-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HVtKwvTX2+Ox/fwID9Nc6M77Z5ANuIIPJDsmWqmx8MaAo1EB0mYbKh42z/eflH1O iyjMUf8visTTLcW7ViE8qQ== 0000950144-02-000502.txt : 20020413 0000950144-02-000502.hdr.sgml : 20020413 ACCESSION NUMBER: 0000950144-02-000502 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20020118 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HCA INC/TN CENTRAL INDEX KEY: 0000860730 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-GENERAL MEDICAL & SURGICAL HOSPITALS, NEC [8062] IRS NUMBER: 752497104 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-67040 FILM NUMBER: 2512900 BUSINESS ADDRESS: STREET 1: ONE PARK PLZ CITY: NASHVILLE STATE: TN ZIP: 37203 BUSINESS PHONE: 6153449551 MAIL ADDRESS: STREET 1: ONE PARK PLAZA CITY: NASHVILLE STATE: TN ZIP: 37203 FORMER COMPANY: FORMER CONFORMED NAME: COLUMBIA HCA HEALTHCARE CORP DATE OF NAME CHANGE: 20000502 FORMER COMPANY: FORMER CONFORMED NAME: COLUMBIA HCA HEALTHCARE CORP/ DATE OF NAME CHANGE: 19940314 FORMER COMPANY: FORMER CONFORMED NAME: HCA THE HEALTHCARE CO DATE OF NAME CHANGE: 20010419 S-3/A 1 g70521a1s-3a.txt HCA INC. AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 18, 2002 REGISTRATION NO. 333-67040 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------- AMENDMENT NO. 1 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- HCA INC. (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 VICE PRESIDENT AND CORPORATE SECRETARY HCA INC. 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 315 DEADERICK STREET, SUITE 2700 NASHVILLE, TENNESSEE 37238-2700 (615) 742-6200 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, please 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. [ ] 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. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE SELLING STOCKHOLDER MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. SUBJECT TO COMPLETION, DATED JANUARY 18, 2002 PROSPECTUS HCA INC. 16,776,193 Shares Common Stock --------------------- This prospectus relates to the offering of up to 16,776,193 shares of the common stock, par value $.01 per share, of HCA Inc. The common stock is being registered in connection with a loan agreement among Canadian Investments LLC, a Delaware limited liability company, HCA Inc. and Toronto Dominion (Texas), Inc., as administrative agent. The proceeds from any sales of shares of common stock offered by this prospectus will be used first by Canadian Investments to satisfy any obligations we have under the loan agreement. Any remaining proceeds are required to be delivered to us by Canadian Investments, and we will use them for general corporate purposes. See "Agreements with Canadian Investments." Canadian Investments may sell shares of our common stock from time to time in transactions, including block sales, on the New York Stock Exchange, in the over-the-counter market, in negotiated transactions or otherwise. The shares will be sold at market prices prevailing at the time of sale or at prices otherwise negotiated. No arrangements have been made to date for the sale of the common stock offered hereby. Our common stock is traded on the New York Stock Exchange under the symbol "HCA." On January 17, 2002, the reported last sale price for our common stock on the New York Stock Exchange was $41.83 per share. --------------------- INVESTING IN THE COMMON STOCK INVOLVES RISKS THAT ARE DESCRIBED IN THE "RISK FACTORS" SECTION BEGINNING ON PAGE 3 OF THIS PROSPECTUS. --------------------- NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. , 2002 TABLE OF CONTENTS WHERE YOU CAN FIND MORE INFORMATION......................... 2 RISK FACTORS................................................ 3 FORWARD-LOOKING STATEMENTS.................................. 3 THE COMPANY................................................. 5 AGREEMENTS WITH CANADIAN INVESTMENTS........................ 5 USE OF PROCEEDS............................................. 5 PLAN OF DISTRIBUTION........................................ 6 LEGAL MATTERS............................................... 7 EXPERTS..................................................... 7
WHERE YOU CAN FIND MORE INFORMATION We are subject to the informational requirements of the Securities Exchange Act of 1934, as amended (which we will refer to as the Exchange Act), and file reports and other information with the Securities and Exchange Commission (which we will refer to as the SEC). You may read and copy these reports at the SEC's Public Reference Room 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, 233 Broadway, New York, New York 10279, 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, as amended (which we will refer to as the Securities Act). 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, 2000; - our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2001, June 30, 2001 and September 30, 2001; - our Current Reports on Form 8-K dated January 23, 2001, February 6, 2001, April 23, 2001, May 17, 2001, July 1, 2001, July 23, 2001 and October 24, 2001; - the description of our common stock, $.01 par value per share, contained in our Registration Statement on Form 8-A/A, Amendment No. 1, filed with the SEC and dated October 19, 2000, including all amendments and reports filed for the purpose of updating such description; and - any future filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act until this offering is completed. We will furnish 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, HCA Inc., One Park Plaza, Nashville, Tennessee 37203 or by telephone at (615) 344-9551. 2 RISK FACTORS You should carefully consider the risks described below before making a decision to invest in our common stock. The risks and uncertainties described below are not the only ones facing our company. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also constrain our business and operations. If any of the matters included in the following risks were to occur, our business, financial condition, results of operations, cash flows or prospects could be materially adversely affected. In that case, the trading price of our common stock could decline and you could lose all or part of your investments. WE CONTINUE TO BE THE SUBJECT OF GOVERNMENTAL INVESTIGATIONS AND LITIGATION WHICH COULD RESULT IN SANCTIONS AND JUDGMENTS THAT COULD ADVERSELY AFFECT OUR RESULTS OF OPERATIONS AND LIQUIDITY. We continue to be the subject of governmental investigations and litigation relating to our business practices. Additionally, we are a defendant in several qui tam actions brought by private parties on behalf of the United States of America. On December 14, 2000, we entered into a Plea Agreement with the Criminal Division of the Department of Justice and various U.S. Attorney's Offices (which we refer to as the plea agreement) and a Civil and Administrative Settlement Agreement with the Civil Division of the Department of Justice (which we refer to as the civil agreement). The agreements resolve all Federal criminal issues outstanding against us and certain issues involving Federal civil claims by or on behalf of the government against us relating to diagnosis related group, or DRG, coding, outpatient laboratory billing and home health issues. The civil agreement was approved by the Federal District Court of the District of Columbia on August 7, 2001. Civil issues that are not covered by the civil agreement which remain outstanding include claims related to cost reports and physician relations issues. We also entered into a corporate integrity agreement with the Office of Inspector General of the Department of Health and Human Services. We remain the subject of a formal order of investigation by the Securities and Exchange Commission. We understand that the investigation includes the anti-fraud, insider trading, periodic reporting and internal accounting control provisions of the Federal securities laws. While we are unable to predict the outcome of any of the investigations and litigation or the initiation of any additional investigations or litigation, were we to be found in violation of Federal or state laws relating to Medicare, Medicaid or similar programs or breach of the corporate integrity agreement, we could be subject to substantial monetary fines, civil and criminal penalties and/or exclusion from participation in the Medicare and Medicaid programs. Any such sanctions or expenses could have a material adverse effect on our financial position, results of operations and liquidity. FORWARD-LOOKING STATEMENTS This prospectus contains disclosures which are "forward-looking statements." Forward-looking statements include all statements that do not relate solely to historical or current facts, and can be identified by the use of words such as "may," "believe," "will," "expect," "project," "estimate," "anticipate," "plan," "initiative," "should," "intends" or "continue." These forward-looking statements are based on our current plans and expectations and are subject to a number of known and unknown uncertainties and risks, many of which are beyond our control, that could significantly affect our current plans and expectations and future financial condition and results. These factors include, but are not limited to, - the outcome of the known and unknown governmental investigations and litigation involving our business practices, including the ability to negotiate, execute and timely consummate definitive settlement agreements in the government's remaining civil cases and to obtain court approval thereof, - the highly competitive nature of the health care business, - the efforts of insurers, health care providers and others to contain health care costs, 3 - possible changes in the Medicare and Medicaid programs that may limit reimbursements to health care providers and insurers, - changes in federal, state or local regulations affecting the health care industry, - the possible enactment of federal or state health care reform, - the ability to attract and retain qualified management and personnel, including affiliated physicians, nurses and medical support personnel, - liabilities and other claims asserted against us, - fluctuations in the market value of our common stock, - the ability to complete the share repurchase program, - changes in accounting practices, - changes in general economic conditions, - future divestitures which may result in additional charges, - changes in revenue mix and the ability to enter into and renew managed care provider arrangements on acceptable terms, - the availability and terms of capital to fund the expansion of our business, - changes in business strategy or development plans, - slowness of reimbursement, - the ability to implement our shared services and other initiatives and realize decreases in administrative, supply and infrastructure costs, - the outcome of pending and any future tax audits and litigation associated with our tax positions, - the outcome of our continuing efforts to monitor, maintain and comply with appropriate laws, regulations, policies and procedures and our corporate integrity agreement with the government, - increased reviews of our cost reports, - the ability to maintain and increase patient volumes and control the costs of providing services, and - other risk factors described in this prospectus or the documents incorporated by reference in this prospectus. As a consequence, current plans, anticipated actions and future financial condition and results may differ from those expressed in any forward-looking statements we make. You should not unduly rely on these forward-looking statements when evaluating the information presented in this prospectus or the documents incorporated by reference in this prospectus. 4 THE COMPANY HCA Inc. 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. As of September 30, 2001, these affiliates owned and operated 182 hospitals and 75 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 seven hospitals and three 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 outpatient surgery and diagnostic centers, and rehabilitative 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. AGREEMENTS WITH CANADIAN INVESTMENTS We are party to a $500 million loan agreement among us, Canadian Investments, as lender, and Toronto Dominion (Texas), Inc., as administrative agent. The loan agreement provides for a $350 million term loan and a $150 million revolving credit loan. At December 31, 2001, there was outstanding $250 million under the term loan and $150 million under the revolving credit loan. We are obligated to make quarterly interest payments on these loans at a rate equal to LIBOR plus 125 basis points and to repay the principal of the loans on April 30, 2003. If an event of default occurs under the loan agreement or our loan repayment obligations thereunder are otherwise accelerated, then to the extent necessary to satisfy our obligations under the loan agreement, Canadian Investments may elect to sell up to 16,776,193 shares of our common stock. Following our payment at maturity, prepayment or collateralization of our obligations under the loan agreement, we may direct Canadian Investments to sell up to 16,776,193 shares of our common stock and pay the proceeds to us. In connection with the loan agreement, we entered into a registration rights agreement to maintain an effective registration statement so as to facilitate such a sale under this prospectus. USE OF PROCEEDS The proceeds from the sale of the shares offered pursuant to this prospectus will be used to the extent necessary to satisfy our obligations under the loan agreement. In the event we direct Canadian Investments to sell shares of our common stock upon payment at maturity, prepayment or collateralization of our obligations under the loan agreement or to the extent there are any remaining proceeds following application of the proceeds from the sale of shares to satisfy our obligations under the loan agreement, such proceeds are required to be delivered to us and we will use them for general corporate purposes. 5 PLAN OF DISTRIBUTION Canadian Investments may sell up to 16,776,193 shares of our common stock from time to time in one or more transactions. The sales may be made on any national securities exchange or quotation service on which the shares may be listed at the time of sale or in the over-the-counter market or otherwise, at prices and at terms then prevailing or at prices related to the then current market price, or in privately negotiated transactions. Canadian Investments may effect such transactions by selling the shares to or through underwriters, broker-dealers or agents. The shares may be sold by one or more of, or a combination of, the following: - a block trade in which the broker-dealer so engaged will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; - purchases by a broker-dealer as principal and resale by such broker-dealer for its account pursuant to this prospectus; - an exchange distribution in accordance with the rules of such exchange; - ordinary brokerage transactions and transactions in which the broker solicits purchasers; - in privately negotiated transactions; and - in underwritten offerings. To the extent required, this prospectus may be amended or supplemented from time to time to describe a specific plan of distribution. In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule 144 promulgated under the Securities Act may be sold under Rule 144 rather than pursuant to this prospectus. Broker-dealers or agents may receive compensation in the form of commissions, discounts or concessions from Canadian Investments. Broker-dealers or agents may also receive compensation from the purchasers of the shares for whom they act as agents or to whom they sell as principals, or both. Compensation as to a particular broker-dealer might be in excess of customary commissions and will be in amounts to be negotiated in connection with the sale. Broker-dealers or agents and any other participating broker-dealers or Canadian Investments may be deemed to be "underwriters" within the meaning of Section 2(a)(11) of the Securities Act in connection with the sale of shares. Accordingly, any such commission, discount or concession received by them and any profit on resale of the shares purchased by them may be deemed to be underwriting discounts or commissions under the Securities Act. Canadian Investments has advised us that it has not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of the shares covered by this prospectus. There is no underwriter or coordinating broker acting in connection with the proposed sale of shares by Canadian Investments. The shares will be sold through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states the shares may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and complied with. We will make copies of this prospectus available to Canadian Investments and have informed Canadian Investments of the need for delivery of copies of this prospectus to purchasers or to the New York Stock Exchange, as applicable, at or prior to the time of any sale of the shares. We will file a supplement to this prospectus, if required, pursuant to Rule 424(b) under the Securities Act upon being notified by Canadian Investments that any material arrangement has been entered into with a broker-dealer for the sale of shares through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer or through an underwritten offering. Such supplement will disclose: - the name of the participating broker-dealer(s); - the number of shares involved; 6 - the price at which such shares will be offered for sale; - the commissions to be paid or discounts or concessions to be allowed to such broker-dealer(s), where applicable; and - other facts material to the transaction. Our registration rights agreement with Canadian Investments provides for our indemnification of Canadian Investments and its directors and officers, the underwriters and controlling persons of Canadian Investments or any underwriters against liabilities in connection with the offer and sale of the shares of our common stock, including liabilities under the Securities Act, and requires us to contribute to payments that such persons or entities may be required to make in respect of such liabilities. We will bear all costs, expenses and fees in connection with the registration of the shares offered pursuant to this prospectus. Canadian Investments will pay all commissions and discounts, if any, attributable to the sales of the shares, unless we direct Canadian Investments to sell the shares, in which case we will pay any such commissions. LEGAL MATTERS Bass, Berry & Sims PLC is passing upon the validity of the common stock being offered pursuant to this prospectus. 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, 2000, 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. 7 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. SEC filing fee.............................................. $185,377 Accounting fees and expenses................................ 10,000* Printing.................................................... 5,000* Legal fees and expenses..................................... 20,000* Miscellaneous............................................... 4,623* -------- Total............................................. $225,000* ========
- --------------- * Estimated ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Our Restated Certificate of Incorporation, as amended (which we will refer to as 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 or is threatened to be made a party to, or is involved in, any actual or threatened 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 expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding 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 such expenses as the court deems proper. 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 ITEM 16. EXHIBITS. 4.1 -- Restated Certificate of Incorporation of the Registrant, as amended (restated electronically for SEC filing purposes). 4.2 -- Second Amended and Restated Bylaws of the Registrant (filed as Exhibit 3 to the Registrant's Form 8-A/A, Amendment No. 1, dated October 19, 2000 and incorporated herein by reference). 5 -- Opinion of Bass, Berry & Sims PLC.* 10.1 -- Loan Agreement among the Registrant, lenders party to the agreement and Toronto Dominion (Texas), Inc., as administrative agent, dated as of June 28, 2001 and amended and restated as of July 31, 2001.* 10.2 -- Registration Rights Agreement, dated as of June 28, 2001, between the Registrant and Canadian Investments LLC, a Delaware limited liability company. 23.1 -- Consent of Ernst & Young LLP, independent auditors. 23.2 -- Consent of Bass, Berry & Sims PLC appears in its opinion filed as Exhibit 5. 24 -- Power of Attorney of certain signatories.*
- --------------- *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. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective 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 II-2 (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 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 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 January 15, 2002. HCA INC. 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.
SIGNATURE TITLE DATE --------- ----- ---- * President, Chief Executive January 15, 2002 - ----------------------------------------------------- Officer and Director Jack O. Bovender, Jr. (Principal Executive Officer) * Senior Vice President - January 15, 2002 - ----------------------------------------------------- Finance and Treasurer David G. Anderson (Principal Financial Officer) * Senior Vice President and January 15, 2002 - ----------------------------------------------------- Controller (Principal R. Milton Johnson Accounting Officer) * Chairman of the Board January 15, 2002 - ----------------------------------------------------- Thomas F. Frist, Jr., M.D. * Director January 15, 2002 - ----------------------------------------------------- Magdalena H. Averhoff, M.D. * Director January 15, 2002 - ----------------------------------------------------- J. Michael Cook * Director January 15, 2002 - ----------------------------------------------------- Martin Feldstein * Director January 15, 2002 - ----------------------------------------------------- Frederick W. Gluck * Director January 15, 2002 - ----------------------------------------------------- Glenda A. Hatchett * Director January 15, 2002 - ----------------------------------------------------- T. Michael Long
II-4
SIGNATURE TITLE DATE --------- ----- ---- * Director January 15, 2002 - ----------------------------------------------------- John H. McArthur * Director January 15, 2002 - ----------------------------------------------------- Thomas S. Murphy * Director January 15, 2002 - ----------------------------------------------------- Kent C. Nelson * Director January 15, 2002 - ----------------------------------------------------- Carl E. Reichardt * Director January 15, 2002 - ----------------------------------------------------- Frank S. Royal, M.D. Director - ----------------------------------------------------- Harold T. Shapiro By: /s/ David G. Anderson - ----------------------------------------------------- David G. Anderson, Attorney-in-fact
II-5 INDEX TO EXHIBITS 4.1 -- Restated Certificate of Incorporation of the Registrant, as amended (restated electronically for SEC filing purposes). 4.2 -- Second Amended and Restated Bylaws of the Registrant (filed as Exhibit 3 to the Registrant's Form 8-A/A, Amendment No. 1, dated October 19, 2000 and incorporated herein by reference). 5 -- Opinion of Bass, Berry & Sims PLC.* 10.1 -- Loan Agreement among the Registrant, lenders party to the agreement and Toronto Dominion (Texas), Inc., as administrative agent, dated as of June 28, 2001 and amended and restated as of July 31, 2001.* 10.2 -- Registration Rights Agreement, dated as of June 28, 2001, between the Registrant and Canadian Investments LLC, a Delaware limited liability company. 23.1 -- Consent of Ernst & Young LLP, independent auditors. 23.2 -- Consent of Bass, Berry & Sims PLC appears in its opinion filed as Exhibit 5. 24 -- Power of Attorney of certain signatories.*
- --------------- *Previously filed. EX-4.1 3 g70521a1ex4-1.txt RESTATED CERTIFICATE OF INCORPORATION EXHIBIT 4.1 RESTATED ELECTRONICALLY FOR SEC FILING PURPOSES ONLY RESTATED CERTIFICATE OF INCORPORATION OF HCA INC. FIRST: The name of the Corporation is HCA INC. SECOND: The address of the Corporation's registered office in the State of Delaware is 2711 Centerville Road, in the City of Wilmington, County of New Castle, Delaware 19808. The name of its registered agent at such address is The Prentice-Hall Corporation System, Inc. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: The total number of shares of all classes of capital stock which the Corporation shall have the authority to issue is One Billion Six Hundred Seventy-Five Million (1,675,000,000) shares, divided into three classes of which Twenty-Five Million (25,000,000) shares, par value $.01 per share, shall be designated Preferred Stock, One Billion Six Hundred Million (1,600,000,000) shares, par value $.01 per share, shall be designated Common Stock and Fifty Million (50,000,000) shares, par value $.01 per share, shall be designated Nonvoting Common Stock. A. Preferred Stock 1. Issuance. The Board of Directors is authorized, subject to limitations prescribed by law, to provide for the issuance of shares of Preferred Stock in one or more series, to establish the number of shares to be included in each such series, and to fix the designations, powers, preferences, and rights of the shares of each such series, and any qualifications, limitations or restrictions thereof. 2. Series A Preferred Stock and Series B Preferred Stock. Section 1. Designation and Amount. Eight million (8,000,000) shares of the Preferred Stock of the Corporation shall be designated as "Series A Participating Preferred Stock," par value $.01 per share (the "Series A Preferred Stock") and two hundred fifty thousand (250,000) shares of the Preferred Stock of the Corporation shall be designated as "Series B Participating Preferred Stock," par value $.01 per share (the "Series B Preferred Stock"). The number of shares of each such series of Preferred Stock may be increased or decreased by resolution of the Board of Directors; provided that no decrease shall reduce the number of shares of either of such series of Preferred Stock to a number less than that of the shares of such series then outstanding plus the number of shares issuable upon exercise of outstanding rights, options or warrants or upon conversion of outstanding securities issued by the Corporation. Section 2. Dividends and Distributions. (A) Subject to the prior and superior rights of the holders of any shares of stock of the Corporation ranking prior and superior to the shares of Series A Preferred Stock and Series B Preferred Stock with respect to dividends, the holders of shares of Series A Preferred Stock and Series B Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors out of assets legally available for the purpose, quarterly dividends payable in cash on the first business day of January, April, July and October in each year (each such date being referred to herein as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series A Preferred Stock or Series B Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a) $1.00 or (b) subject to the provision for adjustment hereinafter set forth, 100 times the aggregate per share amount of all cash dividends, and 100 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series A Preferred Stock or Series B Preferred Stock; provided that no dividend shall be declared on the shares of Series A Preferred Stock or Series B Preferred Stock unless at the same time a dividend is declared on the outstanding shares of the other series in the same amount and having the same record and payment dates. In the event the Corporation shall at any time after September 1, 1993 (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the outstanding Common Stock into a smaller number of shares, or (iv) issue any shares of Common Stock in a reclassification or change of the outstanding shares of Common Stock (including any such reclassification or change in connection with a merger in which the Corporation is the continuing or surviving Corporation), then in each such case the amount to which holders of shares of Series A Preferred Stock and Series B Preferred Stock were entitled immediately prior to such event under clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. (B) The Corporation shall declare a dividend or distribution on the Series A Preferred Stock and Series B Preferred Stock as provided in paragraph (A) above immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock); provided that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Series A Preferred Stock and Series B Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date. (C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Preferred Stock and Series B Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares of Series A Preferred Stock or Series B Preferred Stock, as the case may be, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date for such shares, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A Preferred Stock or Series B Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series A Preferred Stock and Series B Preferred Stock in an amount less than the total amount of such 2 dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all shares of Series A Preferred Stock and Series B Preferred Stock at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series A Preferred Stock and Series B Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be not more than 30 days prior to the date fixed for the payment thereof. Section 3. Voting Rights. The holders of shares of Series A Preferred Stock and Series B Preferred Stock shall have the following voting rights: (A) (i) Except as provided in paragraph C of this Section 3 and subject to the provision for adjustment hereinafter set forth, each share of Series A Preferred Stock shall entitle the holder thereof to 100 votes on all matters submitted to a vote of the stockholders of the Corporation. (ii) Except as otherwise provided herein or by law, the holders of shares of Series A Preferred Stock and the holders of shares of Common Stock shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation. (B) (i) Except as otherwise required by applicable law, each outstanding share of Series B Preferred Stock shall not be entitled to vote on any matter on which the stockholders of the Corporation shall be entitled to vote, and shares of Series B Preferred Stock shall not be included in determining the number of shares voting or entitled to vote on any such matters. (ii) On any matter on which the holders of shares of Common Stock are entitled to vote and on which the holders of shares of Series B Preferred Stock are also entitled to vote, except as otherwise required by law, the Series B Preferred Stock shall vote together with the Common Stock (and each other class or series of capital stock then entitled to vote with the Common Stock); provided that each share of Series B Preferred Stock shall entitle the holder thereof to 100 votes on any matter on which the Series B Preferred Stock shall vote together with the Common Stock. (C) (i) If, on the date used to determine stockholders of record for any meeting of stockholders for the election of directors, a default in preference dividends (as defined in subparagraph (v) below) on the Series A Preferred Stock shall exist, the holders of the Series A Preferred Stock shall have the right, voting as a class as described in subparagraph (ii) below, to elect two directors (in addition to the directors elected by holders of Common Stock of the Corporation). Such right may be exercised (a) at any meeting of stockholders for the election of directors or (b) at a meeting of the holders of shares of Voting Preferred Stock (as hereinafter defined), called for the purpose in accordance with the Bylaws of the Corporation, until all such cumulative dividends (referred to above) shall have been paid in full or until non-cumulative dividends have been paid regularly for at least one year. (ii) The right of the holders of Series A Preferred Stock to elect two directors, as described above, shall be exercised as a class concurrently with the rights of holders of any other series of any class of preferred stock of the Corporation upon which voting rights to elect such directors have been conferred and are then exercisable. The Series A Preferred Stock and any additional series of such preferred stock which the Corporation may issue and which may provide for the right to vote with the Series A Preferred Stock are collectively referred to herein as "Voting Preferred Stock." (iii) Each director elected by the holders of shares of Voting Preferred Stock shall be referred to herein as a "Preferred Director." A Preferred Director so elected shall continue to serve as such director for a term of one year, except that upon any termination of the right of all of such holders to vote as a 3 class for Preferred Directors, the term of office of such directors shall terminate. Any Preferred Director may be removed by, and shall not be removed except by, the vote of the holders of record of a majority of the outstanding shares of Voting Preferred Stock then entitled to vote for the election of directors, present (in person or by proxy) and voting together as a single class (a) at a meeting of the stockholders, or (b) at a meeting of the holders of shares of such Voting Preferred Stock, called for that purpose in accordance with the Bylaws of the Corporation. (iv) So long as a default in any preference dividends on the Series A Preferred Stock shall exist or the holders of any other series of Voting Preferred Stock shall be entitled to elect Preferred Directors, (a) any vacancy in the office of a Preferred Director may be filled (except as provided in the following clause (b)) by an instrument in writing signed by the remaining Preferred Director and filed with the Corporation and (b) in the case of the removal of any Preferred Director, the vacancy may be filled by the vote of the holders of a majority of the outstanding shares of Voting Preferred Stock then entitled to vote for the election of directors, present (in person or by proxy) and voting together as a single class, at such time as the removal shall be effected. Each director appointed as aforesaid by the remaining Preferred Director shall be deemed, for all purposes hereof, to be a Preferred Director. (v) For purposes hereof, a "default in preference dividends" on the Series A Preferred Stock shall be deemed to have occurred whenever the amount of cumulative and unpaid dividends on the Series A Preferred Stock shall be equivalent to six full quarterly dividends or more (whether or not consecutive), and, having so occurred, such default shall be deemed to exist thereafter until, but only until, all cumulative dividends on all shares of the Series A Preferred Stock then outstanding shall have been paid through the last Quarterly Dividend Payment Date or until, but only until, non-cumulative dividends have been paid regularly for at least one year. (D) Except as set forth herein (or as otherwise required by applicable law), holders of Series A Preferred Stock and Series B Preferred Stock shall have no general or special voting rights and their consent shall not be required for taking any corporate action. Section 4. Certain Restrictions. (A) Whenever quarterly dividends or other dividends or distributions payable on the Series A Preferred Stock and/or Series B Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on such shares of Preferred Stock outstanding shall have been paid in full, the Corporation shall not: (i) declare or pay dividends, or make any other distributions, on any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock and Series B Preferred Stock; (ii) declare or pay dividends, or make any other distributions, on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock and Series B Preferred Stock, except dividends paid ratably on the Series A Preferred Stock and Series B Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled (based upon their respective liquidation values); (iii) redeem or purchase or otherwise acquire for consideration (except as provided in (iv) below) shares of any stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock and Series B Preferred Stock, provided that the Corporation 4 may at any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange for shares of any stock of the Corporation ranking junior (both as to dividends and upon dissolution, liquidation or winding up) to the Series A Preferred Stock and Series B Preferred Stock; (iv) redeem or purchase or otherwise acquire for consideration any shares of Series A Preferred Stock or Series B Preferred Stock, or any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock and Series B Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. (B) The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner. Section 5. Reacquired Shares. Any shares of Series A Preferred Stock or Series B Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and canceled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock subject to the conditions and restrictions on issuance set forth in this Restated Certificate of Incorporation, in any Certificate of Amendment creating a series of Preferred Stock or as otherwise required by law. Section 6. Liquidation, Dissolution or Winding Up. (A) Subject to the prior and superior rights of holders of any shares of stock of the Corporation ranking prior and superior to the shares of Series A Preferred Stock and Series B Preferred Stock with respect to rights upon liquidation, dissolution or winding up (voluntary or otherwise), no distribution shall be made to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock and Series B Preferred Stock unless, prior thereto, the holders of shares of Series A Preferred Stock and Series B Preferred Stock shall have received $100.00 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment (the "Series Liquidation Preference"). Following the payment of the full amount of the Series Liquidation Preference, no additional distributions shall be made to the holders of shares of Series A Preferred Stock and Series B Preferred Stock unless, prior thereto, the holders of shares of Common Stock and Nonvoting Common Stock shall have received an amount per share (the "Capital Adjustment") equal to the quotient obtained by dividing (i) the Series Liquidation Preference by (ii) 100 (subject to the provision for adjustment hereinafter set forth in subparagraph (C) below) (such number in clause (ii), the "Adjustment Number"). Following the payment of the full amount of the Series Liquidation Preference and the Capital Adjustment in respect of all outstanding shares of Series A Preferred Stock and Series B Preferred Stock, and Common Stock and Nonvoting Common Stock, respectively, holders of Series A Preferred Stock and Series B Preferred Stock, and holders of Common Stock and Nonvoting Common Stock shall receive their ratable and proportionate share of the remaining assets to be distributed in the ratio of the Adjustment Number to 1 with respect to such Series A Preferred Stock and Series B Preferred Stock, and Common Stock and Nonvoting Common Stock, on a per share basis, respectively. 5 (B) In the event, however, that there are not sufficient assets available to permit payment in full of the Series Liquidation Preference and the liquidation preferences of all other series of stock of the Corporation, if any, which rank on a parity with the Series A Preferred Stock and Series B Preferred Stock, then such remaining assets shall be distributed ratably to the holders of Series A Preferred Stock and Series B Preferred Stock and the holders of such parity stock in proportion to their respective liquidation preferences. In the event, however, that there are not sufficient assets available to permit payment in full of the Capital Adjustment, then such remaining assets shall be distributed ratably to the holders of Common Stock and Nonvoting Common Stock. (C) In the event the Corporation shall at any time after September 1, 1993 (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine or consolidate the outstanding Common Stock into a smaller number of shares, or (iv) issue any shares of Common Stock in a reclassification or exchange of the outstanding shares of Common Stock (including any such reclassification or exchange in connection with a merger in which the Corporation is the continuing or surviving corporation), then in each such case the Adjustment Number in effect immediately prior to such event shall be adjusted by multiplying such Adjustment Number by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. Section 7. Conversion. (a) Conversion of Series A Preferred Stock. Subject to and upon compliance with the provisions of Section 4 of Paragraph B of this Article FOURTH, any Regulated Stockholder (as defined in Section 5 of Paragraph B of this Article FOURTH) shall be entitled to convert, at any time and from time to time, any or all of the shares of Series A Preferred Stock held by such stockholder into the same number of shares of Series B Preferred Stock. (b) Conversion of Series B Preferred Stock. Subject to and upon compliance with the provisions of Section 4 of Paragraph B of this Article FOURTH, each record holder of Series B Preferred Stock shall be entitled to convert, at any time and from time to time, any or all of the shares of Series B Preferred Stock held by such stockholder into the same number of shares of Series A Preferred Stock; provided however, that no holder of shares of Series B Preferred Stock shall be entitled to convert any such shares to the extent that, as a result of such conversion, such holder and its Affiliates (as defined in Section 5 of Paragraph B of this Article FOURTH), directly or indirectly, would own, control or have the power to vote a greater number of shares of Series A Preferred Stock or other securities of any kind issued by the Corporation than such holder and its Affiliates shall be permitted to own, control or have power to vote under any law, regulation, rule or other requirement of any governmental authority at the time applicable to such holder or its Affiliates. (c) Stock Splits; Adjustments. If the Corporation shall in any manner subdivide (by stock split, stock dividend or otherwise) or combine (by reverse stock split or otherwise) the outstanding shares of Series A Preferred Stock or Series B Preferred Stock, then the outstanding shares of Series B Preferred Stock or Series A Preferred Stock, as the case may be, shall be subdivided or combined, as the case may be, to the same extent, share and share alike, and effective provision shall be made for the protection of the conversion rights hereunder. In the case of any reorganization, reclassification or change of shares of Series A Preferred Stock or Series B Preferred Stock (other than a change in par value or from par to no par value as a result of a subdivision or combination), or in case of any consolidation of the Corporation with one or more 6 corporations or a merger of the Corporation with another corporation (other than a consolidation or merger in which the Corporation is the resulting or surviving corporation and which does not result in any reclassification or change of outstanding shares of Series A Preferred Stock or Series B Preferred Stock), each holder of a share of Series A Preferred Stock or Series B Preferred Stock shall have the right at any time thereafter, so long as the conversion right hereunder with respect to such share would exist had such event not occurred, to convert such share into the kind and amount of shares of stock and other securities and properties (including cash) receivable upon such reorganization, reclassification, change, consolidation or merger by a holder of the number of shares of Series A Preferred Stock or Series B Preferred Stock into which such shares of Series A Preferred Stock or Series B Preferred Stock, as the case may be, might have been converted immediately prior to such reorganization, reclassification, change, consolidation or merger. In the event of such a reorganization, reclassification, change, consolidation or merger, effective provision shall be made in the certificate of incorporation of the resulting or surviving corporation or otherwise for the protection of the conversion rights of the shares of Series A Preferred Stock and Series B Preferred Stock that shall be applicable, as nearly as reasonably may be, to any such other shares of stock and other securities and property deliverable upon conversion of the shares of Series A Preferred Stock or Series B Preferred Stock into which such Series B Preferred Stock or Series A Preferred Stock, as the case may be, might have been converted immediately prior to such event. (d) Reservation of Shares. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Preferred Stock or its treasury shares, solely for the purpose of issuance upon the conversion of shares of Series A Preferred Stock and Series B Preferred Stock, such number of shares of such class as are then issuable upon the conversion of all outstanding shares of Series A Preferred Stock and Series B Preferred Stock. Shares of Series A Preferred Stock and Series B Preferred Stock that are converted into shares of another class shall not be reissued, except for reissuances in connection with the conversion of shares of Series A Preferred Stock held by Regulated Stockholders into shares of Series B Preferred Stock and the conversion of shares of Series B Preferred Stock into shares of Series A Preferred Stock. Section 8. Consolidation, Merger, etc. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash or any other property, then, in any such case, (i) the shares of Series A Preferred Stock shall at the same time be similarly exchanged or changed in an amount per share (subject to adjustment as set forth herein) equal to 100 times the aggregate amount of stock, securities, cash or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged and (ii) the shares of Series B Preferred Stock shall at the same time be similarly exchanged or changed in an amount per share (subject to adjustment as set forth herein) equal to 100 times the aggregate amount of stock, securities, cash or other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged (or, if any shares of Nonvoting Common Stock are then outstanding and are being exchanged or changed, 100 times the aggregate amount of stock, securities, cash or other property into which or for which each share of Nonvoting Common Stock is changed or exchanged). Section 9. No Redemption. The shares of Series A Preferred Stock and Series B Preferred Stock shall not be redeemable. Section 10. Ranking. The Series A Preferred Stock and Series B Preferred Stock shall rank junior to all other series of stock of the Corporation (other than the Common Stock) as to the payment of dividends and the distribution of assets, unless the terms of any such series shall provide otherwise. 7 Section 11. Amendment. The Restated Certificate of Incorporation of the Corporation shall not be amended in any manner which would materially alter or change the powers, preferences or special rights of any series of Preferred Stock so as to affect them adversely without the affirmative vote of the holders of a majority or more of the outstanding shares of all series of Preferred Stock so affected, voting together as a separate class. B. Common Stock and Nonvoting Common Stock Shares of Common Stock and Nonvoting Common Stock will be identical and will entitle the holders thereof to the same rights and privileges, except as otherwise provided herein. Section 1. Dividends. Subject to the preferential rights, if any, of the Preferred Stock, the holders of shares of Common Stock shall be entitled to receive, when and if declared by the Board of Directors, out of the assets of the Corporation which are by law available therefor, dividends payable either in cash, in property or in shares of Common Stock or other securities of the Corporation. The holders of shares of Nonvoting Common Stock shall be entitled to receive, at the same time that any dividend is declared by the Board of Directors on the shares of Common Stock, the same dividend per share on the shares of Nonvoting Common Stock, payable on the same date as such dividend on the Common Stock; provided that if any dividend is payable on the shares of Common Stock in shares of Common Stock, or options, warrants or rights to acquire shares of Common Stock, or securities convertible into or exchangeable for shares of Common Stock, the shares, options, warrants, rights or securities payable in the case of the dividend on the shares of Nonvoting Common Stock shall be shares of, or options, warrants or rights to acquire, or securities convertible into or exchangeable for, Nonvoting Common Stock. Section 2. Voting Rights. (a) Common Stock. At every annual or special meeting of stockholders of the Corporation, every holder of Common Stock shall be entitled to one vote, in person or by proxy, for each share of Common Stock standing in such holder's name on the books of the Corporation. (b) Nonvoting Common Stock. Except as set forth herein or as otherwise required by law, each outstanding share of Nonvoting Common Stock shall not be entitled to vote on any matter on which the stockholders of the Corporation shall be entitled to vote, and shares of Nonvoting Common Stock shall not be included in determining the number of shares voting or entitled to vote on any such matters. On any matter on which the holders of shares of Common Stock and the holders of shares of Nonvoting Common Stock are entitled to vote, except as otherwise required by law, the Common Stock and Nonvoting Common Stock shall vote together as a single class, and each holder of shares of Nonvoting Common Stock entitled to vote shall be entitled to one vote for each share of such stock held by such holder; provided, however, that notwithstanding the foregoing, holders of shares of Nonvoting Common Stock shall be entitled to vote as a separate class on any amendment to this Section 2(b) and on any amendment, repeal or modification of any provision of this Restated Certificate of Incorporation that adversely affects the powers, preferences or special rights of holders of the Nonvoting Common Stock. Section 3. Liquidation, Dissolution or Winding Up. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation and of the preferential amounts, if any, to which the holders of Preferred Stock shall be entitled, the holders of all outstanding shares of Common Stock and Nonvoting Common Stock shall be entitled to share ratably in the remaining net assets of the Corporation. 8 Section 4. Conversion (a) Conversion of Common Stock. Subject to and upon compliance with the provisions of this Section 4, any Regulated Stockholder (defined below) shall be entitled to convert, at any time and from time to time, any or all of the shares of Common Stock held by such stockholder into the same number of shares of Nonvoting Common Stock. (b) Conversion of Nonvoting Common Stock. Subject to and upon compliance with the provisions of this Section 4, each record holder of Nonvoting Common Stock shall be entitled to convert, at any time and from time to time, any or all of the shares of Nonvoting Common Stock held by such stockholder into the same number of shares of Common Stock; provided however, that no holder of shares of Nonvoting Common Stock shall be entitled to convert any such shares to the extent that, as a result of such conversion, such holder and its Affiliates (defined below), directly or indirectly, would own, control or have the power to vote a greater number of shares of Common Stock or other securities of any kind issued by the Corporation than such holder and its Affiliates shall be permitted to own, control or have power to vote under any law, regulation, rule or other requirement of any governmental authority at the time applicable to such holder or its Affiliates. (c) Conversion Procedure. Each conversion of shares of a class or series of the capital stock of the Corporation into shares of another class or series of capital stock of the Corporation shall be effected by the surrender of the certificate or certificates representing the shares to be converted (the "Converting Shares") at the principal office of the Corporation (or such other office or agency of the Corporation as the Corporation may designate by written notice to the holders of shares of capital stock of the Corporation) at any time during its usual business hours, together with written notice by the holder of such Converting Shares, stating that such holder desires to convert the Converting Shares, or a stated number of the shares represented by such certificate or certificates, into an equal number of shares of the class or series into which such shares may be converted (the "Converted Shares"). Such notice shall also state the name or names (with addresses) and denominations in which the certificate or certificates for Converted Shares are to be issued and shall include instructions for the delivery thereof. The Corporation shall promptly notify each Regulated Stockholder of its receipt of such notice. Promptly after such surrender and the receipt of such written notice, the Corporation will issue and deliver in accordance with the surrendering holder's instructions the certificate or certificates evidencing the Converted Shares issuable upon such conversion, and the Corporation will deliver to the converting holder a certificate (which shall contain such legends as were set forth on the surrendered certificate or certificates) representing any shares which were represented by the certificate or certificates that were delivered to the Corporation in connection with such conversion, but which were not converted; provided, however, that if such conversion is subject to subparagraph (d) of this Section 4 below, the Corporation shall not issue such certificate or certificates until the expiration of the Deferral Period referred to therein. Such conversion, to the extent permitted by law, shall be deemed to have been effected as of the close of business on the date on which such certificate or certificates shall have been surrendered and such notice shall have been received by the Corporation, and at such time the rights of the holder of the Converting Shares as such holder shall cease (except that, in the case of a conversion subject to subparagraph (d) of this Section 4 below, the conversion shall be deemed to be effective upon the expiration of the Deferral Period referred to therein), and the person or persons in whose name or names the certificate or certificates for the Converted Shares are to be issued upon such conversion shall be deemed to have become the holder or holders of record of the Converted Shares. Upon issuance of shares in accordance with this Section 4, such Converted Shares shall be deemed to be duly authorized, validly issued, fully paid and non-assessable. Notwithstanding any provision of this Section 4 to the contrary, the Corporation shall not be required to record the conversion of, and no holder of shares shall be entitled to convert, shares of 9 nonvoting capital stock of the Corporation into shares of voting capital stock of the Corporation unless such conversion is permitted under applicable law; provided, however, that the Corporation shall be entitled to rely without independent verification upon the representation of any holder that the conversion of shares by such holder is permitted under applicable law, and in no event shall the Corporation be liable to any such holder or any third party arising from any such conversion whether or not permitted by applicable law. (d) Notice of Conversion to Other Regulated Stockholders; Deferral. The Corporation shall not convert or directly or indirectly redeem, purchase or otherwise acquire any shares of Common Stock or any other class of capital stock of the Corporation or take any other action affecting the voting rights of such shares, if such action will increase the percentage of any class of outstanding voting securities owned or controlled by any Regulated Stockholder (other than any such stockholder which requested that the Corporation take such action, or which otherwise waives in writing its rights under this subparagraph (d)), unless the Corporation gives written notice (the "Deferral Notice") of such action to each Regulated Stockholder. The Corporation will defer making any such conversion, redemption, purchase or other acquisition, or taking any such other action for a period of 20 days (the "Deferral Period") after giving the Deferral Notice in order to allow each Regulated Stockholder to determine whether it wishes to convert or take any other action with respect to the voting capital stock it owns, controls or has the power to vote, and if any such Regulated Stockholder then elects to convert any shares of voting capital stock, it shall notify the Corporation in writing within 10 days of the issuance of the Deferral Notice, in which case the Corporation shall (i) promptly notify from time to time prior to the end of such 20-day period each other Regulated Stockholder holding shares of each proposed conversion and the proposed transactions, and (ii) effect the conversions requested by all Regulated Stockholders in response to the notices issued pursuant to this subparagraph (d) at the end of the Deferral Period. The Corporation will not directly or indirectly redeem, purchase, acquire or take any other action affecting outstanding shares of capital stock of the Corporation if such action will increase the percentage of the outstanding shares of capital stock owned or controlled by any Regulated Stockholder and its Affiliates (other than a stockholder which waives in writing its rights under this Section 4) to more than 24.9% of the aggregate number of outstanding shares of capital stock of the Corporation (it being understood that for the purposes of the foregoing calculation each one one-hundredth of a share of Series A Preferred Stock or Series B Preferred Stock shall be treated as the equivalent of one share of Common Stock or Nonvoting Common Stock). (e) Stock Splits; Adjustments. If the Corporation shall in any manner subdivide (by stock split, stock dividend or otherwise) or combine (by reverse stock split or otherwise) the outstanding shares of Common Stock or Nonvoting Common Stock, then the outstanding shares of Nonvoting Common Stock or Common Stock, as the case may be, shall be subdivided or combined, as the case may be, to the same extent, share and share alike, and effective provision shall be made for the protection of the conversion rights hereunder. In the case of any reorganization, reclassification or change of shares of Common Stock or Nonvoting Common Stock (other than a change in par value or from par to no par value as a result of a subdivision or combination), or in case of any consolidation of the Corporation with one or more corporations or a merger of the Corporation with another corporation (other than a consolidation or merger in which the Corporation is the resulting or surviving corporation and which does not result in any reclassification or change of outstanding shares of Common Stock or Nonvoting Common Stock), each holder of a share of Common Stock or Nonvoting Common Stock shall have the right at any time thereafter, so long as the conversion right hereunder with respect to such share would exist had such event not occurred, to convert such share into the kind and amount of shares of stock and other securities and properties (including cash) receivable upon such reorganization, reclassification, change, consolidation or merger by a holder of the number of shares of Common Stock or Nonvoting Common Stock into which such shares of Common Stock or Nonvoting Common Stock, as the case may be, might have been 10 converted immediately prior to such reorganization, reclassification, change, consolidation or merger. In the event of such a reorganization, reclassification, change, consolidation or merger, effective provision shall be made in the certificate of incorporation of the resulting or surviving corporation or otherwise for the protection of the conversion rights of the shares of Common Stock and Nonvoting Common Stock that shall be applicable, as nearly as reasonably may be, to any such other shares of stock and other securities and property deliverable upon conversion of the shares of Common Stock or Nonvoting Common Stock into which such Common Stock or Nonvoting Common Stock, as the case may be, might have been converted immediately prior to such event. The Corporation shall not be a party to any merger, consolidation or recapitalization pursuant to which any Regulated Stockholder would be required to take (i) any voting securities which would cause such holder to violate any law, regulation or other requirement of any governmental body applicable to such holder, or (ii) any securities convertible into voting securities which, if such conversion took place, would cause such holder to violate any law, regulation or other requirement of any governmental body applicable to such holder other than securities which are specifically provided to be convertible only in the event that such conversion may occur without any such violation. (f) Reservation of Shares. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock and Nonvoting Common Stock or its treasury shares, solely for the purpose of issuance upon the conversion of shares of Common Stock and Nonvoting Common Stock, such number of shares of such class as are then issuable upon the conversion of all outstanding shares of Common Stock and Nonvoting Common Stock. Shares of Common Stock and Nonvoting Common Stock that are converted into shares of another class shall not be reissued, except for reissuances in connection with the conversion of shares of Common Stock held by Regulated Stockholders into shares of Nonvoting Common Stock and the conversion of shares of Nonvoting Common Stock into shares of Common Stock. (g) No Charge. The issuance of certificates for shares of any class or series of capital stock of the Corporation upon conversion of shares of another class or series of capital stock of the Corporation shall be made without charge to the holders of such shares for any issuance tax in respect thereof or other cost incurred by the Corporation in connection with such conversion and the related issuance of shares of capital stock of the Corporation; provided, however, that the Corporation shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any certificate in a name other than that of the holder of the capital stock of the Corporation converted. Section 5. Definitions. As used in this Paragraph B, the following terms shall have the meanings shown below: "Affiliate" shall mean with respect to any Person, any other Person, directly or indirectly controlling, controlled by or under common control with such Person. For the purpose of the above definition, the term "control" (including with correlative meaning, the terms "controlling," "controlled by" and "under common control with"), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise. "Person" shall mean an individual, a partnership, a corporation, a trust, a joint venture, an unincorporated organization or a government or any department or agency thereof. 11 "Regulated Stockholder" shall mean (a) any stockholder that is subject to the provisions of Regulation Y of the Board of Governors of the Federal Reserve System, 12 C.F.R. Part 225 (or any successor to such Regulation) ("Regulation Y") which was a "Regulated Stockholder" of HCA-Hospital Corporation of America (as such term was defined in the certificate of incorporation of such corporation) immediately prior to the merger (the "Merger") of HCA-Hospital Corporation of America with CHOS Acquisition Corporation, a wholly owned subsidiary of the Corporation, so long as such stockholder shall hold, and only with respect to, the shares of Common Stock or Nonvoting Common Stock received by such stockholder in connection with the Merger and shares of Series A Preferred Stock and Series B Preferred Stock received by such stockholder upon the exercise of preferred stock purchase rights received by such stockholder in connection with the Merger, or shares issued upon conversion(s) of or in respect of any of the foregoing shares or upon exercise of preferred stock purchase rights received upon conversion(s) of any of the foregoing shares, (b) any Affiliate of any such Regulated Stockholder that is a transferee of any of the foregoing shares or rights or shares issued upon conversion(s) of or in respect of any of the foregoing shares or upon exercise of preferred stock purchase rights received upon conversion(s) of any of the foregoing shares and (c) any Person to which such Regulated Stockholder or any of its Affiliates has transferred such shares or rights, so long as such transferee shall hold, and only with respect to, any of the foregoing shares or rights or any shares issued upon conversion(s) of or in respect of any of the foregoing shares or upon exercise of preferred stock purchase rights received upon conversion(s) of any of the foregoing shares but only if such Person (or any Affiliate of such Person) is subject to the provisions of Regulation Y. Section 6. Certain Amendments Affecting Nonvoting Common Stock. (a) In addition to any other action required by law or by this Restated Certificate of Incorporation, any change in the authorized number of shares of any class of capital stock of the Corporation shall require the affirmative vote of a majority of the directors then in office and the affirmative vote of the holders of not less than a majority of the then outstanding shares of Common Stock and Nonvoting Common Stock, voting together as a single class. The provisions of this Section 6(a) may be amended by, in addition to any other action required by law or by this Restated Certificate of Incorporation, the affirmative vote of the holders of not less than a majority of the then outstanding shares of Common Stock and Nonvoting Common Stock, voting together as a single class. (b) In addition to any other action required by law or by this Restated Certificate of Incorporation, any change in the powers, preferences or special rights of the shares of Nonvoting Common Stock so as to affect the holders thereof adversely shall require the affirmative vote of a majority of the directors then in office and the affirmative vote of the holders of not less than 66 2/3% of the shares of Nonvoting Common Stock. FIFTH: The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors may exercise all such authority and powers of the Corporation and do all such lawful acts and things as are not by statute or this Restated Certificate of Incorporation directed or required to be exercised or done by the stockholders. A. Number of Directors. The number of directors of the Corporation (exclusive of directors to be elected by the holders of one or more series of the Preferred Stock of the Corporation which may be outstanding, voting separately as a series or class) shall be fixed from time to time by action of not less than a majority of the members of the Board of Directors then in office, but in no event shall be less than three nor more than eighteen. 12 B. Terms. Until the annual meeting of stockholders in 2001, the directors shall be divided into three classes designated Class I, Class II and Class III, respectively. Each director elected prior to the effectiveness of this Article FIFTH shall serve for the full term for which he or she was elected, such that the term of each director elected at the 1996 annual meeting (Class III) or appointed to fill a vacancy as a Class III director prior to the 1999 annual meeting shall end at the annual meeting in 1999, the term of each director elected at the 1997 annual meeting (Class I) or appointed to fill a vacancy as a Class I director prior to the 2000 annual meeting shall end at the annual meeting in 2000, and the term of each director elected at the 1998 annual meeting (Class II) or appointed to fill a vacancy as a Class II director prior to the 2001 annual meeting shall end at the annual meeting in 2001. Following the expiration of the term of Class III directors in 1999, Class I directors in 2000, and Class II directors in 2001, the directors in each such Class shall hold office for a term expiring at the next annual meeting of stockholders or until their successors are elected and qualified or until their earlier resignation or removal. Commencing with the Annual Meeting of Stockholders in 2001, the foregoing classification of the Board of Directors shall cease, and all directors shall be of one class and shall hold office for a term expiring at the next annual meeting of stockholders or until their successors are elected and qualified or until their earlier resignation or removal. In no case shall a decrease in the number of directors shorten the term of any incumbent director. C. Vacancies. Subject to the rights, if any, of the holders of any series of Preferred Stock then outstanding, newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board of Directors resulting from death, resignation, disqualification or removal may be filled only by a majority vote of the directors then in office, though less than a quorum, and directors so chosen shall hold office for a term expiring at the annual meeting of stockholders at which the term of office of the class to which they have been elected expires; provided that, after the Annual Meeting of Stockholders in 2001, directors so chosen shall hold office for a term expiring at the next annual meeting of stockholders or until their successors are elected and qualified, or until their earlier resignation or removal. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. D. Removal. Until and including the Annual Meeting of Stockholders in 2001, and subject to the rights, if any, of any series of Preferred Stock then outstanding, any director, or the entire Board of Directors, may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of at least 66 2/3% of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class. Directors so chosen shall hold office for a term expiring at the annual meeting of stockholders at which the term of office of the class to which they have been elected expires. Following the Annual Meeting of Stockholders in 2001, subject to the rights, if any, of any series of Preferred Stock then outstanding, any director, or the entire Board of Directors, may be removed from office at any time by the affirmative vote of the holders of the majority of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class at a duly held meeting. SIXTH: Subject to the rights of the holders of any class or series of Preferred Stock, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken only upon the vote of the stockholders at an annual or special meeting duly called and may not be taken by written consent of the stockholders. SEVENTH: Subject to the rights of the holders of any class or series of Preferred Stock, special meetings of the stockholders, unless otherwise prescribed by statute, may be called at any time only by the Board of Directors, the Chairman of the Board or the Chief Executive Officer. 13 EIGHTH: At an annual meeting of stockholders, only such business shall be conducted, and only such proposals shall be acted upon, as shall have been properly brought before the annual meeting of stockholders (a) by, or at the direction of, the Board of Directors or (b) by a stockholder of the Corporation who complies with the procedures set forth in this Article EIGHTH. For business or a proposal to be properly brought before an annual meeting of stockholders by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a stockholder's notice must be delivered to or mailed and received at the principal executive offices of the Corporation not less than 60 days nor more than 90 days prior to the scheduled date of the annual meeting, regardless of any postponement, deferral or adjournment of that meeting to a later date; provided, however, that if less than 70 days' notice or prior public disclosure of the date of the annual meeting is given or made to stockholders, notice by the stockholder to be timely must be so delivered or received not later than the close of business on the 10th day following the earlier of (i) the day on which such notice of the date of the meeting was mailed or (ii) the day on which such public disclosure was made. A stockholder's notice to the Secretary shall set forth as to each matter the stockholder proposes to bring before an annual meeting of stockholders (i) a description, in 500 words or less, of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and address, as they appear on the Corporation's books, of the stockholder proposing such business and any other stockholders known by such stockholder to be supporting such proposal, (iii) the class and number of shares of the Corporation which are beneficially owned by such stockholder on the date of such stockholder's notice and by any other stockholders known by such stockholder to be supporting such proposal on the date of such stockholder's notice, (iv) a description, in 500 words or less, of any interest of the stockholder in such proposal and (v) a representation that the stockholder is a holder of record of stock of the Corporation and intends to appear in person or by proxy at the meeting to present the proposal specified in the notice. Notwithstanding anything in this Restated Certificate of Incorporation to the contrary, no business shall be conducted at a meeting of stockholders except in accordance with the procedures set forth in this Article EIGHTH. The chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that the business was not properly brought before the meeting in accordance with the procedures prescribed by this Article EIGHTH, and if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. Notwithstanding the foregoing, nothing in this Article EIGHTH shall be interpreted or construed to require the inclusion of information about any such proposal in any proxy statement distributed by, at the direction of, or on behalf of, the Board of Directors. NINTH: Subject to the rights, if any, of the holders of any series of Preferred Stock then outstanding, only persons nominated in accordance with the procedures set forth in this Article NINTH shall be eligible for election as directors. Nominations of persons for election to the Board may be made at an annual meeting of stockholders or special meeting of stockholders called by the Board of Directors for the purpose of electing directors (i) by or at the direction of the Board or (ii) by any stockholder of the Corporation entitled to vote for the election of directors at such meeting who complies with the notice procedures set forth in this Article NINTH. Such nominations, other than those made by or at the direction of the Board, shall be made pursuant to timely notice in writing to the Secretary of the Corporation. To be timely, a stockholder's notice must be delivered to or mailed and received at the principal executive offices of the Corporation not less than 60 days nor more than 90 days prior to the scheduled date of the meeting, regardless of any postponement, deferral or adjournment of that meeting to a later date; provided, however, that if less than 70 days' notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so delivered or received not later than the 14 close of business on the 10th day following the earlier of (i) the day on which such notice of the date of the meeting was mailed or (ii) the day on which such public disclosure was made. A stockholder's notice to the Secretary shall set forth (i) as to each person whom the stockholder proposes to nominate for election or reelection as a director (a) the name, age, business address and residence address of such person, (b) the principal occupation or employment of such person, (c) the class and number of shares of the Corporation which are beneficially owned by such person on the date of such stockholder's notice and (d) any other information relating to such person that is required to be disclosed in solicitations of proxies for election of directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended, or any successor statute thereto (the "Exchange Act") (including without limitation such person's written consent to being named in the proxy statement as a nominee and to serving as a director if elected); (ii) as to the stockholder giving the notice (a) the name and address, as they appear on the Corporation's books, of such stockholder and any other stockholders known by such stockholder to be supporting such nominee(s), (b) the class and number of shares of the Corporation which are beneficially owned by such stockholder on the date of such stockholder's notice and by any other stockholders known by such stockholder to be supporting such nominee(s) on the date of such stockholder's notice, (c) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; and (iii) a description of all arrangements or understandings between the stockholder and each nominee and other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the stockholder. No person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth in this Article NINTH. The chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the procedures prescribed by this Article NINTH, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. TENTH: The Board of Directors is expressly authorized to adopt, amend or repeal the Bylaws of the Corporation. Any Bylaws made by the directors under the powers conferred hereby may be amended or repealed by the directors or by the stockholders. Notwithstanding the foregoing and anything contained in this Restated Certificate of Incorporation to the contrary, the Bylaws shall not be amended or repealed by the stockholders, and no provision inconsistent therewith shall be adopted by the stockholders, without the affirmative vote of the holders of at least 75% of the voting power of all shares of the Corporation entitled to vote generally in the election of directors, voting together as a single class. ELEVENTH: Elections of directors need not be by written ballot unless the Bylaws of the Corporation shall otherwise provide. TWELFTH: A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that the foregoing shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of Delaware is hereafter amended to permit further elimination or limitation of the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of Delaware as so 15 amended. Any repeal or modification of this Article TWELFTH shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. THIRTEENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of the General Corporation Law of Delaware or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of Section 279 of the General Corporation Law of Delaware, order a meeting of the creditors or class of creditors, or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which said application has been made, be binding on all the creditors or class of creditors, or on all of the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation. FOURTEENTH: A. For purposes of this Article FOURTEENTH, the following terms shall be defined as follows: (1) The term "Business Combination" shall mean (a) any merger or consolidation of the Corporation or a Subsidiary with a Related Person, (b) any sale, lease, exchange, mortgage, pledge, transfer or other disposition other than in the ordinary course of business to or with a Related Person of any assets of the Corporation or a Subsidiary having an aggregate fair market value of $25,000,000 or more, (c) the issuance or transfer by the Corporation of any shares of Voting Stock or securities convertible into or exercisable for such shares (other than by way of pro rata distribution to all stockholders) to a Related Person, (d) any recapitalization, merger or consolidation that would have the effect of increasing the voting power of a Related Person, (e) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation or a Subsidiary proposed, directly or indirectly, by or on behalf of a Related Person, (f) any merger or consolidation of the Corporation with another Person proposed, directly or indirectly, by or on behalf of a Related Person unless the entity surviving or resulting from such merger or consolidation has a provision in its certificate or articles of incorporation, charter or similar governing instrument which is substantially identical to this Article FOURTEENTH or (g) any agreement, contract or other arrangement or understanding providing, directly or indirectly, for any of the transactions described in this Paragraph A(1). (2) The term "Related Person" shall mean any individual, partnership, corporation, trust or other Person which, together with its "affiliates" and "associates", as defined in Rule 12b-2 under the Exchange Act as in effect on September 1, 1993, and together with any other individual, partnership, corporation, trust or other Person with which it or they have any agreement, contract or other arrangement or understanding with respect to acquiring, holding, voting or disposing of Voting Stock, "beneficially owns" (within the meaning of Rule 13d-3 under the Exchange Act on said date) an aggregate of 10% or more of the outstanding Voting Stock. A Related Person, its affiliates and associates and all such other individuals, partnerships, corporations and other Persons with whom it or they have any such agreement, contract or other arrangement or understanding, shall be deemed a single Related Person for purposes of 16 this Article FOURTEENTH; provided, however, that the members of the Board of Directors of the Corporation shall not be deemed to be associates or otherwise to constitute a Related Person solely by reason of their board membership. A person who is a Related Person as of (i) the time any definitive agreement relating to a Business Combination is entered into, (ii) the record date for the determination of stockholders entitled to notice of and to vote on a Business Combination or (iii) immediately prior to the consummation of a Business Combination, shall be deemed a Related Person for purposes of this Article FOURTEENTH. (3) The term "Continuing Director" shall mean any member of the Board of Directors of the Corporation who is not an "affiliate" or "associate" of the Related Person referred to in Paragraph A(2) of this Article FOURTEENTH and was a member of the Board of Directors prior to the time that such Related Person became a Related Person, and any successor of a Continuing Director who is unaffiliated with such Related Person and is recommended to succeed a Continuing Director by a majority of the Continuing Directors. (4) The term "Person" shall mean any individual, firm, corporation or other entity. (5) The term "Subsidiary" shall mean any corporation or other entity of which the Person in question owns, directly or indirectly, not less than 50% of any class of equity securities or not less than 50% of the voting power of all securities of the Corporation entitled to vote generally in the election of directors. (6) The term "Voting Stock" shall mean any shares of the Corporation entitled to vote generally in the election of directors. (7) The term "Entire Board of Directors" shall mean the total number of directors which the Corporation would have if there were no vacancies. (8) The term "Market Value" shall mean the average of the high-and low-quoted sales price on the date in question (or, if there is no reported sale on such date, on the last preceding date on which any reported sale occurred) of a share on the Composite Tape for the New York Stock Exchange - Listed Stocks, or, if the shares are not listed or admitted to trading on such exchange, on the principal United States securities exchange registered under the Exchange Act on which the shares are listed or admitted to trading, or, if the shares are not listed or admitted to trading on any such exchange, the mean between the closing high bid and low-asked quotations with respect to a share on such date as quoted on the National Association of Securities Dealers Automated Quotations System, or any similar system then in use, or, if no such quotations are available, the fair market value on such date of a share as at least 66 2/3% of the Continuing Directors shall determine. B. In addition to any other vote required by this Restated Certificate of Incorporation or the General Corporation Law of Delaware, the affirmative vote of the holders of not less than 85% of the outstanding Voting Stock held by stockholders other than a Related Person by or with whom or on whose behalf, directly or indirectly, a Business Combination is proposed, voting as a single class, shall be required for the approval or authorization of such Business Combination; provided, however, that the 85% voting requirement shall not be applicable and such Business Combination may be approved by the vote required by law or by any other provision of this Restated Certificate of Incorporation if either: (1) The Business Combination is approved by the Board of Directors of the Corporation by the affirmative vote of at least 66 2/3% of the Continuing Directors, or 17 (2) All of the following conditions are satisfied: (a) The aggregate amount of cash and the fair market value of the property, securities or other consideration to be received per share of capital stock of the Corporation in the Business Combination by the holders of capital stock of the Corporation, other than the Related Person involved in the Business Combination, shall not be less than the highest of (i) the highest per share price (including brokerage commissions, soliciting dealers' fees, and dealer-management compensation, and with appropriate adjustments for recapitalizations, stock splits, stock dividends and like transactions and distributions) paid by such Related Person in acquiring any of its holdings of such class or series of capital stock, (ii) the highest per share Market Value of such class or series of capital stock within the twelve-month period immediately preceding the date the proposal for such Business Combination was first publicly announced or (iii) the book value per share of such class or series of capital stock, determined in accordance with generally accepted accounting principles, as of the last day of the month immediately preceding the date the proposal for such Business Combination was first publicly announced; (b) The consideration to be received in such Business Combination by holders of capital stock other than the Related Person involved shall, except to the extent that a stockholder agrees otherwise as to all or part of the shares which he or she owns, be in the same form and of the same kind as the consideration paid by the Related Person in acquiring capital stock already owned by it, provided, however, that if the Related Person has paid for capital stock with varying forms of consideration, the form of consideration for shares of capital stock acquired in the Business Combination by the Related Person shall either be cash or the form used to acquire the largest number of shares of capital stock previously acquired by it; and (c) A proxy statement responsive to the requirements of the Exchange Act and regulations promulgated thereunder, whether or not the Corporation is then subject to such requirements, shall be mailed to the stockholders of the Corporation for the purpose of soliciting stockholder approval of such Business Combination and shall contain at the front thereof, in a prominent place, (i) any recommendations as to the advisability (or inadvisability) of the Business Combination which the Continuing Directors may choose to state and (ii) the opinion of a reputable investment banking firm selected by the Continuing Directors as to the fairness of the terms of such Business Combination, from a financial point of view, to the public stockholders (other than the Related Person) of the Corporation. C. A Related Person shall be deemed for purposes of this Article FOURTEENTH to have acquired a share of the Corporation at the time when such Related Person became the beneficial owner thereof (as such term is defined in Paragraph A(2) of this Article FOURTEENTH). With respect to shares owned by affiliates, associates and other Persons whose ownership is attributed to a Related Person, if the price paid by such Related Person for such shares is not determinable, the price so paid shall be deemed to be the higher of (i) the price paid upon acquisition thereof by the affiliate, associate or other Person or (ii) the Market Value of the shares in question at the time when the Related Person became the beneficial owner thereof. For purposes of this Article FOURTEENTH, in the event of a Business Combination upon consummation of which the Corporation would be the surviving corporation or would continue to exist (unless it is provided, contemplated or intended that as part of such Business Combination a plan of liquidation or dissolution of the Corporation will be effected), the term "other consideration to be received" in Paragraph B(2)(a) shall include (without limitation) common stock or other capital stock of the Corporation retained by stockholders of the Corporation (other than Related Persons who are parties to such Business Combination). 18 Nothing contained in this Article shall be construed to relieve any Related Person from any fiduciary obligation imposed by law. D. Notwithstanding any other provision of this Restated Certificate of Incorporation or the Bylaws of the Corporation (and notwithstanding the fact that a lesser percentage may be permitted by law), any amendment, addition, alteration, change or repeal of this Article FOURTEENTH, or any other amendment of this Restated Certificate of Incorporation or the Bylaws of the Corporation inconsistent with or modifying or permitting circumvention of this Article FOURTEENTH, must first be proposed by the Board of Directors of the Corporation, upon the affirmative vote of at least two-thirds of the directors then in office at a duly constituted meeting of the Board of Directors called for such purpose, and thereafter approved by the affirmative vote of the holders of not less than 85% of the then outstanding Voting Stock held by stockholders other than a Related Person by or with whom or on whose behalf, directly or indirectly, a Business Combination is proposed, voting as a single class; provided, however, that this Paragraph D shall not apply to, and such 85% vote shall not be required for, any such amendment, addition, alteration, change or repeal recommended to stockholders of the Corporation by the affirmative vote of not less than 66 2/3% of the Continuing Directors. For the purposes of this Paragraph D only, if at the time when any such amendment, addition, alteration, change or repeal is under consideration there is no proposed Business Combination, the term "Continuing Directors" shall be deemed to mean the Entire Board of Directors. FIFTEENTH: The Board of Directors, each committee of the Board of Directors and each individual director, in discharging their respective duties under applicable law and this Restated Certificate of Incorporation and in determining what they each believe to be in the best interests of the Corporation and its stockholders, may consider the effects, both short-term and long-term, of any action or proposed action taken or to be taken by the Corporation, the Board of Directors or any committee of the Board on the interests of (i) the employees, associates, associated physicians, distributors, patients or other customers, suppliers or creditors of the Corporation and its subsidiaries and (ii) the communities in which the Corporation and its subsidiaries own or lease property or conduct business, all to the extent that the Board of Directors, any committee of the Board of Directors or any individual director deems pertinent under the circumstances (including the possibility that the interests of the Corporation may best be served by the continued independence of the Corporation); provided, however, that the provisions of this Article FIFTEENTH shall not limit in any way the right of the Board of Directors to consider any other lawful factors in making its determinations, including, without limitation, the effects, both short-term and long-term, of any action or proposed action on the Corporation or its stockholders directly; and provided further that this Article FIFTEENTH shall be deemed solely to grant discretionary authority to the Board of Directors, each committee of the Board of Directors and each individual director and shall not be deemed to provide to any specific constituency any right to be considered. SIXTEENTH: Each person who was or is made a party or is threatened to be made a party to or is involved (including, without limitation, as a witness) in any actual or threatened action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an "indemnitee"), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as such a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the full extent authorized by the General Corporation Law of Delaware, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such 19 amendment), or by other applicable law as then in effect, against all expense, liability and loss (including attorneys' fees, judgments, fines, excise taxes under the Employee Retirement Income Security Act of 1974, as amended from time to time ("ERISA"), penalties and amounts to be paid in settlement) actually and reasonably incurred or suffered by such indemnitee in connection therewith. A. Procedure. Any indemnification under this Article SIXTEENTH (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the General Corporation Law of Delaware, as the same exists or hereafter may be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment). Such determination shall be made (a) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding (the "Disinterested Directors"), or (b) if such a quorum of Disinterested Directors is not obtainable, or, even if obtainable a quorum of Disinterested Directors so directs, by independent legal counsel in a written opinion, or (c) by the stockholders. B. Advances For Expenses. Costs, charges and expenses (including attorneys' fees) incurred by a director or officer of the Corporation in defending a civil or criminal action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay all amounts so advanced in the event that it shall ultimately be determined that such director or officer is not entitled to be indemnified by the Corporation as authorized in this Article SIXTEENTH. Such costs, charges and expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the majority of the Disinterested Directors deems appropriate. The majority of the Disinterested Directors may, in the manner set forth above, and upon approval of such director, officer, employer, employee or agent of the Corporation, authorize the Corporation's counsel to represent such person, in any action, suit or proceeding, whether or not the Corporation is a party to such action, suit or proceeding. C. Procedure for Indemnification. Any indemnification or advance of costs, charges and expenses under this Article SIXTEENTH, shall be made promptly, and in any event within 60 days upon the written request of the director, officer, employee or agent. The right to indemnification or advances as granted by this Article SIXTEENTH, shall be enforceable by the director, officer, employee or agent in any court of competent jurisdiction, if the Corporation denies such request, in whole or in part, or if no disposition thereof is made within 60 days. Such person's costs and expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the Corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for the advance of costs, charges and expenses under this Article SIXTEENTH, where the required undertaking, if any, has been received by the Corporation) that the claimant has not met the standard of conduct set forth in the General Corporation Law of Delaware, as the same exists or hereafter may be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, its independent legal counsel and its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the General Corporation Law of Delaware, as the same exists or hereafter may be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights that said law permitted the Corporation to provide prior to such amendment), nor the fact that there has been an actual determination by the 20 Corporation (including its Board of Directors, its independent legal counsel and its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. D. Other Rights; Continuation of Right to Indemnification. The indemnification and advancement of expenses provided by this Article SIXTEENTH shall not be deemed exclusive of any other rights to which a person seeking indemnification or advancement of expenses may be entitled under any law (common or statutory), bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding office or while employed by or acting as agent for the Corporation, and shall continue as to a person who has ceased to be a director, officer, employee or agent, and shall inure to the benefit of the estate, heirs, executors and administrators of such person. All rights to indemnification under this Article SIXTEENTH, shall be deemed to be a contract between the Corporation and each director, officer, employee or agent of the Corporation who serves or served in such capacity at any time while this Article SIXTEENTH, is in effect. Any repeal or modification of this Article SIXTEENTH, or any repeal or modification of relevant provisions of the General Corporation Law of Delaware or any other applicable laws shall not in any way diminish any rights to indemnification of such director, officer, employee or agent or the obligations of the Corporation arising hereunder with respect to any action, suit or proceeding arising out of, or relating to, any actions, transactions or facts occurring prior to the final adoption of such modification or repeal. For the purposes of this Article SIXTEENTH, references to "the Corporation" include all constituent corporations absorbed in a consolidation or merger as well as the resulting or surviving corporation, so that any person who is or was a director, officer, employee or agent of such a constituent corporation or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise shall stand in the same position under the provisions of this Article SIXTEENTH, with respect to the resulting or surviving corporation, as he would if he or she had served the resulting or surviving corporation in the same capacity. E. Insurance. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was or has agreed to become a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her or on his or her behalf in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such liability under the provisions of this Article SIXTEENTH; provided, however, that such insurance is available on acceptable terms, which determination shall be made by a vote of a majority of the Board of Directors. F. Savings Clause. If this Article SIXTEENTH, or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each person entitled to indemnification under the first paragraph of this Article SIXTEENTH, as to all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes, penalties and amounts to be paid in settlement) actually and reasonably incurred or suffered by such person and for which indemnification is available to such person pursuant to this Article SIXTEENTH, to the full extent permitted by any applicable portion of this Article SIXTEENTH, that shall not have been invalidated and to the full extent permitted by applicable law. SEVENTEENTH: In furtherance and not in limitation of the powers conferred by law or in this Restated Certificate of Incorporation, the Board of Directors (and any committee of the Board of Directors) is expressly authorized, to the extent permitted by law, to take such action or actions as the Board or such committee may determine to be reasonably necessary or desirable to (A) encourage any person to enter into 21 negotiations with the Board of Directors and management of the Corporation with respect to any transaction which may result in a change in control of the Corporation which is proposed or initiated by such person or (B) contest or oppose any such transaction which the Board of Directors or such committee determines to be unfair, abusive or otherwise undesirable with respect to the Corporation and its business, assets or properties or the stockholders of the Corporation, including, without limitation, the adoption of such plans or the issuance of such rights, options, capital stock, notes, debentures or other evidences of indebtedness or other securities of the Corporation, which rights, options, capital stock, notes, evidences of indebtedness and other securities (i) may be exchangeable for or convertible into cash or other securities on such terms and conditions as may be determined by the Board or such committee and (ii) may provide for the treatment of any holder or class of holders thereof designated by the Board of Directors or any such committee in respect of the terms, conditions, provisions and rights of such securities which is different from, and unequal to, the terms, conditions, provisions and rights applicable to all other holders thereof. EIGHTEENTH: The Corporation reserves the right to amend, add, alter, change, repeal or adopt any provision contained in this Restated Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. In addition to any affirmative vote required by applicable law or any other provision of this Restated Certificate of Incorporation or specified in any agreement, and in addition to any voting rights granted to or held by the holders of any series of Preferred Stock, the affirmative vote of the holders of not less than 75% of the voting power of all securities of the Corporation entitled to vote generally in the election of directors shall be required to amend, add, alter, change, repeal or adopt any provisions inconsistent with Articles FIFTH, SIXTH, SEVENTH, EIGHTH, NINTH, TENTH, TWELFTH, THIRTEENTH, FIFTEENTH, SIXTEENTH, SEVENTEENTH and EIGHTEENTH of this Restated Certificate of Incorporation. 22 EX-10.2 4 g70521a1ex10-2.txt REGISTRATION RIGHTS AGREEMENT DATED AS OF 6/28/01 EXHIBIT 10.2 REGISTRATION RIGHTS AGREEMENT REGISTRATION RIGHTS AGREEMENT, dated as of June 28, 2001, between HCA - The Healthcare Company, a Delaware corporation (the "Seller"), and Canadian Investments LLC, a Delaware limited liability company (the "Purchaser"). WHEREAS. the Seller and the Purchaser have entered into a transaction referred to in a Confirmation first dated June 7, 2001 and amended on June 28, 2001, which as of the date of this Agreement supplements and forms part of an Amended and Restated Master Agreement dated as of June 28, 2001 (that Amended and Restated Master Agreement, including the Schedule thereto, as so supplemented and as further updated or amended and supplemented from time to time, hereinafter referred to as the "Master Agreement") and may enter into additional transactions thereunder (collectively, the "Transactions"), in connection with which the Purchaser will acquire shares of the Seller's voting common stock, $.01 par value per share, issued by HCA - The Healthcare Company (the "Stock"); and WHEREAS, shares of Stock so acquired by the Purchaser in connection with the Transactions, may under some circumstances be deemed to be "restricted securities" within the meaning of subparagraph (a)(3) of Rule 144 issued by the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), or may otherwise be subject to the resale limitations of Rule 144; and WHEREAS, the parties are entering into this Agreement to provide the Purchaser with the ability to sell any shares of Stock acquired by the Purchaser in connection with the Transactions, that may be deemed "restricted securities" or otherwise subject to the resale limitations of Rule 144, on a registration statement of the Company covering the resale of such shares if the sale is to occur in connection with cash settlement of the Purchaser's obligation under the Transactions (any such sale, a "Settlement Sale"); NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements hereinafter set forth, the parties hereto agree as follows: 1. CERTAIN AGREEMENTS OF THE SELLER REGARDING THE REGISTRATION OF THE SHARES OF STOCK UNDER THE SECURITIES ACT AND THE ISSUANCE OF SUCH SHARES (a) In order to permit the Purchaser to resell any shares of Stock that it may acquire in connection with the Transactions in a Settlement Sale that may have a prospectus delivery requirement, the Seller agrees that as soon as practically possible, but no later than 35 days after the date hereof, it will either (i) prepare and file with the Commission a registration statement on Form S-3 under the Securities Act with respect to a number of shares of Stock not less than the aggregate number of Shares subject to the Page 1 Transactions (the "Registered Number of Shares"), or (ii) effect a post-effective amendment to a registration statement on Form S-3 (either such registration statement, as it may be amended from time to time, is hereinafter referred to as the "Registration Statement"). The Registration Statement shall permit the secondary resale thereunder by the Purchaser of up to the Registered Number of Shares of the Stock on a delayed or continuous basis in accordance with Rule 415 under the Securities Act, or any successor rule that may be promulgated by the Commission under the Securities Act, as they each may, from time to time, be in effect. If the Registration Statement includes securities other than the Stock that may be sold by the Purchaser, then Seller shall reserve on such Registration Statement sufficient availability for the Purchaser, at all times during the term of this Agreement, to sell up to an aggregate of the Registered Number of Shares of Stock. (b) In connection with the Registration Statement and the registration of the resale of the shares of Stock under the Securities Act, the Seller agrees that it will: (i) (a) use all commercially reasonable efforts to cause the Registration Statement to be effective as soon as practically possible, and (b) in any event cause the Registration Statement to be effective no later than 180 days after the date of filing of such Registration Statement; (ii) prepare and file with the Commission such amendments and supplements to the Registration Statement and the prospectus contained therein (such prospectus, as it may be amended or supplemented from time to time, is hereinafter referred to as the "Prospectus") as may be necessary, in the opinion of the Seller and its counsel, to keep the Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all the shares of Stock by the Purchaser until such time as all shares of the Stock have either (A) been delivered to the Seller in settlement of the Transactions or (B) been disposed of by the Purchaser in accordance with the methods of disposition utilized by the Purchaser consistent with its obligation under the Transactions and the Securities Act and other applicable securities laws and regulations; provided, however, to the extent that any such amendment or supplement to the Registration Statement or the Prospectus relates specifically to the Purchaser or its disposition of shares of Stock, the Seller will, within a reasonable time prior to the filing of the amendment or supplement, provide copies of such document to the Purchaser and not file any such document in a form to which the Purchaser shall reasonably object; Page 2 (iii) promptly furnish to the Purchaser such number of copies of the Registration Statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the Prospectus and such other documents as the Purchaser may reasonably request in order to facilitate the disposition of the shares of Stock as contemplated in the Transactions; (iv) use its best efforts to register or qualify the shares of Stock covered by the Registration Statement under such other applicable securities or Blue Sky laws of such jurisdictions within the United States of America (including territories and commonwealths thereof) as the Purchaser shall reasonably request, except that the Seller shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it is not so qualified, to subject itself to taxation in any such jurisdiction, or to consent to general service of process in any jurisdiction; (v) notify the Purchaser at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the period mentioned in clause (ii) above of the happening of any event as a result of which the Prospectus, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, at the request of the Purchaser, prepare and furnish to the Purchaser a reasonable number of copies of a supplement to or an amendment of the Prospectus as may be necessary so that, as thereafter delivered to the purchasers of shares of Stock, the Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, that the Seller shall be entitled to postpone the filing of any such amendment or supplement by written notice to the Purchaser if either (i) the Seller shall have determined in good faith that such disclosure is not in the best interest of the Seller and its stockholders because of the existence of, or in anticipation of, any acquisition or financing activity, or the unavailability of any required financial statements, or any other event or condition of similar significance to the Seller, or (ii) the Seller is proceeding promptly and in good faith to amend or supplement such Registration Statement and related Prospectus to describe such events; provided further, that in no event shall the Seller be entitled to postpone the filing of any such amendment or supplement for a period greater than 45 consecutive business days Page 3 without the consent of Purchaser, which shall not be unreasonably withheld; (vi) if requested by the Purchaser, enter into an underwriting agreement with an Underwriter (as that term is defined in Section 10 below) or Underwriters, as the case may be, providing for the sale of the shares of Stock in an Underwritten Offering (as that term is defined in Section 10 below) and/or enter into a sales agency agreement providing for, among other things, the appointment by the Purchaser of a nationally recognized investment banking firm reasonably satisfactory to the Seller to act as sales agent on behalf of the Purchaser, each of which agreements shall be customary in form, substance and scope and shall contain customary representations, warranties, covenants and indemnities and require customary opinions of counsel and accountants' "cold comfort" letters and certificates; and use its best efforts to obtain any such opinions of counsel and accountants' "cold comfort" letters referred to in such underwriting agreement or sales agency agreement, and take all such other reasonable actions in connection therewith in order to expedite or facilitate the disposition of the shares of Stock as contemplated by such agreements; (vii) enter into, and use its best efforts to cause its affiliates to enter into, customary lock-up arrangements (not to exceed 90 days) with Underwriters of an Underwritten Offering; provided however, that such arrangements shall not extend (i) to the issuance to management of the Seller or any affiliate of securities convertible into shares of Stock, or (ii) to the issuance or distribution of shares of Stock to holders of convertible securities upon conversion; (viii) make available to its security holders, as soon as practicable, an earnings statement covering a period of at least twelve months which satisfies the provisions of Section 11(a) of the Securities Act (including, at the option of the Seller, Rule 158 issued by the Commission thereunder); (ix) provide to the Purchaser and any Underwriter (and any of their respective representatives) reasonable access to appropriate officers and employees of the Seller, the Seller's attorneys and its independent public accountants to answer questions and to supply information reasonably requested by the Purchaser and such Underwriter in connection with the Registration Statement and the Prospectus as they shall reasonably determine to be necessary to Page 4 enable them to conduct a reasonable investigation of the Seller within the meaning of the Securities Act, subject to execution of customary confidentiality agreements; and (x) cause the shares of Stock to be listed on any securities exchange or quotation system, if any, on which the Seller's common stock shall then be listed, subject to official notice of issuance, which notice shall be given by the Seller upon issuance. (c) The Seller agrees that it will not, prior to the complete termination of the Transactions, take, or refrain from taking, any action that would have the effect of preventing or disabling (i) the Purchaser from delivering to the Seller the shares of Stock in physical settlement of all or any part or (ii) the Purchaser or the Seller from otherwise performing any of its respective obligations under this Agreement or the Master Agreement (including the Transactions). (d) The Purchaser acknowledges that agreements and representations and warranties of the Seller in this Agreement shall in no way be interpreted to require the Seller to take any additional action to facilitate a Settlement Sale so long as the Purchaser is entitled or required under the Transactions to settle its obligations thereunder through delivery of the Stock to the Seller in any case in which the Seller fails to take any such action. 2. CERTAIN AGREEMENTS OF THE PURCHASER IN CONNECTION WITH THE REGISTRATION OF THE SHARES OF STOCK UNDER THE SECURITIES ACT In connection with the Registration Statement and the registration of the resale of the shares of Stock under the Securities Act, the Purchaser agrees that: (a) it will furnish the Seller with such information regarding the Purchaser and the distribution of the shares of Stock as the Seller may from time to time reasonably request in writing and as shall be required by law; and (b) upon receipt of any notification of the type described in Section 1(b)(v) above, and until a supplemented or amended Prospectus is available as provided in Section 1(b)(v) above, the Purchaser will not offer or sell any shares of Stock and shall return all copies of earlier versions of the Prospectus to the Seller if requested to do so by the Seller, and the Purchaser in all cases will only sell the Stock as contemplated in the Transactions. 3. REPRESENTATIONS AND WARRANTIES OF THE SELLER The Seller represents and warrants to the Purchaser that: Page 5 (a) as of the date hereof and as of each Share Sale Date, the Seller is duly incorporated and is validly existing and in good standing as a corporation under the laws of the State of Delaware and has full corporate power and authority to conduct its business as currently conducted; (b) as of the date hereof, this Agreement has been duly authorized, executed and delivered by the Seller and, assuming due authorization, execution and delivery thereof by the Purchaser, constitutes a valid and legally binding obligation of the Seller enforceable against the Seller in accordance with its terms, except (A) as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and (B) that the enforceability of rights to indemnification and contribution thereunder may be limited by federal or state securities laws; (c) as of the date hereof, the sale of shares of Stock by the Purchaser and the compliance by the Seller with all the provisions of this Agreement as of the date hereof will not, and, as of each Share Sale Date, such sale and compliance does not, breach or result in a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Seller or any of its subsidiaries is a party or by which the Seller or any of its subsidiaries is bound or to which any of the property or assets of the Seller or any of its subsidiaries is subject, nor, as of the date hereof, will, and, as of each Share Sale Date, does, such action violate the Certificate of Incorporation or Bylaws of the Seller or any statute or any rule or regulation that has been issued pursuant to any statute or any order known to the Seller issued by any court or governmental agency or body or court having jurisdiction over the Seller or any of its subsidiaries or any of their properties; (d) as of each Share Sale Date, the shares of Stock are included in the securities that are the subject of the Registration Statement; and, as of each Share Sale Date following the date the Registration Statement has been declared effective by the Commission, no stop order suspending the effectiveness of the Registration Statement has been issued and, to the Seller's knowledge, as of each Share Sale Date, no such proceeding is pending or threatened by the Commission; (e) the Registration Statement, when effective, and the Prospectus, and any further amendments or supplements thereto, will, and, as of each Share Sale Date, such Registration Statement, Prospectus and amendments or supplements do, comply as to form in all material respects with the requirements of the Securities Act and the rules and regulations of the Commission thereunder (the "Rules and Regulations"); and, as of each Share Sale Date, the documents incorporated by reference in the Prospectus, when they are filed with the Commission, will comply as to form in all material respects with Page 6 the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder; (f) as of each Share Sale Date, there are no contracts or other documents that are required to be described in the Prospectus or filed as exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations which will not have been described or filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules and Regulations; and (g) as of each Share Sale Date, the Registration Statement and the Prospectus will not contain any untrue statement of a material fact or omit to state a 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. 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER The Purchaser represents and warrants to the Seller, as of the date hereof and as of each Share Sale Date, that: (a) this Agreement has been duly authorized, executed and delivered by the Purchaser and, assuming due authorization, execution and delivery thereof by the Seller, constitutes a valid and legally binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms except (A) as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and (B) that the enforceability of rights to indemnification and contribution thereunder may be limited by federal or state securities laws; (b) it is an "accredited investor" as that term is defined in Rule 501(a)(3) of Regulation D issued by the Commission under the Securities Act and is acquiring Stock for investment for its own account in connection with the Transactions and not with a view to, or for resale, or other disposition thereof; and it will not offer, transfer, sell, pledge, hypothecate or otherwise dispose of any of such Stock (or solicit any offers to buy, purchase, or otherwise acquire or take a pledge of any of such Stock) except in compliance with the Securities Act, the Rules and Regulations, and this Agreement and the Transactions. 5. OPINION OF COUNSEL FOR THE SELLER; COMFORT LETTER On each Share Sale Date, the Purchaser shall receive from counsel for the Seller (which counsel may be in-house counsel to the Seller) an opinion, dated such date, as to Page 7 the matters set forth in the Annex attached hereto, and such opinion shall be satisfactory in form and substance to the Purchaser. On each Share Sale Date, the Seller shall use reasonable commercial efforts to obtain, on behalf of the Purchaser, a "cold comfort" letter from the independent certified public accountants of the Seller (and any other independent certified public accountants of any subsidiaries for which financial statements are included in the Registration Statement), addressed to the Purchaser, in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with primary underwritten offerings. 6. INDEMNIFICATION (a) In connection with the registration of the shares of Stock under the Securities Act, the Seller will indemnify and hold harmless the Purchaser and its directors and officers and each Underwriter of the shares of Stock and each other person, if any, who controls the Purchaser or such Underwriter within the meaning of the Securities Act, against any losses, claims, damages or liabilities, joint or several, to which the Purchaser or such director or officer or Underwriter or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, the Prospectus, or any amendment or supplement thereto, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading; and the Seller will reimburse the Purchaser, each such director and officer, each such Underwriter and each such controlling person for any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, action or proceeding as such expenses are incurred; provided, however, that the Seller shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, Prospectus, amendment or supplement in reliance upon and in conformity with written information furnished to the Seller by the Purchaser or such officer or director, Underwriter or controlling person specifically for use in the preparation thereof. Such indemnity shall remain in full force and effect irrespective of any investigation by any person indemnified above. (b) In connection with the registration of the shares of Stock under the Securities Act, the Purchaser will indemnify and hold harmless the Seller and each person, if any, who controls the Seller within the meaning of the Securities Act, each officer of the Seller who has signed the Registration Statement, each director of the Seller and each Underwriter from any and all losses, claims, damages or liabilities, joint or several, to which the Seller or such officer or director or Underwriter or controlling Page 8 person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement or the Prospectus, or any amendment or supplement thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Seller and each such officer, director, Underwriter and controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Purchaser will be liable hereunder in any such case if and only to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with information pertaining to the Purchaser, as such, furnished in writing to the Seller by the Purchaser specifically for use in the Registration Statement or the Prospectus; and provided further, that the aggregate obligation of the Purchaser to indemnify the Seller and each such officer, director, Underwriter and controlling person shall be limited to the proceeds received by the Purchaser from the sale of shares of Stock pursuant to the Registration Statement. (c) Promptly after receipt by an indemnified party of notice of the commencement of any action involving a claim referred to in the preceding paragraphs of this Section 6, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the latter of the commencement of such action; provided, however, that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding paragraphs of this Section 6, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, the indemnifying party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the indemnified party, and shall assume the payment of all expenses in connection with such defense. The indemnified party or any controlling person of such indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified party or such controlling person unless (i) the indemnifying party shall have agreed to pay such fees and expenses or (ii) the indemnifying party shall have failed to assume the defense for such action or proceeding and to employ counsel reasonably satisfactory to the indemnified party in any such action or proceeding or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both the indemnified party or such controlling person and the indemnifying party, and such indemnified party or such controlling person shall have been advised in writing by counsel that counsel employed by the indemnifying party would, under applicable professional standards, have a conflict in representing both the indemnifying party and the indemnified party or such controlling person (in which case, if such indemnified person or such controlling Page 9 person notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of the indemnified party or such controlling person); it being understood, however, that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party or parties and controlling persons thereof, which firm shall be designated, if the Purchaser is the indemnified party, by the Purchaser, if an Underwriter is the indemnified party, by the Underwriter, and if the Seller is the indemnified party, by the Seller. No party shall be liable for any settlement of any such action or proceeding effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action or proceeding, the indemnifying party agrees to indemnify and hold harmless such indemnified party and such controlling person from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. (d) If the indemnification provided for in this Section 6 is unavailable to an indemnified party under the first or second paragraph hereof in respect of any losses, claims, damages or liabilities referred to therein (other than by reason of such indemnified party's failure to comply with the first sentence of paragraph (c) of this Section 6), then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect the relative fault of the Seller on the one hand and of the Purchaser or any other person named in this Section 6 as a possible indemnifying or indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of the Seller on the one hand and of the Purchaser or any such other person on the other 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 Seller or by the Purchaser or such other person and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party or any such person as a result of the losses, claims, damages and liabilities referred to above shall be deemed to include, subject to the limitations set forth in Section 6(c), any legal or other fees or expenses reasonably incurred by such party or person in connection with investigating or defending any action or claim. The Purchaser agrees that only an Underwriter that agrees to the terms of this Section 6 shall be entitled to its benefits. Page 10 (e) Each of the Seller and the Purchaser agrees (and the Purchaser shall use its best efforts to cause each Underwriter to agree) that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to in Section 6(d). Notwithstanding the provisions of this Section 6, the Purchaser shall not be required to contribute any amount in excess of the amount by which the total price at which the Stock is offered to the public exceeds the amount of any damages which the Purchaser 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. 7. EXPENSES The Seller will pay all expenses incurred by the Seller in complying with Section 1 hereof, including, without limitation, all registration and filing fees, printing expenses, fees and disbursements of counsel and independent public accountants for the Seller, fees of the National Association of Securities Dealers, Inc., listing fees, transfer taxes, fees of transfer agents and registrars, and costs of insurance, but excluding any selling commissions applicable to the sale of shares of Stock. The Purchaser and the Seller agree that they will exercise their reasonable best efforts to eliminate the requirement to pay any stock transfer taxes. 8. PERSONS ENTITLED TO BENEFIT OF AGREEMENT This Agreement shall inure to the benefit of and be binding upon the Seller, the Purchaser and their respective successors and assigns. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (a)(i) the representations, warranties, indemnities and agreements of the Seller contained in this Agreement shall also be deemed to be for the benefit of the person or persons, if any, who control the Purchaser within the meaning of Section 15 of the Securities Act and (ii) the indemnities provided by the Purchaser in this Agreement shall be for the benefit of the persons set forth in such indemnities and (b)(i) the representations, warranties, indemnities and agreements of the Purchaser contained in this Agreement shall also be deemed to be for the benefit of the person or persons, if any, who control the Seller within the meaning of Section 15 of the Securities Act and (ii) the indemnities provided by the Purchaser in this Agreement shall be for the benefit of the persons set forth in such indemnities. Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Section 8, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. Page 11 9. NOTICES All notices and other communications provided for herein shall be in writing and shall be deemed to have been duly given if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid: (a) if to the Seller, to it at: HCA - The Healthcare Company One Park Plaza Nashville, Tennessee 37203 Attention: David Anderson Telecopy: (615) 344-2015 (b) if to the Purchaser, to it at: Canadian Investments LLC c/o Toronto Dominion (New York), Inc. 909 Fannin Street Suite 1700 Houston, TX 77010 Attention: Nancy Haraf, Chief Financial Officer Telecopy: (713) 951-9921 with a copy sent to: TD Securities (USA) Inc. 31 West 52nd Street New York, NY 10019 Attention: P. Joseph Hegener, Jr. Facsimile: 212-974-6378 or at such other address as any party shall have specified by notice in writing to the others. Failure to provide copies shall not affect the validity of the notice given to the primary recipient. 10. CERTAIN DEFINITIONS Terms defined in the Master Agreement have the same meanings when used in this Agreement. For purposes of this Agreement: (a) the term "Business Day" means any day on which the New York Stock Exchange, Inc. is open for trading; Page 12 (b) the term "Share Sale Date" means each date Purchaser sells or causes to be sold Stock, either for the benefit of Seller or Purchaser, pursuant to the Master Agreement; (c) the term "Underwriter" means any person who participates in the distribution of shares of Stock within the meaning of Section 2(11) of the Securities Act; and (d) the term "Underwritten Offering" means a sale of shares of Stock by the Purchaser to an Underwriter for reoffering to the public. (e) the term "Purchaser" shall include Canadian Investments LLC and all affiliates thereof. 11. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements and understandings, oral and written between the parties hereto with respect to the subject matter hereof. 12. SUCCESSORS AND ASSIGNS All covenants and agreements and representations and warranties in this Agreement contained by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not. The term "Stock" as used in this Agreement includes the common stock of any successor of the Seller. 13. AMENDMENT; WAIVER No provision of this Agreement may be amended, waived or otherwise modified without the prior written consent of the parties hereto. 14. SECTION HEADINGS The section headings contained in this Agreement are for reference purposes only and shall not effect the meanings or interpretation of this Agreement. 15. COUNTERPARTS This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. Page 13 16. APPLICABLE LAW This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. HCA - The Healthcare Company By: /s/ James T. Glasscock --------------------------------- Title: V.P., Investments Canadian Investments LLC By: /s/ Alvin Shrago --------------------------------- Title: Attorney-in-Fact Page 14 ANNEX FORM OF OPINION OF COUNSEL OF SELLER Re: HCA - The Healthcare Company Registration Rights Agreement Gentlemen: I am employed as a Vice President-Legal of HCA--The Healthcare Company, a Delaware corporation ("HCA"), and in that capacity have acted as counsel to HCA with respect to the Registration Rights Agreement dated as of June 28, 2001 (the "Registration Rights Agreement"), between HCA and Canadian Investments LLC ("Purchaser"). This opinion is delivered to you pursuant to Section 5 of the Registration Rights Agreement. Terms used herein with their initial letters capitalized shall have the same meanings as in the Registration Rights Agreement, unless otherwise specified herein or otherwise defined herein. In connection with the transactions contemplated under the Registration Rights Agreement, I have examined originals or copies of the Amended and Restated Master Agreement between HCA and the Purchaser, including the Schedule and the Confirmation relating thereto (the "Master Agreement") and the Registration Rights Agreement. Additionally, I have examined the Restated Certificate of Incorporation, as amended and Bylaws, as amended, of HCA; together with originals or copies of such other documents as I have deemed necessary or appropriate as a basis for the opinions hereinafter expressed. [Additional assumptions and statements as to materials on which reliance is placed will depend on circumstances at appropriate time.] With your permission, I have assumed (i) the genuineness of all signatures on all documents reviewed by me (other than the signatures of officers of HCA), (ii) the authenticity, accuracy and completeness of all documents submitted to me as originals, and (iii) the conformity to original documents of all such documents submitted to me as photocopies or certified copies. As to various questions of fact material to my opinions, I have relied upon representations made in the Registration Rights Agreement and the Master Agreement, and upon representations of various officers and employees of HCA and in certificates of various public officials. Based and relying upon the foregoing and upon such other information and documents furnished to me as I believe necessary to enable me to render the following opinions, and subject to the comments and exceptions hereinafter related, I am of the opinions that: Page 15 1. HCA is a corporation duly organized and validly existing and in good standing under the laws of its jurisdiction of incorporation, and has all corporate power and authority necessary to own and lease its properties and conduct the business in which it is engaged. 2. HCA has the corporate power and authority to execute, deliver and perform the Registration Rights Agreement and has taken all necessary corporate action to authorize the execution, delivery and performance of the Registration Rights Agreement. 3. The Registration Rights Agreement has been duly executed and delivered by HCA and, assuming due authorization, execution and delivery thereof by the Purchaser, constitutes a valid and legally binding obligation of HCA enforceable against HCA in accordance with its terms. 4. To my knowledge, the execution, delivery and performance of the Registration Rights Agreement by HCA, and the consummation of each of the transactions contemplated thereby, will not conflict with the terms of, or constitute a default under, any agreement, indenture or instrument known to me, or result in a violation of the corporate certificate or by-laws of HCA (as in effect on the date hereof) or any order, rule or regulation (also as in effect on the date hereof) of any court or governmental agency having jurisdiction over HCA, or its properties, except for defaults and violations which would not, in the aggregate, have a material adverse effect on the business or assets or on the condition, financial or otherwise, of HCA and its subsidiaries on a consolidated basis; and, other than those which have been obtained, no consent, authorization or order of, or filing of registration with, any court or governmental agency is required for the execution, delivery or performance by HCA of the Registration Rights Agreement. 5. The shares of Stock are included in the securities that are the subject of the Registration Statement; the Registration Statement was declared effective by the Commission on _______________; and, to my knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission. 6. The Registration Statement, as of its effective date, and the Prospectus, as of its date, and any further amendments or supplements thereto, as of their respective dates (other than the financial statements and other financial data contained therein, as to which I express no opinion) complied as to form in all material respects with the requirements of the Securities Act and the Rules and Regulations; the documents incorporated by reference in the Prospectus (other than the financial statements and related schedules therein, as to which I express no opinion), when they were filed with Page 16 the Commission, complied as to form in all material respects with requirements of the Exchange Act and the rules and regulations of the Commission thereunder. 7. To my knowledge, there are no contracts or other documents that are required to be described in the Prospectus or filed as exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations that have not been described or filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules and Regulations. The opinions set forth above are subject to the following qualifications and limitations: (a) The enforceability of the Registration Rights Agreement is subject to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and similar laws affecting creditors' rights and remedies generally and subject to general principles of equity. (b) I express no opinion as to any provision of the Registration Rights Agreement providing for the payment of attorneys' fees. (c) I express no opinion as to any provision of the Registration Rights Agreement purporting to relieve the Purchaser of the exercise of reasonable diligence. (d) I express no opinion (i) as to, and assume compliance with, any applicable state securities laws, (ii) with respect to the enforceability of the indemnity or contribution provisions under the Registration Rights Agreement insofar as rights thereto may be limited by applicable law, or (iii) with respect to the enforceability of any provision of the Registration Rights Agreement pursuant to which any party is indemnified against a liability arising under applicable securities laws. In addition, I have participated in conferences with representatives of the HCA at which the contents of the Registration Statement and related matters were discussed and, although I have not undertaken to determine independently, nor do I pass upon or assume any responsibility, explicitly or implicitly, for the accuracy, completeness or fairness of the statements contained in the Registration Statement, on the basis of and subject to the foregoing, no facts have come to my attention that lead me to believe that the Registration Statement, as of its effective date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading (other than the financial statements and other financial or statistical data included or required to be included in the Registration Statement or Prospectus, as to which I express no opinion), or that the Prospectus contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in Page 17 light of the circumstances under which they were made, not misleading (other than the financial statements and other financial or statistical data included or required to be included in the Registration Statement or Prospectus, as to which I express no opinion). Whenever any opinion rendered herein is predicated as being based on my knowledge, this is intended to signify that, in the course of my employment as Vice President-Legal of HCA, no information has come to my attention which would cause me to conclude that there are facts relevant to such opinion which would require such opinion to be modified in any respect. Except to the extent expressly stated herein, I have not undertaken any independent investigation to determine the existence or absence of any such facts, and I have relied as to matters of fact upon the representations of HCA contained in the Registration Rights Agreement and the Master Agreement. My opinions herein are based upon Requirements of Law (as defined in the Master Agreement) in effect on the date hereof. I neither express nor imply any opinion with respect to any Requirements of Law which may be enacted or adopted after the date hereof, and I undertake no duty to advise you of any changes in any Requirements of Law which may be enacted or adopted after the date hereof. I am admitted to the practice of law only in the Commonwealth of Kentucky. Accordingly, the opinions expressed herein are limited to the federal laws and the laws of the Commonwealth of Kentucky and, to the extent necessary, the General Corporation Law of the State of Delaware, which is the state of incorporation of HCA. I wish to advise you, however, that my knowledge with respect to the General Corporation Law of the State of Delaware is derived solely from a reading of the statute without consideration of any judicial or administrative interpretation thereof and that I am not a member of the Delaware bar. No opinion is expressed with respect to any laws of any other jurisdictions or states or the effect of any such laws on the matters dealt with herein or the transactions contemplated by the Registration Rights Agreement. This opinion is rendered solely to Canadian Investments LLC in connection with the transactions contemplated in the Registration Rights Agreement. This opinion may not be relied upon in any manner or for any purpose, or furnished or relied upon by any other person, without my prior written consent. Respectfully submitted, John M. Franck II Vice President-Legal Page 18 EX-23.1 5 g70521a1ex23-1.txt CONSENT OF ERNST & YOUNG LLP EXHIBIT 23.1 Consent of Independent Auditors We consent to the reference to our firm under the caption "Experts" in Amendment No. 1 to the Registration Statement (Form S-3) and related Prospectus of HCA Inc. for the registration of 16,776,193 shares of its common stock and to the incorporation by reference therein of our report dated February 5, 2001, with respect to the consolidated financial statements of HCA Inc. (formerly known as HCA - The Healthcare Company) included in its Annual Report (Form 10-K) for the year ended December 31, 2000, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Nashville, TN January 16, 2002 -----END PRIVACY-ENHANCED MESSAGE-----