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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 5, 1999
REGISTRATION NO. 333-82219
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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COLUMBIA/HCA HEALTHCARE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
75-2497104
(I.R.S. Employer Identification No.)
ONE PARK PLAZA
NASHVILLE, TENNESSEE 37203
(615) 344-9551
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
JOHN M. FRANCK II
CORPORATE SECRETARY
COLUMBIA/HCA HEALTHCARE CORPORATION
ONE PARK PLAZA
NASHVILLE, TENNESSEE 37203
(615) 344-9551
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
JAMES H. CHEEK
BASS, BERRY & SIMS PLC
2700 FIRST AMERICAN CENTER
NASHVILLE, TENNESSEE 37238-2700
(615) 742-6200
RONALD J. FRAPPIER
JENKENS & GILCHRIST
A PROFESSIONAL CORPORATION
1445 ROSS AVENUE, SUITE 3200
DALLAS, TEXAS 75202
(214) 855-4500
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
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 of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
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.
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PROSPECTUS
COLUMBIA/HCA HEALTHCARE
CORPORATION
$1,500,000,000
DEBT SECURITIES
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This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission utilizing a "shelf " registration process.
Under this shelf process, we may, from time to time, sell the debt securities
described in this prospectus in one or more offerings up to a total dollar
amount of $1,500,000,000.
This prospectus provides you with a general description of the securities
we may offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. A prospectus supplement may also add, update or change information
contained in this prospectus.
You should rely only on the information incorporated by reference or
provided in this prospectus and the prospectus supplement. Neither we nor any
underwriter has authorized anyone else to provide you with different
information. This prospectus is not an offer to sell and it is not soliciting an
offer to buy these debt securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus or the
prospectus supplement is accurate as of any date other than the date on the
front of the document.
We will provide specific terms of these debt securities in supplements to
this prospectus. You should read this prospectus and any supplement carefully
before you invest.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
August 5, 1999
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WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities Exchange
Act of 1934 and file reports and other information with the SEC. You may read
and copy these reports at the public reference facilities maintained by the SEC
at 450 Fifth Street, N.W., Washington, D.C. 20549. You may obtain information on
the operation of the public reference room by calling the SEC at (800) 732-0330.
You may also inspect these reports at the SEC's New York Regional Office, Seven
World Trade Center, New York, New York 10048, at its Chicago Regional Office,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661, and at the New
York Stock Exchange, 20 Broad Street, New York, New York 10005, on which our
common stock trades. In addition, the SEC maintains an Internet site that
contains reports and other information regarding us (http://www.sec.gov).
We have registered these securities with the SEC on Form S-3 under the
Securities Act of 1933. This prospectus does not contain all of the information
set forth in the Registration Statement. You may obtain copies of the
Registration Statement, including exhibits, as discussed in the first paragraph.
The SEC allows us to "incorporate by reference" into this prospectus the
information we file with it, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus, and later
information that we file with the SEC will automatically update and supersede
this information. We incorporate by reference the following documents:
- our Annual Report on Form 10-K for the year ended December 31, 1998;
- our Quarterly Report on Form 10-Q for the quarter ended March 31, 1999;
- our Current Reports on Form 8-K dated February 23, 1999, April 21, 1999,
May 11, 1999 and July 28, 1999; and
- any future filings made with the SEC under Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 until our offering is
completed.
You may obtain copies of the above information (including exhibits), upon
written or oral request, without charge. You should direct requests to John M.
Franck II, Corporate Secretary, Columbia/HCA Healthcare Corporation, One Park
Plaza, Nashville, Tennessee 37203 or by telephone at (615) 344-9551. Our web
site address is www.columbia-hca.com.
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THE COMPANY
Columbia/HCA Healthcare Corporation is a holding company whose affiliates
own and operate hospitals and related health care entities. The term
"affiliates" includes our direct and indirect subsidiaries and partnerships and
joint ventures in which our subsidiaries are partners. At June 30, 1999, these
affiliates owned and operated 204 hospitals and 81 freestanding surgery centers
and provided extensive outpatient and ancillary services. Our affiliates are
also partners in several 50/50 joint ventures that own and operate 16 hospitals
and four freestanding surgery centers, which are accounted for using the equity
method. Our facilities are located in 24 states, England and Switzerland.
Our primary objective is to provide a comprehensive array of quality health
care services in the most cost-effective manner possible. Our hospitals provide
a full range of medical services including such medical specialties as internal
medicine, general surgery, cardiology, oncology, neurosurgery, orthopedics and
obstetrics, as well as diagnostic and emergency services. We also provide
outpatient and ancillary health care services at both our general acute care
hospitals and at our freestanding facilities, including outpatient surgery and
diagnostic centers, rehabilitation facilities, home health care agencies and
other facilities. In addition, we operate psychiatric hospitals which generally
provide a full range of mental health care services in inpatient, partial
hospitalization and outpatient settings.
We were formed in January 1990 as a Nevada corporation and reincorporated
in Delaware in September 1993. Our principal executive offices are located at
One Park Plaza, Nashville, Tennessee 37203, and our telephone number at that
address is (615) 344-9551.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of our consolidated earnings to
fixed charges for the periods presented.
<TABLE>
<CAPTION>
FOR THE SIX
MONTHS ENDED
JUNE 30, FOR THE YEAR ENDED DECEMBER 31,
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1999 1998 1998 1997 1996 1995 1994
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<S> <C> <C> <C> <C> <C> <C>
3.70x 2.86x 2.58x 1.81x 4.99x 3.94x 4.09x
</TABLE>
For the purpose of computing the ratio of earnings to fixed charges,
"earnings" consist of income from continuing operations before minority
interests, income taxes and fixed charges. "Fixed charges" consist of interest
expense, debt amortization costs and one-third of rent expense, which
approximates the interest portion of rent expense.
USE OF PROCEEDS
Unless otherwise specified in a prospectus supplement accompanying this
prospectus, we intend to use the net proceeds from the sale of the debt
securities for general corporate purposes. We intend to offer the debt
securities periodically when prevailing interest rates and other market
conditions are advantageous.
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DESCRIPTION OF THE DEBT SECURITIES
GENERAL
The description below of the general terms of the debt securities will be
supplemented by the more specific terms in the prospectus supplement.
We will issue the debt securities in one or more series under an indenture
dated as of December 16, 1993 between us and The First National Bank of Chicago,
which we will call the "Trustee." The indenture describes the terms of the debt
securities and does not limit the amount of debt securities or other unsecured,
senior debt that we may issue.
The debt securities will be unsecured and will rank equally with all of our
other unsecured and unsubordinated indebtedness. The indenture limits our
ability and that of our subsidiaries under certain circumstances to secure debt
by mortgages on our principal properties, by entering into sale and lease-back
transactions or by issuing subsidiary debt or preferred stock. In a liquidation
or reorganization of any of our subsidiaries, the right of holders of the debt
securities to participate in any distribution is subject to the prior claims of
creditors of that subsidiary, except to the extent that we are a creditor.
In addition to the following description of the debt securities, you should
refer to the detailed provisions of the indenture, a copy of which is filed as
an exhibit to the Registration Statement. The article and section numbers refer
to those in the indenture.
The prospectus supplement will specify the following terms of the issue of
debt securities:
- the title of the debt securities;
- any limit on the aggregate principal amount of the debt securities;
- the date or dates on which the debt securities may be issued and are or
will be payable;
- the rate or rates at which the debt securities will bear interest, if
any, or the method by which such rate or rates shall be determined, and
the date or dates from which such interest, if any, will accrue;
- the date or dates on which such interest, if any, will be payable, the
method of determining holders to whom any of the interest shall be
payable and the manner in which any interest payable on a global debt
security will be paid if other than book-entry;
- each office or agency where the principal, premium and interest on the
debt securities will be payable and where the debt securities may be
presented for registration of transfer or exchange;
- the period or periods within which, the price or prices at which, and the
terms and conditions upon which, the debt securities may be redeemed at
our option;
- our obligation, if any, to redeem, repay or purchase the debt securities
pursuant to any sinking fund or analogous provisions or at the option of
a holder, and the period or periods within which, the price or prices at
which, and the terms and conditions upon which, the debt securities will
be redeemed, repaid or purchased pursuant to any such obligation;
- whether the debt securities are to be issued with original issue discount
within the meaning of Section 1273(a) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder;
- whether the debt securities are to be issued in whole or in part in the
form of one or more global notes and, if so, the identity of the
depositary, if any, for such global note or notes;
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- if other than dollars, the foreign currency or currencies or foreign
currency units in which the principal, premium and interest on the debt
securities shall or may be paid and, if applicable, whether at our
election and/or that of the holder, and the conditions and manner of
determining the exchange rate or rates;
- any index used to determine the amount of payment of principal, premium
and interest on the debt securities;
- any addition to, or modification or deletion of, any events of default or
covenants provided for with respect to the debt securities;
- any other detailed terms and provisions of the debt securities that are
not inconsistent with the indenture (Section 301); and
- any special provisions for the payment of additional amounts with respect
to the debt securities.
The debt securities may be issued at a substantial discount below their
stated principal amount. The prospectus supplement will describe any federal
income tax consequences and other special considerations applicable to discount
securities. Discount securities may provide for the declaration or acceleration
of the maturity of an amount less than the principal amount if an event of
default occurs and continues.
DENOMINATIONS, REGISTRATION AND TRANSFER
Unless we state otherwise in a prospectus supplement, we will issue the
debt securities in registered form and in denominations of $1,000 or any
multiple thereof (Section 302). You will be able to exchange the debt securities
of any series (other than a global note) for an equal aggregate principal amount
of registered debt securities of the same series having the same maturity date,
interest rate and other terms, as long as the debt securities are issued in
authorized denominations. You may exchange the debt securities at the office of
the Security Registrar or co-Security Registrar that we designate in a
prospectus supplement. We will not impose any service charge for the exchange of
any debt security; however, we may ask you to pay any taxes and other
governmental charges as described in the indenture. The Security Registrar or
co-Security Registrar will effect the exchange when satisfied with your
documents of title and identity. We have appointed the Trustee as Security
Registrar (Section 305).
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in a prospectus supplement, we will make
principal, premium, and interest payments at the office of our Paying Agent. We
may determine to pay any interest, including any installment of interest, (i) by
check mailed to you at the address in the register or (ii) by wire transfer to
the holder's account (Section 307).
Unless otherwise indicated in a prospectus supplement, the Trustee will act
as our sole Paying Agent with respect to the debt securities, through its
principal office in the Borough of Manhattan, The City of New York. We will name
any additional Paying Agents in a prospectus supplement. We may at any time
rescind the designation of any Paying Agent or approve a change in the office
through which any Paying Agent acts, but we must maintain a Paying Agent in each
place of payment for a series of the debt securities.
If we have paid any moneys to the Trustee or a Paying Agent for the
principal, premium, and interest on any debt securities, and those moneys remain
unclaimed two years after due and payable, the moneys will be repaid to us and
the holder of the debt securities may thereafter look only to us for any payment
(Section 1103).
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BOOK-ENTRY SYSTEM
We may issue the debt securities in whole or in part in book-entry only
form, which means that they will be represented by one or more permanent global
notes that will be deposited with a depositary located in the United States. We
will identify the depositary and describe the specific terms of the depositary
arrangement in the prospectus supplement relating to each series. We will refer
to this form here and in the prospectus supplement as "book-entry only." The
following discussion pertains to securities that are issued in book-entry only
form.
One or more global notes will be issued to and registered in the name of
the depositary or its nominee. The depositary will keep a computerized record of
its participants (for example, your broker) whose clients have purchased the
securities. The participant will then keep a record of its clients who purchased
the securities. Beneficial interests in global notes will be shown on, and
transfers of global notes will be made only through, records maintained by the
depositary and its participants.
So long as a depositary or its nominee is the registered owner of a global
note, it will be considered the sole owner of the debt securities under the
indenture. Except as provided below, you will not be entitled to have debt
securities registered in your name, will not receive or be entitled to receive
physical delivery of the debt securities in definitive form and will not be
considered the owner under the indenture. Certain jurisdictions that require
purchasers of securities to take physical delivery of securities in definitive
form may impair the ability to transfer beneficial interests in a global note.
Neither we, the Trustee, any Paying Agent nor the Security Registrar will have
any responsibility or liability for payments on account of, or for maintaining,
supervising or reviewing any records relating to, the beneficial ownership
interests.
We will make payments of principal, premium and interest on debt securities
to the depositary or its nominee, as the registered owner of the global note. We
expect that the depositary for debt securities of a series, upon receipt of any
payment of principal, premium or interest in respect of a global note, will
credit immediately participants' accounts with payments according to their
respective holdings of beneficial interests in the global note as shown on the
records of the depositary. We also expect that standing instructions and
customary practices will govern payments by participants to owners of beneficial
interests in the global note held through the participants, as is now the case
with securities held for the accounts of customers registered in "street name."
These payments will be the responsibility of the participants.
A global note may not be transferred, except that the depositary, its
nominees and their successors may transfer an entire global note to one another.
Debt securities represented by a global security would be exchangeable for
certificates in definitive registered form with the same terms in authorized
denominations only if:
- a depositary of a series is at any time unwilling or unable to continue
as depositary and we do not appoint a successor depositary within 90
days; or
- we determine at any time not to have any debt securities represented by
one or more global notes.
In either instance, an owner of beneficial interests in a global note will be
entitled to have debt securities equal in principal amount to the beneficial
interest registered in its name and to physical delivery in definitive form
(Section 304).
LIMITATIONS ON US AND OUR SUBSIDIARIES
Limitations on Mortgages
The indenture provides that neither we nor any of our subsidiaries will
issue, assume or guarantee any indebtedness or obligation secured by mortgages,
liens, pledges or other encumbrances upon any principal property (which means
each of our acute care hospitals that
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provides general medical and surgical services), unless the debt securities
shall be secured equally and ratably with (or prior to) such debt (Section
1105). This restriction will not apply to:
- mortgages securing the purchase price or cost of construction of property
or additions, substantial repairs, alterations or improvements, if the
debt and the mortgages are incurred within 18 months of the acquisition
or completion of construction and full operation or additions, repairs,
alterations or improvements;
- mortgages existing on property at the time of its acquisition by us or
our subsidiary or on the property of a corporation at the time of the
acquisition of such corporation by us or our subsidiary;
- mortgages to secure debt on which the interest payments are exempt from
federal income tax under Section 103 of the Internal Revenue Code;
- mortgages in favor of us or a consolidated subsidiary;
- mortgages existing on the date of the indenture;
- certain mortgages to governmental entities;
- mortgages incurred in connection with the borrowing of funds used to
repay debt within 120 days in the same principal amount secured by other
mortgages on principal property with at least the same appraised fair
market value;
- mortgages incurred within 90 days (or any longer period, not in excess of
one year, as permitted by law) after acquisition of the related property
or equipment arising solely in connection with the transfer of tax
benefits in accordance with Section 168(f)(8) of the Internal Revenue
Code; and
- any extension, renewal or replacement of any mortgage referred to above,
provided the amount secured is not increased and it relates to the same
property.
Limitations on Sale and Lease-Back
The indenture provides that neither we nor any subsidiary will enter into
any sale and lease-back transaction with respect to any principal property with
another person unless either:
- we or our subsidiary could incur indebtedness secured by a mortgage on
the property to be leased; or
- within 120 days, we apply the greater of the net proceeds of the sale of
the leased property or the fair value of the leased property, net of all
debt securities delivered under the indenture, to the voluntary
retirement of our funded debt or the acquisition or construction of a
principal property (Section 1106).
Limitations on Subsidiary Debt and Preferred Stock
The indenture provides that none of our restricted subsidiaries may,
directly or indirectly, create, incur, issue, assume or otherwise become liable
with respect to, extend the maturity of, or become responsible for the payment
of, any debt or preferred stock except:
- debt outstanding on the date of the indenture;
- debt representing the assumption by one restricted subsidiary of debt of
another;
- debt or preferred stock of any corporation or partnership existing when
it becomes a subsidiary;
- debt of a restricted subsidiary arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations or
from guarantees, letters of credit,
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surety bonds or performance bonds securing any of our obligations or
those of our subsidiaries incurred or assumed in connection with the
disposition of any business, property or subsidiary, except for the
purpose of financing an acquisition, provided that the maximum aggregate
liability does not exceed the gross proceeds from the disposition;
- debt of a restricted subsidiary in respect of performance, surety and
other similar bonds, bankers acceptances and letters of credit provided
in the ordinary course of business;
- debt secured by a mortgage incurred to finance the purchase price or cost
of construction of property or additions, substantial repairs,
alterations or improvements, if the mortgage and debt are incurred within
18 months of the later of the acquisition or completion of construction
and full operation or additions, repairs, alterations or improvements and
the mortgage does not relate to any other property;
- permitted subsidiary refinancing debt (as defined in the indenture);
- debt of a restricted subsidiary to us or another subsidiary as long as we
hold it; or
- any obligation pursuant to a permitted sale and lease-back transaction
(Section 1107).
Exempted Transactions
Even if otherwise prohibited by these limitations, if the aggregate
outstanding principal amount of all our other debt and that of our subsidiaries
subject to these limitations does not exceed 15% of our consolidated net
tangible assets, then:
- we or any of our subsidiaries may issue, assume or guarantee debt secured
by mortgages;
- we or any of our subsidiaries may enter into any sale and lease-back
transaction; and
- any restricted subsidiary may issue, assume or become liable for any debt
or preferred stock (Section 1108).
EVENTS OF DEFAULT
Under the indenture, an event of default applicable to the debt securities
of any series means:
- failure to pay the principal or any premium on any debt security of that
series when due;
- failure to pay any interest on any debt security of that series when due,
continued for 30 days;
- failure to deposit any sinking fund payment in respect of any debt
security of that series when due;
- failure to perform, or the breach of, any of our other applicable
covenants or warranties in the indenture, continued for 60 days after
written notice;
- events in bankruptcy, insolvency or reorganization; and
- any other event of default provided with respect to debt securities of
that series (Section 501).
If any event of default with respect to debt securities of any series
occurs and is continuing, either the Trustee or the holders of at least 25% in
aggregate principal amount of the outstanding debt securities of that series may
declare the principal amount, or in the case of discount securities, a portion
of the principal amount, of all the debt securities of that series to be due and
payable immediately. The holders may, under certain circumstances, rescind and
annul this acceleration prior to obtaining a judgment or decree (Section 502).
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Other than the duties of the Trustee during a default to act with the
required standard of care, the Trustee is not obligated to exercise any of its
rights or powers under the indenture at the request or direction of any of the
holders unless the holders shall have offered to the Trustee reasonable
indemnity (Section 603). Subject to these indemnification provisions, the
holders of a majority in aggregate principal amount of the outstanding debt
securities of any series may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the debt securities of that
series (Section 512).
We will furnish the Trustee annually with a statement as to our performance
of certain obligations under the indenture and as to any default in our
performance (Section 1109).
MODIFICATION AND WAIVER
We and the Trustee may modify and amend the indenture with the consent of
the holders of a majority in aggregate principal amount of the outstanding debt
securities of each series affected. We must have the consent of the holder of
each outstanding debt security affected to:
- change the stated maturity of the principal of, or any installment of
interest on, any debt security;
- reduce the principal, premium or interest on any debt security;
- reduce the amount of principal of discount securities payable upon
acceleration of the maturity;
- change the currency of payment of principal, premium or interest on any
debt security;
- impair the right to institute suit for the enforcement of any payment on
or with respect to any debt security; or
- reduce the percentage of holders whose consent is required for
modification or amendment of the indenture or for waiver of compliance
with certain provisions of the indenture or certain defaults (Section
1002).
The holders of a majority in aggregate principal amount of the outstanding
debt securities of each series may, on behalf of all holders of that series,
waive any past default under the indenture with respect to debt securities of
that series. However, such holders may not waive a past default in the payment
of principal, premium or interest, or any sinking fund installment with respect
to the debt securities, or waive a covenant or provision that cannot be modified
or amended, without the consent of the holders of each outstanding debt security
affected (Section 513).
CONSOLIDATION, MERGER, SALE OR LEASE OF ASSETS
We may consolidate with or merge into, or transfer or lease our assets to,
any corporation without the consent of the holders of any of the outstanding
debt securities under the indenture if:
- the successor corporation assumes our obligations on the debt securities
and under the indenture;
- after giving effect to the transaction, no event of default, and no event
which, after notice or lapse of time or both, would become an event of
default, shall have occurred and be continuing; and
- other conditions are met (Section 901).
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DEFEASANCE
If so specified in a prospectus supplement, we may be discharged from all
obligations under the debt securities of any series, and we will not be subject
to the limitations in the indenture discussed in the above sections, if we
deposit with the Trustee trust money or U.S. government obligations that are
sufficient to pay all principal, premium and interest on the debt securities of
the series. We would deliver to the Trustee an opinion of counsel to the effect
that the deposit and related defeasance would not (1) cause the holders of the
debt securities of the series to recognize income, gain or loss for United
States income tax purposes or (2) result in the delisting of the debt securities
from any national securities exchange (if so listed) (Article Fourteen).
NOTICES
Notices to holders will be mailed to the addresses of the holders listed in
the security register (Sections 101, 105).
GOVERNING LAW
We will construe the indenture and the debt securities in accordance with
the laws of the State of New York (Section 111).
CONCERNING THE TRUSTEE
The Trustee has normal banking relationships with us.
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PLAN OF DISTRIBUTION
GENERAL
We may sell the debt securities directly to purchasers or through
underwriters, dealers or agents. We may distribute the debt securities in one or
more transactions, either at a fixed price or varying prices, at prevailing
market prices, at prices related to prevailing market prices or at negotiated
prices. The prospectus supplement will identify the terms of the offering, the
names of the underwriters or agents, the purchase price, any underwriting
discounts, the method of distribution and the time and place of delivery of the
debt securities.
In connection with the sale of debt securities, underwriters, dealers or
agents may receive discounts, concessions or commissions from us or from
purchasers for whom they act as agents. Underwriters, dealers and agents that
participate in the distribution of debt securities may qualify as underwriters
under the Securities Act of 1933. The prospectus supplement will identify any
such underwriter, dealer or agent and describe any compensation paid by us.
We may agree to indemnify underwriters, dealers and agents that participate
in the distribution of debt securities against liabilities, including
liabilities under the Securities Act of 1933.
Since each issuance of a series of these debt securities will have no
established trading market, broker-dealers may make a market in the debt
securities. We cannot assure the liquidity of the trading market for the debt
securities.
DELAYED DELIVERY ARRANGEMENT
If so indicated in a prospectus supplement, we will authorize dealers or
agents to solicit offers by certain institutions to purchase debt securities
from us pursuant to contracts providing for payment and delivery on a future
date, if so permitted by the purchaser's jurisdiction. We must approve all
institutions, which may include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others. The dealers and other agents will not be responsible
for the validity or performance of these contracts.
LEGAL OPINIONS
John M. Franck II, our Senior Counsel and Corporate Secretary, is passing
upon the validity of the debt securities for us. As of June 30, 1999, Mr. Franck
owned approximately 6,556 shares and had options to purchase 125,620 shares of
our common stock. Jenkens & Gilchrist, a Professional Corporation, is passing
upon legal matters in connection with the offering of the debt securities for
any underwriters, dealers or agents. Jenkens & Gilchrist has rendered, and
continues to render, legal services to us.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual Report on Form 10-K for the year
ended December 31, 1998, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in the registration statement. Our
financial statements are incorporated by reference in reliance on Ernst & Young
LLP's report, given on their authority as experts in accounting and auditing.
11
<PAGE> 13
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
SEC filing fee.............................................. $305,800
Accounting fees and expenses................................ 25,000*
Printing and engraving...................................... 25,000*
Blue Sky fees and expenses.................................. 10,000*
Legal fees and expenses..................................... 75,000*
Trustee's fees and expenses................................. 15,000*
Rating Agency fees.......................................... 350,000*
Miscellaneous............................................... 19,200*
--------
Total............................................. $825,000*
========
</TABLE>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our Restated Certificate of Incorporation provides that we will indemnify
and hold harmless, to the fullest extent authorized by the Delaware General
Corporation Law, which we will refer to as the DGCL, each person who was or is
made a party to, or is involved in, any action, suit or proceeding by reason of
the fact that he or she was a director or officer (or was serving at our request
as a director, officer, employee or agent for another entity).
Under Section 145 of the DGCL, a corporation may indemnify a director,
officer, employee or agent of the corporation against liability actually and
reasonably incurred if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation. In connection with a criminal proceeding, a corporation may
indemnify any director, officer, employee or agent who had no reasonable cause
to believe his or her conduct was unlawful. In actions brought by or in the
right of a corporation, however, the DGCL does not allow indemnification if the
person shall have been adjudged to be liable to the corporation. However, a
court may find that, in light of all circumstances, the person is fairly and
reasonably entitled to indemnity for expenses.
Our Restated Certificate of Incorporation provides that, to the fullest
extent permitted by the DGCL, a director shall not be liable to us or our
stockholders for monetary damages for breach of fiduciary duty as a director.
The DGCL permits these limitations of a director's liability, but does not
permit a corporation to eliminate or limit a director's liability for the
following:
- breaches of the director's duty of loyalty to the corporation or its
stockholders;
- acts or omissions not in good faith or involving intentional misconduct
or known violations of law;
- the payment of unlawful dividends or unlawful stock purchases or
redemptions; or
- transactions in which the director received an improper personal benefit.
We are insured against liabilities that we may incur by reason of our
indemnification of officers and directors in accordance with our Restated
Certificate of Incorporation. We also insure directors and officers against
liabilities that might arise out of their employment and are not subject to
indemnification under our Restated Certificate of Incorporation.
II-1
<PAGE> 14
ITEM 16. EXHIBITS.
<TABLE>
<C> <C> <S>
1 -- Form of Underwriting Agreement.
4 -- Indenture dated as of December 16, 1993 between the Company
and The First National Bank of Chicago as Trustee (filed as
Exhibit 4.11 to the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1993, and
incorporated herein by reference).
*5 -- Opinion of John M. Franck II, Esq.
12 -- Statement regarding computation of ratio of earnings to
fixed charges (filed as Exhibit 12 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended March
31, 1999, and incorporated herein by reference, and filed as
Exhibit 12 to the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1998, and
incorporated herein by reference).
23.1 -- Consent of Ernst & Young LLP, independent auditors.
*23.2 -- Consent of John M. Franck II, Esq. appears in his opinion
filed as Exhibit 5.
*24 -- Power of Attorney of certain signatories.
*25 -- Statement of Eligibility of Trustee on Form T-1.
</TABLE>
- -------------------------
* Previously filed
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
II-2
<PAGE> 15
incorporated by reference in the Registration Statement 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.
(5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 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 a 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 Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE> 16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Nashville, State of Tennessee, on August 5, 1999.
COLUMBIA/HCA HEALTHCARE CORPORATION
By: /s/ DAVID G. ANDERSON
------------------------------------
David G. Anderson
Senior Vice President - Finance and
Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment thereto has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ THOMAS F. FRIST, JR., M.D.* Chairman of the Board, Chief August 5, 1999
- ----------------------------------------------------- Executive Officer and
Thomas F. Frist, Jr., M.D. Director (Principal
Executive Officer)
/s/ DAVID G. ANDERSON Senior Vice President August 5, 1999
- ----------------------------------------------------- - Finance and Treasurer
David G. Anderson (Principal Financial
Officer)
/s/ R. MILTON JOHNSON* Senior Vice President and August 5, 1999
- ----------------------------------------------------- Controller (Principal
R. Milton Johnson Accounting Officer)
/s/ MAGDALENA H. AVERHOFF, M.D.* Director August 5, 1999
- -----------------------------------------------------
Magdalena H. Averhoff, M.D.
/s/ J. MICHAEL COOK* Director August 5, 1999
- -----------------------------------------------------
J. Michael Cook
/s/ MARTIN FELDSTEIN* Director August 5, 1999
- -----------------------------------------------------
Martin Feldstein
/s/ FREDERICK W. GLUCK* Director August 5, 1999
- -----------------------------------------------------
Frederick W. Gluck
/s/ T. MICHAEL LONG* Director August 5, 1999
- -----------------------------------------------------
T. Michael Long
/s/ JOHN H. MCARTHUR* Director August 5, 1999
- -----------------------------------------------------
John H. McArthur
</TABLE>
II-4
<PAGE> 17
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ R. CLAYTON MCWHORTER* Director August 5, 1999
- -----------------------------------------------------
R. Clayton McWhorter
/s/ THOMAS S. MURPHY* Director August 5, 1999
- -----------------------------------------------------
Thomas S. Murphy
/s/ KENT C. NELSON* Director August 5, 1999
- -----------------------------------------------------
Kent C. Nelson
/s/ CARL E. REICHARDT* Director August 5, 1999
- -----------------------------------------------------
Carl E. Reichardt
/s/ FRANK S. ROYAL, M.D.* Director August 5, 1999
- -----------------------------------------------------
Frank S. Royal, M.D.
*By: /s/ JOHN M. FRANCK II
------------------------------------------------
John M. Franck II
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 18
INDEX TO EXHIBITS
<TABLE>
<C> <C> <S>
1 -- Form of Underwriting Agreement.
4 -- Indenture dated as of December 16, 1993 between the Company
and The First National Bank of Chicago as Trustee (filed as
Exhibit 4.11 to the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1993, and
incorporated herein by reference).
*5 -- Opinion of John M. Franck II, Esq.
12 -- Statement regarding computation of ratio of earnings to
fixed charges (filed as Exhibit 12 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended March
31, 1999, and incorporated herein by reference, and filed as
Exhibit 12 to the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1998, and
incorporated herein by reference.)
23.1 -- Consent of Ernst & Young LLP, independent auditors.
*23.2 -- Consent of John M. Franck II, Esq. appears in his opinion
filed as Exhibit 5.
*24 -- Power of Attorney of certain signatories.
*25 -- Statement of Eligibility of Trustee on Form T-1.
</TABLE>
- ---------------
* Previously filed
<PAGE> 1
EXHIBIT 1
COLUMBIA/HCA HEALTHCARE CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
____________, 1999
From time to time, COLUMBIA/HCA HEALTHCARE CORPORATION, a Delaware
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein sometimes referred to as this Agreement. Terms not defined
herein shall have the meanings ascribed to them in the Underwriting Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Debt Securities and has filed with, or shall promptly hereafter file with, the
Commission a prospectus supplement (the "Prospectus Supplement") specifically
relating to the Offered Securities pursuant to Rule 424 or Rule 434 under the
Securities Act of 1933, as amended (the "Securities Act"). The term
"Registration Statement" means the registration statement, including the
exhibits thereto, as amended to the date of this Agreement, and also includes
any registration statement registering securities covered by the Basic
Prospectus pursuant to Rule 429 of the Securities Act. The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the Prospectus
Supplement. The term "preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Offered Securities, together with the
Basic Prospectus. As used herein, the terms "Registration Statement," "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Registration Statement or the
Prospectus that are filed subsequent to the date of the Basic Prospectus by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
The term "Contract Securities" means the Offered Securities to be
purchased pursuant to the delayed delivery contracts substantially in the form
of Schedule I hereto, with such changes therein as the Company may approve (the
"Delayed Delivery Contracts"). The term "Underwriters' Securities" means the
Offered Securities other than the Contract Securities.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to and agrees with each of the Underwriters that:
<PAGE> 2
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act. The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
The Company has filed such amendments to the Registration Statement as may have
been required to the date of the Underwriting Agreement. There are no contracts
or other documents that are required to be (i) filed as exhibits to, or
incorporated by reference in, the Registration Statement under the Securities
Act that have not been filed as exhibits to, or incorporated by reference in,
the Registration Statement, or (ii) summarized in the Prospectus that are not so
summarized or are not adequately summarized. The financial statements (including
the related notes and supporting schedules) included in the Registration
Statement and the preliminary prospectus or the Prospectus, or incorporated by
reference therein, present fairly, in accordance with generally accepted
accounting principles the financial condition and results of operations of the
entities purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved.
(b) At the time the Registration Statement or any amendment thereto
becomes effective, when the Prospectus is first filed with the Commission
pursuant to Rule 424(b) of the Regulations, when any supplement to or amendment
of the Prospectus is filed with the Commission, when any document filed under
the Exchange Act is filed, and at all times subsequent thereto and including the
Closing Date, and during such longer period as the Prospectus may be required to
be delivered in connection with sales by the Underwriters or a dealer, the
Registration Statement, any documents incorporated by reference in the
Registration Statement and the Prospectus, and any amendments thereof and
supplements thereto, comply or will comply in all material respects with the
applicable provisions of the Securities Act and the Exchange Act and the
respective rules and regulations thereunder and will contain all statements that
are required to be stated therein in accordance with the Securities Act and the
rules and regulations thereunder, and do not or will not contain an untrue
statement of a material fact and will not omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, and no event will have occurred that should have been
set forth in an amendment or supplement to the Registration Statement, any
document incorporated by reference in the Registration Statement or Prospectus
that has not then been set forth in such an amendment, supplement or document
incorporated by reference. When any related preliminary prospectus was first
filed with the Commission (whether filed as part of the Registration Statement
for the registration of the Shares or any amendment thereto or pursuant to Rule
424(a) of the Regulations) and when any amendment thereof or supplement thereto,
including any document incorporated by reference therein, was first filed with
the Commission, such preliminary prospectus and any amendments thereof and
supplements thereto complied in all material respects with the applicable
provisions of the Securities Act and the Exchange Act and the respective rules
and regulations thereunder and did not contain an untrue statement of a material
fact and did not omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. No representation and
warranty is made in this subsection, however, with respect to (i) any statements
or omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Managers expressly for use therein or (ii) that
part of the Registration Statement that constitutes the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939,
2
<PAGE> 3
as amended (the "Trust Indenture Act"), of the Trustee. The documents
incorporated by reference in the Registration Statement and the Prospectus, when
they were first filed with the Commission, complied in all material respects
with the applicable provisions of the Exchange Act and the rules and regulations
of the Commission thereunder.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
Subsidiaries (as hereinafter defined), taken as a whole.
(d) Each direct and indirect subsidiary of the Company (the "Corporate
Subsidiaries"), which is a "Significant Subsidiary" within the meaning of the
rules and regulations under the Securities Act (the "Material Corporate
Subsidiaries"), has been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
(e) Each of the partnerships owned or controlled, directly or
indirectly, by the Company (the "Partnerships," and together with the Corporate
Subsidiaries, the "Subsidiaries"), which is a "Significant Subsidiary" within
the meaning of the rules and regulations under the Securities Act (the "Material
Partnerships" and, together with the Material Corporate Subsidiaries, the
"Material Subsidiaries"), has been duly formed and is validly existing under the
laws of its jurisdiction of formation and has the partnership power and
authority to carry on its business as it is currently being conducted and to
own, lease and operate its properties, and each is duly qualified as a foreign
partnership authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the Company and its Subsidiaries, taken as a whole.
(f) This Agreement has been duly authorized, executed and delivered by
the Company.
(g) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
3
<PAGE> 4
(h) The Delayed Delivery Contracts have been duly authorized, executed
and delivered by the Company and are valid and binding agreements of the
Company, enforceable against the Company in accordance with their respective
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(i) The Offered Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for (A) by the Underwriters in accordance with the terms
of the Underwriting Agreement, in the case of the Underwriters' Securities, or
(B) by institutional investors in accordance with the terms of the Delayed
Delivery Contracts, in the case of the Contract Securities, will be entitled to
the benefits of the Indenture, and will be valid and binding obligations of the
Company, in each case enforceable against the Company in accordance with their
respective terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration, if any, and the availability of equitable remedies
may be limited by equitable principles of general applicability.
(j) The execution, delivery and performance by the Company of this
Agreement, the Indenture, the Offered Securities and any other material
agreement to be entered into in conjunction with the Offering (collectively, the
"Transaction Documents"), the issuance, authentication, sale and delivery of the
Offered Securities and compliance by the Company with the terms thereof and the
consummation of the transactions contemplated by the Transaction Documents will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its Subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound or to which any of the property or assets of the Company
or any of its Subsidiaries is subject, except for such breach, violation or
default which would not, either individually or in the aggregate, reasonably be
expected to have a material adverse effect on the Company and its Subsidiaries
taken as a whole. Nor will such actions result in any violation of the
provisions of the certificate of incorporation or bylaws of the Company or any
of its Subsidiaries or any statute or any judgment, order, decree, rule or
regulation of any court or arbitrator or governmental agency or body having
jurisdiction over the Company or any of its Subsidiaries or any of their
properties or assets; and no consent, approval, authorization or order of, or
filing or registration with, any such court or arbitrator or governmental agency
or body under any such statute, judgment, order, decree, rule or regulation is
required for the execution, delivery and performance by the Company of each of
the Transaction Documents, the issuance, authentication, sale and delivery of
the Offered Securities and compliance by the Company with the terms thereof and
the consummation of the transactions contemplated by the Transaction Documents,
except for such consents, approvals, authorizations, filings, registrations or
qualifications (i) which shall have been obtained or made prior to the Closing
Date and (ii) as may be required to be obtained or made under the Securities
Act, and applicable state securities laws in connection with the purchase and
distribution of the Offered Securities by the Underwriters. The Commission has
not issued any order preventing or suspending the use of any Preliminary
Prospectus.
(k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business
4
<PAGE> 5
or operations of the Company and its Subsidiaries, taken as a whole, from that
set forth in the Prospectus or in any document incorporated by reference in the
Registration Statement of which the Prospectus forms a part.
(l) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened, to which the Company or any of its
Subsidiaries is a party or to which any of the properties of the Company or any
of its Subsidiaries is subject, that are required to be described in the
Registration Statement, any document incorporated by reference in the
Registration Statement or the Prospectus and that are not so described. There
are no statutes, regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that are not
described, filed or incorporated as required.
(m) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as terms are defined in the Investment
Company Act of 1940, as amended.
(n) The Company and its Subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and regulations relating
to the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental Laws"),
(ii) have received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses, and
(iii) are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a material adverse effect on the
Company and its Subsidiaries, taken as a whole.
(o) In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business, operations
and properties of the Company and its Subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would not,
singly or in the aggregate, have a material adverse effect on the Company and
its Subsidiaries, taken as a whole.
(p) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
(q) All of the outstanding shares of capital stock of each Material
Corporate Subsidiary and all of the outstanding interests of each Material
Partnership of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly or indirectly by the
Company, free and clear of any lien, charge, encumbrance, security interest,
restriction upon voting or transfer or any other claim of any third party.
5
<PAGE> 6
(r) The Company has full right, power and authority to execute and
deliver the Transaction Documents and to perform its obligations hereunder and
thereunder; and all corporate action required to be taken for the due and proper
authorization, execution and delivery of each of the Transaction Documents and
the consummation of the transactions contemplated thereby have been duly and
validly taken.
(s) Ernst & Young, LLP are independent certified public accountants
with respect to the Company and its Subsidiaries as required by the Securities
Act and the Rules and Regulations. The historical financial statements
(including the related notes and supporting schedules) contained or incorporated
by reference in the Registration Statement and the Prospectus comply in all
material respects with the applicable requirements under the Securities Act and
the Exchange Act (except that certain supporting schedules are omitted); such
financial statements have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods covered
thereby and fairly present the financial position of the entities purported to
be covered thereby at the respective dates indicated and the results of their
operations and their cash flows for the respective periods indicated; and the
financial information contained or incorporated by reference in the Registration
Statement and the Prospectus are derived from the accounting records of the
Company and its Subsidiaries and fairly present the information purported to be
shown thereby. The other historical financial and statistical information and
data included or incorporated by reference in the Prospectus are, in all
material respects, fairly presented.
(t) No action has been taken and no statute, rule, regulation or order
has been enacted, adopted or issued by any governmental agency or body which
prevents the issuance of the Offered Securities or suspends the sale of the
Securities in any jurisdiction; no injunction, restraining order or order of any
nature by any federal or state court of competent jurisdiction has been issued
with respect to the Company or any of its Subsidiaries which would prevent or
suspend the issuance or sale of the Securities or the use of the Preliminary
Prospectus or the Prospectus in any jurisdiction; no action, suit or proceeding
is pending against or, to the best knowledge of the Company, threatened against
or affecting the Company or any of its Subsidiaries before any court or
arbitrator or any governmental agency, body or official, domestic or foreign,
which could reasonably be expected to draw into question the validity or
enforceability of any of the Transaction Documents.
(u) Neither the Company nor any of its Subsidiaries is (i) in violation
of its certificate of incorporation or bylaws, (ii) in default in any material
respect, and no event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any material indenture, mortgage, deed
of trust, loan agreement or other material agreement or instrument to which it
is a party or by which it is bound or to which any of its property or assets is
subject or (iii) in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its property or
assets may be subject, except in the case of (i), (ii) and (iii) for such
defaults or violations which would not, either individually or in the aggregate,
reasonably be expected to have a material adverse effect on the Company and its
Subsidiaries taken as a whole.
(v) The Company and each of its Subsidiaries possess all material
licenses, certificates, authorizations and permits issued by, and have made all
declarations and filings with, the appropriate
6
<PAGE> 7
federal, state or foreign regulatory agencies or bodies which are necessary or
desirable for the ownership of their respective properties or the conduct of
their respective businesses as described in the Prospectus, except where the
failure to possess or make the same would not, singularly or in the aggregate,
have a material adverse effect on the Company and its Subsidiaries taken as a
whole, and neither the Company nor any of its Subsidiaries has received
notification of any revocation or modification of any such license, certificate,
authorization or permit or has any reason to believe that any such license,
certificate, authorization or permit will not be renewed in the ordinary course,
except for such revocations, modifications or failures to renew, which would
not, either individually or in the aggregate, reasonably be expected to have a
material adverse effect on the Company, and its Subsidiaries taken as a whole.
2. DELAYED DELIVERY CONTRACTS. If the Prospectus provides for sales of
Offered Securities pursuant to Delayed Delivery Contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities on
the terms and subject to the conditions set forth in the Prospectus pursuant to
Delayed Delivery Contracts. Delayed Delivery Contracts may be entered into only
with institutional investors of the types set forth in the Prospectus that are
approved by the Company. On the Closing Date, the Company will pay to the
Managers as compensation for the accounts of the Underwriters the commission set
forth in the Underwriting Agreement in respect of the Contract Securities. The
Underwriters will not have any responsibility in respect of the validity or the
performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; such reduction shall be applied to the commitment of
each Underwriter pro rata in proportion to the amount of Offered Securities set
forth opposite such Underwriter's name in the Underwriting Agreement, except to
the extent that the Managers determine that such reduction shall be applied in
other proportions and so advise the Company; provided, however, that the total
amount of Offered Securities to be purchased by all Underwriters shall be the
aggregate amount set forth above, less the aggregate amount of Contract
Securities.
3. PUBLIC OFFERING. The Company is advised by the Managers that the
Underwriters propose to make a public offering of their respective portions of
the Underwriters' Securities as soon after this Agreement has been entered into
as in the Managers' judgment is advisable. The terms of the public offering of
the Underwriters' Securities are set forth in the Prospectus.
4. PURCHASE AND DELIVERY. Payment for the Underwriters' Securities
shall be made by wire transfer to the order of the Company in New York Clearing
House funds at the time and place set forth in the Underwriting Agreement, upon
delivery to the Managers for the respective accounts of the several Underwriters
of the Underwriters' Securities, registered in such names and in such
denominations as the Managers shall request in writing not less than two
business days prior to the date of delivery, with any transfer taxes payable in
connection with the transfer of the Underwriters' Securities to the Underwriters
duly paid.
5. CONDITIONS TO CLOSING. The several obligations of the Underwriters
hereunder are subject to the accuracy, on and as of the date of the Underwriting
Agreement and the Closing Date, of the representations and warranties of the
Company contained herein, to the accuracy of the statements of the
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<PAGE> 8
Company and its officers made in any certificates delivered pursuant hereto, to
the performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the possible
change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations, of the Company and its Subsidiaries, taken
as a whole, from that set forth in the Prospectus, that is material and adverse
and that makes it, in the judgment of the Managers, impracticable or inadvisable
to market the Offered Securities on the terms and in the manner contemplated in
the Prospectus.
(b) The Managers shall have received on the Closing Date a certificate,
dated the Closing Date and signed by an executive officer of the Company, to the
effect set forth in clause (a)(i) above and to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before the Closing Date. The officer signing and
delivering such certificate may rely upon the best of his knowledge as to
proceedings threatened.
(c) The Managers shall have received on the Closing Date an opinion of
Robert A. Waterman, General Counsel of the Company, or of other counsel to the
Company acceptable to the Managers, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
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<PAGE> 9
qualified or be in good standing would not have a material adverse effect on the
Company and its Subsidiaries, taken as a whole;
(ii) each Material Corporate Subsidiary has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its Subsidiaries, taken as a whole;
(iii) each Material Partnership has been duly formed and is
validly existing under the laws of its jurisdiction of formation and has the
partnership power and authority to carry on its business as it is currently
being conducted and to own, lease and operate its properties, and each is duly
qualified as a foreign partnership authorized to do business in each
jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the Company and its
Subsidiaries, taken as a whole;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except as (a) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability;
(vi) the Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding agreements of
the Company, enforceable in accordance with their respective terms except as (a)
the enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (b) the availability of equitable
remedies may be limited by equitable principles of general applicability;
(vii) the Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for (A) by the Underwriters in accordance with the
terms of the Underwriting Agreement, in the case of Underwriters' Securities, or
(B) by institutional investors in accordance with the terms of the Delayed
Delivery Contracts, in the case of the Contract Securities, will be entitled to
the benefits of the Indenture and will be valid and binding obligations of the
Company, in each case enforceable against the Company in accordance with their
respective terms except as (1) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(2) rights of acceleration, if any, and the availability of equitable remedies
may be limited by equitable principles of general applicability;
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<PAGE> 10
(viii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture, the Offered Securities and the Delayed Delivery Contracts will not
contravene any provision of applicable law, including the Environmental Laws, or
the certificate of incorporation or bylaws of the Company or, to the best of
such counsel's knowledge, any agreement or other instrument binding upon the
Company or any of its Material Subsidiaries that is material to the Company and
its Subsidiaries, taken as a whole, or, to the best of such counsel's knowledge,
any judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any of its Subsidiaries, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its obligations
under this Agreement, the Indenture, the Offered Securities, or the Delayed
Delivery Contracts except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the Offered
Securities or the Delayed Delivery Contracts;
(ix) the statements (A) in the Prospectus under the captions
"Description of the Debt Securities" and "Plan of Distribution," (B) in the
Registration Statement under Item 15, (C) in "Item 3 - Legal Proceedings" of
the Company's most recent annual report on Form 10-K incorporated by reference
in the Prospectus and (D) in "Item 1 - Legal Proceedings" of Part II of the
Company's quarterly reports on Form 10-Q, if any, filed since such annual
report, in each case insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings;
(x) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened to which the Company or any of
its Material Subsidiaries is a party or to which any of the properties of the
Company or any of its Material Subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and that are not so
described or incorporated by reference or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement and that are not described,
filed or incorporated as required;
(xi) the Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended;
(xii) such counsel (A) is of the opinion that each document, if
any, filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus (except for financial statements and schedules included therein as to
which such counsel need not express any opinion), complied when so filed as to
form in all material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder and (B) is of the opinion that the
Registration Statement and Prospectus (except for financial statements and
schedules as to which such counsel need not express any opinion), comply as to
form in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder.
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<PAGE> 11
In addition, such counsel shall state his belief that (1) each part of
the Registration Statement (except for financial statements and schedules as to
which such counsel need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore referred to and
statements of the underwriters), when such part became effective did not, and,
as of the date such opinion is delivered, does not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and (2) the
Prospectus (except for financial statements and schedules as to which such
counsel need not express any belief), as of the date such opinion is delivered,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Such counsel may
state that his belief is based upon his participation in the preparation of the
Registration Statement and Prospectus, any amendments or supplements thereto and
any documents incorporated therein by reference, his consultation with other
officers of the Company who have participated in the preparation of the
Registration Statement and Prospectus, any amendments or supplements thereto and
any documents incorporated therein by reference and upon his review and
discussion of the contents thereof, but are without independent check or
verification, except as specified.
(d) The Managers shall have received on the Closing Date an opinion of
Jenkens & Gilchrist, a Professional Corporation, counsel for the Underwriters,
dated the Closing Date, covering the matters referred to in subparagraphs (iv),
(v), (vi), (ix) (but only as to the statements in the Prospectus under
"Description of Debt Securities" and "Plan of Distribution") and (xii) (B) of
subsection (c) above.
In addition, such counsel shall state its belief that (1) each part of
the Registration Statement (except for financial statements and schedules as to
which such counsel need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore referred to),
when such part became effective did not, and, as of the date such opinion is
delivered, does not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (2) the Prospectus (except for financial
statements and schedules as to which such counsel need not express any belief)
as of the date such opinion is delivered does not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. Such counsel may state that its belief is based upon its
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto (but not including documents
incorporated therein by reference) and upon its review and discussion of the
contents thereof (including documents incorporated therein by reference), but
are without independent check or verification, except as specified. The opinion
of counsel to the Company described in subsection (c) above shall be rendered to
such counsel at the request of the Company and shall so state therein.
(e) The Managers shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the Managers, from
the Company's independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus.
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<PAGE> 12
6. COVENANTS OF THE COMPANY. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants as follows:
(a) To furnish the Managers, without charge, a signed copy of the
Registration Statement (including exhibits thereto) and for delivery to each
other Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and, during the period mentioned in paragraph (c) below, as
many copies of the Prospectus, any documents incorporated by reference therein
and any supplements and amendments thereto or to the Registration Statement as
the Managers may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the Managers a
copy of each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Managers reasonably object.
(c) If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if, in the opinion of counsel for
the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with law or in order for the Prospectus not to contain a misstatement or
omission, forthwith to prepare, and, subject to SECTION 6(B), file with the
Commission and furnish, at its own expense, to the Underwriters, and to the
dealers (whose names and addresses the Managers will furnish to the Company) to
which Offered Securities may have been sold by the Managers on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus,
as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Managers
shall reasonably request and to maintain such qualification for as long as the
Managers shall reasonably request.
(e) To make generally available to its security holders and to the
Managers as soon as practicable an earnings statement covering a twelve-month
period beginning on the first day of the first full fiscal quarter after the
date of this Agreement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder. If such fiscal quarter is the last fiscal quarter of the
Company's fiscal year, such earnings statement shall be made available not later
than 120 days after the close of the period covered thereby and in all other
cases shall be made available not later than 60 days after the close of the
period covered thereby.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities
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<PAGE> 13
of the Company or warrants to purchase debt securities of the Company
substantially similar to the Offered Securities (other than (i) the Offered
Securities and (ii) commercial paper issued in the ordinary course of business),
without the prior written consent of the Managers.
(g) Whether or not any sale of Offered Securities is consummated, to
pay all expenses incident to the performance of its obligations under this
Agreement, including: (i) the preparation and filing of the Registration
Statement and the Prospectus and all amendments and supplements thereto, (ii)
the preparation, issuance and delivery of the Offered Securities, (iii) the fees
and disbursements of the Company's counsel and accountants and of the Trustee
and its counsel, (iv) the qualification of the Offered Securities under
securities or Blue Sky laws in accordance with the provisions of SECTION 6(D),
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
any Blue Sky or Legal Investment Memoranda, (v) the printing and delivery to the
Underwriters in quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto and of the Prospectus and any amendments or
supplements thereto, and of this Agreement, (vi) any fees charged by rating
agencies for the rating of the Offered Securities and (vii) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc.
(h) To use its best efforts to cause any amendment to the Registration
Statement to become effective as promptly as possible and to notify the
Representatives immediately (i) when any amendments to the Registration
Statement become effective, (ii) of any request by the Commission for any
amendment of or supplement to the Registration Statement or the Prospectus or
for any additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto or of the initiation, or the threatening, of
any proceed ings therefor, (iv) of the receipt of any comments from the
Commission, and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for that
purpose. If the Commission shall propose or enter a stop order at any time, the
Company will make every reasonable effort to prevent the issuance of any such
stop order and, if issued, to obtain the lifting of such order as soon as
possible. The Company will not file any amendment to the Registration Statement
or any amendment of or supplement to the Prospectus before or after the
effective date of the Registration Statement to which the Representatives shall
reasonably object in writing after being timely furnished in advance a copy
thereof.
(i) The Company will apply the proceeds from the sale of the Securities
as set forth under "Use of Proceeds" in the Prospectus and will take such steps
as shall be necessary to ensure that neither the Company nor any Subsidiary
shall become an "investment company" within the meaning of such term under the
Investment Company Act, and the rules and regulations thereunder.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with investigating or defending
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<PAGE> 14
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the Managers
expressly for use therein; provided, however, that the indemnity agreement
contained in this paragraph (a) with respect to a preliminary prospectus or
amended preliminary prospectus shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter) from whom the
person asserting any such losses, claims, damages and liabilities purchased the
Offered Securities which are the subject thereof if the Prospectus corrected any
such alleged untrue statement or omission and if such Underwriter failed to send
or give a copy of the Prospectus (excluding the documents incorporated by
reference therein) to such person in connection with the confirmation of the
sale of such Offered Securities to such person and the untrue statement in or
omission from such Preliminary Prospectus was corrected in the Prospectus
unless, in either case, such failure to deliver the Prospectus was a result of
non-compliance by the Company with SECTION 6(A).
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
each Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through the
Managers expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto (including
any omission or alleged omission to include with such information a material
fact required to be stated therein or necessary to make statements therein not
misleading).
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and shall pay the fees and disbursements of such counsel related to such
proceeding; provided, however, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have to an indemnified
party otherwise than under this SECTION 7. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel, (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them or (iii) the indemnifying party has not in fact employed counsel reasonably
satisfactory to the indemnified party within a reasonable time after receiving
notice of the commencement
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<PAGE> 15
of the action. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by the Managers, in the case of parties indemnified pursuant to
paragraph (a) above, and by the Company, in the case of parties indemnified
pursuant to paragraph (b) above. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this SECTION 7 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Offered Securities shall be deemed to be
in the same respective proportions as the net proceeds from the offering of such
Offered Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters bear
to the aggregate public offering price of the Offered Securities, in each case
as set forth in the table on the cover of the Prospectus Supplement. The
relative fault of the Company on the one hand and of the Underwriters on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this SECTION
7 are several in proportion to the respective principal amounts of Offered
Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this SECTION 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable
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<PAGE> 16
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this SECTION 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
SECTION 7 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
8. TERMINATION. This Agreement shall be subject to termination, by
notice given by the Managers to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange or the
National Association of Securities Dealers, Inc., (ii) trading of any securities
of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis that
is material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event, singly or together with any other such
event, makes it, in the judgment of the Managers, impracticable or inadvisable
to market the Offered Securities on the terms and in the manner contemplated in
the Prospectus.
9. DEFAULTING UNDERWRITERS. If, on the Closing Date, any one or more of
the Underwriters shall fail or refuse to purchase Underwriters' Securities that
it has or they have agreed to purchase hereunder on such date, and the aggregate
amount of the Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate amount of the Underwriters' Securities to be purchased on such
date, the other Underwriters shall be obligated severally in the proportions
that the amount of Underwriters' Securities set forth opposite their respective
names in the Underwriting Agreement bears to the aggregate amount of
Underwriters' Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Managers may specify, to
purchase the Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Underwriters' Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this SECTION 9 by an amount in excess of one-ninth of such amount of
Underwriters' Securities without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Underwriters' Securities and the aggregate amount of Underwriters'
Securities with respect to which such default occurs is more than one-tenth of
the
16
<PAGE> 17
aggregate amount of Underwriters' Securities to be purchased on such date, and
arrangements satisfactory to the Managers and the Company for the purchase of
such Underwriters' Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case that does not result
in termination of this Agreement, either the Managers or the Company shall have
the right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and in the Prospectus or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of the Offered Securities.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
indemnity and contribution agreements and the representations, warranties and
other statements of the Company, its officers and the Underwriters set forth in
this Agreement will remain in full force and effect, regardless of any
termination of this Agreement, any investigation made by or on behalf of any
Underwriter or the Company or any of the officers, directors or controlling
persons referred to in SECTION 7 and delivery of and payment for the Offered
Securities.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in SECTION 7, and no
other person will have any right or obligation hereunder.
12. COUNTERPARTS. The Underwriting Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
14. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
17
<PAGE> 18
SCHEDULE I
DELAYED DELIVERY CONTRACT
_____________, 19__
Dear Sirs:
The undersigned hereby agrees to purchase from COLUMBIA/HCA HEALTHCARE
CORPORATION, a Delaware corporation (the "Company"), and the Company agrees to
sell to the undersigned the Company's securities described in Schedule A annexed
hereto (the "Securities"), offered by the Company's Prospectus dated
_______________, 19__ and Prospectus Supplement dated _____________, 19__,
receipt of copies of which are hereby acknowledged, at a purchase price stated
in SCHEDULE A and on the further terms and conditions set forth in this
Agreement. The undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amount and numbers on the delivery dates set forth in SCHEDULE A. Each
such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to purchase
on each Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
____________, New York, N.Y., at 10:00 a.m. (New York time) on the Delivery
Date, upon delivery to the undersigned of the Securities to be purchased by the
undersigned on the Delivery Date, in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters named in the Prospectus Supplement referred
to above (the "Underwriters") of, such part of the Securities as is to be sold
to them. Promptly after completion of sale and delivery to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for the Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this Agreement.
<PAGE> 19
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this Agreement is acceptable to the Company, it is requested that
the Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding agreement, as of the date first above-written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Yours very truly,
---------------------------------------------
(Purchaser)
By:
------------------------------------------
---------------------------------------------
(Title)
---------------------------------------------
---------------------------------------------
(Address)
Accepted:
COLUMBIA/HCA HEALTHCARE CORPORATION
By:
-------------------------------
Print Name:
------------------------
Title:
----------------------------
<PAGE> 20
PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
<TABLE>
<CAPTION>
Telephone No.
Name (Including Area Code) Department
<S> <C> <C>
--------------- --------------- ---------------
</TABLE>
<PAGE> 21
SCHEDULE A
SECURITIES:
PRINCIPAL AMOUNTS OR NUMBERS TO BE PURCHASED:
PURCHASE PRICE:
DELIVERY DATES:
<PAGE> 1
Exhibit 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" and to the
use of our report dated February 19, 1999, in Amendment No. 1 to the
Registration Statement (Form S-3 No. 333-82219) and related Prospectus of
Columbia/HCA Healthcare Corporation for the registration of $1,500,000,000 of
its debt securities.
/s/ Ernst & Young LLP
Nashville, Tennessee
August 5, 1999
