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): February 14, 2012 (February 8, 2012)

 

 

HCA HOLDINGS, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-11239   27-3865930

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

One Park Plaza, Nashville, Tennessee   37203
(Address of principal executive offices)   (Zip Code)

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):

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Stock Appreciation Rights

On February 8, 2012, a subcommittee of the Compensation Committee (the “Committee”) of the Board of Directors (the “Board”) of HCA Holdings, Inc., a Delaware corporation (the “Company”), approved the award of stock appreciation rights to the following named executive officers of the Company. Below is the number of stock appreciation rights awarded to these individuals:

 

Name

  

Title

   Stock
Appreciation
Rights
 

Richard M. Bracken

   Chairman of the Board and Chief Executive Officer      900,000   

R. Milton Johnson

   President and Chief Financial Officer      425,000   

Samuel N. Hazen

   President – Operations      250,000   

William P. Rutledge

   President – Central Group      75,000   

The stock appreciation rights have a base price equal to $28.97 per share, the closing market price for the Company’s Common Stock on the New York Stock Exchange on the date of grant, and expire ten years from the date of grant. Half of the stock appreciation rights granted are time-based, with 25% vesting on each of the first four anniversaries of the grant date, while the other half are EBITDA performance-based, with up to 25% vesting at the end of each of fiscal years 2012, 2013, 2014 and 2015 upon the Committee’s determination of the extent to which certain EBITDA performance targets have been met for the applicable fiscal year. The stock appreciation rights will be settled in shares of the Company’s common stock. The stock appreciation rights, which were awarded pursuant to the 2006 Stock Incentive Plan for Key Employees of HCA Holdings, Inc. and its Affiliates, as Amended and Restated (the “Plan”), vest and become exercisable upon the occurrence of a change in control, as defined in the stock appreciation rights award agreement, to the extent they have not been previously forfeited. Each recipient’s stock appreciation right award agreement contains provisions dealing with, among other things, (i) the effect, on the award, of the termination of the grantee’s service as an employee of the Company whether by retirement, disability, death, or voluntary or involuntary termination; (ii) the stock appreciation rights’ transferability; and (iii) the manner in which the grantee can exercise the stock appreciation rights.

The form of stock appreciation rights agreement is filed herewith as Exhibit 10.1 and is incorporated herein by reference.

Director Restricted Stock Unit Grant

On December 28, 2011, the Company announced the election of Wayne J. Riley, M.D. to the Board. In connection with Dr. Riley’s election, on February 8, 2012 the Board approved the grant of 6,615 restricted stock units to Dr. Riley pursuant to the Plan, consisting of an initial award of 5,177 restricted stock units and a pro-rated annual award of 1,438 restricted stock units. The restricted stock units were granted pursuant to form of award agreements which are filed herewith as Exhibits 10.2 and 10.3 and are incorporated herein by reference.

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits:

 

  10.1 Form of Stock Appreciation Right Award Agreement Under the 2006 Stock Incentive Plan for Key Employees of HCA Holdings, Inc. and its Affiliates, as Amended and Restated.

 

  10.2 Form of Director Restricted Share Unit Agreement (Initial Award) Under the 2006 Stock Incentive Plan for Key Employees of HCA Holdings, Inc. and its Affiliates, as Amended and Restated.

 

  10.3 Form of Director Restricted Share Unit Agreement (Annual Award) Under the 2006 Stock Incentive Plan for Key Employees of HCA Holdings, Inc. and its Affiliates, as Amended and Restated.


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.

 

HCA HOLDINGS, INC.
/s/    John M. Franck II
John M. Franck II
Vice President – Legal & Corporate Secretary

Date: February 14, 2012


EXHIBIT INDEX

 

10.1 Form of Stock Appreciation Right Award Agreement Under the 2006 Stock Incentive Plan for Key Employees of HCA Holdings, Inc. and its Affiliates, as Amended and Restated.

 

10.2 Form of Director Restricted Share Unit Agreement (Initial Award) Under the 2006 Stock Incentive Plan for Key Employees of HCA Holdings, Inc. and its Affiliates, as Amended and Restated.

 

10.3 Form of Director Restricted Share Unit Agreement (Annual Award) Under the 2006 Stock Incentive Plan for Key Employees of HCA Holdings, Inc. and its Affiliates, as Amended and Restated.

Exhibit 10.1

FORM OF

STOCK APPRECIATION RIGHTS AGREEMENT

This STOCK APPRECIATION RIGHTS AGREEMENT (the “ Agreement ”), dated as of                  (the “ Grant Date ”) is made by and between HCA Holdings, Inc., a Delaware corporation (hereinafter referred to as the “ Company ”), and the individual whose name is set forth below, who is an employee of the Company or a Subsidiary or Affiliate of the Company, hereinafter referred to as the “ Grantee ”. Any capitalized terms herein not otherwise defined in Article I shall have the meaning set forth in the 2006 Stock Incentive Plan for Key Employees of HCA Holdings, Inc. and its Affiliates, as amended and restated (the “ Plan ”).

WHEREAS, the Company wishes to carry out the Plan, the terms of which are hereby incorporated by reference and made a part of this Agreement; and

WHEREAS, the Compensation Committee of the Board of Directors of the Company, including any subcommittee formed pursuant to Section 3(a) of the Plan, (or, if no such committee is appointed, the Board of Directors of the Company) (the “ Committee ”) has determined that it would be to the advantage and best interest of the Company and its shareholders to grant an award of Stock Appreciation Rights (“ SARs ”) as provided for herein to the Grantee as an incentive for increased efforts during his or her term of office, employment or service with the Company or its Subsidiaries or Affiliates, and has advised the Company thereof and instructed the undersigned officers to issue said SARs;

NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows:

STOCK APPRECIATION RIGHTS GRANT

 

Grantee:       [Participant Name]

[ParticipantAddress]

Aggregate number of Time SARs granted

hereunder (“Time SARs”):

      [Time SAR Award]

Aggregate number of EBTIDA Performance SARs

granted hereunder (“EBTIDA Performance SARs”):

      [EBITDA Performance

SAR Award]

Base Price of all SARs granted hereunder:       [Base Price]
Grant Date of Award (“Grant Date”):       [Grant Date]


ARTICLE I

DEFINITIONS

Whenever the following terms are used in this Agreement, they shall have the meaning specified below unless the context clearly indicates to the contrary.

Section 1.1. Cause

“Cause” shall mean “Cause” as such term may be defined in any employment agreement or change-in-control agreement in effect at the time of termination of employment between the Grantee and the Company or any of its Subsidiaries or Affiliates, or, if there is no such employment or change-in-control agreement, “Cause” shall mean (i) willful and continued failure by Grantee (other than by reason of a Permanent Disability) to perform his or her material duties with respect to the Company or it Subsidiaries which continues beyond ten (10) business days after a written demand for substantial performance is delivered to Grantee by the Company (the “ Cure Period ”); (ii) willful or intentional engaging by Grantee in material misconduct that causes material and demonstrable injury, monetarily or otherwise, to the Company, the Investors or their respective Affiliates; (iii) conviction of, or a plea of nolo contendere to, a crime constituting (x) a felony under the laws of the United States or any state thereof or (y) a misdemeanor for which a sentence of more than six months’ imprisonment is imposed; or (iv) Grantee’s engaging in any action in breach of restrictive covenants made by Grantee under any Management Stockholder’s Agreement (if applicable) or other agreement containing restrictive covenants (e.g., covenants not to disclose confidential information, to compete with the business of the Company or its Subsidiaries or to solicit the employees thereof to terminate their employment) or any employment or change-in-control agreement between the Grantee and the Company or any of its Subsidiaries, which continues beyond the Cure Period (to the extent that, in the Board’s reasonable judgment, such breach can be cured).

Section 1.2. EBITDA Performance SARs

“EBITDA Performance SARs” shall mean the SARs granted on the terms and conditions set forth herein, with respect to all or any part of an aggregate number of shares of Common Stock set forth above opposite the term EBITDA Performance SARs.

Section 1.3. Fiscal Year

“Fiscal Year” shall mean each of the             ,             ,              and              fiscal years of the Company (which, for the avoidance of doubt, ends on December 31 of any given calendar year).

 

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Section 1.4. Good Reason

“Good Reason” shall mean “Good Reason” as such term may be defined in any employment agreement or change-in-control agreement in effect at the time of termination of employment between the Grantee and the Company or any of its Subsidiaries or Affiliates, or, if there is no such employment or change-in-control agreement, “Good Reason” shall mean (i) (A) a reduction in Grantee’s base salary (other than a general reduction in base salary that affects all similarly situated employees (defined as all employees within the same Company pay grade as that of Grantee) in substantially the same proportions that the Board implements in good faith after consultation with the Chief Executive Officer (“CEO”) and Chief Operating Officer of the Company, if any); (B) a reduction in Grantee’s annual incentive compensation opportunity; or (C) the reduction of benefits payable to Grantee under the Company’s Supplemental Executive Retirement Plan (if Grantee is a participant in such plan), in each case other than any isolated, insubstantial and inadvertent failure by the Company that is not in bad faith and is cured within ten (10) business days after Grantee gives the Company written notice of such event; provided that the events described in (i)(A) or (i)(B) above will not be deemed to give rise to Good Reason if employment is terminated, but Grantee declines an offer of employment involving a loss of compensation of less than 15% from a purchaser, transferee, outsourced vendor, new operating entity or affiliated employer; (ii) a substantial diminution in Grantee’s title, duties and responsibilities, other than any isolated, insubstantial and inadvertent failure by the Company that is not in bad faith and is cured within ten (10) business days after Grantee gives the Company written notice of such event; or (iii) a transfer of Grantee’s primary workplace to a location that is more than twenty (20) miles from his or her workplace as of the date of this Agreement; provided that Good Reason shall not be deemed to occur merely because Grantee’s willful decision to change position or status within the Company or any of its Subsidiaries causes one or more of the occurrences described in (i), (ii), or (iii) to come about.

Section 1.5. Permanent Disability

“Permanent Disability” shall mean “Disability” as such term is defined in any employment agreement between Grantee and the Company or any of its Subsidiaries, or, if there is no such employment agreement, “Disability” as defined in the long-term disability plan of the Company.

Section 1.6. Retirement

“Retirement” shall mean Grantee’s resignation (other than for Good Reason) from service with the Company and the Service Recipients (i) after attaining 65 years of age or (ii) after attaining 55 years of age and completing ten (10) years of service with the Company or any Service Recipient.

Section 1.7. SARs

“SARs” shall mean the aggregate of the Time SARs and the EBITDA Performance SARs granted under Section 2.1 of this Agreement.

Section 1.8. Secretary

“Secretary” shall mean the Secretary of the Company.

 

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Section 1.9. Time SARs

“Time SARs” shall mean the SARs granted on the terms and conditions set forth herein with respect to all or any part of an aggregate number of shares of Common Stock set forth above opposite the term Time SARs.

ARTICLE II

GRANT OF SARS

Section 2.1. Grant of SARs

For good and valuable consideration, on and as of the date hereof the Company irrevocably grants to the Grantee an award of the following SARs: (a) the Time SARs and (b) the EBITDA Performance SARs (together, the “ Award ”), in each case on the terms and conditions set forth in this Agreement. Each SAR represents the right to receive pursuant to this Agreement, upon exercise of the SAR, a payment from the Company in shares of Common Stock having a value equal to the excess of the Fair Market Value of one Share on the exercise date over the Base Price (as defined below).

Section 2.2. Base Price

Subject to Section 2.4, the base price of each SAR granted pursuant to this Agreement (the “ Base Price ”) shall be as set forth above.

Section 2.3. No Guarantee of Employment

Nothing in this Agreement or in the Plan shall confer upon the Grantee any right to continue in the employ of the Company or any Service Recipient or shall interfere with or restrict in any way the rights of the Company and the Service Recipients, which are hereby expressly reserved, to terminate the employment of the Grantee at any time for any reason whatsoever, with or without cause, subject to the applicable provisions of, if any, the Grantee’s employment agreement with the Company or offer letter provided by the Company or a Service Recipient to the Grantee.

Section 2.4. Adjustments to SARs

The SARs shall be subject to the adjustment provisions of Sections 8 and 9 of the Plan, provided , however , that in the event of the payment of an extraordinary dividend by the Company to its stockholders, then: first , the Base Price of each SAR shall be reduced by the amount of the dividend per share paid, but only to the extent the Committee determines it to be permitted under applicable tax laws and it will not have adverse tax consequences to the Grantee; and, if such reduction cannot be fully effected due to such tax laws, second , the Company shall pay to the Grantee a cash payment, on a per SAR basis, equal to the balance of the amount of the dividend not permitted to be

 

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applied to reduce the Base Price of the applicable SARs as follows: (a) for each Share with respect to which a vested SAR relates, promptly following the date of such dividend payment; and (b), for each Share with respect to which an unvested SAR relates, on the date on which such SAR becomes vested and exercisable with respect to such Share.

ARTICLE III

PERIOD OF EXERCISABILITY

Section 3.1. Commencement of Exercisability

(a) So long as the Grantee continues to be employed by the Company or any other Service Recipient, this Award shall become vested and exercisable pursuant to the following schedules:

(i) Time SARs . This Award shall become vested and exercisable with respect to 25% of the Time SARs on each of the first four anniversaries of the Grant Date.

(ii) EBITDA Performance SARs . This Award shall be eligible to become vested as to 25% of the EBITDA Performance SARs (the “ Eligible SARs ”) at the end of each of the four Fiscal Years, if the Company, on a consolidated basis, achieves its annual EBITDA targets for the given Fiscal Year, as each such target shall be established by the Committee on the attached Schedule A or otherwise within the first ninety days of each such Fiscal Year (each, once so established, an “ EBITDA Target ”) for the given Fiscal Year. In the event the actual EBITDA for a Fiscal Year equals or exceeds the minimum percentage of the EBITDA Target set forth on Schedule A for such year, a portion of the Eligible SARs shall become vested as provided in the attached Schedule A as of the last day of the applicable Fiscal Year. Subject to the immediately preceding sentence, in the event that the EBITDA Target is not achieved in a particular Fiscal Year, then that portion of the Eligible SARs that failed to vest due to the Company’s failure to achieve 100% of its EBITDA Target shall be forfeited and immediately terminated as of the date the actual EBITDA for the Fiscal Year has been certified by the Committee. Any portion of the Eligible SAR that becomes vested pursuant to this Section 3.1(a)(ii) shall become first exercisable upon the determination by the Committee that the applicable EBITDA Targets have been achieved.

(b) Notwithstanding the foregoing (but subject to Section 3.1(c) below), upon the occurrence of a Change in Control (the definition of which is set forth on Schedule B attached hereto):

(i) this Award shall become immediately vested and exercisable immediately prior to a Change in Control as to 100% of the Time SARs (but only to the extent this Award has not otherwise terminated or become exercisable with respect to such SARs);

 

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(ii) this Award shall become immediately vested and exercisable immediately prior to a Change in Control as to 100% of the Eligible SARs with respect to (i) the Fiscal Year in which the Change in Control occurs and (ii) each subsequent Fiscal Year (but only to the extent this Award has not otherwise terminated or become exercisable with respect to such SARs); and

(c) Notwithstanding the foregoing, no part of this Award shall become vested as to any additional SARs as of any date following the termination of Grantee’s employment with the Company or any Service Recipient for any reason and any SAR, which is (or determined to be) unvested as of the Grantee’s termination of employment, shall immediately expire without payment therefor.

Section 3.2. Expiration of SARs

The Grantee may not exercise any SAR granted pursuant to this Award after the first to occur of the following events:

(a) The tenth anniversary of the Grant Date so long as the Grantee remains employed with the Company or any Service Recipient through such date;

(b) The third anniversary of the date of the Grantee’s termination of employment with the Company and all Service Recipients, if the Grantee’s employment terminates by reason of death or Permanent Disability;

(c) Immediately upon the date of the Grantee’s termination of employment by the Company or any Service Recipient for Cause, including if a vested SAR has not yet become exercisable pursuant to Section 3.1(a)(ii);

(d) One hundred and eighty (180) days after the date of the Grantee’s termination of employment by the Company or any Service Recipient without Cause (for any reason other than as set forth in Section 3.2(b));

(e) One hundred and eighty (180) days after the date of the Grantee’s termination of employment with the Company or any Service Recipient by the Grantee for Good Reason;

(f) One hundred and eighty (180) days after the date of the Grantee’s termination of employment with the Company or any Service Recipient by the Grantee upon Retirement.

(g) Sixty (60) days after the date of the Grantee’s termination of employment with the Company or any Service Recipient by the Grantee without Good Reason (except due to Retirement, death or Permanent Disability); or

(h) At the discretion of the Company, if the Committee so determines pursuant to Section 9 of the Plan.

For the avoidance of doubt, for purposes of this Agreement, Grantee’s employment shall not be deemed to have terminated so long as Grantee remains employed by any Service Recipient.

 

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ARTICLE IV

EXERCISE

Section 4.1. Person Eligible to Exercise

The Grantee may exercise only that portion of this Award that has both vested and become exercisable at the time Grantee desires to exercise this Award and that has not expired pursuant to Section 3.2. During the lifetime of the Grantee, only the Grantee (or his or her duly authorized legal representative) may exercise the SARs granted pursuant to this Award or any portion thereof. After the death of the Grantee, any vested and exercisable portion of this Award may, prior to the time when such portion becomes unexercisable under Section 3.2, be exercised by his personal representative or by any person empowered to do so under the Grantee’s will or under the then applicable laws of descent and distribution.

Section 4.2. Partial Exercise

Any vested and exercisable portion of this Award, or the entire Award, if then wholly vested and exercisable, may be exercised in whole or in part at any time prior to the time when the Award or portion thereof becomes unexercisable under Section 3.2.

Section 4.3. Manner of Exercise

Subject to the Company’s code of conduct and securities trading policies as in effect from time to time, this Award, or any exercisable portion thereof, may be exercised solely by delivering to the Company or its designated agent all of the following prior to the time when the Award or such portion becomes unexercisable under Section 3.2:

(a) Notice in writing (or such other medium acceptable to the Company or its designated agent) signed or acknowledged by the Grantee or other person then entitled to exercise the Award, stating the number of SARs subject to the Award in respect of which the Award is thereby being exercised, such notice complying with all applicable rules established by the Committee;

(b) [intentionally omitted]

(c) (i) Full payment (in cash or by check or by a combination thereof) to satisfy the minimum withholding tax obligation with respect to which the Award or portion thereof is exercised or (ii) indication that the Grantee elects to satisfy the withholding tax obligation through an arrangement that is compliant with the Sarbanes-Oxley Act of 2002 (and any other applicable laws and exchange rules) and that provides for the delivery of irrevocable instructions to a broker to sell Shares obtained upon the exercise of the Award and to deliver promptly to the Company an amount to satisfy the minimum withholding tax obligation that would otherwise be required to be paid by the

 

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Grantee to the Company pursuant to clause (i) of this subsection (c), or (iii) if made available by the Company, indication that the Grantee elects to have the number of Shares that would otherwise be issued to the Grantee upon exercise of such Award (or portion thereof) reduced by a number of Shares having an aggregate Fair Market Value, on the date of such exercise, equal to the payment to satisfy the minimum withholding tax obligation that would otherwise be required to be made by the Grantee to the Company pursuant to clause (i) of this subsection (c).

(d) If required by the Company, a bona fide written representation and agreement, in a form satisfactory to the Company, signed by the Grantee or other person then entitled to exercise such Award or portion thereof, stating that the shares of Common Stock are being acquired for his own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act of 1933, as amended (the “ Act ”), and then applicable rules and regulations thereunder, and that the Grantee or other person then entitled to exercise such Award or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above; provided, however, that the Company may, in its reasonable discretion, take whatever additional actions it deems reasonably necessary to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations; and

(e) In the event the Award or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the Grantee, appropriate proof of the right of such person or persons to exercise the Award.

Without limiting the generality of the foregoing, the Company may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of shares acquired on exercise of this Award (or portion thereof) does not violate the Act, and may issue stop-transfer orders covering such Shares. Share certificates evidencing stock issued on exercise of any portion of this Award shall bear an appropriate legend referring to the provisions of subsection (d) above and the agreements herein. The written representation and agreement referred to in subsection (d) above shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act, and such registration is then effective in respect of such shares.

Section 4.4. Conditions to Issuance of Stock Certificates

The Shares issuable (whether by certificate or otherwise) upon the exercise of this Award, or any portion thereof, may be either previously authorized but unissued Shares or issued Shares, which have then been reacquired by the Company. Such Shares shall be fully paid and nonassessable. If share certificates are to be issued, the Company shall not be required to issue or deliver any certificate or certificates for Shares purchased upon the exercise of this Award or portion thereof prior to fulfillment of all of the following conditions:

 

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(a) The obtaining of approval or other clearance from any state or federal governmental agency which the Committee shall, in its reasonable and good faith discretion, determine to be necessary or advisable; and

(b) The lapse of such reasonable period of time following the exercise of the Award as the Committee may from time to time establish for reasons of administrative convenience or as may otherwise be required by applicable law.

Section 4.5. Rights as Stockholder

Except as otherwise provided in Section 2.4 of this Agreement, the holder of any SARs subject to this Award shall not be, nor have any of the rights or privileges of, a stockholder of the Company in respect of any Shares issuable upon the exercise of this Award or any portion thereof unless and until certificates representing such Shares shall have been issued by the Company to such holder, or the Company or its designated agent has otherwise recorded the appropriate book entries evidencing Grantee’s ownership of the Shares.

ARTICLE V

MISCELLANEOUS

Section 5.1. Administration

The Committee shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Committee shall be final and binding upon the Grantee, the Company and all other interested persons. No member of the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Award. In its absolute discretion, the Board may at any time and from time to time exercise any and all rights and duties of the Committee under the Plan and this Agreement.

Section 5.2. Award Not Transferable

No part of, or interest in, this Award shall be liable for the debts, contracts or engagements of the Grantee or his successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect; provided, however, that this Section 5.2 shall not prevent transfers by will or by the applicable laws of descent and distribution.

 

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Section 5.3. Notices

Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Secretary or its designee, and any notice to be given to the Grantee shall be addressed to him at the address (including an electronic address) reflected in the Company’s books and records. By a notice given pursuant to this Section 5.3, either party may hereafter designate a different address for notices to be given to him. Any notice, which is required to be given to the Grantee, shall, if the Grantee is then deceased, be given to the Grantee’s personal representative if such representative has previously informed the Company of his status and address by written notice under this Section 5.3. Any notice shall have been deemed duly given when (i) delivered in person, (ii) delivered in an electronic form approved by the Company, (iii) enclosed in a properly sealed envelope or wrapper addressed as aforesaid, deposited (with postage prepaid) in a post office or branch post office regularly maintained by the United States Postal Service, or (iv) enclosed in a properly sealed envelope or wrapper addressed as aforesaid, deposited (with fees prepaid) in an office regularly maintained by FedEx, UPS, or comparable non-public mail carrier.

Section 5.4. Titles; Pronouns

Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement. The masculine pronoun shall include the feminine and neuter, and the singular the plural, where the context so indicates.

Section 5.5. Applicability of Plan

The Grantee hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof. 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.

Section 5.6. Amendment

Subject to Section 10 of the Plan, this Agreement may be amended only by a writing executed by the parties hereto, which specifically states that it is amending this Agreement.

Section 5.7 Governing Law

The laws of the State of Delaware shall govern the interpretation, validity and performance of the terms of this Agreement regardless of the law that might be applied under principles of conflicts of laws.

 

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Section 5.8 Arbitration

In the event of any controversy among the parties hereto arising out of, or relating to, this Agreement which cannot be settled amicably by the parties, such controversy shall be finally, exclusively and conclusively settled by mandatory arbitration conducted expeditiously in accordance with the American Arbitration Association rules, by a single independent arbitrator. Such arbitration process shall take place within the Nashville, Tennessee metropolitan area. The decision of the arbitrator shall be final and binding upon all parties hereto and shall be rendered pursuant to a written decision, which contains a detailed recital of the arbitrator’s reasoning. Judgment upon the award rendered may be entered in any court having jurisdiction thereof. Each party shall bear its own legal fees and expenses, unless otherwise determined by the arbitrator. If the Grantee substantially prevails on any of his or her substantive legal claims, then the Company shall reimburse all legal fees and arbitration fees incurred by the Grantee to arbitrate the dispute.

IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto.

 

HCA HOLDINGS, INC.
By:    
Its:    

 

Grantee:
  (electronically accepted)

 

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Schedule A

EBITDA Targets

 

Fiscal Year

   FY1    FY2     FY3     FY4  

EBITDA Target

        TBD 1       TBD 1       TBD 1  

Partial Vesting Schedule

 

Actual EBITDA (% of Budget)

   100%+     99.0% -
99.9%
    98.0%
-98.9%
    97.0% -
97.9%
    96.0% -
96.9%
    < 96.0%  

% Eligible SARs 2 Vesting

     100     80     60     40     20     0

“EBITDA” means earnings before interest, taxes, depreciation, amortization, net income attributable to noncontrolling interests, gains or losses on sales of facilities, gains or losses on extinguishment of debt, asset or investment impairment charges, restructuring charges, any expenses for share-based compensation under ASC Topic 718, and any other expenses or losses resulting from significant, unusual and/or nonrecurring events, as described in management’s discussion and analysis of financial condition and results of operations appearing in the Company’s annual report for the Fiscal Year, as determined in good faith by the Board or the Committee in consultation with the CEO. In the event the Company disposes of or acquires any facility during the Fiscal Year, the EBITDA target for such year shall be adjusted appropriately (based on the number of days during the year for which the facility was owned) to reflect the acquisition or disposition.

In addition to any adjustments enumerated in the definition of “EBITDA”, above, the Committee is hereby authorized to make adjustments in the terms and conditions of, and the criteria included in, awards in recognition of unusual or nonrecurring events affecting the Grantee, the Company, or any Subsidiary or Affiliate, or the financial statements of the Company or of any Subsidiary or Affiliate; in the event of changes in applicable laws, regulations or accounting principles; or in the event the Committee determines that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under this Agreement. The Committee is also authorized to adjust performance targets or awards downward to avoid unwarranted windfalls.

 

 

1  

The annual EBITDA targets for each of FY2, FY3 and FY4 shall be determined during the first 90 days of the relevant Fiscal Year, in accordance with Section 3.1(a)(ii) hereof.

 

2  

For the avoidance of doubt, the “Eligible SARs” with respect to any Fiscal Year equals 25% of the EBITDA Performance SARs granted hereunder.


Schedule B

Definition of Change in Control

For purposes of this Agreement, the term “Change in Control” shall mean, in lieu of any definition contained in the Plan:

(i) the sale or disposition, in one or a series of related transactions, of all or substantially all of the assets of the Company to any Person or Group other than, as of the date of determination, (A) any and all of an employee benefit plan (or trust forming a part thereof) maintained by (1) the Company or (2) any corporation or other Person of which a majority of its voting power of its voting equity securities or equity interest is owned, directly or indirectly, by the Company; (B) Hercules Holding II, LLC, a Delaware limited liability company (or any successor) (“Hercules Holding II”), but only for so long as Hercules Holding II continues to hold at least 30% of the voting power of the Company’s voting equity securities, or (C) any Equity Sponsor (as defined in the Company’s Amended and Restated Certificate of Incorporation dated as of March 8, 2011), but only for so long as the Equity Sponsors, in the aggregate, continue to hold at least 30% of the voting power of the Company’s voting equity securities (any of the foregoing, “Permitted Holders”); or

(ii) any Person or Group, other than the Permitted Holders, becomes the Beneficial Owner (as such term is defined in Rule 13d-3 under the Exchange Act (or any successor rule thereto) (except that a Person shall be deemed to have “beneficial ownership” of all shares that any such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total voting power of the voting stock of the Company (or any entity which controls the Company), including by way of merger, consolidation, tender or exchange offer or otherwise; or

(iii) a reorganization, recapitalization, merger or consolidation (a “Corporate Transaction”) involving the Company, unless securities representing more than 50% of the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors of the Company or the corporation resulting from such Corporate Transaction (or the parent of such corporation) are Beneficially Owned subsequent to such transaction by the Person or Persons who were the Beneficial Owners of the outstanding voting securities entitled to vote generally in the election of directors of the Company immediately prior to such Corporate Transaction, in substantially the same proportions as their ownership immediately prior to such Corporate Transaction; or

(iv) during any period of 12 months, individuals who at the beginning of such period constituted the Board (together with any new directors whose election by such Board or whose nomination for election by the shareholders of the Company was approved by a vote of a majority of the directors of the Company, then still in office, who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board then in office.

 

2

Exhibit 10.2

HCA Holdings, Inc.

Restricted Share Unit Agreement

(Initial Award)

THIS RESTRICTED SHARE UNIT AGREEMENT (this “Agreement”) is made and entered into as of the              day of              , 20              (the “Grant Date”), between HCA Holdings, Inc., a Delaware corporation (the “Company”), and the individual whose name is set forth below (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 Holdings, 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:

RESTRICTED SHARE UNIT GRANT

 

Grantee:      [Participant Name]
     [ParticipantAddress]
Aggregate number of Restricted Share Units granted hereunder:      [Award]
Grant Date:      [Grant Date]

 

  1. Grant of Restricted Share Unit Award .

1.1 The Company hereby grants to the Grantee an award (“Award”) of Restricted Share Units (“RSUs”) as set forth above on the terms and conditions set forth in this Agreement and as otherwise provided in the Plan. A bookkeeping account will be maintained by the Company to keep track of the RSUs and any dividend equivalent rights that may accrue as provided Section 3.

 

1


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 in its entirety on the third anniversary of the Grant Date, 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 (including Dividend Equivalent Units and other dividend equivalent rights) 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 this Award. 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 RSUs that have vested pursuant to this Award. Notwithstanding the foregoing, if the Grantee shall have elected to defer payment of the RSUs that become vested under this Award 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 .

Grantee shall receive dividend equivalent rights in respect of the RSUs covered by this Award at the time of any payment of dividends to stockholders on Shares. At the Company’s option, the RSUs will be credited with either (a) additional units (the


Dividend Equivalent Units ”) (including fractional units) for cash dividends paid on shares of the Company’s Common Stock by (i) multiplying the cash dividend paid per Share by the number of RSUs (and previously credited Dividend Equivalent Units) outstanding and unpaid, and (b) dividing the product determined above by the Fair Market Value of a Share, in each case, on the dividend record date, or (b) a cash amount equal to the amount that would be payable to the Grantee as a stockholder in respect of a number of Shares equal to the number of RSUs and Dividend Equivalent Units then credited to the Grantee hereunder as of the dividend record date. The RSUs will be credited with Dividend Equivalent Units for stock dividends paid on shares of the Company’s Common Stock by multiplying the stock dividend paid per Share by the number of RSUs (and previously credited Dividend Equivalent Units) outstanding and unpaid on the dividend record date. Each Dividend Equivalent Unit has a value equal to one Share. Each Dividend Equivalent Unit or cash dividend equivalent right will vest and be settled or payable at the same time as the RSU to which such dividend equivalent right relates. For the avoidance of doubt, no dividend equivalent rights shall accrue under this Section 3 in the event that any dividend equivalent rights or other applicable adjustments pursuant to Section 5 hereof provide similar benefits.

 

  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, 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. The Grantee hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof.

 

  7. 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.

 

  8. 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.

 

  9. Taxes; Section 409A .

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 (and cash, if applicable) payable hereunder. Notwithstanding anything herein to the contrary, to the maximum extent permitted by applicable law, the settlement of the RSUs (including any dividend equivalent rights) to be made to the Grantee pursuant to this Agreement is intended to qualify as a “short-term deferral” pursuant to Section 1.409A-1(b)(4) of the Regulations and this Agreement shall be interpreted consistently therewith. However, under certain circumstances, including where Grantee has elected to defer settlement of this Award, settlement of the RSUs or any dividend equivalent rights may not so qualify, and in that case, the Committee shall administer the grant and settlement of such RSUs and any dividend equivalent rights in strict compliance with Section 409A of the Code. Each payment of RSUs (and related dividend equivalent rights) constitutes a “separate payment” for purposes of Section 409A of the Code.

 

  10. 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.

 

  11. 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.

 

  12. Resolution of Disputes .

In the event of any controversy among the parties hereto arising out of, or relating to, this Agreement which cannot be settled amicably by the parties, such controversy shall be finally, exclusively and conclusively settled by mandatory arbitration conducted expeditiously in accordance with the American Arbitration Association rules, by a single independent arbitrator. Such arbitration process shall take place within the Nashville, Tennessee metropolitan area. The decision of the arbitrator shall be final and binding upon all parties hereto and shall be rendered pursuant to a written decision, which contains a detailed recital of the arbitrator’s reasoning. Judgment


upon the award rendered may be entered in any court having jurisdiction thereof. Each party shall bear its own legal fees and expenses, unless otherwise determined by the arbitrator. If the Grantee substantially prevails on any of his or her substantive legal claims, then the Company shall reimburse all legal fees and arbitration fees incurred by the Grantee to arbitrate the dispute.

 

  13. Entire Agreement.

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.

 

  14. Notices .

Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Secretary or its designee, and any notice to be given to the Grantee shall be addressed to him at the address (including an electronic address) reflected in the Company’s books and records. By a notice given pursuant to this Section 14 , either party may hereafter designate a different address for notices to be given to him. Any notice, which is required to be given to the Grantee, shall, if the Grantee is then deceased, be given to the Grantee’s personal representative if such representative has previously informed the Company of his status and address by written notice under this Section 14 . Any notice shall have been deemed duly given when (i) delivered in person, (ii) delivered in an electronic form approved by the Company, (iii) enclosed in a properly sealed envelope or wrapper addressed as aforesaid, deposited (with postage prepaid) in a post office or branch post office regularly maintained by the United States Postal Service, or (iv) enclosed in a properly sealed envelope or wrapper addressed as aforesaid, deposited (with fees prepaid) in an office regularly maintained by FedEx, UPS, or comparable non-public mail carrier.

 

HCA Holdings, Inc.
By:    
Grantee:
(electronically accepted)

Exhibit 10.3

HCA Holdings, Inc.

Restricted Share Unit Agreement

(Annual Award)

THIS RESTRICTED SHARE UNIT AGREEMENT (this “Agreement”) is made and entered into as of the              day of                      , 20          (the “Grant Date”), between HCA Holdings, Inc., a Delaware corporation (the “Company”), and the individual whose name is set forth below (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 Holdings, 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:

RESTRICTED SHARE UNIT GRANT

 

Grantee:

      [Participant Name]
      [ParticipantAddress]
Aggregate number of Restricted Share Units      
granted hereunder:       [Award]
Grant Date:       [Grant Date]

1. Grant of Restricted Share Unit Award .

1.1 The Company hereby grants to the Grantee an award (“Award”) of Restricted Share Units (“RSUs”) as set forth above on the terms and conditions set forth in this Agreement and as otherwise provided in the Plan. A bookkeeping account will be maintained by the Company to keep track of the RSUs and any dividend equivalent rights that may accrue as provided Section 3.


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 in its entirety on the first anniversary of the Grant Date, so long as the Grantee continues to serve on the Board through such date (such one-year 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 (including Dividend Equivalent Units and other dividend equivalent rights) 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 this Award. 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 RSUs that have vested pursuant to this Award. Notwithstanding the foregoing, if the Grantee shall have elected to defer payment of the RSUs that become vested under this Award 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 .

Grantee shall receive dividend equivalent rights in respect of the RSUs covered by this Award at the time of any payment of dividends to stockholders on Shares. At the Company’s option, the RSUs will be credited with either (a) additional units (the


Dividend Equivalent Units ”) (including fractional units) for cash dividends paid on shares of the Company’s Common Stock by (i) multiplying the cash dividend paid per Share by the number of RSUs (and previously credited Dividend Equivalent Units) outstanding and unpaid, and (b) dividing the product determined above by the Fair Market Value of a Share, in each case, on the dividend record date, or (b) a cash amount equal to the amount that would be payable to the Grantee as a stockholder in respect of a number of Shares equal to the number of RSUs and Dividend Equivalent Units then credited to the Grantee hereunder as of the dividend record date. The RSUs will be credited with Dividend Equivalent Units for stock dividends paid on shares of the Company’s Common Stock by multiplying the stock dividend paid per Share by the number of RSUs (and previously credited Dividend Equivalent Units) outstanding and unpaid on the dividend record date. Each Dividend Equivalent Unit has a value equal to one Share. Each Dividend Equivalent Unit or cash dividend equivalent right will vest and be settled or payable at the same time as the RSU to which such dividend equivalent right relates. For the avoidance of doubt, no dividend equivalent rights shall accrue under this Section 3 in the event that any dividend equivalent rights or other applicable adjustments pursuant to Section 5 hereof provide similar benefits.

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, 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. The Grantee hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof.

7. 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.

8. 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.

9. Taxes; Section 409A .

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 (and cash, if applicable) payable hereunder. Notwithstanding anything herein to the contrary, to the maximum extent permitted by applicable law, the settlement of the RSUs (including any dividend equivalent rights) to be made to the Grantee pursuant to this Agreement is intended to qualify as a “short-term deferral” pursuant to Section 1.409A-1(b)(4) of the Regulations and this Agreement shall be interpreted consistently therewith. However, under certain circumstances, including where Grantee has elected to defer settlement of this Award, settlement of the RSUs or any dividend equivalent rights may not so qualify, and in that case, the Committee shall administer the grant and settlement of such RSUs and any dividend equivalent rights in strict compliance with Section 409A of the Code. Each payment of RSUs (and related dividend equivalent rights) constitutes a “separate payment” for purposes of Section 409A of the Code.

10. 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.

11. 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.

12. Resolution of Disputes .

In the event of any controversy among the parties hereto arising out of, or relating to, this Agreement which cannot be settled amicably by the parties, such controversy shall be finally, exclusively and conclusively settled by mandatory arbitration conducted expeditiously in accordance with the American Arbitration Association rules, by a single independent arbitrator. Such arbitration process shall take place within the Nashville, Tennessee metropolitan area. The decision of the arbitrator shall be final and binding upon all parties hereto and shall be rendered pursuant to a written decision, which contains a detailed recital of the arbitrator’s reasoning. Judgment


upon the award rendered may be entered in any court having jurisdiction thereof. Each party shall bear its own legal fees and expenses, unless otherwise determined by the arbitrator. If the Grantee substantially prevails on any of his or her substantive legal claims, then the Company shall reimburse all legal fees and arbitration fees incurred by the Grantee to arbitrate the dispute.

13. Entire Agreement.

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.

14. Notices .

Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Secretary or its designee, and any notice to be given to the Grantee shall be addressed to him at the address (including an electronic address) reflected in the Company’s books and records. By a notice given pursuant to this Section 14 , either party may hereafter designate a different address for notices to be given to him. Any notice, which is required to be given to the Grantee, shall, if the Grantee is then deceased, be given to the Grantee’s personal representative if such representative has previously informed the Company of his status and address by written notice under this Section 14 . Any notice shall have been deemed duly given when (i) delivered in person, (ii) delivered in an electronic form approved by the Company, (iii) enclosed in a properly sealed envelope or wrapper addressed as aforesaid, deposited (with postage prepaid) in a post office or branch post office regularly maintained by the United States Postal Service, or (iv) enclosed in a properly sealed envelope or wrapper addressed as aforesaid, deposited (with fees prepaid) in an office regularly maintained by FedEx, UPS, or comparable non-public mail carrier.

 

HCA Holdings, Inc.
By:    

 

Grantee:
(electronically accepted)