As filed with the Securities and Exchange Commission on May 24, 2001
Registration No. 333-___________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-----------------------------------
COMMUNITY HEALTH SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3893191
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
155 Franklin Road, Suite 400
Brentwood, Tennessee 37027
(Address of Principal Executive Offices) (Zip Code)
STOCK OPTION AGREEMENT
(Full title of the plan)
Rachel A. Seifert
Senior Vice President, Secretary and General Counsel
155 Franklin Road, Suite 400
Brentwood, Tennessee 37027
(615) 373-9600
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
=========================================================================================================================
Proposed Proposed Maximum
Title of Securities Amount to be Maximum Aggregate Amount of
to be Registered Registered (1) Offering Price Offering Price (2) Registration
Per Share (2) Fee
- ---------------------------------------------------- ---------------- ----------------- ----------------- ---------------
Common Stock of Community Health Systems, Inc., 25,681 shares $8.96 $230,102 $575.26
par value $0.01 per share (the "Common Stock")
- ---------------------------------------------------- ---------------- ----------------- ----------------- ---------------
(1) Includes an indeterminate number of shares of Common Stock that may be issued in the event of stock splits,
stock dividends or similar transactions in accordance with Rule 416 of the Securities Act of 1933, as amended
(the "Securities Act").
(2) Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(h) of the Securities
Act, and based upon the exercise price of the option pursuant to which the Common Stock may be acquired.
EXPLANATORY NOTE
On May 14, 1997, we entered into a Stock Option Agreement with Samuel
A. Nunn (the "Agreement"). The purpose of this Registration Statement on
Form S-8 is to register 25,681 shares of Common Stock that may be issued
under the Agreement.
PART I
Mr. Nunn is the only person subject to the Agreement and will be
provided with the documents containing information specified by Part I of
this Registration Statement in accordance with Rule 428(b)(1) promulgated
by the Securities and Exchange Commission (the "SEC") under the Securities
Act. These documents constitute, along with the documents incorporated by
reference into this Registration Statement pursuant to Item 3 of Part II, a
prospectus that meets the requirements of Section 10(a) of the Securities
Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file
at the SEC's public reference rooms in Washington, D.C., New York, NY and
Chicago, IL. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms or access our SEC filings on the SEC's web
site at http://www.sec.gov. Reports, proxy and information statements and
other information concerning us can also be inspected at the offices of the
New York Stock Exchange located at 20 Broad Street, New York, NY 10005.
The SEC allows us to "incorporate by reference" information into this
Registration Statement, which means that we can disclose important
information to you by referring you to another document filed separately
with the SEC. The information incorporated by reference is considered to be
part of this Registration Statement, and later information that we file
with the SEC will automatically update this Registration Statement. We
incorporate by reference the following documents and any future filings
made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the
termination of the offerings registered on this Registration Statement:
o Our Registration Statement on Form 8-A filed with the SEC on June
5, 2000, which describes the terms of the Common Stock;
o Our Annual Report on Form 10-K for the fiscal year ended December
31, 2000, filed with the SEC on March 29, 2001; and
o Our Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2001 filed with the SEC on May 10, 2001.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Certain legal matters with respect to the issuance of the securities
offered hereby will be passed upon for us by Fried, Frank, Harris, Shriver
& Jacobson (a partnership including professional corporations).
Item 6. Indemnification of Directors and Officers
Our Certificate of Incorporation limits the liability of our directors
to us and our stockholders to the fullest extent permitted by Delaware law
for monetary damages for breach of fiduciary duty as a director, except for
liability:
o for any breach of the director's duty of loyalty to us or our
stockholders;
o for acts or omissions which are not in good faith or which
involve intentional misconduct or knowing violation of the law;
o under Section 174 of the Delaware General Corporation Law, which
concerns unlawful payment of dividends, stock purchases, or
redemption; and
o for any transaction from which the director shall have derived an
improper personal benefit.
In addition, our Certificate of Incorporation and By-Laws provide that
our directors and officers will be indemnified to the fullest extent
permitted by Delaware law. This indemnification is not exclusive of any
other rights that our directors and officers may be entitled to.
We have entered into indemnification agreements with our directors and
executive officers. These agreements contain provisions that may require
us, among other things, to indemnify these directors and executive officers
against certain liabilities that may arise because of their status or
service as directors or executive officers, advance their expenses incurred
as a result of any proceeding against them as to which they could be
indemnified and obtain directors' and officers' liability insurance.
Beyond this, we maintain our directors' and officers' liability
insurance to provide our directors and officers with insurance coverage for
losses arising from claims for breaches of duty, negligence, error and
other wrongful acts.
Section 145 of the Delaware General Corporation Law provides, in
substance, that Delaware corporations shall have the power, under specified
circumstances, to indemnify their directors, officers, employees and agents
in connection with actions, suits or proceedings brought against them by a
third party or in the right of the corporation, by reason of the fact that
they were or are directors, officers, employees or agents, against expenses
incurred in any such action, suit or proceedings. The Delaware General
Corporation Law also provides that Delaware corporations may purchase
insurance on behalf of any director, officer, employee or agent.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ----------------------
4.1** Our Restated Certificate of Incorporation filed as
Exhibit 3.1 to our Form 10-Q for the quarterly
period ended June 30, 2000, filed on August 11,
2000.
4.2** Our Restated By-Laws filed as Exhibit 3.2 to our
Form 10-K for the fiscal year ended December 31, 2000,
filed on March 29, 2001.
4.3* Stock Option Agreement with Samuel A. Nunn, dated
May 14, 1997.
5* Opinion of Fried, Frank, Harris, Shriver & Jacobson
as to the legality of securities offered under our
Stock Option Agreement with Samuel A. Nunn,
dated May 14, 1997.
23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5).
24* Power of Attorney (included in the signature pages of
this Registration Statement).
- ----------------------
* Filed herewith.
** Incorporated by reference.
Item 9. Undertakings
(a) We hereby undertake:
(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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
provided, however, that the undertakings set forth in
paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports we filed under Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(b) We undertake that, for the purpose of determining any liability
under the Securities Act, each filing of our annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of those
securities at that time will be deemed to be the initial bona fide
offering.
(c) To the extent that indemnification for liabilities arising under
the Securities Act may be permitted to our directors, officers and
controlling persons in accordance with the provisions described in Item 6
of this Registration Statement, or otherwise, we have been advised that, in
the opinion of the SEC, indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by us of expenses incurred or paid by one of our directors,
officers or controlling persons in the successful defense of any action,
suit or proceeding) is asserted by a director, officer or controlling
person in connection with the securities being registered, we will, unless
in the opinion of our counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether indemnification is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of the issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, we certify that we
have reasonable grounds to believe that we meet all of the requirements for
filing on Form S-8, and have duly caused this Registration Statement to be
signed on our behalf by the undersigned, thereunto duly authorized, in the
City of Brentwood, State of Tennessee, on May 23, 2001.
COMMUNITY HEALTH SYSTEMS, INC.
/s/ Wayne T. Smith
--------------------
By: Wayne T. Smith
Title: President, Chief Executive
Officer and Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Wayne T. Smith, as his or her true
and lawful attorney-in-fact and agent with full powers of substitution and
resubstitution, for him or her in his or her name, place and stead, in any
and all capacities, to sign any and all amendments to this Registration
Statement (including post-effective amendments), and any and all additional
registration statements pursuant to Instruction E to Form S-8 and any and
all documents in connection therewith, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
SEC, granting unto said attorney-in-fact and agent full power and authority
to do and perform each and every act and thing requisite and necessary to
be done in and about the premises in order to effectuate the same, as fully
to all intents and purposes as he or she might or could do in person, and
hereby ratifies, approves and confirms all that his or her said
attorney-in-fact and agent, each acting alone, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities
and on the date indicated.
Signature Title Date
- -------------------------------------------------------------------------------
President, Chief Executive Officer
and Chairman of the Board (principal
/s/ Wayne T. Smith executive officer) May 23, 2001
- ---------------------
Wayne T. Smith
Executive Vice President, Chief
/s/ W. Larry Cash Financial Officer and Director
- --------------------- (principal financial officer) May 23, 2001
W. Larry Cash
Vice President and Corporate
/s/ T. Mark Buford Controller (principal
- --------------------- accounting officer) May 23, 2001
T. Mark Buford
/s/ Sheila P. Burke
- --------------------- Director May 23, 2001
Sheila P. Burke
- --------------------- Director
Robert J. Dole
/s/ J. Anthony Forstmann
- ------------------------ Director May 23, 2001
J. Anthony Forstmann
/s/ Theodore J. Forstmann
- --------------------- Director May 23, 2001
Theodore J. Forstmann
/s/ Dale F. Frey
- --------------------- Director May 23, 2001
Dale F. Frey
/s/ Sandra J. Horbach
- --------------------- Director May 23, 2001
Sandra J. Horbach
/s/ Harvey Klein, MD
- --------------------- Director May 23, 2001
Harvey Klein, MD
/s/ Thomas H. Lister
- --------------------- Director May 23, 2001
Thomas H. Lister
/s/ Michael A. Miles
- --------------------- Director May 23, 2001
Michael A. Miles
Constituting a majority of the Board of Directors.
Index to Exhibits
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- -------------------------
4.1** Our Restated Certificate of Incorporation filed as
Exhibit 3.1 to our Form 10-Q for the quarterly
period ended June 30, 2000, filed on August 11,
2000.
4.2** Our Restated By-Laws filed as Exhibit 3.2 to our
Form 10-K for the fiscal year ended December 31, 2000,
filed on March 29, 2001.
4.3* Stock Option Agreement with Samuel A. Nunn, dated
May 14, 1997.
5* Opinion of Fried, Frank, Harris, Shriver & Jacobson
as to the legality of securities offered under our
Stock Option Agreement with Samuel A. Nunn, dated
May 14, 1997.
23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5).
24* Power of Attorney (included in the signature pages
of this Registration Statement).
- ----------------------
* Filed herewith.
** Incorporated by reference.
Exhibit 4.3
STOCK OPTION AGREEMENT (the "Agreement"), dated as of May 14,
1997, between Community Health Systems Holdings Corp., a Delaware
corporation (together with its successors, the "Company"), and Samuel a.
Nunn (the "Optionee").
1. Grant of Option.
---------------
1.1 Grant. The Company hereby grants to the Optionee the
right and option (the "Option") to purchase all or any part of an aggregate
of 250 whole shares of Class A Common Stock, par value $.01 per share, of
the Company (the "Class A Common Stock") (such number being subject to
adjustment as provided in Section 8 hereof) on the terms and conditions set
forth in this Agreement.
1.2 Non-Qualified Option. The Option is not intended to
qualify as an Incentive Stock Option within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended.
2. Purchase Price. The price at which the Optionee shall be
entitled to purchase shares of Class A Common Stock upon the exercise of
this Option shall be $1,073.52 per share (such price being subject to
adjustment as provided in Section 8 hereof) (the "Option Price").
3. Duration of Option. The Option shall be exercisable at any
time to the extent and in the manner provided herein for a period of 10
years from the date hereof; provided, however, that the Option may be
earlier terminated as provided in Section 4, Section 6, or Section 7
hereof.
4. Exercisability of Option.
------------------------
4.1 Amount of Exercise. Subject to the provisions of this
Agreement, the Option shall be exercisable in accordance with the following
schedule:
(a) on or after the first anniversary of the date
hereof but before the second anniversary of the date hereof,
the Option may be exercised to acquire up to one-third of
the aggregate number of shares of Class A Common Stock which
may be purchased pursuant to the Option as set forth in
Section 1.1 hereof, less any shares previously acquired
pursuant to the Option;
(b) on or after the second anniversary of the date
hereof but before the third anniversary of the date hereof,
the Option may be exercised to acquire up to two-thirds of
the aggregate number of shares of Class A Common Stock which
may be purchased pursuant to the Option as set forth in
Section 1.1 hereof, less any shares previously acquired
pursuant to the Option;
(c) on or after the third anniversary of the date
hereof but before the expiration of the term of the Option,
the Option may be exercised to acquire up to 100% of the
aggregate number of shares of Class A Common Stock which may
be purchased pursuant to the Option as set forth in Section
1.1 hereof, less any shares previously acquired pursuant to
the Option.
4.2 Sales or Other Events. The Company shall give the
Optionee 10 days' notice (or, if not practicable, such shorter notice as
may be practicable) prior to the anticipated date of the consummation of a
Total Sale (as hereinafter defined) or the anticipated date of the
consummation of a Partial Sale (as hereinafter defined) (the "Sale
Notice"). Upon receipt of the Sale Notice, and for a period of five days
thereafter (or such shorter period as the Board of Directors of the Company
shall determine and so notify the Optionee), the Optionee shall be
permitted to exercise the Option to the extent provided in this Section
4.2, whether or not the Option was otherwise so exercisable on the date the
Sale Notice was given; provided, that, in the event of a Total Sale or a
Partial Sale in which the Optionee would be required to participate
pursuant to Section 2.3 or 2.4 of the Stockholder's Agreement attached
hereto as Exhibit A (the "Stockholder's Agreement") were the Optionee then
a party to such agreement, the Company may require the Optionee to exercise
the Option to the extent necessary to enable the Optionee to participate
therein or to forfeit the Option (or portion thereof, as applicable). In
the case of a Total Sale, the Option may be exercised in whole or in part
for up to the full amount of the shares of Class A Common Stock covered
thereby (less the number of shares previously acquired by the Optionee upon
exercise of the Option, if any). In the case of a Partial Sale, the Option
may be exercised in whole or in part, but not for more than the excess, if
any, of (a) the number of shares with respect to which the Optionee would
be entitled to participate in the Partial Sale pursuant to Section 2.2 or
2.3, as applicable, of the Stockholder's Agreement (if the number of shares
issuable pursuant to the unexercised portion of the Option were deemed
shares held by the Optionee), and will so participate, over (b) the number
of shares previously issued to the Optionee upon exercise of the Option and
not disposed of in a prior Partial Sale. In the event the Total Sale or
Partial Sale is not consummated, the Option will be deemed not to have been
exercised and shall be exercisable thereafter to the extent it would have
been exercisable if no such notice had been given. In lieu of permitting or
requiring the Optionee to exercise the Option in the event of a Total Sale,
the Board of Directors of the Company, in its sole discretion, may instead
cause the Company to redeem the unexercised portion of the Option pursuant
to Section 7 hereof. In lieu of permitting the Optionee to exercise the
Option in connection with a Public Offering of all or a portion of the
shares of Class A Common Stock owned by the FL & Co. Companies (an "FL
Public Offering"), the Company, at its option, may instead cause the Option
and the underlying shares to be registered under applicable securities laws
or make other arrangements consistent with such laws, so as to permit the
Optionee to sell for a period of time after the FL Public Offering the same
number of shares that he or she would have been able to sell in the FL
Public Offering but for this sentence.
For purposes hereof, (a) the term "Total Sale" shall mean
any of the following events: (i) the merger or consolidation of the Company
with or into another corporation (other than a merger or consolidation in
which the Company is the surviving corporation and which does not result in
any capital reorganization or reclassification or other change of the then
outstanding shares of Class A Common Stock), or (ii) the liquidation of the
Company, or (iii) the sale to any person who is not a partner or an
affiliate of either of Forstmann Little & Co. Equity Partnership - V, L.P.,
a Delaware limited partnership ("Equity-V"), or Forstmann Little & Co.
Subordinated Debt and Equity Management Buyout Partnership - VI, L.P., a
Delaware limited partnership ("MBO-VI"), (Equity-V and MBO-VI together, the
"FL & Co. Companies") or an affiliate of such partner (a "Third Party") of
all or substantially all of the assets of the Company pursuant to a plan of
liquidation or otherwise, or (iv) the sale to a Third Party of Class A
Common Stock (other than through a public offering); in each case, provided
that, as a result thereof, the FL & Co. Companies, the direct or indirect
partners of either of the FL & Co. Companies and any affiliates of any of
the foregoing cease to own, directly or indirectly, any shares of the
voting stock of the Company, and (b) the term "Partial Sale" shall mean any
sale by the FL & Co. Companies of all or a portion of their shares of Class
A Common Stock to a Third Party, including through any public offering,
which sale is not a Total Sale.
4.3 Termination of Option. Subject to the provisions of
Section 7 hereof, the Option shall terminate simultaneously with the
consummation of a Total Sale to the extent that the Option has not
theretofore been exercised.
5. Manner of Exercise and Payment.
------------------------------
5.1 Notice of Exercise. Subject to the terms and conditions
of this Agreement, the Option may be exercised by delivery of written
notice to the Company. Such notice shall state that the Optionee is
electing to exercise the Option, shall set forth the number of shares of
Class A Common Stock in respect of which the Option is being exercised and
shall be signed by the Optionee or, where applicable, the guardian,
executor, administrator or other legal representative (each, a "Legal
Representative") of the Optionee (all references herein to the "Optionee"
being deemed to include the Optionee's Legal Representative, if any, unless
the context otherwise requires). The Company may require proof satisfactory
to it as to the right of the Legal Representative to exercise the Option.
5.2 Deliveries. The notice of exercise described in Section
5.1 hereof shall be accompanied by (a) payment of the full purchase price
for the shares in respect of which the Option is being exercised, by
delivery to the Company of a certified or bank check payable to the order
of the Company or cash by wire transfer or other immediately available
funds to an account designated by the Company, and (b) a fully executed
Stockholder's Agreement (a copy of which, in the form to be executed by the
Optionee (which may differ from the form attached hereto), will be supplied
to the Optionee upon request) and the undated stock power referred to in
Section 4.12(a)(ii) of the Stockholder's Agreement.
5.3 Issuance of Shares. Upon receipt of notice of exercise,
full payment for the shares of Class A Common Stock in respect of which the
Option is being exercised and a fully executed Stockholder's Agreement and
stock power, the Company shall take such action as may be necessary under
applicable law to effect the issuance to the Optionee of the number of
shares of Class A Common Stock as to which such exercise was effected.
5.4 Stockholder Rights. The Optionee shall not be deemed to
be the holder of, or to have any of the rights of a holder with respect to,
any shares of Class A Common Stock subject to the Option until: (a) the
Option shall have been exercised in accordance with the terms of this
Agreement and the Optionee shall have paid the full purchase price for the
number of shares in respect of which the Option was exercised, (b) the
Optionee shall have delivered the fully executed Stockholder's Agreement
and stock power to the Company, (c) the Company shall have issued the
shares to the Optionee, and (d) the Optionee's name shall have been entered
as a stockholder of record on the books of the Company. Upon the occurrence
of all of the foregoing events, the Optionee shall have full ownership
rights with respect to such shares, subject to the provisions of the
Stockholder's Agreement.
5.5 Partial Exercise. In the event the initial exercise of
the Option is an exercise in part only, then, in the event of any further
exercise of the Option, the Optionee, in lieu of executing a new
Stockholder's Agreement, may, at the Company's option, re-execute the
original Stockholder's Agreement, thereby reaffirming the representations,
warranties, covenants and agreements contained in the Stockholder's
Agreement as of the date of re-execution, but with an amended Annex A
completed to set forth the number of shares of Class A Common Stock in
respect of which the Option is then being exercised and the cumulative
number of shares of Class A Common Stock which would then be subject to the
Stockholder's Agreement. If the initial exercise of the Option is by the
Optionee and any subsequent exercise of the Option is by the Legal
Representative, then the Legal Representative shall execute, at the
Company's option, either a new Stockholder's Agreement or a counterpart of
the original Stockholder's Agreement thereby agreeing to be bound by such
agreement as though such person were an original signatory thereto and
affirming the truth of the representations and warranties contained therein
with respect to such person as of the date of such person's execution of
such counterpart.
6. Certain Restrictions.
--------------------
6.1 No Sale or Transfer. The Optionee shall not sell,
transfer, assign, exchange, pledge, encumber or otherwise dispose of the
Option or any portion thereof, except in accordance with the provisions of
this Agreement.
6.2 Termination as a Director. (a) If the Optionee shall
cease to serve as a director of the Company for any reason whatsoever (a
"Termination"), the Option, to the extent it is not exercisable pursuant to
Section 4.1 hereof on the date of such Termination, shall terminate and be
of no further force and effect from and after the date of such Termination.
(b) If any portion of the Option is exercisable pursuant to
Section 4.1 hereof on the date of the Optionee's Termination, (i) then the
Optionee may exercise the Option, to the extent the Option was exercisable
on the date of the Optionee's Termination, at any time within 30 days after
the date of the Termination, and (ii) the Company agrees to make available
the most recent audited financial statements of the Company for review by
the Terminated Optionee at the principal offices of the Company during such
30-day period. The Option shall terminate and be of no further force and
effect to the extent not exercised during such 30-day period.
7. Total Sales.
-----------
7.1 Continuation of Option. Upon the effective date of any
Total Sale, any unexercised portion of the Option shall terminate unless
provision shall be made in writing in connection with such Total Sale for
the continuance of such unexercised portion of the Option or for the
assumption of such unexercised portion of the Option by a successor to the
Company or for the substitution for such unexercised portion of the Option
of new options covering shares of such successor with appropriate
adjustments as to number and kind of shares and prices of shares subject to
such new options, or unless the Company shall authorize the redemption of
the unexercised portion of the Option pursuant to Section 7.2 hereof. In
the event that provision in writing is made as aforesaid in connection with
a Total Sale, the unexercised portion of the Option or the new options
substituted therefor shall continue in the manner and under the terms
provided in this Agreement and in such writing.
7.2 Redemption in Connection with a Total Sale. In
connection with a Total Sale, the Board of Directors of the Company may, in
its sole discretion, authorize the redemption of the unexercised portion of
the Option for a consideration per share of Class A Common Stock issuable
upon exercise of the unexercised portion of the Option equal to the excess
of (i) the consideration payable per share of Class A Common Stock in
connection with such Total Sale, adjusted as if all outstanding options and
other rights to acquire equity interests in the Company had been exercised
prior to the consummation of such Total Sale and further adjusted to take
into account all other equity interests in the Company (provided, however,
that no adjustment shall be made with respect to any option or other right
to acquire equity interests in the Company if the exercise price for such
option or other right is greater than the consideration that would be
payable per share of Class A Common Stock in connection with such Total
Sale if the adjustment were not made), over (ii) the Option Price. Any
redemption pursuant to this Section 7.2 shall occur simultaneously with the
occurrence of the Total Sale.
7.3 Allocable Share of Expenses. In the event of a
redemption pursuant to Section 7.2 hereof, the Optionee shall be
responsible for and shall be obligated to pay a proportionate amount
(determined as if the Optionee were a holder of the number of shares of
Class A Common Stock which would have been issuable upon exercise of the
portion of the Option redeemed pursuant to Section 7.2 hereof) of the
expenses, liabilities and obligations incurred or to be incurred by the
stockholders of the Company in connection with such Total Sale (including,
without limitation, the fees and expenses of investment bankers, legal
counsel and other outside advisors and experts retained by or on behalf of
the stockholders of the Company in connection with such Total Sale, amounts
payable in respect of indemnification claims, amounts paid into escrow and
amounts payable in respect of post-closing adjustments to the purchase
price) ("Expenses of Sale").
7.4 Power of Attorney. (a) The Optionee hereby irrevocably
appoints the FL & Co. Companies, and each of them (individually and
collectively, the "Representative"), the Optionee's true and lawful agent
and attorney-in-fact, with full powers of substitution, to act in the
Optionee's name, place and stead, to do or refrain from doing all such acts
and things, and to execute and deliver all such documents, in connection
with this Agreement or the Option as the Representative shall deem
necessary or appropriate in connection with any Total Sale, including,
without in any way limiting the generality of the foregoing, to receive on
behalf of the Optionee any payments made in respect of the unexercised
portion of the Option (including payments made in connection with any
redemption) in connection with any Total Sale, to hold back from any such
payments any amount which the Representative deems necessary to reserve
against the Optionee's share of any Expenses of Sale, and to engage in any
acts in which the Representative is authorized by and on behalf of the
holders of any of the Company's capital stock to engage in connection with
the Total Sale. The Optionee hereby ratifies and confirms all that the
Representative shall do or cause to be done by virtue of its appointment as
the Optionee's Representative.
(b) In acting for the Optionee pursuant to the appointment
set forth in paragraph (a) of this Section 7.4, the Representative shall
not be responsible to the Optionee for any loss or damage the Optionee may
suffer by reason of the performance by the Representative of its duties
under this Agreement, except for loss or damage arising from willful
violation of law or gross negligence in the performance of its duties
hereunder. The appointment of the Representative shall be deemed coupled
with an interest and shall be irrevocable, and any person dealing with the
Representative may conclusively and absolutely rely, without inquiry, upon
any act of the Representative as the act of the Optionee in all matters
referred to in this Section 7.4.
(c) Notwithstanding the foregoing, this power of attorney
does not empower the Representative to exercise the Option on behalf of the
Optionee.
8. Adjustments. In the event that shares of Class A Common Stock
(whether or not issued) are changed into or exchanged for a different
number or kind of shares of stock or other securities of the Company,
whether through merger, consolidation, reorganization, recapitalization,
stock dividend, stock split-up or other substitution of securities of the
Company, the Board of Directors of the Company shall make appropriate
adjustments to the number and kind of shares of stock subject to the Option
and the Option Price. The Board of Directors' adjustment shall be final and
binding for all purposes of this Agreement. No adjustment provided for in
this Section 8 shall require the Company to issue a fractional share, and
the total adjustment with respect to this Agreement shall be limited
accordingly.
9. Certain Definitions.
-------------------
9.1. Affiliate. The term "affiliate" of any person shall
mean any person that, directly or indirectly, controls, is controlled by,
or is under common control with, the person of which it is an affiliate.
9.2. Person. The term "person" shall mean an individual, a
corporation, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency
or instrumentality thereof.
10. Notices. All notices and other communications hereunder shall
be in writing and, unless otherwise provided herein, shall be deemed to
have been given when received by the party to whom such notice is to be
given at its address set forth below, or such other address for the party
as shall be specified by notice given pursuant hereto:
(a) If to the Company, to it:
c/o Community Health Systems, Inc.
155 Franklin Road, Suite 400
Brentwood, TN 37027-4600
Attention: President
with a copy to:
Forstmann Little & Co. Equity Partnership-V, L.P.
767 Fifth Avenue, 44th Floor
New York, New York 10153
Attention: Ms. Sandra Horbach
(b) If to the Optionee or Legal Representative, to such
person at the address as reflected in the records of the Company.
11. Modification of Agreement. This Agreement may be modified,
amended or supplemented by written agreement of the parties hereto;
provided, that the Company may modify, amend or supplement this Agreement
in a writing signed by the Company without any further action by the
Optionee if such modification, amendment or supplement does not adversely
affect the Optionee's rights hereunder.
12. Invalidity of Provisions. The invalidity or unenforceability
of any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including
that provision, in any other jurisdiction. If any provision of this
Agreement is held unlawful or unenforceable in any respect, such provision
shall be revised or applied in a manner that renders it lawful and
enforceable to the fullest extent possible.
13. Binding Effect. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, legal
representatives, successors and assigns. In addition, each of the FL & Co.
Companies shall be a third party beneficiary of this Agreement and shall be
entitled directly to enforce this Agreement.
14. Headings; Execution in Counterparts. The headings and
captions contained herein are for convenience only and shall not control or
affect the meaning or construction of any provision hereof. This Agreement
may be executed in any number of counterparts, each of which shall be
deemed to be an original and which together shall constitute one and the
same instrument.
15. Entire Agreement. This Agreement and, upon execution thereof,
the Stockholder's Agreement, constitute the entire agreement, and supersede
all prior agreements and understandings, oral and written, between the
parties hereto with respect to the Option granted hereby.
16. Resolution of Disputes. Any dispute or disagreement which may
arise under, or as a result of, or which may in any way relate to, the
interpretation, construction or application of this Agreement shall be
determined by the Board of Directors of the Company, in good faith, whose
determination shall be final, binding and conclusive for all purposes.
17. Governing Law. This Agreement and the rights and obligations
of the parties hereto shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York without giving effect to
the principles of conflicts of laws thereof.
18. Consent to Jurisdiction. Each party hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the
courts of the State of New York and of the United States of America, in
each case located in the County of New York, for any actions, suits or
proceedings arising out of or relating to this Agreement and the
transactions contemplated hereby ("Litigation") (and agrees not to commence
any Litigation except in any such court), and further agrees that service
of process, summons, notice or document by U.S. registered mail to such
party's respective address set forth in Section 10 hereof shall be
effective service of process for any Litigation brought against such party
in any such court. Each party hereby irrevocably and unconditionally waives
any objection to the laying of venue of any Litigation in the courts of the
State of New York or of the United States of America, in each case located
in the County of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court
that any Litigation brought in any such court has been brought in an
inconvenient forum.
19. Investment Intent. The Optionee hereby represents that the
Optionee is acquiring the Option for his own account as principal for
investment and not with a view to resale or distribution in whole or in
part.
20. Specific Performance. The parties hereto acknowledge that
there will be no adequate remedy at law for a violation of any of the
provisions of this Agreement and that, in addition to any other remedies
which may be available, all of the provisions of this Agreement shall be
specifically enforceable in accordance with their respective terms.
21. Withholding. The Company shall have the right to deduct from
any amount payable under this Agreement any taxes or other amounts required
by applicable law to be withheld.
THESE SECURITIES HAVE BEEN ISSUED OR SOLD IN RELIANCE ON
PARAGRAPH (13) OF CODE SECTION 10-5-9 OF THE `GEORGIA SECURITIES ACT OF
1973,' AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN A TRANSACTION WHICH IS
EXEMPT UNDER SUCH ACT OR PURSUANT TO AN EFFECTIVE REGISTRATION UNDER SUCH
ACT.
IN WITNESS WHEREOF, this Agreement has been signed by or on
behalf of each of the parties hereto, all as of the date first above
written.
OPTIONEE COMMUNITY HEALTH SYSTEMS
HOLDINGS CORP.
By:
- ------------------------------------- -----------------------------
Name: Samuel A. Nunn
Address: c/o King & Spalding
191 Peachtree Street
Atlanta, GA 30303
The undersigned acknowledges that the undersigned has read the
foregoing Agreement between Community Health Systems Holdings Corp. and the
undersigned's spouse, understands that the undersigned's spouse has been
granted an option to acquire shares of Class A Common Stock of Community
Health Systems Holdings Corp., which option is subject to certain
restrictions reflected in such Agreement and agrees to be bound by the
foregoing Agreement.
------------------------------
Optionee's Spouse
Exhibit 5
[Letterhead of Fried, Frank, Harris, Shriver & Jacobson,
a partnership including professional corporations]
May 23, 2001
Community Health Systems, Inc.
155 Franklin Road, Suite 400
Brentwood, Tennessee 37027
RE: Registration Statement on Form S-8
Ladies and Gentlemen:
Community Health Systems, Inc. (the "Company") is filing with the
Securities and Exchange Commission a Registration Statement on Form S-8
(the "Registration Statement") with respect to a maximum of 25,681 shares
(the "Shares") of common stock, par value $.01 per share, of the Company,
issuable pursuant to the Stock Option Agreement between the Company and
Samuel A. Nunn (the "Agreement").
With your permission, all assumptions and statements of reliance
herein have been made without any independent investigation or verification
on our part except to the extent otherwise expressly stated, and we express
no opinion with respect to the subject matter or accuracy of such
assumptions or items relied upon.
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records
of the Company, such certificates of public officials and such other
documents, and (iii) received such information from officers and
representatives of the Company as we have deemed necessary or appropriate
for the purposes of this opinion. In all examinations, we have assumed the
legal capacity of all natural persons, the genuineness of all signatures,
the authenticity of original and certified documents and the conformity to
original or certified copies of all copies submitted to us as conformed or
reproduction copies. As to various questions of fact relevant to the
opinions expressed herein, we have relied upon, and assume the accuracy of,
representations and warranties contained in the Agreement and certificates
and oral or written statements and other information of or from
representatives of the Company and others and assume compliance on the part
of all parties to the Agreement with their covenants and agreements
contained therein.
Based upon the foregoing and subject to the limitations and
assumptions set forth herein, we are of the opinion that the Shares to be
registered pursuant to the Registration Statement (when issued, delivered
and paid for in accordance with the terms of the Agreement) will be duly
authorized, validly issued, fully paid and non-assessable.
The opinion expressed herein is limited to the General
Corporation Law of the State of Delaware (the "GCLD") and the applicable
provisions of the Delaware Constitution, in each case as currently in
effect, and reported judicial decisions interpreting the GCLD and the
Delaware Constitution.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the reference to this Firm under the
caption "Interests of Named Experts and Counsel" in the Registration
Statement. In giving such consent, we do not hereby admit that we are in
the category of such persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended.
Very truly yours,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
By: /s/ Jeffrey Bagner
------------------------------------
Jeffrey Bagner
Exhibit 23.1
INDEPENDENT AUTITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Community Health Systems, Inc. on Form S-8 of our reports dated February
20, 2001, appearing in the Annual Report on Form 10-K of Community Health
Systems, Inc. for the year ended December 31, 2000.
/s/ Deloitte & Touche LLP
Nashville, Tennessee
May 23, 2001