UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 9, 2011 (March 15, 2011)
HCA HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
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Delaware
(State or Other
Jurisdiction
of Incorporation)
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001-11239
(Commission File Number)
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27-3865930
(I.R.S. Employer
Identification No.)
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One Park Plaza, Nashville,
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Tennessee
(Address of Principal Executive
Offices)
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37203
(Zip Code)
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Registrant’s telephone number, including area code:
(615) 344-9551
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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TABLE OF CONTENTS
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Item 1.01
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Entry into a Material Definitive Agreement
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On March 9, 2011, in connection with the pricing of the initial public offering (the
“Offering”) of its common stock, par value $0.01 per share, described in the Registration Statement
on Form S-1 (File No. 333-171369), as amended (the “Registration Statement”), HCA Holdings, Inc.
(the “Company”) entered into a Stockholders’ Agreement (the “Stockholders’ Agreement”), which sets
forth certain rights, obligations and agreements of affiliates of or funds sponsored by Bain
Capital Partners, LLC (“Bain”), Kohlberg Kravis Roberts & Co., L.P. (“KKR”), BAML Capital Partners
(“BAML”) and Company founder Dr. Thomas F. Frist, Jr. (the “Frist Entities” and, together with
Bain, KKR and BAML, the “Investors”), as holders of the Company’s common stock through their
investment in Hercules Holding II, LLC. Pursuant to the Stockholders’ Agreement, the Investors have
consent rights over certain significant corporate actions and have certain rights to nominate
directors to the Company’s board and appoint directors to its committees.
Affiliates of the Investors have various relationships with the Company, including acting as
underwriters for the Offering. For further information concerning other material relationships
between the Company, the Investors and their respective affiliates, see the sections entitled
“Certain Relationships and Related Party Transactions” and “Underwriting” in the Company’s
prospectus, dated March 9, 2011, filed pursuant to Rule 424(b) of the Securities Act of 1933, as
amended.
A copy of the Stockholders’ Agreement is filed herewith as Exhibit 10.1 and is incorporated
herein by reference. The above description of the Stockholders’ Agreement is not complete and is
qualified in its entirety by reference to such exhibit.
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Item 1.02
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Termination of a Material Definitive Agreement
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The Investors have provided management and advisory services to the Company and HCA Inc., a
wholly owned subsidiary of the Company (“HCA”), pursuant to a management agreement among HCA and
the Investors (the “Management Agreement”) executed in connection with Investors’ acquisition of
HCA in November 2006. The Management Agreement terminated pursuant to its terms upon completion of
the Offering, and the Investors and certain members of the Frist family were paid a final fee of
approximately $211 million.
Affiliates of the Investors have various relationships with the Company, including acting as
underwriters for the Offering. For further information concerning other material relationships
between the Company, the Investors and their respective affiliates, see the sections entitled
“Certain Relationships and Related Party Transactions” and “Underwriting” in the Company’s
prospectus, dated March 9, 2011, filed pursuant to Rule 424(b) of the Securities Act of 1933, as
amended.
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Item 3.03
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Material Modification to Rights of Security Holders
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The information set forth under Item 5.03 below is incorporated by reference into this Item
3.03.
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Item 5.02
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Departure of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers
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Appointment of Directors
On March 9, 2011, Jay O. Light and Geoffrey G. Meyers were appointed to the Company’s Board of
Directors, thereby joining Messrs. Richard M. Bracken, R. Milton Johnson, Christopher J. Birosak,
John P. Connaughton, James D. Forbes, Kenneth W. Freeman, Thomas F. Frist III, William R. Frist,
Christopher R. Gordon, Michael W. Michelson, James C. Momtazee, Stephen G. Pagliuca and Nathan C.
Thorne. Messrs. Light and Meyers will also serve as members of the Company’s Audit and Compliance
Committee and Compensation Committee. Biographical information regarding these directors and a
description of the material terms of their compensation have previously been reported by the
Company in its prospectus, dated March 9, 2011, filed pursuant to Rule 424(b) of the Securities Act
of 1933, as amended.
1
In connection with the Offering,
and pursuant to the Company’s 2006 Stock Incentive Plan for Key Employees of HCA Holdings, Inc. and its Affiliates, as Amended
and Restated (as so amended and restated, the “Plan”),
the Company granted 9,167 restricted stock units to each of Messrs. Light
and Meyers.
Amended and Restated 2006 Stock Incentive Plan
Effective March 9, 2011, the
Company’s Board of Directors and its shareholders adopted the Plan. The Plan provides for the granting of stock
options, stock appreciation rights, and other stock-based awards or dividend equivalent rights to
key employees, directors, consultants or other persons having a service relationship with the
Company, its subsidiaries and certain of its affiliates. The amendments to the Plan, among other
things, increased the number of shares authorized for issuance pursuant to such Plan by 40,000,000 (post-split)
(no more than
1,000,000 of which may be granted in the form of stock options in any given fiscal year).
A copy of the Plan is filed herewith as Exhibit 10.2 and is incorporated herein by reference.
The above description of the Plan is not complete and is qualified in its entirety by reference to
such exhibit.
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Item 5.03.
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
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As contemplated in
the Registration Statement, the Company’s Amended and
Restated Certificate of Incorporation (the “Charter”) became effective on March 9, 2011. The
Charter, among other things, provides that (1) each outstanding share of common stock of the
Company, including treasury shares, was automatically split up, reclassified and converted into
4.505 shares of common stock and (2) the Company’s authorized capital stock consists of
1,800,000,000 shares of common stock, par value $0.01 per share, and 200,000,000 shares of
preferred stock.
The Company’s bylaws were also amended and restated as of March 9, 2011, as contemplated in
the Registration Statement. The Amended and Restated Bylaws (the “Bylaws”) of the Company provide,
among other things, (1) the procedures for stockholder nominations and proposals at special and
annual meetings of stockholders and (2) that, as long as Hercules Holding II, LLC maintains a
majority interest in the Company’s common stock the Bylaws may be amended by a majority stockholder
vote, but that thereafter the Bylaws may only be amended by the affirmative vote of 75% of the
Company’s outstanding shares.
The above description of the Charter and Bylaws is only a summary and is qualified in its
entirety by reference to such exhibits. For further information regarding the foregoing and other
provisions of the Charter and the Bylaws, see “Description of Capital Stock” in the Company’s
prospectus dated March 9, 2011, filed pursuant to Rule 424(b) of the Securities Act of 1933, as
amended. The Charter and the Bylaws are filed as Exhibit 3.1 and Exhibit 3.2 hereto, respectively,
and such exhibits are incorporated by reference herein.
On March 15, 2011, the
Company completed the Offering, including the exercise
in full by the underwriters of their option to purchase additional shares, of 145,130,000 shares of
common stock for cash consideration of $30.00 per share ($28.9125 per share, net of underwriting discounts) to a
syndicate of underwriters led by Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup
Global Markets Inc., J.P. Morgan Securities LLC, Barclays Capital
Inc., Credit Suisse Securities
(USA) LLC, Deutsche Bank Securities Inc., Goldman, Sachs & Co., Morgan Stanley & Co. Incorporated
and Wells Fargo Securities, LLC.
In the Offering, the Company sold 87,719,300 shares for approximately
$2.5 billion in net proceeds before expenses,
and the selling stockholders sold 57,410,700 shares for approximately $1.7 billion in net proceeds before expenses.
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Item 9.01.
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Financial Statements and Exhibits
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(d)
Exhibits
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Exhibit Number
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Exhibit
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Exhibit 3.1
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Amended and Restated Certificate of Incorporation of
the Company (filed as Exhibit 3.1 to the Company’s
Registration Statement on Form S-1 (File No.
333-171369), and incorporated herein by reference).
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Exhibit 3.2
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Amended and Restated Bylaws of the Company (filed as
Exhibit 3.2 to the Company’s Registration Statement on
Form S-1 (File No. 333-171369), and incorporated herein
by reference).
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Exhibit 10.1
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Stockholders’ Agreement, dated as of March 9, 2011, by
and among the Company, Hercules Holding II, LLC and the
other signatories thereto.
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Exhibit 10.2
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2006 Stock Incentive Plan for Key Employees of HCA
Holdings, Inc. and its Affiliates, as Amended and
Restated (filed as Exhibit 10.11(b) to the Company’s
Registration Statement on Form S-1 (File No.
333-171369), and incorporated herein by reference).
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Exhibit 10.3
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Form
of Director Restricted Share Unit Agreement Under the 2006 Stock Incentive Plan for Key Employees of HCA
Holdings, Inc. and its Affiliates, as Amended and
Restated.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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HCA HOLDINGS, INC.
(Registrant)
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By:
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/s/ R. Milton Johnson
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R. Milton Johnson
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President and Chief Financial Officer
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Date: March 15, 2011
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INDEX TO EXHIBITS
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Exhibit Number
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Exhibit
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Exhibit 3.1
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Amended and Restated Certificate of Incorporation of
the Company (filed as Exhibit 3.1 to the Company’s
Registration Statement on Form S-1 (File No.
333-171369), and incorporated herein by reference).
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Exhibit 3.2
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Amended and Restated Bylaws of the Company (filed as
Exhibit 3.2 to the Company’s Registration Statement on
Form S-1 (File No. 333-171369), and incorporated herein
by reference).
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Exhibit 10.1
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Stockholders’ Agreement, dated as of March 9, 2011, by
and among the Company, Hercules Holding II, LLC and the
other signatories thereto.
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Exhibit 10.2
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2006 Stock Incentive Plan for Key Employees of HCA
Holdings, Inc. and its Affiliates, as Amended and
Restated (filed as Exhibit 10.11(b) to the Company’s
Registration Statement on Form S-1 (File No.
333-171369), and incorporated herein by reference).
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Exhibit 10.3
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Form
of Director Restricted Share Unit Agreement Under the 2006 Stock Incentive Plan for Key Employees of HCA
Holdings, Inc. and its Affiliates, as Amended and
Restated.
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5
Exhibit 10.1
STOCKHOLDERS’ AGREEMENT
OF
HCA HOLDINGS, INC.
Dated as of March 9, 2011
Table of Contents
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Page
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ARTICLE I DEFINITIONS
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2
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SECTION 1.1. Definitions
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2
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SECTION 1.2. Construction
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4
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ARTICLE II CORPORATE GOVERNANCE
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SECTION 2.1. Board of Directors
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SECTION 2.2. Committees
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SECTION 2.3. Consent Rights
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SECTION 2.4. VCOC Rights
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ARTICLE III GENERAL PROVISIONS
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SECTION 3.1. Notices
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SECTION 3.2. Amendment; Waiver
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SECTION 3.3. Further Assurances
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10
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SECTION 3.4. Assignment
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SECTION 3.5. Third Parties
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SECTION 3.6. Governing Law
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SECTION 3.7. Jurisdiction
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SECTION 3.8. Specific Performance
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10
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SECTION 3.9. Entire Agreement
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11
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SECTION 3.10. Severability
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11
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SECTION 3.11. No Waiver
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SECTION 3.12. Table of Contents, Headings and Captions
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SECTION 3.13. Grant of Consent
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SECTION 3.14. Counterparts
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SECTION 3.15. Effectiveness
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SECTION 3.16. No Recourse
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i
STOCKHOLDERS’ AGREEMENT
OF
HCA HOLDINGS, INC.
This STOCKHOLDERS’ AGREEMENT (as the same may be amended, modified or supplemented from time
to time, the “
Agreement
”), dated as of March 9, 2011, is entered into by and among HCA
Holdings, Inc. (the “
Company
”), a Delaware corporation, Hercules Holding II, LLC, a
Delaware limited liability company (“
Parent
”) and the other signatories hereto (each, an
“
Investor
”).
R
E
C
I
T
A
L
S
:
WHEREAS, as of the date of this Agreement, the Investor Groups (as defined below), indirectly
through Parent, own greater than a majority of the outstanding shares of common stock, par value
$0.01 per share (the “
Common Stock
”), of the Company;
WHEREAS, in connection with such ownership the Investor Groups and other members have entered
into the Amended and Restated Limited Liability Company Agreement of Parent, dated as of November
17, 2006, as amended, modified or supplemented from time to time (the “
LLC Agreement
”),
setting forth certain rights of the Investor Groups related to corporate governance and other
matters of Parent and the Company;
WHEREAS, the Company is currently contemplating an underwritten initial public offering (the
“
IPO
”) of shares of its Common Stock; and
WHEREAS, with respect to the Company on and following the date of completion of the IPO (the
“
Closing Date
”), the parties hereto now wish to provide for certain corporate governance
matters.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
to this Agreement hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1.
Definitions
. Capitalized terms used herein shall have the following
meanings:
“
Affiliate
” shall mean, with respect to any Person, an “affiliate” as defined in Rule
405 of the regulations promulgated under the Securities Act.
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“
Agreement
” shall have the meaning set forth in the Preamble.
“
Bain Group
” shall mean Bain Capital Integral Investors 2006, LLC, BCIP TCV, LLC and
Bain Capital Hercules Investors, LLC and their Permitted Transferees, in each case that from time
to time directly or indirectly hold any interest in the Company.
“
BAML Group
” shall mean ML Global Private Equity Fund, L.P., Merrill Lynch Ventures
L.P. 2001, ML HCA Co-Invest, L.P. and their respective Permitted Transferees, in each case, that
from time to time hold any interest in the Company.
“
beneficially own
” shall have the meaning ascribed to such term in Rule 13d-3 under
the Exchange Act.
“
Board
” shall mean the board of directors of the Company.
“
Closing Date
” shall have the meaning set forth in the Recitals.
“
Common Stock
” shall have the meaning set forth in the Recitals.
“
Company
” shall have the meaning set forth in the Preamble.
“
Controlled Company
” means a company that is a “controlled company” within the meaning
of such term under the New York Stock Exchange rules or the rules of such other securities exchange
on which shares of Common Stock are then listed.
“
Director
” shall have the meaning set forth in Section 2.1(a).
“
Exchange Act
” shall mean the Securities Exchange Act of 1934, as amended from time to
time, and the rules and regulations promulgated pursuant thereto.
“
Frist Group
” shall mean any of the individuals or entities identified in Exhibit A to
the LLC Agreement, the Frist Foundation, the Frist Center for the Visual Arts, the Ensworth School
and their respective Permitted Transferees that from time to time directly or indirectly hold any
interest in the Company.
“
Group
” shall mean “group”, as such term is used for purposes of Section 13(d) or
14(d) of the Exchange Act.
“
Independent Director
” shall mean an individual that is independent within the meaning
of “independent director” under the New York Stock Exchange rules or the rules of such other
securities exchange on which shares of Common Stock are then listed.
“
Investor
” shall have the meaning set forth in the Preamble.
“
Investor Group
” shall mean any Sponsor Group or the Frist Group.
“
IPO
” shall have the meaning set forth in the Recitals.
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“
KKR Group
” shall mean KKR Millennium Fund L.P., KKR PEI Investments, L.P., KKR 2006
Fund L.P., KKR Partners III, L.P., OPERF Co-Investment LLC, 8 North America Investor L.P. and their
respective Permitted Transferees, in each case, that from time to time directly or indirectly hold
any interest in the Company.
“
LLC Agreement
” shall have the meaning set forth in the Recitals.
“
Parent
” shall have the meaning set forth in the Preamble.
“
pecuniary interest
” shall have the meaning ascribed to such term in Rule 16a-1 under
the Exchange Act.
“
Permitted Transferee
” shall have the meaning set forth in the LLC Agreement.
“
Person
” shall mean any individual, corporation, partnership, trust, joint stock
company, business trust, unincorporated association, joint venture or other entity of any nature
whatsoever.
“
Requisite Consent
” shall mean the consent of the Investor Groups having a pecuniary
interest over a majority of the shares of Common Stock over which the Investor Groups then have a
pecuniary interest, including at all times for so long as there are at least two Sponsor Groups
that each have a pecuniary interest in at least 20% of the shares of Common Stock over which such
Sponsor Group has a pecuniary interest as of the date of this Agreement, the consent of at least
two of the Sponsor Groups and at any time as there is only one Sponsor Group that has a pecuniary
interest in at least 20% of the shares of Common Stock over which such Sponsor Group has a
pecuniary interest as of the date of this Agreement, the consent of such Sponsor Group.
“
Securities Act
” shall mean the Securities Act of 1933, as amended from time to time,
and the rules and regulations promulgated pursuant thereto.
“
Sponsor Group
” shall mean, as applicable, (i) the Bain Group, (ii) the KKR Group and
(iii) the BAML Group.
SECTION 1.2.
Construction
. Whenever the context requires, the gender of all words
used in this Agreement includes the masculine, feminine and neuter forms and the singular form of
words shall include the plural and vice versa. All references to Articles and Sections refer to
articles and sections of this Agreement. Whenever the words “include,” “includes” or “including”
are used in this Agreement, they shall be deemed to be followed by the words “without limitation”.
This Agreement shall be construed without regard to any presumption or rule requiring construction
or interpretation against the party drafting or causing any instrument to be drafted. Any
percentage set forth herein shall be deemed to be automatically adjusted without any action on the
part of any party hereto to take into account any stock split, stock dividend or similar
transaction occurring after the date of this Agreement so that the rights provided to the Investors
shall continue to apply to the same extent such rights would have applied absent such stock split,
stock dividend or similar transaction.
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ARTICLE II
CORPORATE GOVERNANCE
SECTION 2.1.
Board of Directors.
(a) Effective as of the Closing Date, the Board shall be comprised of fifteen members (each, a
“
Director
”), of whom (i) three (3) shall be designees of the Bain Group, (ii) three (3)
shall be designees of the KKR Group, (iii) three (3) shall be designees of the BAML Group, (iv)
two (2) shall be designees of the Frist Group, (v) one (1) shall be the Chief Executive Officer of
the Company, (vi) one (1) shall be the Chief Financial Officer of the Company and (vii) two (2)
shall be Independent Directors; provided that within one year of the Closing Date, the Board shall
be expanded to add an additional Independent Director and each Investor Group shall take all action
reasonably necessary to increase the size of board to add such additional Independent Director.
(b) Following the Closing Date and until such time as the Company ceases to be a Controlled
Company, (i) each Sponsor Group shall have the right (but not the obligation) pursuant to this
Agreement to nominate to the Board, three (3) Directors and (ii) the Frist Group shall have the
right (but not the obligation) pursuant to this Agreement to nominate to the Board two (2)
Directors. In the event that any Investor Group has nominated less than the total number of
designees that such Investor Group shall be entitled to nominate pursuant to this Section 2.1(b) or
Section 2.1(c), then such Investor Group shall have the right, at any time, to nominate such
additional designee(s) to which it is entitled, in which case, the Directors shall take all
necessary corporate action to (x) increase the size of the Board as required to enable such
Investor Group to so nominate such additional designees and (y) designate such additional designees
nominated by such Investor Group to fill such newly created vacancies.
(c) Following such time that the Company ceases to be a Controlled Company, (i) each Sponsor
Group shall have the right (but not the obligation) pursuant to this Agreement to nominate to the
Board, three (3) Directors; provided that at such time as a Sponsor Group ceases to have a
pecuniary interest in at least 10% of the outstanding shares of Common Stock, such Sponsor Group
shall only have the right (but not the obligation) pursuant to this Agreement to nominate to the
Board one (1) Director; provided further that a Sponsor Group shall cease to have the right to
nominate any Directors to the Board pursuant to this Agreement at such time as such Sponsor Group
ceases to have a pecuniary interest in at least 3% of the outstanding shares of Common Stock and
(ii) the Frist Group shall have the right (but not the obligation) pursuant to this Agreement to
nominate to the Board two (2) Directors; provided that the Frist Group shall cease to have the
right to nominate any Directors to the Board pursuant to this Agreement at such time as the Frist
Group ceases to have a pecuniary interest in at least 3% of the outstanding shares of Common Stock.
For so long as any Investor Group has the right to nominate a Director to the Board pursuant to
the preceding sentence, the Board shall not have a number of Independent Directors that is greater
than the minimum number necessary to comply with applicable law, rule, regulation or listing
standards (calculated by assuming that each Investor Group that then has a right to nominate
Director(s) to the Board has exercised such right) unless the Investor Groups then entitled to
nominate one or more Director(s) (acting based
5
on the Requisite Consent of such Investor Groups) have consented to a greater number of
Independent Directors.
(d) In the event that a party hereto ceases to have the right to designate a person to serve
as a Director pursuant to this Section 2.1, such party’s designee to the Board shall resign
immediately or such party shall take all action necessary to remove such designee.
(e) Any Director designated by an Investor Group pursuant to Section 2.1 may be removed (with
or without cause) from time to time and at any time by the applicable Investor Group upon notice to
the Company, and may otherwise only be removed for cause. Any replacement nominee may only be
nominated by the Investor Group who nominated the Director so removed.
(f) In the event that a vacancy is created at any time by the death, disability, retirement or
resignation of any Director designated by an Investor Group pursuant to this Section 2.1, the
remaining Directors and the Company shall cause the vacancy created thereby to be filled by a new
designee of the Investor Group who designated such Director as soon as possible, and the Company
hereby agrees to take, at any time and from time to time, all actions necessary to accomplish the
same.
(g) The Company agrees to include in the slate of nominees recommended by the Board the
persons designated pursuant to this Section 2.1 and to use its best efforts to cause the election
of each such designee to the Board, including nominating such individuals to be elected as
Directors as provided herein.
SECTION 2.2.
Committees
.
(a) Until such time as the Company ceases to be a Controlled Company, (i) each Investor Group
shall have the right (but not the obligation) to designate one member of each committee of the
Board except to the extent that a designee of the Investor Group is not permitted to serve on a
committee under applicable law, rule, regulation or listing standards and (ii) any additional
members of any committee shall be determined by the Board.
(b) Following such time as the Company ceases to be a Controlled Company, the composition of
each committee of the Board shall be determined by the Board, subject to compliance with applicable
law, rule, regulation or listing standards;
provided
that if the Board shall delegate
substantially all of its responsibility or authority to any committee then each Investor Group
shall have the right, but not the obligation, to designate one member to such committee of the
Board for so long as such Investor Group as the right to nominate a Director pursuant to Section
2.1.
SECTION 2.3.
Consent Rights
. For so long as Parent and/or the Investor Groups
beneficially own 35% or more of the then outstanding shares of Common Stock, the following actions
shall require the Requisite Consent, in addition to the Board’s approval (or the approval of the
requisite governing body of any subsidiary of the Company):
6
(a) the Company entering into any merger, consolidation, recapitalization, liquidation, or
sale of the Company or all or substantially all of the assets of the Company or consummation of a
similar transaction involving the Company (other than a merger, consolidation or similar
transaction between or among the Company and one or more direct or indirect wholly-owned
subsidiaries of the Company which transaction would not adversely impact the rights of any
Investor) or entering into any agreement providing therefor;
(b) voluntarily initiating any liquidation, dissolution or winding up of the Company or
permitting the commencement of a proceeding for bankruptcy, insolvency, receivership or similar
action with respect to the Company or any of its subsidiaries; or
(c) the Company or its subsidiaries commencing or entering into, or agreeing or otherwise
committing to enter into, any business or operations other than those businesses and operations of
the same or similar nature to those which are being conducted by the Company or its subsidiaries as
of the date of this Agreement.
SECTION 2.4.
VCOC Rights
. The Company shall take any actions reasonably requested
by Parent in order for Parent to comply with its obligations under Section 7.7 (VCOC Members;
Information Rights) and Section 9.9 (VCOC Distributions) of the LLC Agreement.
ARTICLE III
GENERAL PROVISIONS
SECTION 3.1.
Notices
All notices, requests or consents provided for or required
to be given hereunder shall be in writing and shall be deemed to be duly given if personally
delivered, faxed and confirmed, or mailed by certified mail, return receipt requested, or
nationally recognized overnight delivery service with proof of receipt maintained, at the following
addresses (or any other address that any such party may designate by written notice to the other
parties):
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(i)
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if to the Company:
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HCA Holdings, Inc.
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One Park Plaza
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Nashville, TN 37203
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Attention: John M. Franck II
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Fax: (615) 344-1600
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7
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with a copy (which shall not constitute notice) to:
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Simpson Thacher & Bartlett LLP
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425 Lexington Avenue
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New York, NY 10017
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Attention: Joseph Kaufman
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Fax: (212) 455-2502
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(ii)
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if to Parent:
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c/o
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Bain Capital Integral Investors 2006, LLC
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c/o Bain Capital Partners, LLC
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111 Huntington Avenue
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Boston, MA 02199
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Attention: Chris Gordon
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Fax: (617) 516-2010
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c/o:
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Dr. Thomas F. Frist, Jr.
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3100 West End Ave., Suite 500
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Nashville, TN 37203
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Fax: (615) 385-9101
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c/o:
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KKR Millennium Fund, L.P.
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c/o Kohlberg Kravis Roberts & Co. L.P.
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2800 Sand Hill Road, Suite 200
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Menlo Park, CA 94025
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Attention: James C. Momtazee
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Fax: (650) 233-6584
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c/o:
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ML Global Private Equity Fund, L.P.
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c/o BAML Capital Partners
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Four World Financial Center, Floor 23
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New York, NY 10080
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Attention: Christopher Birosak
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Fax: (212) 449-1119
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8
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(iii)
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if to the Bain Group:
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c/o:
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Bain Capital Integral Investors 2006, LLC
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c/o Bain Capital Partners, LLC
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111 Huntington Avenue
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Boston, MA 02199
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Attention: Chris Gordon
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Fax: (617) 516-2010
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(iv)
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if to Frisco Inc.:
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Dr. Thomas F. Frist, Jr.
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3100 West End Ave., Suite 500
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Nashville, TN 37203
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Fax: (615) 385-9101
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(v)
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if to the KKR Group:
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KKR Millennium Fund, L.P.
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c/o Kohlberg Kravis Roberts & Co. L.P.
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2800 Sand Hill Road, Suite 200
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Menlo Park, CA 94025
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Attention: James C. Momtazee
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Fax: (650) 233-6584
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(vi)
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if to the BAML Group:
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ML Global Private Equity Fund, L.P.
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c/o BAML Capital Partners
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Four World Financial Center, Floor 23
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New York, NY 10080
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Attention: Christopher Birosak
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Fax: (212) 449-1119
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Any such notice shall, if delivered personally, be deemed received upon delivery; shall, if
delivered by fax, be deemed received on the first business day following confirmation; shall, if
delivered by nationally recognized overnight delivery service, be deemed received the first
business day after being sent; and shall, if delivered by mail, be deemed received upon the earlier
of actual receipt thereof or five (5) business days after the date of deposit in the United States
mail.
(b) Whenever any notice is required to be given by law or this Agreement, a written waiver
thereof, signed by the Person entitled to notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of such notice.
9
SECTION 3.2.
Amendment; Waiver
. This Agreement may be amended, supplemented or
otherwise modified only by a written instrument executed by the Company, Parent and Investors
representing the Requisite Consent;
provided
however
that any amendment of this
Agreement that would subject any Investor to materially adverse differential treatment relative to
the other Investors shall require the agreement of the differentially treated Investor. No waiver
by any party of any of the provisions hereof will be effective unless explicitly set forth in
writing and executed by the party so waiving. The waiver by any party hereto of a breach of any
provision of this Agreement will not operate or be construed as a waiver of any subsequent breach.
SECTION 3.3.
Further Assurances
. The parties hereto will sign such further
documents, cause such meetings to be held, resolutions passed, exercise their votes and do and
perform and cause to be done such further acts and things necessary, proper or advisable in order
to give full effect to this Agreement and every provision hereof. The Company shall not directly
or indirectly take any action that is intended to, or would reasonably be expected to result in,
Parent or any Investor being deprived of the rights contemplated by this Agreement.
SECTION 3.4.
Assignment
. This Agreement will inure to the benefit of and be binding
on the parties hereto and their respective successors, Permitted Transferees and permitted assigns.
Except in connection with a transfer made to a Permitted Transferee in accordance with the terms
of the LLC Agreement, this Agreement may not be assigned without the express prior written consent
of the other parties hereto, and any attempted assignment, without such consents, will be null and
void.
SECTION 3.5.
Third Parties
. This Agreement does not create any rights, claims or
benefits inuring to any person that is not a party hereto nor create or establish any third party
beneficiary hereto. Any rights provided to the Frist Group hereunder may only be exercised by
Frisco Inc. or its successor or permitted assigns.
SECTION 3.6.
Governing Law
. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
SECTION 3.7.
Jurisdiction
. In any judicial proceeding involving any dispute,
controversy or claim arising out of or relating to this Agreement, each of the parties
unconditionally accepts the non-exclusive jurisdiction and venue of any United States District
Court located in the State of Delaware, or of the Court of Chancery of the State of Delaware, and
the appellate courts to which orders and judgments thereof may be appealed. In any such judicial
proceeding, the parties agree that in addition to any method for the service of process permitted
or required by such courts, to the fullest extent permitted by law, service of process may be made
by delivery provided pursuant to the directions in Section 3.1. EACH OF THE PARTIES HEREBY WAIVES
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF
OR RELATING TO THIS AGREEMENT.
SECTION 3.8.
Specific Performance
. Each party hereto acknowledges and agrees that
in the event of any breach of this Agreement by any of them, the other parties hereto would be
irreparably harmed and could not be made whole by monetary damages. Each party
10
accordingly agrees
to waive the defense in any action for specific performance that a remedy at law would be adequate
and that the parties, in addition to any other remedy to which they may be entitled at law or in
equity, shall be entitled to specific performance of this Agreement without the posting of bond.
SECTION 3.9.
Entire Agreement
. This Agreement, together with the LLC Agreement,
sets forth the entire understanding of the parties hereto with respect to the subject matter
hereof. Except for the LLC Agreement, there are no agreements, representations, warranties,
covenants or understandings with respect to the subject matter hereof or thereof other than those
expressly set forth herein and therein. This Agreement, together with the LLC Agreement,
supersedes all other prior agreements and understandings between the parties with respect to such
subject matter.
SECTION 3.10.
Severability
. If any provision of this Agreement, or the application
of such provision to any Person or circumstance or in any jurisdiction, shall be held to be invalid
or unenforceable to any extent, (i) the remainder of this Agreement shall not be affected thereby,
and each other provision hereof shall be valid and enforceable to the fullest extent permitted by
law, (ii) as to such Person or circumstance or in such jurisdiction such provision shall be
reformed to be valid and enforceable to the fullest extent permitted by law and (iii) the
application of such provision to other Persons or circumstances or in other jurisdictions shall not
be affected thereby.
SECTION 3.11.
No Waiver
. Neither the failure nor delay on the part of any party
hereto to exercise any right, remedy, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any
other occurrence. No waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
SECTION 3.12.
Table of Contents, Headings and Captions
. The table of contents,
headings, subheadings and captions contained in this Agreement are included for convenience of
reference only, and in no way define, limit or describe the scope of this Agreement or the intent
of any provision hereof.
SECTION 3.13.
Grant of Consent
. Any vote, consent or approval of a Sponsor Group
hereunder (including for purposes of determining whether the Requisite Consent has been obtained)
shall be deemed to be given with respect to all members of a Sponsor Group if such vote, consent or
approval is given by members of such Sponsor Group having a pecuniary interest in a majority of the
shares of Common Stock over which all members of such Sponsor Group then have a pecuniary interest.
Any vote, consent or approval of the Frist Group
(including for purposes of determining whether the Requisite Consent has been obtained)
hereunder shall be deemed to be given with respect to all members of the Frist Group if, and only
if, such vote, consent or approval is given by Frisco Inc.
11
SECTION 3.14.
Counterparts
. This Agreement and any amendment hereto may be signed
in any number of separate counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one Agreement (or amendment, as applicable).
SECTION 3.15.
Effectiveness
This Agreement shall become effective upon the Closing
Date.
SECTION 3.16.
No Recourse
. This Agreement may only be enforced against, and any
claims or cause of action that may be based upon, arise out of or relate to this Agreement, or the
negotiation, execution or performance of this Agreement may only be made against the entities that
are expressly identified as parties hereto and no past, present or future Affiliate, director,
officer, employee, incorporator, member, manager, partner, stockholder, agent, attorney or
representative of any party hereto shall have any liability for any obligations or liabilities of
the parties to this Agreement or for any claim based on, in respect of, or by reason of, the
transactions contemplated hereby.
[
Remainder of Page Intentionally Left Blank
]
12
IN WITNESS WHEREOF, the parties hereto have caused this Stockholders’ Agreement to be duly
executed as of the date first above written.
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HCA HOLDINGS, INC.
|
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By:
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/s/
R. Milton Johnson
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Name:
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R. Milton Johnson
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Title:
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President and Chief Financial Officer
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HERCULES HOLDING II, LLC
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By:
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/s/
William Janetschek
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Name:
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William Janetschek
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Title:
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Director
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KKR 2006 FUND L.P.
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By:
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KKR Associates 2006 L.P.,
its general partner
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By:
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KKR 2006 GP LLC, its general partner
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By:
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/s/ William Janetschek
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Name: William Janetschek
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Title: Director
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KKR MILLENNIUM FUND L.P.
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By:
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KKR Associates Millennium L.P.,
its general partner
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By:
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KKR Millennium GP LLC, its general partner
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By:
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/s/ William Janetschek
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Name: William Janetschek
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Title: Director
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KKR PEI INVESTMENTS, L.P.
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By:
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KKR PEI Associates, L.P.,
its general partner
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By:
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KKR PEI GP Limited, its general partner
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By:
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/s/ William Janetschek
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Name: William Janetschek
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Title: Director
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KKR PARTNERS III, L.P.
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By:
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KKR III GP LLC,
its general partner
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By:
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/s/ William Janetschek
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Name: William Janetschek
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Title: Director
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OPERF CO-INVESTMENT LLC
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By:
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KKR Associates 2006 L.P.,
its manager
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By:
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KKR 2006 GP LLC, its general partner
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By:
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/s/ William Janetschek
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Name: William Janetschek
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Title: Director
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8 NORTH AMERICA INVESTOR L.P.
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By:
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KKR Associates 8 NA L.P.,
its general partner
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By:
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KKR 8 NA Limited, its general partner
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By:
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/s/ William Janetschek
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Name: William Janetschek
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Title: Director
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BAIN CAPITAL INTEGRAL INVESTORS 2006, LLC
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By:
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Bain Capital Investors, LLC,
its administrative member
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By:
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/s/ Christopher Gordon
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Name: Christopher Gordon
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Title: Managing Director
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BCIP TCV, LLC
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By:
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Bain Capital Investors, LLC,
its administrative member
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By:
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/s/ Christopher Gordon
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Name: Christopher Gordon
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Title: Managing Director
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BAIN CAPITAL HERCULES INVESTORS, LLC
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By:
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Bain Capital Investors, LLC,
its administrative member
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By:
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/s/ Christopher Gordon
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Name: Christopher Gordon
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Title: Managing Director
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|
MERRILL LYNCH VENTURES L.P. 2001
|
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By:
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Merrill Lynch Ventures, LLC,
its general partner
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By:
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/s/ Christopher Birosak
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Name: Christopher Birosak
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|
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Title: Executive Vice President
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|
ML GLOBAL PRIVATE EQUITY FUND, L.P.
|
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By:
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MLGPE LTD,
its general partner
|
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By:
|
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/s/ Christopher Birosak
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|
|
Name: Christopher Birosak
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Title: Executive Vice President
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ML HCA CO-INVEST, L.P.
|
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By:
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|
ML HCA CO-INVEST LTD.,
its general partner
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By:
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/s/ Lisa P. McAlister
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Name: Lisa P. McAlister
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Title: Director
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FRISCO INC.
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By:
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/s/ Thomas F. Frist, Jr.
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Name: Dr. Thomas F. Frist, Jr.
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Title: Authorized Person
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Exhibit 10.3
HCA Inc.
Restricted Share Unit Agreement
(Director)
THIS RESTRICTED SHARE UNIT AGREEMENT (this “Agreement”) is made and entered into as of
the ___
day of March, 2011 (the “Grant Date”), between HCA Inc., a Delaware corporation
(the “Company”), and
[director]
, (the “Grantee”). Capitalized terms not otherwise defined
herein shall have the meaning ascribed to such terms in the 2006 Stock Incentive Plan for Key
Employees of HCA Inc. and its Affiliates, as Amended and Restated (the “Plan”).
WHEREAS, the Company has adopted the Plan, which permits the issuance of awards that are based
on Shares of the Company, including the grant of a right to receive one Share at a specified date
(or dates) in the future (a “Restricted Share Unit”); and
WHEREAS, the Company has determined that a portion of the Grantee’s annual retainer for
services as a director of the Company (a “Director”) should be paid to the Grantee in the form of
Restricted Share Units, to be granted pursuant to the terms and conditions set forth in this award
Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1.
Grant of Restricted Share Unit Award
.
1.1 The Company hereby grants to the Grantee an award (“Award”) of
[number]
Restricted Share
Units (“RSUs”) on the terms and conditions set forth in this Agreement and as otherwise provided in
the Plan.
1.2 The Grantee’s rights with respect to the Award shall remain forfeitable at all times prior
to the dates on which the RSUs shall vest in accordance with Section 2 hereof. This Award may not
be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by Grantee
other than by will or the laws of descent and distribution.
2.
Vesting and Payment
.
2.1 Except as provided in Section 2.2, the Award shall vest __________________________, so
long as the Grantee continues to serve on the Board through such date (such _________ period
sometimes referred to as the “Restricted Period”).
2.2 Notwithstanding Section 2.1 above, all RSUs covered by the Award shall immediately vest
upon the occurrence of a Change in Control that occurs prior to the expiration of the Restricted
Period. If the Grantee’s service as a Director is terminated for any reason other than death or
Disability, the Grantee shall forfeit all rights with respect to all RSUs that are not vested on
such date; provided, however, if such termination is with Cause (as defined below), all RSUs
whether vested or unvested shall immediately become void and of no effect. If the Grantee’s
service as a Director is terminated by death or Disability, the RSUs covered by the Award shall
immediately vest, but only in proportion to the length of the Director’s service as a director
during such Restricted Period. For purposes of this Agreement, Cause shall mean the reasons for
which a Director can be removed from the Board by the Company pursuant to the governing documents
of the Company (including, without limitation, the Company’s by-laws and charter). For purposes of
this Agreement, “Disability” shall mean that the Grantee is unable to perform the essential duties
of a Director. Notwithstanding the foregoing, this provision is subject in its entirety to Section
9 of the Plan.
2.3 The Grantee shall be entitled to payment in respect of all RSUs covered by the Award upon
the vesting of such RSUs. Subject to the provisions of the Plan, such payment shall be made
through the issuance to the Grantee, as promptly as practicable thereafter (or to the executors or
administrators of Grantee’s estate, as promptly as practicable after the Company’s receipt of
notification of Grantee’s death, as the case may be), of a number of Shares equal to the number of
such vested RSUs. Notwithstanding the foregoing, if the Grantee shall have elected to defer
payment of such vested RSUs to such later date as may be permitted by the Company, in accordance
with the requirements of Section 409A of the Code, by
______________________, 20___
, payment of
such vested RSUs shall instead be made on such later date (the “Deferral Election”).
3.
Dividend Equivalent Rights
.
In the event that the Grantee makes a Deferral Election with respect to the settlement of the
vested RSUs, the Grantee shall receive Dividend Equivalent Rights in respect of any vested RSUs
covered by this Award at the time of any payment of dividends to stockholders on Shares. The
amount of any such Dividend Equivalent Right shall equal the amount that would be payable to the
Grantee as a stockholder in respect of a number of Shares equal to the number of vested RSUs then
credited to the Grantee hereunder. Any such Dividend Equivalent Right shall be paid in accordance
with the Company’s payment practices as may be established from time to time and as of the date on
which such dividend would have been payable in respect of such number of Shares. No Dividend
Equivalent Rights shall be paid under any circumstances in respect of RSUs that are not vested.
4.
No Right to Continued Service
.
Nothing in this Agreement or the Plan shall be interpreted or construed to confer upon the
Grantee any right to continue service as a member of the Board.
5.
Adjustments
.
Notwithstanding anything else contained in this Agreement, the RSUs granted hereunder and this
Agreement shall be subject to adjustment, substitution or cancellation in accordance with the
provisions of Sections 8 and 9 of the Plan.
6.
Grantee Bound by the Plan
.
This Agreement shall be construed in accordance and consistent with, and subject to, the terms
of the Plan. The Grantee hereby acknowledges receipt of a copy of the Plan and agrees to be bound
by all the terms and provisions thereof.
7.
Plan Governs
.
The terms of this Agreement are governed by the terms of the Plan, and in the case of any
inconsistency between the terms of this Agreement and the terms of the Plan, the terms of the Plan
shall govern.
8.
Modification of Agreement
.
Subject to the provisions of Section 3 of the Plan, this Agreement may be modified, amended,
suspended or terminated, and any terms or conditions may be waived, but only by a written
instrument executed by the parties hereto.
9.
Severability
.
If any provision of this Agreement is, or becomes, or is deemed to be invalid, illegal, or
unenforceable in any jurisdiction or as to any Person or the Award, or would disqualify the Plan or
Award under any laws deemed applicable by the Committee, such provision shall be construed or
deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended
without, in the determination of the Committee, materially altering the intent of the Plan or the
Award, such provision shall be stricken as to such jurisdiction, Person or Award, and the remainder
of the Plan and Award shall remain in full force and effect.
10.
Taxes
.
The Grantee shall be responsible for all taxes due in connection with the grant or vesting or
any payment or transfer with respect to the RSUs and Shares payable hereunder.
11.
Governing Law
.
The validity, interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Delaware without giving effect to the conflicts of law principles
thereof, except to the extent that such laws are preempted by Federal law.
12.
Successors in Interest
.
This Agreement shall inure to the benefit of and be binding upon any successor to the Company.
This Agreement shall inure to the benefit of the Grantee’s legal representatives. All obligations
imposed upon the Grantee and all rights granted to the Company under this Agreement shall be
binding upon the Grantee’s heirs, executors, administrators and successors.
13.
Resolution of Disputes
.
Any dispute or disagreement which may arise under, or as a result of, or in any way related
to, the interpretation, construction or application of this Agreement shall be determined by the
Board. Any determination made hereunder shall be final, binding and conclusive on the Grantee and
the Company for all purposes.
This Agreement and the Plan contain the entire agreement and understanding of the parties
hereto with respect to the subject matter contained herein and supersede all prior communications,
representations and negotiations in respect thereto.
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HCA Inc.
By:
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Grantee:
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Please Print
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Grantee:
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Signature
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