made to the Company or an Affiliate by
an independent certified public accountant or by an appraiser or other expert
selected with reasonable care to the Company or an Affiliate. The Company shall
have the burden of establishing the absence of good faith. The provisions of
this Section 9(g) shall not be deemed to be exclusive or to limit in any way the
other circumstances in which Indemnitee may be deemed to have met the applicable
standard of conduct set forth in this Agreement.
(h) The knowledge and/or actions, or failure to act, of any
other director, officer, agent or employee of the Company or an Affiliate shall
not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement.
-6-
<PAGE>
10. REMEDIES IN CASES OF DETERMINATION NOT TO INDEMNIFY OR TO
ADVANCE EXPENSES.
(a) In the event that (i) a determination is made that
Indemnitee is not entitled to indemnification hereunder, (ii) advances are not
made pursuant to Section 8 hereof or (iii) payment has not been timely made
following a determination of entitlement to indemnification pursuant to Section
9 hereof, Indemnitee shall be entitled to seek a final adjudication either
through an arbitration proceeding or in an appropriate court of the State of
Delaware or any other court of competent jurisdiction of Indemnitee's
entitlement to such indemnification or advance.
(b) In the event a determination has been made in accordance
with the procedures set forth in Section 9 hereof, in whole or in part, that
Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration referred to in Section 10(a) shall be DE NOVO and Indemnitee shall
not be prejudiced by reason of any such prior determination that Indemnitee is
not entitled to indemnification, and the Company shall bear the burdens of proof
specified in Sections 6 and 9 hereof in such proceeding.
(c) If a determination is made or deemed to have been made
pursuant to the terms of Section 9 or 10 hereof that Indemnitee is entitled to
indemnification, the Company and CHS/Community Health Systems, Inc. shall be
bound by such determination in any judicial proceeding or arbitration in the
absence of (i) a misrepresentation of a material fact by Indemnitee or (ii) a
final judicial determination that all or any part of such indemnification is
expressly prohibited by law.
(d) To the extent deemed appropriate by the court, interest
shall be paid by the Company or CHS/Community Health Systems, Inc., or both, to
Indemnitee at a reasonable interest rate for amounts which the Company or
CHS/Community Health Systems, Inc., or both, indemnifies or is obliged to
indemnify Indemnitee for the period commencing with the date on which Indemnitee
requested indemnification (or reimbursement or advancement of any Expenses) and
ending with the date on which such payment is made to Indemnitee by the Company
or CHS/Community Health Systems, Inc., or both.
11. EXPENSES INCURRED BY INDEMNITEE TO ENFORCE THIS AGREEMENT. All
Expenses incurred by Indemnitee in connection with the preparation and
submission of Indemnitee's request for indemnification hereunder shall be
jointly and severally borne by the Company and CHS/Community Health Systems,
Inc. In the event that Indemnitee is a party to or intervenes in any proceeding
in which the validity or enforceability of this Agreement is at issue or seeks
an adjudication to enforce Indemnitee's rights under, or to recover damages for
breach of, this Agreement, Indemnitee, if Indemnitee prevails in whole in such
action, shall be entitled to recover from the Company and CHS/Community Health
Systems, Inc., and shall be jointly and severally indemnified by the Company and
CHS/Community Health Systems, Inc. against, any Expenses incurred by Indemnitee.
If it is determined that Indemnitee is entitled to indemnification for part (but
not all) of the indemnification so requested, Expenses incurred in seeking
enforcement of such partial indemnification shall be reasonably prorated among
the
-7-
<PAGE>
claims, issues or matters for which Indemnitee is entitled to indemnification
and for claims, issues or matters for which Indemnitee is not so entitled.
12. NON-EXCLUSIVITY. The rights of indemnification and to receive
advances as provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled under any law,
certificate of incorporation, by-law, other agreement, vote of stockholders or
resolution of directors or otherwise, both as to action in Indemnitee's official
capacity and as to action in another capacity while holding such office. To the
extent Indemnitee would be prejudiced thereby, no amendment, alteration,
rescission or replacement of this Agreement or any provision hereof shall be
effective as to Indemnitee with respect to any action taken or omitted by such
Indemnitee in Indemnitee's position with the Company or an Affiliate or any
other entity which Indemnitee is or was serving at the request of the Company or
CHS/Community Health Systems, Inc. prior to such amendment, alteration,
rescission or replacement.
13. DURATION OF AGREEMENT. This Agreement shall apply to any claim
asserted and any Losses and Expenses incurred in connection with any claim
asserted on or after the effective date of this Agreement and shall continue
until and terminate upon the later of: (a) ten years after Indemnitee has ceased
to occupy any of the positions or have any of the relationships described in
Section 3, 4 or 5 hereof; or (b) one year after the final termination of all
pending or threatened Proceedings of the kind described herein with respect to
Indemnitee. This Agreement shall be binding upon the Company and CHS/Community
Health Systems, Inc. and their respective successors and assigns and shall inure
to the benefit of Indemnitee and Indemnitee's spouse, assigns, heirs, devisee,
executors, administrators or other legal representatives.
14. MAINTENANCE OF D&O INSURANCE.
(a) The Company and CHS/Community Health Systems, Inc. each
hereby covenants and agrees with Indemnitee that, so long as Indemnitee shall
continue to serve as an Officer or Director of the Company and thereafter so
long as Indemnitee shall be subject to any possible claim or threatened, pending
or completed Proceeding, whether civil, criminal or investigative, by reason of
the fact that Indemnitee was an Officer or Director of the Company or any other
entity which Indemnitee was serving at the request of the Company or
CHS/Community Health Systems, Inc., the Company and CHS/Community Health
Systems, Inc. shall maintain in full force and effect (i) the directors' and
officers' liability insurance issued by the insurer and having the policy amount
and deductible as currently in effect with respect to directors and officers of
the Company or any of its subsidiaries and (ii) any replacement or substitute
policies issued by one or more reputable insurers providing in all respects
coverage at least comparable to and in the same amount as that currently
provided under such existing policy (collectively, "D&O Insurance").
(b) In all policies of D&O Insurance, Indemnitee shall be
named as an insured in such a manner as to provide Indemnitee the same rights
and benefits, subject to the same limitations, as are accorded to the Company's
directors or officers most favorably insured by such policy.
-8-
<PAGE>
(c) Notwithstanding anything to the contrary set forth in (a)
above, the Company and CHS/Community Health Systems, Inc. shall have no
obligation to maintain D&O Insurance if the Company and CHS/Community Health
Systems, Inc. determine in good faith that such insurance is not reasonably
available, the premium cost for such insurance is disproportionate to the amount
of coverage provided or the coverage provided by such insurance is limited by
exclusions so as to provide an insufficient benefit.
15. SEVERABILITY. Should any part, term or condition hereof be
declared illegal or unenforceable or in conflict with any other law, the
validity of the remaining portions or provisions hereof shall not be affected
thereby, and the illegal or unenforceable portions hereof shall be and hereby
are redrafted to conform with applicable law, while leaving the remaining
portions hereof intact.
16. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
17. HEADINGS. Section headings are for convenience only and do
not control or affect meaning or interpretation of any terms or provisions
hereof.
18. MODIFICATION AND WAIVER. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by each
of the parties hereto.
19. NO DUPLICATIVE PAYMENT. The Company and CHS/Community Health
Systems, Inc. shall not be liable under this Agreement to make any payment of
amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee
has otherwise actually received such payment (net of Expenses incurred in
collecting such payment) under any insurance policy, contract, agreement or
otherwise.
20. NOTICES. All notices, requests, demands and other communications
provided for by this Agreement shall be in writing (including telecopier or
similar writing) and shall be deemed to have been given at the time when mailed,
enclosed in a registered or certified postpaid envelope, in any general or
branch office of the United States Postal Service, or sent by Federal Express or
other similar overnight courier service, addressed to the address of the parties
stated below or to such changed address as such party may have fixed by notice
or, if given by telecopier, when such telecopy is transmitted and the
appropriate answerback is received.
(a) If to Indemnitee, to the address appearing on the signature
page hereof.
(b) If to the Company or CHS/Community Health Systems, Inc. to:
Community Health Systems, Inc.
155 Franklin Road, Suite 400
Brentwood, TN 37027
Attention: Vice President and General Counsel
-9-
<PAGE>
21. GOVERNING LAW. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the internal laws of
the State of Delaware without regard to its conflicts of law rules.
22. ENTIRE AGREEMENT. Subject to the provisions of Section 12
hereof, this Agreement constitutes the entire understanding between the parties
and supersedes all proposals, commitments, writings, negotiations and
understandings, oral and written, and all other communications between the
parties relating to the subject matter hereof. This Agreement may not be amended
or otherwise modified except in writing duly executed by all of the parties. A
waiver by any party of any breach or violation of this Agreement shall not be
deemed or construed as a waiver of any subsequent breach or violation thereof.
-10-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
COMMUNITY HEALTH SYSTEMS, INC.
By:____________________________________
Name:__________________________________
Title:_________________________________
CHS/COMMUNITY HEALTH SYSTEMS, INC.
By:____________________________________
Name:__________________________________
Title:_________________________________
INDEMNITEE
Name:___________________________________
Address:________________________________
City and State:_________________________
Telecopier Number:______________________
-11-
<PAGE>
EXHIBIT 10.11
April __, 2000
Forstmann Little & Co. Equity Partnership - V, L.P.
767 Fifth Avenue, 44th Floor
New York, New York 10153
Dear Sirs:
This letter will confirm our agreement that in connection with your
investment in Community Health Systems, Inc. (the "Company"), Forstmann Little &
Co. Equity Partnership - V, L.P. ("Investor"), will be entitled to the following
contractual management rights relating to the Company so long as Investor shall
own any voting securities of the Company (collectively, the
"Management Rights"):
(1) Investor shall be entitled to consult with and advise management of the
Company on significant business issues, including management's proposed
annual operating plans, and management will meet with representatives of
Investor (the "Representatives") at the Company's facilities at mutually
agreeable times for such consultation and advice, including to review
progress in achieving said plans. The Company shall give Investor
reasonable advance written notice of any significant new initiatives or
material changes to existing operating plans and shall afford Investor
adequate time to meet with management to consult on such initiatives or
changes prior to implementation. The Company agrees to give due
consideration to the advice given and any proposals made by Investor;
(2) Investor may inspect all contracts, books, records, personnel, offices and
other facilities and properties of the Company and, to the extent
available to the Company after the Company uses reasonable efforts to
obtain them, the records of its legal advisors and accountants, including
the accountants' work papers, and Investor may make such copies and
inspections thereof as Investor may reasonably request. The Company shall
furnish Investor with such financial and operating data and other
information with respect to the business and properties of the Company as
the Investor may request. The Company shall permit the Representatives to
discuss the affairs, finances and accounts of the Company with, and to
make proposals and furnish advice with respect thereto, the principal
officers of the Company;
<PAGE>
(3) Investor shall have the following rights regarding the appointment of a
representative to the Company's Board of Directors (the "Board"). Investor
shall provide to the Board, a reasonable period of time before the Board
or the Company distributes to stockholders a proxy statement or other
materials in connection with the election of directors, the name of
Investor's nominee as director (the "Nominee"), as well as any other
information regarding the Nominee as the Company may reasonably request.
The selection by Investor of the Nominee shall be made after consultation
with the Company, and Investor shall not designate a Nominee who is
unsatisfactory to the existing directors. The Board and/or the Company
shall include the Nominee as one of the persons recommended by the Board
for election as a director of the Company, solicit proxies from
stockholders in favor of the election of the Nominee as a director, and
otherwise use all reasonable efforts to cause the Nominee to be elected as
a director of the Company. In the event the Nominee elected to the Board
shall cease to serve as a director for any reason, the Board shall fill
the vacancy resulting therefrom with another Nominee. If the Company has a
classified Board of Directors, Investor shall only be required to
designate a Nominee, and the Company shall only be required to take steps
to cause the Nominee to be elected, in the year in which the Nominee's
class of directors is up for election. The Board shall not be required to
fulfill its obligations under this paragraph to the extent that doing so
would be in contravention of its fiduciary duties to the Company's
stockholders; and
(4) At any time during which Investor does not have a Representative on the
Board, the Company shall, after receiving notice from Investor as to the
identity of any Representative, (i) permit a Representative to attend all
Board meetings and all committees thereof as an observer; (ii) provide the
Representative advance notice of each such meeting, including such
meeting's time and place, at the same time and in the same manner as such
notice is provided to the members of the Board (or such committee thereof)
and copies of all materials distributed to the members of the Board (or
such committee thereof) at the same time as such materials are distributed
to such Board (or such committee thereof) and shall permit the
Representative to have the same access to information concerning the
business and operations of the Company; and (iii) permit the
Representative to discuss the affairs, finances and accounts of the
Company with, and to make proposals and furnish advice with respect
thereto to, the Board, without voting, and the Board and the Company's
officers shall take such proposals or advice seriously and give due
consideration thereto. Reasonable costs and expenses incurred by the
Representative for the purposes of attending Board (or committee) meetings
and conducting other Company business will be paid by the Company.
- 2 -
<PAGE>
Investor agrees, and shall cause each of its Representatives to agree, to
hold in confidence and trust and not use or disclose any confidential
information provided to or learned by it in connection with the exercise of
Investor's Management Rights under this letter agreement, unless otherwise
required by law or unless such confidential information otherwise becomes
publicly available or available to it other than through this letter agreement.
Very truly yours,
COMMUNITY HEALTH SYSTEMS, INC.
By:
----------------------------
Name:
Title:
AGREED AND ACCEPTED THIS
__ day of April, 2000
FORSTMANN LITTLE & CO. EQUITY PARTNERSHIP - V, L.P.
By: FLC XXX Partnership,
its General Partner
By:
---------------------
General Partner
- 3 -
<PAGE>
April __, 2000
Forstmann Little & Co. Subordinated Debt and Equity Management Buyout
Partnership - VI, L.P.
767 Fifth Avenue, 44th Floor
New York, New York 10153
Dear Sirs:
This letter will confirm our agreement that in connection with your
investment in Community Health Systems, Inc. (the "Company"), Forstmann Little &
Co. Subordinated Debt and Equity Management Buyout Partnership - VI, L.P.
("Investor"), will be entitled to the following contractual management rights
relating to the Company so long as Investor shall own any voting securities of
the Company (collectively, the "Management Rights"):
(1) Investor shall be entitled to consult with and advise management of the
Company on significant business issues, including management's proposed
annual operating plans, and management will meet with representatives of
Investor (the "Representatives") at the Company's facilities at mutually
agreeable times for such consultation and advice, including to review
progress in achieving said plans. The Company shall give Investor
reasonable advance written notice of any significant new initiatives or
material changes to existing operating plans and shall afford Investor
adequate time to meet with management to consult on such initiatives or
changes prior to implementation. The Company agrees to give due
consideration to the advice given and any proposals made by Investor;
(2) Investor may inspect all contracts, books, records, personnel, offices and
other facilities and properties of the Company and, to the extent
available to the Company after the Company uses reasonable efforts to
obtain them, the records of its legal advisors and accountants, including
the accountants' work papers, and Investor may make such copies and
inspections thereof as Investor may reasonably request. The Company shall
furnish Investor with such financial and operating data and other
information with respect to the business and properties of the Company as
the Investor may request. The Company shall permit the Representatives to
discuss the affairs, finances and accounts of the Company with, and to
make proposals and furnish advice with respect thereto, the principal
officers of the Company;
<PAGE>
(3) Investor shall have the following rights regarding the appointment of a
representative to the Company's Board of Directors (the "Board"). Investor
shall provide to the Board, a reasonable period of time before the Board
or the Company distributes to stockholders a proxy statement or other
materials in connection with the election of directors, the name of
Investor's nominee as director (the "Nominee"), as well as any other
information regarding the Nominee as the Company may reasonably request.
The selection by Investor of the Nominee shall be made after consultation
with the Company, and Investor shall not designate a Nominee who is
unsatisfactory to the existing directors. The Board and/or the Company
shall include the Nominee as one of the persons recommended by the Board
for election as a director of the Company, solicit proxies from
stockholders in favor of the election of the Nominee as a director, and
otherwise use all reasonable efforts to cause the Nominee to be elected as
a director of the Company. In the event the Nominee elected to the Board
shall cease to serve as a director for any reason, the Board shall fill
the vacancy resulting therefrom with another Nominee. If the Company has a
classified Board of Directors, Investor shall only be required to
designate a Nominee, and the Company shall only be required to take steps
to cause the Nominee to be elected, in the year in which the Nominee's
class of directors is up for election. The Board shall not be required to
fulfill its obligations under this paragraph to the extent that doing so
would be in contravention of its fiduciary duties to the Company's
stockholders; and
(4) At any time during which Investor does not have a Representative on the
Board, the Company shall, after receiving notice from Investor as to the
identity of any Representative, (i) permit a Representative to attend all
Board meetings and all committees thereof as an observer; (ii) provide the
Representative advance notice of each such meeting, including such
meeting's time and place, at the same time and in the same manner as such
notice is provided to the members of the Board (or such committee thereof)
and copies of all materials distributed to the members of the Board (or
such committee thereof) at the same time as such materials are distributed
to such Board (or such committee thereof) and shall permit the
Representative to have the same access to information concerning the
business and operations of the Company; and (iii) permit the
Representative to discuss the affairs, finances and accounts of the
Company with, and to make proposals and furnish advice with respect
thereto to, the Board, without voting, and the Board and the Company's
officers shall take such proposals or advice seriously and give due
consideration thereto. Reasonable costs and expenses incurred by the
Representative for the purposes of attending Board (or committee) meetings
and conducting other Company business will be paid by the Company.
<PAGE>
Investor agrees, and shall cause each of its Representatives to agree, to
hold in confidence and trust and not use or disclose any confidential
information provided to or learned by it in connection with the exercise of
Investor's Management Rights under this letter agreement, unless otherwise
required by law or unless such confidential information otherwise becomes
publicly available or available to it other than through this letter agreement.
Very truly yours,
COMMUNITY HEALTH SYSTEMS, INC.
By:
----------------------------
Name:
Title:
AGREED AND ACCEPTED THIS
__ day of April, 2000
FORSTMANN LITTLE & CO. SUBORDINATED DEBT AND EQUITY MANAGEMENT BUYOUT
PARTNERSHIP - VI, L.P.
By: FLC XXIX Partnership,
its General Partner
By:
----------------------
General Partner
<PAGE>
EXHIBIT 10.17
COMMUNITY HEALTH SYSTEMS, INC.
Employee Stock Purchase PROGRAM
ARTICLE 1
PURPOSE
COMMUNITY HEALTH SYSTEMS, INC. Employee Stock Purchase Program (the "Program")
is created for the purpose of encouraging stock ownership by employees of
COMMUNITY HEALTH SYSTEMS, INC. (the "Company") and its subsidiaries so that they
may share in the ownership of the Company by acquiring or increasing their
proprietary interest in the Company by purchasing shares of the Company on the
open market following the Company's initial public offering (the "IPO") with
amounts accumulated through payroll deductions.
ARTICLE 2
ADMINISTRATION OF THE PROGRAM
The Program will be administered by a committee (the "Committee") appointed by
the Compensation Committee of the Board of Directors of the Company. The
Compensation Committee shall determine the number of members of the Committee
and, from time to time, may add or remove members from the Committee. The
Committee may select one of its members as chairperson and may hold meetings at
such times and places as it may determine. Acts by a majority of the Committee,
or acts approved in writing by a majority of the Committee, shall be the valid
acts of the Committee.
The interpretation and construction by the Committee of any provision of the
Program shall be final unless otherwise determined by the Compensation
Committee. The Committee may adopt, from time to time, such rules and
regulations as it deems appropriate for carrying out the Program. No member of
the Compensation Committee or the Committee shall be liable for any action or
determination made in good faith with respect to the Program.
In the event the Compensation Committee fails to appoint or refrains from
appointing a Committee, the Compensation Committee shall have the power and
authority to administer the Program. In such event, the term "Committee"
wherever used herein shall be deemed to mean the Compensation Committee.
<PAGE>
ARTICLE 3
ELIGIBLE EMPLOYEES
All employees of the Company (including employees of its subsidiaries and
divisions) will be eligible to participate in the Program; PROVIDED, HOWEVER,
the Committee may designate that certain employees or classes of employees shall
not participate in the Program.
ARTICLE 4
SHARES TO BE PURCHASED
The stock subject to purchase under the Program is common stock of the Company
(the "Shares") which will be purchased on the open market following the IPO.
ARTICLE 5
COMPANY EXPENDITURES
The Company will limit its expenditures under the Program to those involved in
making payroll deductions and paying the reasonable administrative fees of the
broker or other agent designated from time to time by the Committee to purchase
Shares under the Program. The Company shall not pay for other transaction
charges involved in purchasing Shares or for the costs involved with a
participating employee's sale of Shares purchased under the Program. The Company
will not make any contributions to the Program or otherwise subsidize the cost
of acquiring Shares pursuant to the Program.
ARTICLE 6
PAYROLL DEDUCTIONS
All Shares purchased under the Program shall be with amounts withheld from the
pay of participating employees through authorized payroll deductions.
Participating employee payroll deductions shall be in whole dollar increments of
the employee's base pay for any payroll period, with a minimum deduction of not
less than $10 per week and a maximum deduction not to exceed 10% of the
participating employee's gross base pay (exclusive of overtime and net of
withholding and other deductions). Participating employees may authorize
increases or decreases in the amount of payroll deductions by forwarding notice
of the change to the Company. Such change in the amount of the payroll
deductions shall be effective as soon as administratively practicable following
the receipt of such notice.
-2-
<PAGE>
ARTICLE 7
AUTHORIZATION FOR ENTERING THE PROGRAM
An eligible employee may enter the Program by completing, signing, and
delivering to the Company an authorization form provided by the Company. Such
authorization will take effect as soon as administratively practicable following
the receipt of the authorization form. Unless a participating employee
authorizes changes to his/her payroll deductions in accordance with Article 6 or
withdraws from the Program, his/her deductions under the latest authorization on
file with the Company shall continue from one payroll period to the succeeding
payroll period as long as the Program remains in effect.
ARTICLE 8
REMITTANCE OF PAYROLL DEDUCTIONS
The Committee will establish one or more accounts under which it will credit to
each participant amounts deducted from the participant's pay pursuant to
Articles 6 and 7. No interest or other earnings shall be paid on such amounts.
The Company shall remit the accumulated payroll deductions to the designated
broker on a weekly basis for the purchase of Shares pursuant to Article 9 below.
The Committee or its designee (which may be the designated broker) shall provide
for the maintenance of suitable records to reflect the payroll deductions and
Shares purchased for each participating employee.
ARTICLE 9
PURCHASE OF SHARES
Following the IPO, the designated broker shall purchase Shares under the Program
on the open market for any week at any time during that week or as soon as
administratively practicable following the receipt of the accumulated employee
payroll deductions and allocate such Shares (or fractions thereof) to individual
accounts maintained for each participating employee. In the event the purchase
of the Shares takes place over a number of days and at different prices, then
the Shares purchased for each participating employee shall be determined on the
basis of the average price per share over such period.
-3-
<PAGE>
ARTICLE 10
MAINTENANCE OF BROKER ACCOUNTS
The Shares purchased under the Program shall be held by the broker or its
nominee. Each participating employee shall receive a statement (not less
frequently than quarterly) issued by the broker which will evidence all activity
in his/her account.
ARTICLE 11
RIGHTS AS A STOCKHOLDER
Following the purchase and allocation of Shares to a participating employee's
account, the participating employee shall have all of the rights and privileges
of a stockholder of the Company, and nothing in the Program shall be construed
as diminishing a participating employee's rights as a stockholder. As a
stockholder, each participating employee has the right to sell at any time all
or any portion of the Shares acquired under the Program and held by the broker.
All such sales of the Shares will be subject to compliance with any applicable
federal or state securities, tax, or other laws. All participating employees
assume the risk of fluctuations in the market price of the Shares.
ARTICLE 12
WITHDRAWAL FROM THE PROGRAM
A participating employee may withdraw from the Program at any time by delivering
a notice of withdrawal to the Committee. Upon processing of any such written
notice, no further payroll deductions will be made from the participating
employee during subsequent payroll periods. Such participating employees payroll
deductions accumulated prior to the processing of such notice to stop
participation shall be applied toward purchasing Shares as provided in Sections
8 and 9 above. A participating employee may elect to resume participation in the
Program by providing an authorization form pursuant to Section 7 above;
PROVIDED, HOWEVER, that such participating employee may not resume participation
for a period of three months following his or her withdrawal from the Program.
Following such three-month period, an employee's election to resume
participation shall be effective as soon as administratively practicable
following the processing of such authorization form.
-4-
<PAGE>
ARTICLE 13
NO TRANSFER OR ASSIGNMENT
An employee's rights to purchase Shares under the Program through payroll
deductions are his or hers alone and may not be transferred or assigned to, or
availed of, by any other person.
ARTICLE 14
TERMINATION OF EMPLOYEE RIGHTS
All of a participating employee's rights to purchase Shares under the Program
will terminate when he/she ceases to be an employee due to retirement,
resignation, death, termination, or for any other reason. A notice of withdrawal
will be deemed to have been received from an employee on the day his/her
employment ceases.
The Program shall not confer upon any participating employee any right to
continue in the employ of the Company or any subsidiary thereof.
ARTICLE 15
TERMINATION AND AMENDMENT TO THE PROGRAM
The Program may be terminated at any time by the Committee. Upon such
termination or any other termination of the Program, all payroll deductions will
cease. The Committee may also amend the Program from time to time in any
respect.
-5-
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Amendment No. 2 to Registration Statement
No. 333-31790 of Community Health Systems, Inc. and subsidiaries of our report
dated February 25, 2000 (May , 2000 as to Notes 9, 10, 14 and a portion of
Note 1), appearing in the Prospectus, which is a part of this Registration
Statement, and of our report dated February 25, 2000 (May , 2000 as to
Notes 9, 10, 14 and a portion of Note 1) relating to the consolidated financial
statement schedule appearing elsewhere in this Registration Statement.
We also consent to the reference to us under the heading "Experts" in such
Prospectus.
Nashville, Tennessee
May , 2000
The foregoing Consent is in the form which will be furnished by Deloitte &
Touche LLP upon completion of the recapitalization and exchange described in
Note 14 to the consolidated financial statements and assuming that from
December 31, 1999 to the date of such completion no other material events have
occurred that would affect the accompanying consolidated financial statements or
required disclosures therein.
/s/ Deloitte & Touche LLP
Nashville, Tennessee
May 2, 2000
