EXHIBIT 10.26
AMENDED AND RESTATED
AGREEMENT BETWEEN THE SHAREHOLDERS
OF
VHS ACQUISITION SUBSIDIARY NUMBER 5, INC.
(a Delaware corporation)
THIS AMENDED AND RESTATED AGREEMENT BETWEEN THE SHAREHOLDERS, made as of
the 1st day of September, 2004, is by and between VANGUARD HEALTH FINANCIAL
COMPANY, INC., a Tennessee corporation ("VHFC"), and BAPTIST HEALTH SERVICES, a
Texas non-profit corporation ("Baptist" and, together with VHFC, the
"Shareholders"), and amends and restates in its entirety the Agreement between
the Shareholders dated as of January 1, 2003.
RECITALS:
WHEREAS, pursuant to the Purchase and Sale Agreement, San Antonio
Partners, L.P., a Delaware limited partnership (the "Partnership"), acquired
substantially all of the assets and properties owned by Baptist and its
Affiliates constituting the Hospitals;
WHEREAS, VHS Acquisition Subsidiary Number 5, Inc. (the "Company") is the
sole general partner of the Partnership; and
WHEREAS, the Shareholders of the Company desire to specify and describe
the rights and obligations of each of them with respect to their interest in and
the operation of the Company as general partner of the Partnership.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
AGREEMENT:
1. Certain Definitions.
The terms used in this Agreement with their initial letters capitalized
shall, unless the context otherwise requires, have the meanings specified in
this Article 1. The singular shall include the plural, and each of the
masculine, feminine and neuter genders shall include the other genders, as the
context requires. References in this Agreement to articles or sections are to be
construed as references to articles or sections of this Agreement, unless
otherwise specified. Words such as "herein," "hereinafter," "hereof," "hereto,"
"hereby," and "hereunder," when used with reference to this Agreement, refer to
this Agreement as a whole, unless the context otherwise requires.
"Act" means the Delaware General Corporations Law, as amended from time to
time.
"Agreement" means this Agreement, as amended from time to time pursuant to
Section 5.2.
"Bankruptcy" means, as to any Person, a "Voluntary Bankruptcy" or an
"Involuntary Bankruptcy". A "Voluntary Bankruptcy" means, with respect to any
Person, the inability of such Person generally to pay its debts as such debts
become due, or an admission in writing by such Person of its inability to pay
its debts generally or a general assignment by such Person for the benefit of
creditors; the filing of any petition or answer by such Person seeking to
adjudicate it as bankrupt or insolvent, or seeking for itself any liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of such Person or its debts under any law relating to bankruptcy,
insolvency, or reorganization or relief of debtors, or seeking, consenting to,
acquiescing in the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for such Person or for
substantial part of its property; or corporate action taken by such Person to
authorize any of the actions set forth above. An "Involuntary Bankruptcy" means,
with respect to any Person, without the consent or acquiescence of such Person,
the entering of any order for relief or approving a petition for relief or
reorganization or any other petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or other similar relief
under any present or future bankruptcy, insolvency, or similar statute, law,
regulation, or the filing of any such petition against such Person which
petition shall not be dismissed within 90 days, or, without the consent or
acquiescence of such Person, the entering of an order appointing a trustee,
custodian, receiver or liquidator of such Person or of all or any substantial
part of the property of such Person which order shall not be dismissed within 60
days.
"Baptist" means Baptist Health System, a Texas non-profit corporation, and
any successor thereto.
"Board of Directors" means the Board of Directors of the Company.
"Capital Expenditure" means any expenditure that is permitted to be
capitalized under generally accepted accounting principles consistently applied
and under Vanguard's policy for accounting for fixed assets.
"Cash-Out Merger" means a merger or consolidation of Vanguard with or
into, or a sale of all shares of capital stock of Vanguard to, any Person other
than a subsidiary of Vanguard, in which the Vanguard Investment Securities are
required to be sold, converted into or exchanged for the right to receive cash.
"Closing" means the consummation of the transactions whereby Baptist
becomes a Shareholder of the Company.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time (or any corresponding provisions of succeeding law).
"Company" means VHS Acquisition Subsidiary Number 5, Inc., a Delaware
corporation.
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"Control" means possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of an entity whether
through ownership of voting securities, by contract or otherwise.
"Controlled Affiliate" means, with respect to any Shareholder, any Person
that directly or indirectly controls, is controlled by, or is under common
control with, such Shareholder.
"Deemed Value" means (i) in the case of Subordinated Notes, the original
principal amount thereof, (ii) in the case of shares of Vanguard common stock
issued upon conversion of any of the Subordinated Notes, the original principal
amount of Subordinated Notes so converted, and (iii) in the case of a Cash-Out
Merger, the purchase price of equity securities issued by the purchaser in the
Cash-Out Merger.
"Foundation" means Baptist Health System Foundation, a Texas non-profit
corporation.
"Hospitals" means the following hospitals located in San Antonio, Texas:
the Baptist Medical Center, a general acute care hospital at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; Northeast Baptist Hospital, a general acute care
hospital at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; Southeast Baptist
Hospital, a general acute care hospital at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇; North Central Baptist Hospital, a general acute care hospital at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; and St. Luke's Baptist Hospital, a
general acute care hospital at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
"Institute of Health Education" means an operating division of the Company
that provides allied professional health training through its Schools of
Professional Nursing, Surgical Technology, Medical Imaging and Vocational
Nursing.
"License Agreement" means the agreement between Buyer and Seller of even
date herewith, pursuant to which Baptist has granted to the Company the right to
use the name "Baptist" and any derivatives including the word "Baptist" in the
conduct of the business of the Hospitals upon the terms and conditions described
therein.
"Minimum Investment" means the Shares issued to Baptist at Closing and a
number of Vanguard Investment Securities having an aggregate Deemed Value of
$17,641,800, provided that if Vanguard has merged or been consolidated with or
into another Person pursuant to a Cash-Out Merger and Baptist does not acquire
replacement Vanguard Investment Securities, then from and after the consummation
of such transaction, "Minimum Investment" means a number of Vanguard Investment
Securities having an aggregate Deemed Value of $5,000,000.
"Operating Board" means the Partnership Operating Board established by the
Board of Directors of the Company pursuant to the bylaws and Section 2.1.
"Partnership" means San Antonio Partners, L.P., a Delaware limited
partnership and the owner and operator of the Hospitals.
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"Permitted Baptist Transferee" means (i) the Foundation, (ii) any Person
that acquires or has conveyed to it all or substantially all of the membership
interests of Baptist, and (iii) any Person that acquires or has conveyed to it
all or substantially all of the assets and properties of Baptist, including,
without limitation, by merger, consolidation, sale, grant or other conveyance,
and for purposes of applying the "all or substantially all" standard to any such
asset conveyance, less any untransferred assets retained as reasonable reserves
for contingent or other unsatisfied Baptist liabilities.
"Permitted Vanguard Transferee" means any one or more of (i) Vanguard,
(ii) any Controlled Affiliate of Vanguard, (iii) any Person that acquires all or
substantially all of the shares of capital stock of Vanguard and its Controlled
Affiliates (including without limitation by merger with or consolidation into
such other Person), (iv) any Person that acquires all or substantially all of
the assets and properties of Vanguard and its Controlled Affiliates, and (v) any
Person who is a lender or other "Secured Creditor" under and pursuant to the
Principal Credit Agreement, as more particularly described in the last paragraph
of Section 3.5.
"Person" means any individual, partnership, corporation, trust, limited
liability company, or other entity, or a government (domestic or foreign) or any
agency or political subdivision thereof.
"Preferred Stock" means the Company Series A Preferred Stock, $.01 par
value per share.
"Principal Credit Agreement" shall mean that certain Credit Agreement,
dated as of July 30, 2001, by and among Vanguard, as borrower, the lenders from
time to time party thereto, Bank of America, N.A., as Administrative Agent, and
Wachovia Bank, National Association (formerly known as First Union National
Bank) and General Electric Capital Corporation, as Co-Documentation Agents, as
the same may be amended, modified, extended, renewed, replaced, restated,
supplemented or refinanced from time to time, and includes any agreement
extending the maturity of, refinancing or restructuring (including but not
limited to including additional borrowers or guarantors or increasing the amount
borrowed under such agreement) all or any portion of the indebtedness under such
agreement or any successor agreements, whether or not with the same agent,
trustee, representative lenders or holders, and all notes, guarantees, pledge
agreements, security agreements, mortgages and other instruments, agreements,
certificates or documents executed pursuant to any of the foregoing by Vanguard
or by the Company.
"Purchase and Sale Agreement" means the Purchase and Sale Agreement dated
as of October 8, 2002, by and among Baptist, The Baptist Health System
Foundation, the Partnership, and Vanguard.
"Qualified Offering" means a firm commitment underwritten public offering
of Vanguard's common stock registered under the Securities Act of 1933, as
amended, with gross proceeds of not less than $50,000,000.
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"Securities Act" means the Securities Act of 1933, as amended.
"Shareholder" means Baptist, VHFC and any other Person admitted as a
shareholder pursuant to this Agreement as a result of owning Shares, but
excluding any Person who ceases to be a shareholder of the Company
pursuant to this Agreement. "Shareholders" means all of the Persons who
are shareholders of the Company as defined in this Section.
"Shares" means shares of the Company's capital stock authorized for
issuance by the Company or now owned or subsequently acquired by any
Shareholder, including common stock and Preferred Stock.
"Subordinated Notes" means the Vanguard 8.18% Convertible
Subordinated Notes Due 2013, whether represented by a single such note or
multiple such notes but in either case in an aggregate initial principal
amount of $17,641,800.
"Vanguard" means Vanguard Health Systems, Inc., a Delaware
corporation, and any successor thereto.
"Vanguard Investment Securities" means the Subordinated Notes, any
security or securities into which the above instruments are converted or
for which the above instruments are exchanged, and any securities issued
in respect thereof in connection with the payment of dividends or
interest, or a stock split, recapitalization or similar event, provided
that if a Cash-Out Merger occurs, then upon request of the Person to whom
Vanguard's capital stock is sold or with whom Vanguard merges or is
consolidated, Baptist shall reinvest an amount of cash equal to the
Minimum Investment in either (i) publicly traded equity or debt securities
of the Person to whom Vanguard's capital stock is sold or with whom
Vanguard merges or is consolidated, (ii) equity or debt securities of the
purchaser in the Cash-Out Merger, or (iii) if no such publicly traded
equity or debt securities are available, such other securities that
Baptist determines in its sole discretion are a prudent investment of the
Minimum Investment.
"VHFC" means Vanguard Health Financial Company, Inc., a Delaware
corporation, and any successor thereto.
2. Company Board of Directors; Hospital Board of Trustees; Major
Decisions.
2.1. Partnership Operating Board; Board of Trustees.
The bylaws of the Company shall require the Board of Directors to form an
operating board for the Partnership (the "Operating Board") comprised of seven
members appointed by the Board of Directors, four of whom shall be designated by
VHFC ("VHFC Members") and three of whom shall be designated by Baptist ("Baptist
Member"). The Operating Board shall be an advisory board, shall meet not less
often than quarterly and shall be responsible for overseeing the Hospitals'
Boards of Trustees, for evaluating the plans and feasibility of all Capital
Expenditures of the Partnership as a part of the annual Capital Expenditure
review process, and for recommending for approval by the Board of Directors
members of the Board of Trustees of the Hospitals. Each member of the Operating
Board shall serve at the pleasure of the designating Shareholder for a term of
three years, unless he or she sooner resigns or is removed. A member of the
Operating Board may be removed without cause by only VHFC as to VHFC Members and
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by only Baptist as to Baptist Members. The unexpired term of a removed member
shall be filled by only VHFC as to VHFC Members and by only Baptist as to
Baptist Members. Each member of the Operating Board shall be entitled to
indemnity by the Company to the fullest extent permitted any director of the
Company by applicable law and by the Articles and bylaws of the Company. All
responsibilities granted to the Operating Board under the bylaws shall be
exercised by the Operating Board as a body, and no member of the Operating
Board, acting alone, shall have the authority to act on behalf of, or to serve
in any way as an agent or nominee of, the Operating Board; provided that the
Operating Board shall have the authority to establish committees of the
Operating Board, each of which shall have the authority and duties delegated
thereto by the Operating Board and shall serve in an advisory capacity to the
Operating Board, but none of which shall be granted the authority to act for or
on behalf of, or to bind, the Operating Board. Any committee established by the
Operating Board shall include at least one (1) Baptist Member. In addition, in
no event shall the Operating Board have the authority to act for or on behalf
of, or to bind in any way, the Company or the Partnership. The Operating Board
shall hold regular meetings on at least a quarterly basis unless it decides
otherwise; provided that regular meetings of the Operating Board shall not be
called more frequently than monthly. In addition, each member of the Operating
Board shall be available at all reasonable times to consult with other members
of the Operating Board on matters relating to its duties. Meetings of the
Operating Board shall be held at the call of any director of the Company, the
President, any Senior Vice President of the Company, or any member of the
Operating Board, upon not less than one business day's written, telephonic or
electronic mail notice to the members of the Operating Board, such notice
specifying all matters to come before the Operating Board for action at such
meeting. The presence of any member of the Operating Board at a meeting shall
constitute a waiver of notice of the meeting with respect to such member unless
such member attends the meeting solely for the purpose of objecting to the
conduct of the meeting and does not participate in any decisions or actions of
the Operating Board at such meeting. The members of the Operating Board may, at
their election, participate in any regular or special meeting by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other. A member's
participation in a meeting pursuant to the preceding sentence shall constitute
presence in person at such meeting for all purposes of the bylaws of the
Company. A majority of the members of the Operating Board shall constitute a
quorum and actions of the Operating Board may be taken by a majority of the
votes cast at a meeting at which a quorum is present. The bylaws shall provide
that the foregoing provisions may not be amended without the prior written
consent of Baptist.
The Company will cause the Partnership to form one or more boards of
trustees for the Hospitals (the "Board of Trustees") composed of the Hospitals'
Chief Executive Officers and equal numbers of physicians on the Hospitals'
medical staff and community representatives, all in accordance with Vanguard's
policies and procedures and board of trustee bylaws. Subject to applicable laws,
regulations and accreditation standards, the Board of Trustees will be
responsible for medical staff credentialing, quality assurance and accreditation
of the Hospitals. In its advisory capacity, the Board of Trustees shall also
review and advise the Board of Directors on management's recommended capital
budgets for the Hospitals. The Board of Trustees will be comprised of between
five and 15 members appointed for terms of three years on a staggered basis to
provide continuity of leadership. Baptist or the Foundation may nominate
candidates for 50% of the seats of each Board of Trustees up for selection in
each year.
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2.2. Intentionally Deleted.
2.3. Major Decisions Requiring Approval of VHFC and Baptist. Subject to
the proviso below, so long as Baptist or any Controlled Affiliate of Baptist
owns the Minimum Investment, the following decisions of the Company shall
require the affirmative approval of both VHFC and Baptist:
(i) The conduct of any business by the Company other than (I) to act as
general partner of the Partnership and (II) to act as general
partner or managing member of any partnership or limited liability
company that provides ancillary or outpatient services to, or in
conjunction with, one or more of the Hospitals;
(ii) The purchase or acquisition of a hospital that represents 20% or
more of the fair value of the assets of the Partnership;
(iii) The sale or transfer of assets that represent 20% or more of the
fair value of the assets of the Partnership (other than a transfer
to Vanguard or any subsidiary of Vanguard, subject to substantially
similar transfer restrictions as are provided for in this Agreement,
for fair market value consideration, as determined by a third party
mutually acceptable to the Shareholders);
(iv) The closure of any Hospital (or discontinuation of operations as a
general acute care hospital) or the Institute of Health Education;
(v) The merger of the Company or the Partnership with or into, or the
consolidation of the Company or the Partnership with, any other
Person, or the dissolution or liquidation of the Company or the
Partnership (other than a merger with or into, or consolidation
with, Vanguard or any subsidiary of Vanguard, subject to
substantially similar transfer restrictions as are provided for in
this Agreement, for fair market value consideration, as determined
by a third party mutually acceptable to the Shareholders);
(vi) The Bankruptcy of the Company or the Partnership;
(vii) A change in the charity care policy or the policy on therapeutic
abortion and sterilization of the Hospitals;
(viii) The use of the name "Baptist" in connection with the acquisition or
development of any hospital or other healthcare facility in Bexar
County, Texas;
(ix) After the Closing, the issuance and sale to any Person of Shares by
the Company or of partnership interests by the Partnership;
(x) Any amendment of (i) Section 3.1 of the bylaws of the Company, (ii)
Section 3.6 of the bylaws of the Company, (iii) Section 3.8 of the
bylaws of the Company, (iv) Section 3.13 of the bylaws of the
Company, (v) the proviso of the first sentence of Section 8.1 of the
bylaws of the Company; or (vi) any amendment to
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the Certificate of Incorporation or the bylaws of the Company that
is inconsistent with any provision of this Agreement; and
(xi) Withdrawal or resignation of the Company as the general partner of
the Partnership.
provided that notwithstanding the foregoing, (i) the Company may take any action
required by the Principal Credit Agreement, including without limitation
becoming a party and (as the sole general partner of the Partnership) causing
the Partnership to become a party, to the Subsidiaries Guaranty and the Security
Documents (as such capitalized terms are defined in the Principal Credit
Agreement), without first obtaining the affirmative approval of either VHFC or
Baptist, and (ii) the board of directors of the Company shall have the right at
all times to make all decisions necessary to ensure that Vanguard may
consolidate the financial results of the Company and the Partnership with the
other financial results of Vanguard in accordance with generally accepted
accounting principles and applicable tax laws and regulations.
3. Restrictions on Transfer.
3.1. General Restriction. Neither Shareholder shall sell or otherwise
transfer any of the Shares held by it except in accordance with the terms and
conditions of this Agreement.
3.2. Compliance with Law. Each Shareholder shall not make any disposition
of all or any portion of the Shares unless and until (i) there is then in effect
a registration statement under the Securities Act of 1933, as amended, covering
such proposed disposition and such disposition is made in accordance with such
registration statement, or (ii) such Shareholder shall have notified VHFC and
the Company of the proposed disposition, VHFC shall have consented to such
disposition, and if requested by the Company, such Shareholder shall have
furnished the Company with an opinion of counsel reasonably satisfactory to the
Company that such disposition will not require registration of such Shares under
the Securities Act of 1933, as amended.
3.3. Subsequent Legislation. If Baptist is prohibited from owning an
interest in the Company or the Partnership as a result of the enactment of any
statute, regulation or other law, or the judicial or administrative
interpretation of any existing or future statute, regulation or other law, VHFC
will purchase all Shares owned by Baptist and pay Baptist $358,200 for its
Shares.
3.4. Subsequent Acts. If the rights or obligations of Baptist under this
Agreement are materially adversely affected by (X) any decision by the Company
to take or cause the Partnership to take an action described in paragraphs (i)
through (xi) of Section 2.3 without the affirmative approval of Baptist,
including any action required by the Principal Credit Agreement, other than the
granting of a mortgage or collateral security interest in the assets of the
Company, (Y) any foreclosure on or transfer of assets that represent 20% or more
of the fair value of the assets of the Company or the Partnership as a result of
the exercise by the lenders or other "Secured Creditors" (as defined in the
Principal Credit Agreement) of their rights under the Principal Credit
Agreement, or (Z) any amendment of this Agreement resulting from or arising out
of Vanguard's need to consolidate the financial results of the Company or the
Partnership
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with the other financial results of Vanguard, then Baptist may, upon written
notice to VHFC, cause VHFC to purchase all Shares owned by Baptist and pay
Baptist $358,200 for its Shares.
3.5. Sale of VHFC Shares; Tag Along. For seven years after the date
hereof, VHFC shall not sell or otherwise transfer all or substantially all of
its Shares other than to a Permitted Vanguard Transferee. If thereafter VHFC
proposes to sell part or all of its Shares other than to a Permitted Vanguard
Transferee, it shall so notify Baptist (specifying the identity of the
prospective purchaser, the proposed purchase price, the date of the closing, and
all other relevant information) and Baptist may elect, by notice to VHFC given
within ten days from the date of the notice, either (i) to sell all of its
Shares, in which event VHFC shall cause the proposed purchaser to purchase all
Baptist Shares, simultaneously with the sale by VHFC, at the same price per
Share and on the same terms (the "Tag Along Right"), or (ii) to purchase all of
VHFC's Shares proposed for sale to the third party, upon the same terms and
conditions offered by the third party (the "Preemption Right"). VHFC shall be
deemed to propose a sale of all of its Shares within the meaning of this Section
upon the proposed sale of shares of capital stock in any corporation that,
directly or indirectly, owns the capital stock of VHFC other than pursuant to a
transaction with a Permitted Vanguard Transferee.
VHFC shall cause the third party offer to be reduced to writing and shall
give written notice (the "Sale Transfer Notice") of such offer to Baptist. The
Sale Transfer Notice shall contain a written description of the proposed sale or
transfer of VHFC's rights pursuant to this Section, setting forth the
consideration to be paid by the third party and the other terms and conditions
of the third party offer. If Baptist desires to exercise either the Tag Along
Right or the Preemption Right, it shall notify VHFC of its election on or before
30 days after the Sale Transfer Notice is given.
If Baptist exercises the Tag Along Right, then on or before ten business
days prior to the expected closing date (the "Expected Closing Date") of the
transaction, Baptist shall deliver to VHFC all documents required to be executed
in connection with such Sale Transfer Notice. In the event that Baptist fails to
deliver any of such documents, VHFC may, in addition to any other rights or
remedies available at law or in equity, (i) consummate the transaction without
Baptist's Shares or (ii) cause the books and records of the Company to show that
the Shares of Baptist are bound by the provisions of this Section and that such
Shares shall be deemed to have been transferred to the third party, and no
consideration therefore shall be delivered to Baptist until such documents shall
be delivered.
If Baptist exercises the Preemption Right, then VHFC and Baptist shall
negotiate in good faith for 30 days thereafter the terms and conditions of a
definitive agreement containing the principal terms and conditions described in
the third party offer, but otherwise containing substantially the same terms and
conditions as the Purchase and Sale Agreement, provided that any representations
and warranties of VHFC about the Hospitals shall relate to VHFC's period of
ownership only. If the third party offer includes any non-cash consideration,
Baptist may elect under the definitive agreement to pay cash in an amount equal
to the fair market value of the non-cash consideration. The definitive agreement
shall provide that the closing of the transaction shall be held within ten
business days following the date upon which the last material consent or
approval of any governmental authority required in connection with the sale of
the Shares is obtained, subject to reasonable extensions mutually acceptable to
Baptist and VHFC, provided
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that in no event shall the closing be later than, and the definitive agreement
shall expire, 120 days after execution of the definitive agreement.
If (i) Baptist and VHFC fail to execute a definitive agreement within 30
days after Baptist's election of the Preemption Right, or (ii) Baptist and VHFC
execute a definitive agreement, but Baptist fails to purchase the Shares prior
to the expiration of the definitive agreement, then VHFC may (but shall not be
obligated to) sell its Shares within 180 days after the event described in
clause (i) or (ii) above fails to occur, as the case may be. If the sale to the
purchaser of the Shares does not occur pursuant to this paragraph before such
180th day, then the provisions of this Section 3.5 shall apply anew with respect
to the sale of such Shares thereafter.
The provisions of this Section shall not apply to the granting from time
to time of pledges and collateral assignments of the Shares by VHFC and its
Controlled Affiliates to secure indebtedness and/or guarantees to the lenders
and other "Secured Creditors" (as defined in the Principal Credit Agreement)
under the Principal Credit Agreement from time to time if and to the extent
required by such Persons, and to the full exercise by such Persons of their
rights under the agreements and instruments constituting or relating to such
pledges and collateral assignments, provided that if the lenders and other
Secured Creditors exercise such rights under the agreements and instruments
constituting or relating to such pledges and collateral assignments, then
Baptist may, upon written notice to the holder or holders of VHFC's Shares given
within 90 days thereafter, cause such holder to purchase all Shares owned by
Baptist and pay Baptist $358,200 for its Shares.
3.6. Purchase and Sale of Baptist Shares Upon Sale of Vanguard Investment
Securities or Termination of License Agreement. If Baptist or its Affiliates no
longer owns the Minimum Investment, Baptist shall promptly notify VHFC of such
fact, whereupon VHFC shall buy and Baptist shall sell all of the Shares owned by
Baptist. If Baptist terminates the License Agreement pursuant to its right to do
so under section 8(c) of the License Agreement, VHFC shall buy and Baptist and
its transferees, if any, shall sell all of the Shares owned by them. The
purchase price for the Shares pursuant to this Section shall be $358,200.
3.7. Right of First Refusal upon Sale of Baptist Shares. If Baptist
proposes to sell part or all of its Shares to a third party other than a
Permitted Baptist Transferee, it shall so notify VHFC (specifying the identity
of the prospective purchaser, the proposed purchase price, the date of the
closing, and all other relevant information) and VHFC may elect, by notice to
Baptist given within ten days after the date of the notice, to purchase the
Shares proposed to be sold upon the terms and conditions set forth in the third
party offer, provided that if the third party offer includes any non-cash
consideration, VHFC may pay the cash value of such non-cash consideration. If
VHFC does not exercise its right of first refusal within the ten-day period
provided above, then the privilege herein given of right of first refusal shall
thereafter be null and void as to such offer to purchase only, and Baptist shall
be at liberty to sell the Shares to the third party on the terms and conditions
offered to VHFC, so long as such sale is completed within 90 days after the
expiration of VHFC's ten-day period to respond. Such sale, however, shall be
made subject to this Agreement and all of the terms, covenants and conditions of
this Agreement. In the event of such a sale, or in the event of a sale or any
other transfer of its Shares to a Permitted Baptist Transferee, VHFC, Baptist
(if it continues to hold any Shares) and the Permitted Baptist Transferee shall
execute a new shareholders' agreement on the same terms and
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conditions contained herein (or an amendment to this Agreement). Any material
change in the terms of the third party offer shall again subject the offer to
the right of first refusal described in this Section.
3.8. Legend. Each certificate representing Shares now or hereafter owned
by the Shareholder or issued to any Person in connection with a transfer
pursuant to this Agreement shall be endorsed with the following legend:
THE SECURITIES REPRESENTED HEREBY (a) HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, (b) ARE SUBJECT TO AN AMENDED AND RESTATED
AGREEMENT BETWEEN THE SHAREHOLDERS OF THE COMPANY DATED AS OF SEPTEMBER 1,
2004, AND (c) MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED,
PLEDGED OR HYPOTHECATED EXCEPT IN COMPLIANCE THEREWITH.
Each Shareholder acknowledges that the Company will instruct its transfer agent
to impose transfer restrictions on Shares represented by certificates bearing
the above legend to enforce the provisions of this Agreement.
4. Subscription for Shares.
4.1. Subscription. Each Shareholder hereby subscribes for the number of
Shares set forth across from its name on the signature page hereof and hereby
tenders for payment therefor the consideration set forth herein; the
subscription by Baptist shall be deemed satisfied as a portion of the
consideration for the sale of the Hospitals to the Company pursuant to the
Purchase and Sale Agreement. The execution and delivery by each Shareholder of
this Agreement shall be deemed to constitute the assignment to the Company of
all subscription consideration and the acceptance by the Company of such tender.
4.2. Private Offering of Shares. The Shareholders acknowledge that the
Shares are being offered and sold without registration under the Securities Act
or any state securities laws. Each Shareholder hereby represents, warrants and
certifies that it is an "accredited investor" under the rules promulgated under
the Securities Act and has the ability to bear the risks of an investment in the
Company, that it was solicited to invest in the Company privately and did not
become aware of, or obtain information regarding, the offering of Shares in the
Company as a result of: any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio; any seminar or meeting attended by the Shareholder or
other potential investors; or any other form of general solicitation or general
advertising.
4.3. No Endorsement. Each Shareholder is aware that no federal or state
regulatory agency has made any finding or determination as to the fairness of
the Shares as an investment or any recommendation or endorsement of the purchase
of the Shares as an investment.
4.4. Sophisticated Investor. Each Shareholder acknowledges that it has
knowledge and experience in financial and business matters, in general, and this
investment in particular, to be capable of evaluating the risks and merits of an
investment in the Company. The
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Shareholders recognize the speculative nature and risk of loss associated with
this investment and that Shareholders may suffer complete loss of their
investments. The Shareholders have an overall commitment to investments which
are not readily marketable and which are not disproportionate to the
Shareholders' net worth, and the Shareholders' investment in the Company will
not cause such overall commitment to become excessive. The investment in the
Company constitutes an investment which is suitable and consistent with the
Shareholders' investment programs and which enables the Shareholders to bear the
risks of this investment. Each Shareholder represents that it has adequate
resources to provide for its current needs and contingencies and has no need for
liquidity in this investment.
4.5. Speculative Investment. The Shareholders confirm that the investment
in the Company is a speculative investment involving a high degree of risk of
loss and that there will not be now, nor may there ever be, a public market for
this investment. Accordingly, it may be difficult or impossible to liquidate
this investment in case of an emergency.
4.6. Access to Information. The Shareholders confirm that, prior to making
their investment decision, the Company has given the Shareholders and their
advisors the opportunity to examine all documents, including the Company's
Certificate of Incorporation and bylaws and to ask questions of and receive
answers from the Company.
5. Miscellaneous.
5.1. Capital Contributions. Except for the consideration for the Shares
described on the signature page of this Agreement, no Shareholder shall be
obligated to make any contributions to the capital of the Company.
5.2. Recourse. No guaranty by the Company or the Partnership of any debt
of VHFC or its Controlled Affiliates shall be recourse to Baptist, except
against and to the extent of Baptist's equity in the Company.
5.3. Governing Law. This Agreement, and the rights of the parties hereto,
shall be governed by and construed under the laws of the State of Delaware,
without regards to the conflict of law provisions of such state.
5.4. Amendment. This Agreement may be amended by a written instrument duly
executed by the parties hereto. The observance of any provision of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only by the written consent of the party
entitled to the benefit of such provision. Each Shareholder shall execute any
amendment to this Agreement necessary to ensure that Vanguard may consolidate
the financial results of the Company and the Partnership with the other
financial results of Vanguard in accordance with generally accepted accounting
principles and applicable tax laws and regulations.
5.5. Entire Agreement; Successors and Assigns. This Agreement constitutes
the entire agreement between the parties relative to the subject matter hereof,
and all prior agreements relative hereto which are not contained herein are
terminated. This Agreement and the rights and obligations of the parties
hereunder shall inure to the benefit of and be binding upon their respective
successors, assigns and legal representatives.
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5.6. Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified; or (ii) one day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent to a Shareholder at the address as set
forth on the signature page hereof or at such other address as such Shareholder
may designate by ten days' advance written notice to the other Shareholder.
5.7. Severability. If any provision of this Agreement or the application
thereof to any Person or circumstance shall, for any reason and to any extent,
be invalid or unenforceable, but the extent of such invalidity or
unenforceability does not destroy the basis of the bargain among the
Shareholders as expressed herein, the remainder of this Agreement and the
application of such provision to other Persons or circumstances shall not be
affected thereby, but rather shall be enforced to the greatest extent permitted
by law.
5.8. Attorneys' Fees. In the event that any dispute among the parties to
this Agreement should result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation reasonable fees and expenses of
attorneys and accountants and all fees, costs and expenses of appeals.
5.9. Construction. Every covenant, term, and provision of this Agreement
shall be construed simply according to its fair meaning and not strictly for or
against any Shareholder. The failure by any party to enforce any term or
provision hereof specifically or any rights of such party hereunder shall not be
construed as the waiver by that party of its rights hereunder. The waiver by any
party of a breach or violation of any provision of this Agreement shall not
operate as, or be construed to be, a waiver of any subsequent breach of the same
or other provision hereof.
5.10. Time. Time is of the essence with respect to this Agreement.
5.11. Further Assurances. Each Shareholder shall perform all further acts
and execute, acknowledge and deliver any documents that may be reasonably
necessary, appropriate or desirable to carry out the provisions of this
Agreement.
5.12. Section Headings. The section headings appearing in this Agreement
are for convenience of reference only and are not intended, to any extent or for
any purpose, to limit or define the text of any section.
5.13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.14. Principal Credit Agreement. VHFC represents to Baptist that the
provisions of this Agreement have been approved to the extent required, and are
permitted, under the Principal Credit Agreement as of the date hereof and agrees
that, except with Baptist's prior written consent, the provisions of any
amendment, modification, renewal, replacement, restatement or
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refinancing of or supplement to the Principal Credit Agreement shall be no less
favorable to Baptist than the provisions of the Principal Credit Agreement as in
effect on the date hereof.
IN WITNESS WHEREOF, this Agreement is executed as of the date above
written.
Shareholder Number of Shares Consideration
Vanguard Health Financial Company, Inc. 8,010 shares of $1,441,800
common stock, $.01
par value per share
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive VP
Baptist Health Services 3,582 shares of $358,200
Series A Preferred
Stock, $.01 par value
per share
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman
------------
Total $1,800,000
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