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$HCA
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10-K
Feb 10, 4:27 PM ET
HCA Healthcare, Inc. 10-K
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Contents
24
Article IDEFINITIONS
Section 1.1. Definitions. Capitalized terms used herein shall have the following meanings:
Section 1.2. Construction. Whenever the context requires, the gender of all words used in this Agreement includes the masculine, feminine and neuter forms and the singular form of words shall include the plural and vice versa. All references to Articles and Sections refer to articles and sections of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted. Any percentage set forth herein shall be deemed to be automatically adjusted without any action on the part of any party hereto to take into account any stock split, stock dividend or similar transaction occurring after the date of this Agreement so that the rights provided to the investors shall continue to apply to the same extent such rights would have applied absent such stock split, stock dividend or similar transaction.
Article IICORPORATE GOVERNANCE AND SHARE TRANSFERS
Section 2.1. Board of Directors.
Section 2.2. Committees.
Section 2.3. Other Transfer Restrictions. From and after the Closing Date and until the earlier of (x) the date on which Frisco and its Permitted Transferees are eligible to sell New Shares pursuant to the non-affiliate conditions of Rule 144(b)(1) under the Securities Act (as reasonably determined by the Company) and (y) the date that is six years after the Closing Date, neither Frisco nor any of its Permitted Transferees will at any time, without the prior written consent of the Company, directly or indirectly, sell, transfer, assign or otherwise dispose of any New Shares to any non-Family Member of the Frist Group other than by means of: (a) sales of Common Stock pursuant to effective registration statements under the Securities Act (“Registered Sales”) or open-market sales; provided, however, that total sales under this clause (a) may not exceed the Frisco Volume Amount for the preceding three-month period; and provided, further, that open-market sales may not be made under this clause (a) on any trading day to the extent that such open-market sales, when added to any Registered Sales on the same trading day, would cause total sales under this clause (a) on such trading day to exceed 20 percent of the average daily trading volume of Common Stock on the NYSE for the preceding 30 consecutive trading days; or (b) unrelated private transactions or block trades in each of which no more than three percent of the Common Stock then issued and outstanding is sold. For the avoidance of doubt, this Section 2.3 shall not restrict the Transfer of shares of Common Stock other than New Shares, and shall not restrict the Transfer of New Shares to or among any Permitted Transferees; provided that, as a condition precedent to any Transfer of New Shares to any such Permitted Transferee, Frisco or the applicable transferor shall cause such Permitted Transferee to execute (i) a joinder in the form attached hereto as Exhibit A (the “Permitted Transferee Form Joinder”), which execution shall satisfy the condition precedent set forth in this proviso or (ii) a joinder or other document, other than the Permitted Transferee Form Joinder, in each case in a form reasonably pre-approved by the Company, pursuant to which such Permitted Transferee agrees to comply with the terms of this Section 2.3.
Article IIIGENERAL PROVISIONS
Section 3.1. Notices. All notices, requests or consents provided for or required to be given hereunder shall be in writing and shall be deemed to be duly given if personally delivered, faxed and confirmed, or mailed by certified mail, return receipt requested, or nationally recognized overnight delivery service with proof of receipt maintained, at the following addresses (or any other address that any such party may designate by written notice to the other parties):
Section 3.2. Amendment; Waiver. This Agreement may be amended, supplemented or otherwise modified only by a written instrument executed by the Company, Hercules and Frisco. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and executed by the party so waiving. The waiver by any party hereto of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach.
Section 3.3. Further Assurances. The parties hereto will sign such further documents, cause such meetings to be held, resolutions passed, exercise their votes and do and perform and cause to be done such further acts and things necessary, proper or advisable in order to give full effect to this Agreement and every provision hereof. The Company shall not directly or indirectly take any action that is intended to, or would reasonably be expected to result in, Hercules or the Frist Group being deprived of the rights contemplated by this Agreement.
Section 3.4. Assignment. This Agreement will inure to the benefit of and be binding on the parties hereto and their respective successors, Permitted Transferees, as applicable, and permitted assigns. Except in connection with a transfer made to a Permitted Transferee in accordance with the terms of the Partnership Agreement, this Agreement may not be assigned without the express prior written consent of the other parties hereto, and any attempted assignment, without such consents, will be null and void.
Section 3.5. Third Parties. Except as provided in Section 3.4, this Agreement does not create any rights, claims or benefits inuring to any person that is not a party hereto nor create or establish any third-party beneficiary hereto.
Section 3.6. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.
Section 3.7. Jurisdiction. In any judicial proceeding involving any dispute, controversy or claim arising out of or relating to this Agreement, each of the parties unconditionally accepts the non-exclusive jurisdiction and venue of any United States District Court located in the State of Delaware, or of the Court of Chancery of the State of Delaware, and the appellate courts to which orders and judgments thereof may be appealed. In any such judicial proceeding, the parties agree that in addition to any method for the service of process permitted or required by such courts, to the fullest extent permitted by law, service of process may be made by delivery provided pursuant to the directions in Section 3.1. EACH OF THE PARTIES HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Section 3.8. Specific Performance. Each party hereto acknowledges and agrees that in the event of any breach of this Agreement by any of them, the other parties hereto would be irreparably harmed and could not be made whole by monetary damages. Each party accordingly agrees to waive the defense in any action for specific performance that a remedy at law would be adequate and that the parties, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to specific performance of this Agreement without the posting of bond.
Section 3.9. Entire Agreement. This Agreement, together with the Partnership Agreements, the Exchange Agreement and the Registration Rights Agreement, sets forth the entire understanding of the parties hereto with respect to the subject matter hereof. Except for the Partnership Agreements, the Exchange Agreement and the Registration Rights Agreement, there are no agreements, representations, warranties, covenants or understandings with respect to the subject matter hereof or thereof other than those expressly set forth herein and therein. This Agreement, together with the Partnership Agreements, the Exchange Agreement and the Registration Rights Agreement, supersedes all other prior agreements and understandings between the parties with respect to such subject matter.
Section 3.10. Severability. If any provision of this Agreement, or the application of such provision to any Person or circumstance or in any jurisdiction, shall be held to be invalid or unenforceable to any extent, (i) the remainder of this Agreement shall not be affected thereby, and each other provision hereof shall be valid and enforceable to the fullest extent permitted by law, (ii) as to such Person or circumstance or in such jurisdiction such provision shall be reformed to be valid and enforceable to the fullest extent permitted by law and (iii) the application of such provision to other Persons or circumstances or in other jurisdictions shall not be affected thereby.
Section 3.11. No Waiver. Neither the failure nor delay on the part of any party hereto to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.
Section 3.12. Table of Contents, Headings and Captions. The table of contents, headings, subheadings and captions contained in this Agreement are included for convenience of reference only, and in no way define, limit or describe the scope of this Agreement or the intent of any provision hereof.
Section 3.13. Grant of Consent. Any vote, consent or approval of the Frist Group hereunder shall be deemed to be given with respect to all members of the Frist Group if, and only if, such vote, consent or approval is given by Frisco (or by such other Person who is a member of the Frist Group following Frisco’s notice to the Company to that effect from time to time).
Section 3.14. Counterparts. This Agreement and any amendment hereto may be signed in any number of separate counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one Agreement (or amendment, as applicable).
Section 3.15. Effectiveness. This Agreement shall become effective upon the date hereof.
Section 3.16. No Recourse. This Agreement may only be enforced against, and any claims or causes of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement may only be made against the entities that are expressly identified as parties hereto and no past, present or future Affiliate, director, officer, employee, incorporator, member, manager, partner, stockholder, agent, attorney or representative of any party hereto shall have any liability for any obligations or liabilities of the parties to this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby.