Exhibit 10.1
STOCK OPTION AGREEMENT (the "Agreement"), dated as of
[[Date]], 1997, between Community Health Systems Holdings Corp., a Delaware
corporation (together with its successors, the "Company"), and [[Name]] (the
"Optionee").
1. GRANT OF OPTION.
1.1 GRANT. The Company hereby grants to the Optionee
the right and option (the "Option") to purchase all or any part of an aggregate
of 250 whole shares of Class A Common Stock, par value $.01 per share, of the
Company (the "Class A Common Stock") (such number being subject to adjustment as
provided in Section 8 hereof) on the terms and conditions set forth in this
Agreement.
1.2 NON-QUALIFIED OPTION. The Option is not intended
to qualify as an Incentive Stock Option within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended.
2. PURCHASE PRICE. The price at which the Optionee shall be
entitled to purchase shares of Class A Common Stock upon the exercise of this
Option shall be $1,073.52 per share (such price being subject to adjustment as
provided in Section 8 hereof) (the "Option Price").
3. DURATION OF OPTION. The Option shall be exercisable at any
time to the extent and in the manner provided herein for a period of 10 years
from the date hereof; provided, however, that the Option may be earlier
terminated as provided in Section 4, Section 6, or Section 7 hereof.
4. EXERCISABILITY OF OPTION.
4.1 AMOUNT OF EXERCISE. Subject to the provisions of
this Agreement, the Option shall be exercisable in accordance with the following
schedule:
(a) on or after the first anniversary of the date
hereof but before the second anniversary of the date hereof,
the Option may be exercised to acquire up to one-third of the
aggregate number of shares of Class A Common Stock which may
be purchased pursuant to the Option as set forth in Section
1.1 hereof, less any shares previously acquired pursuant to
the Option;
(b) on or after the second anniversary of the date
hereof but before the third anniversary of the date hereof,
the Option may be exercised to acquire up to two-thirds of the
aggregate number of shares of Class A Common Stock which may
be purchased pursuant to the Option as set forth
in Section 1.1 hereof, less any shares previously acquired
pursuant to the Option;
(c) on or after the third anniversary of the date
hereof but before the expiration of the term of the Option,
the Option may be exercised to acquire up to 100% of the
aggregate number of shares of Class A Common Stock which may
be purchased pursuant to the Option as set forth in Section
1.1 hereof, less any shares previously acquired pursuant to
the Option.
4.2 SALES OR OTHER EVENTS. The Company shall give the
Optionee 10 days' notice (or, if not practicable, such shorter notice as may be
practicable) prior to the anticipated date of the consummation of a Total Sale
(as hereinafter defined) or the anticipated date of the consummation of a
Partial Sale (as hereinafter defined) (the "Sale Notice"). Upon receipt of the
Sale Notice, and for a period of five days thereafter (or such shorter period as
the Board of Directors of the Company shall determine and so notify the
Optionee), the Optionee shall be permitted to exercise the Option to the extent
provided in this Section 4.2, whether or not the Option was otherwise so
exercisable on the date the Sale Notice was given; provided, that, in the event
of a Total Sale or a Partial Sale in which the Optionee would be required to
participate pursuant to Section 2.3 or 2.4 of the Stockholder's Agreement
attached hereto as Exhibit A (the "Stockholder's Agreement") were the Optionee
then a party to such agreement, the Company may require the Optionee to exercise
the Option to the extent necessary to enable the Optionee to participate therein
or to forfeit the Option (or portion thereof, as applicable). In the case of a
Total Sale, the Option may be exercised in whole or in part for up to the full
amount of the shares of Class A Common Stock covered thereby (less the number of
shares previously acquired by the Optionee upon exercise of the Option, if any).
In the case of a Partial Sale, the Option may be exercised in whole or in part,
but not for more than the excess, if any, of (a) the number of shares with
respect to which the Optionee would be entitled to participate in the Partial
Sale pursuant to Section 2.2 or 2.3, as applicable, of the Stockholder's
Agreement (if the number of shares issuable pursuant to the unexercised portion
of the Option were deemed shares held by the Optionee), and will so participate,
over (b) the number of shares previously issued to the Optionee upon exercise of
the Option and not disposed of in a prior Partial Sale. In the event the Total
Sale or Partial Sale is not consummated, the Option will be deemed not to have
been exercised and shall be exercisable thereafter to the extent it would have
been exercisable if no such notice had been given. In lieu of permitting or
requiring the Optionee to exercise the Option in the event of a Total Sale, the
Board of Directors of the Company, in its sole discretion, may instead cause the
Company to redeem the unexercised portion of the Option pursuant to Section 7
hereof. In lieu of permitting the Optionee to exercise the Option in connection
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with a Public Offering of all or a portion of the shares of Class A Common Stock
owned by the FL & Co. Companies (an "FL Public Offering"), the Company, at its
option, may instead cause the Option and the underlying shares to be registered
under applicable securities laws or make other arrangements consistent with such
laws, so as to permit the Optionee to sell for a period of time after the FL
Public Offering the same number of shares that he or she would have been able to
sell in the FL Public Offering but for this sentence.
For purposes hereof, (a) the term "Total Sale" shall
mean any of the following events: (i) the merger or consolidation of the Company
with or into another corporation (other than a merger or consolidation in which
the Company is the surviving corporation and which does not result in any
capital reorganization or reclassification or other change of the then
outstanding shares of Class A Common Stock), or (ii) the liquidation of the
Company, or (iii) the sale to any person who is not a partner or an affiliate of
either of Forstmann Little & Co. Equity Partnership - V, L.P., a Delaware
limited partnership ("Equity-V"), or Forstmann Little & Co. Subordinated Debt
and Equity Management Buyout Partnership - VI, L.P., a Delaware limited
partnership ("MBO-VI"), (Equity-V and MBO-VI together, the "FL & Co. Companies")
or an affiliate of such partner (a "Third Party") of all or substantially all of
the assets of the Company pursuant to a plan of liquidation or otherwise, or
(iv) the sale to a Third Party of Class A Common Stock (other than through a
public offering); in each case, provided that, as a result thereof, the FL & Co.
Companies, the direct or indirect partners of either of the FL & Co. Companies
and any affiliates of any of the foregoing cease to own, directly or indirectly,
any shares of the voting stock of the Company, and (b) the term "Partial Sale"
shall mean any sale by the FL & Co. Companies of all or a portion of their
shares of Class A Common Stock to a Third Party, including through any public
offering, which sale is not a Total Sale.
4.3 TERMINATION OF OPTION. Subject to the provisions
of Section 7 hereof, the Option shall terminate simultaneously with the
consummation of a Total Sale to the extent that the Option has not theretofore
been exercised.
5. MANNER OF EXERCISE AND PAYMENT.
5.1 NOTICE OF EXERCISE. Subject to the terms and
conditions of this Agreement, the Option may be exercised by delivery of written
notice to the Company. Such notice shall state that the Optionee is electing to
exercise the Option, shall set forth the number of shares of Class A Common
Stock in respect of which the Option is being exercised and shall be signed by
the Optionee or, where applicable, the guardian, executor, administrator or
other legal representative (each, a "Legal Representative") of the Optionee (all
references herein to the "Optionee" being deemed to include the Optionee's Legal
Representative, if any, unless the context otherwise
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requires). The Company may require proof satisfactory to it as to the right of
the Legal Representative to exercise the Option.
5.2 DELIVERIES. The notice of exercise described in
Section 5.1 hereof shall be accompanied by (a) payment of the full purchase
price for the shares in respect of which the Option is being exercised, by
delivery to the Company of a certified or bank check payable to the order of the
Company or cash by wire transfer or other immediately available funds to an
account designated by the Company, and (b) a fully executed Stockholder's
Agreement (a copy of which, in the form to be executed by the Optionee (which
may differ from the form attached hereto), will be supplied to the Optionee upon
request) and the undated stock power referred to in Section 4.12(a)(ii) of the
Stockholder's Agreement.
5.3 ISSUANCE OF SHARES. Upon receipt of notice of
exercise, full payment for the shares of Class A Common Stock in respect of
which the Option is being exercised and a fully executed Stockholder's Agreement
and stock power, the Company shall take such action as may be necessary under
applicable law to effect the issuance to the Optionee of the number of shares of
Class A Common Stock as to which such exercise was effected.
5.4 STOCKHOLDER RIGHTS. The Optionee shall not be
deemed to be the holder of, or to have any of the rights of a holder with
respect to, any shares of Class A Common Stock subject to the Option until: (a)
the Option shall have been exercised in accordance with the terms of this
Agreement and the Optionee shall have paid the full purchase price for the
number of shares in respect of which the Option was exercised, (b) the Optionee
shall have delivered the fully executed Stockholder's Agreement and stock power
to the Company, (c) the Company shall have issued the shares to the Optionee,
and (d) the Optionee's name shall have been entered as a stockholder of record
on the books of the Company. Upon the occurrence of all of the foregoing events,
the Optionee shall have full ownership rights with respect to such shares,
subject to the provisions of the Stockholder's Agreement.
5.5 PARTIAL EXERCISE. In the event the initial
exercise of the Option is an exercise in part only, then, in the event of any
further exercise of the Option, the Optionee, in lieu of executing a new
Stockholder's Agreement, may, at the Company's option, re-execute the original
Stockholder's Agreement, thereby reaffirming the representations, warranties,
covenants and agreements contained in the Stockholder's Agreement as of the date
of re-execution, but with an amended Annex A completed to set forth the number
of shares of Class A Common Stock in respect of which the Option is then being
exercised and the cumulative number of shares of Class A Common Stock which
would then be subject to the Stockholder's Agreement. If the initial exercise of
the Option is by the Optionee and any subsequent exercise of the Option is by
the Legal Representative, then the Legal Representative shall execute, at
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the Company's option, either a new Stockholder's Agreement or a counterpart of
the original Stockholder's Agreement thereby agreeing to be bound by such
agreement as though such person were an original signatory thereto and affirming
the truth of the representations and warranties contained therein with respect
to such person as of the date of such person's execution of such counterpart.
6. CERTAIN RESTRICTIONS.
6.1 NO SALE OR TRANSFER. The Optionee shall not sell,
transfer, assign, exchange, pledge, encumber or otherwise dispose of the Option
or any portion thereof, except in accordance with the provisions of this
Agreement.
6.2 TERMINATION AS A DIRECTOR. (a) If the Optionee shall cease
to serve as a director of the Company for any reason whatsoever (a
"Termination"), the Option, to the extent it is not exercisable pursuant to
Section 4.1 hereof on the date of such Termination, shall terminate and be of no
further force and effect from and after the date of such Termination.
(b) If any portion of the Option is exercisable
pursuant to Section 4.1 hereof on the date of the Optionee's Termination, (i)
then the Optionee may exercise the Option, to the extent the Option was
exercisable on the date of the Optionee's Termination, at any time within 30
days after the date of the Termination, and (ii) the Company agrees to make
available the most recent audited financial statements of the Company for review
by the Terminated Optionee at the principal offices of the Company during such
30-day period. The Option shall terminate and be of no further force and effect
to the extent not exercised during such 30-day period.
7. TOTAL SALES.
7.1 CONTINUATION OF OPTION. Upon the effective date
of any Total Sale, any unexercised portion of the Option shall terminate unless
provision shall be made in writing in connection with such Total Sale for the
continuance of such unexercised portion of the Option or for the assumption of
such unexercised portion of the Option by a successor to the Company or for the
substitution for such unexercised portion of the Option of new options covering
shares of such successor with appropriate adjustments as to number and kind of
shares and prices of shares subject to such new options, or unless the Company
shall authorize the redemption of the unexercised portion of the Option pursuant
to Section 7.2 hereof. In the event that provision in writing is made as
aforesaid in connection with a Total Sale, the unexercised portion of the Option
or the new options substituted therefor shall continue in the manner and under
the terms provided in this Agreement and in such writing.
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7.2 REDEMPTION IN CONNECTION WITH A TOTAL SALE. In
connection with a Total Sale, the Board of Directors of the Company may, in its
sole discretion, authorize the redemption of the unexercised portion of the
Option for a consideration per share of Class A Common Stock issuable upon
exercise of the unexercised portion of the Option equal to the excess of (i) the
consideration payable per share of Class A Common Stock in connection with such
Total Sale, adjusted as if all outstanding options and other rights to acquire
equity interests in the Company had been exercised prior to the consummation of
such Total Sale and further adjusted to take into account all other equity
interests in the Company (provided, however, that no adjustment shall be made
with respect to any option or other right to acquire equity interests in the
Company if the exercise price for such option or other right is greater than the
consideration that would be payable per share of Class A Common Stock in
connection with such Total Sale if the adjustment were not made), over (ii) the
Option Price. Any redemption pursuant to this Section 7.2 shall occur
simultaneously with the occurrence of the Total Sale.
7.3 ALLOCABLE SHARE OF EXPENSES. In the event of a
redemption pursuant to Section 7.2 hereof, the Optionee shall be responsible for
and shall be obligated to pay a proportionate amount (determined as if the
Optionee were a holder of the number of shares o f Class A Common Stock which
would have been issuable upon exercise of the portion of the Option redeemed
pursuant to Section 7.2 hereof) of the expenses, liabilities and obligations
incurred or to be incurred by the stockholders of the Company in connection with
such Total Sale (including, without limitation, the fees and expenses of
investment bankers, legal counsel and other outside advisors and experts
retained by or on behalf of the stockholders of the Company in connection with
such Total Sale, amounts payable in respect of indemnification claims, amounts
paid into escrow and amounts payable in respect of post-closing adjustments to
the purchase price) ("Expenses of Sale").
7.4 POWER OF ATTORNEY. (a) The Optionee hereby
irrevocably appoints the FL & Co. Companies, and each of them (individually and
collectively, the "Representative"), the Optionee's true and lawful agent and
attorney-in-fact, with full powers of substitution, to act in the Optionee's
name, place and stead, to do or refrain from doing all such acts and things, and
to execute and deliver all such documents, in connection with this Agreement or
the Option as the Representative shall deem necessary or appropriate in
connection with any Total Sale, including, without in any way limiting the
generality of the foregoing, to receive on behalf of the Optionee any payments
made in respect of the unexercised portion of the Option (including payments
made in connection with any redemption) in connection with any Total Sale, to
hold back from any such payments any amount which the Representative deems
necessary to reserve against the Optionee's share of any Expenses of Sale, and
to engage in any acts in which the Representative is authorized by and on behalf
of the holders of any of the Company's capital stock to engage in connection
with the Total Sale. The Optionee
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hereby ratifies and confirms all that the Representative shall do or cause to be
done by virtue of its appointment as the Optionee's Representative.
(b) In acting for the Optionee pursuant to the
appointment set forth in paragraph (a) of this Section 7.4, the Representative
shall not be responsible to the Optionee for any loss or damage the Optionee may
suffer by reason of the performance by the Representative of its duties under
this Agreement, except for loss or damage arising from willful violation of law
or gross negligence in the performance of its duties hereunder. The appointment
of the Representative shall be deemed coupled with an interest and shall be
irrevocable, and any person dealing with the Representative may conclusively and
absolutely rely, without inquiry, upon any act of the Representative as the act
of the Optionee in all matters referred to in this Section 7.4.
(c) Notwithstanding the foregoing, this power of
attorney does not empower the Representative to exercise the Option on behalf of
the Optionee.
8. ADJUSTMENTS. In the event that shares of Class A Common
Stock (whether or not issued) are changed into or exchanged for a different
number or kind of shares of stock or other securities of the Company, whether
through merger, consolidation, reorganization, recapitalization, stock dividend,
stock split-up or other substitution of securities of the Company, the Board of
Directors of the Company shall make appropriate adjustments to the number and
kind of shares of stock subject to the Option and the Option Price. The Board of
Directors' adjustment shall be final and binding for all purposes of this
Agreement. No adjustment provided for in this Section 8 shall require the
Company to issue a fractional share, and the total adjustment with respect to
this Agreement shall be limited accordingly.
9. CERTAIN DEFINITIONS.
9.1. AFFILIATE. The term "affiliate" of any person
shall mean any person that, directly or indirectly, controls, is controlled by,
or is under common control with, the person of which it is an affiliate.
9.2. PERSON. The term "person" shall mean an
individual, a corporation, a partnership, an association, a trust or any other
entity or organization, including a government or political subdivision or an
agency or instrumentality thereof.
10. NOTICES. All notices and other communications hereunder
shall be in writing and, unless otherwise provided herein, shall be deemed to
have been given when received by the party to whom such notice is to be given at
its address set forth below, or such other address for the party as shall be
specified by notice given pursuant hereto:
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(a) If to the Company, to it:
c/o Community Health Systems, Inc.
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000-0000
Attention: President
with a copy to:
Forstmann Little & Co. Equity
Partnership-V, L.P.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxxx
(b) If to the Optionee or Legal Representative, to
such person at the address as reflected in the records of the Company.
11. MODIFICATION OF AGREEMENT. This Agreement may be modified,
amended or supplemented by written agreement of the parties hereto; provided,
that the Company may modify, amend or supplement this Agreement in a writing
signed by the Company without any further action by the Optionee if such
modification, amendment or supplement does not adversely affect the Optionee's
rights hereunder.
12. INVALIDITY OF PROVISIONS. The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the validity or enforceability of the remainder of this Agreement in
that jurisdiction or the validity or enforceability of this Agreement, including
that provision, in any other jurisdiction. If any provision of this Agreement is
held unlawful or unenforceable in any respect, such provision shall be revised
or applied in a manner that renders it lawful and enforceable to the fullest
extent possible.
13. BINDING EFFECT. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs, legal
representatives, successors and assigns. In addition, each of the FL & Co.
Companies shall be a third party beneficiary of this Agreement and shall be
entitled directly to enforce this Agreement.
14. HEADINGS; EXECUTION IN COUNTERPARTS. The headings and
captions contained herein are for convenience only and shall not control or
affect the meaning or construction of any provision hereof. This Agreement may
be executed in any number of counterparts, each of which shall be deemed to be
an original and which together shall constitute one and the same instrument.
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15. ENTIRE AGREEMENT. This Agreement and, upon execution
thereof, the Stockholder's Agreement, constitute the entire agreement, and
supersede all prior agreements and understandings, oral and written, between the
parties hereto with respect to the Option granted hereby.
16. RESOLUTION OF DISPUTES. Any dispute or disagreement which
may arise under, or as a result of, or which may in any way relate to, the
interpretation, construction or application of this Agreement shall be
determined by the Board of Directors of the Company, in good faith, whose
determination shall be final, binding and conclusive for all purposes.
17. GOVERNING LAW. This Agreement and the rights and
obligations of the parties hereto shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York without giving
effect to the principles of conflicts of laws thereof.
18. CONSENT TO JURISDICTION. Each party hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of New York and of the United States of America, in each case
located in the County of New York, for any actions, suits or proceedings arising
out of or relating to this Agreement and the transactions contemplated hereby
("Litigation") (and agrees not to commence any Litigation except in any such
court), and further agrees that service of process, summons, notice or document
by U.S. registered mail to such party's respective address set forth in Section
10 hereof shall be effective service of process for any Litigation brought
against such party in any such court. Each party hereby irrevocably and
unconditionally waives any objection to the laying of venue of any Litigation in
the courts of the State of New York or of the United States of America, in each
case located in the County of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any Litigation brought in any such court has been brought in an inconvenient
forum.
19. INVESTMENT INTENT. The Optionee hereby represents that the
Optionee is acquiring the Option for his own account as principal for investment
and not with a view to resale or distribution in whole or in part.
20. SPECIFIC PERFORMANCE. The parties hereto acknowledge that
there will be no adequate remedy at law for a violation of any of the provisions
of this Agreement and that, in addition to any other remedies which may be
available, all of the provisions of this Agreement shall be specifically
enforceable in accordance with their respective terms.
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21. WITHHOLDING. The Company shall have the right to deduct
from any amount payable under this Agreement any taxes or other amounts required
by applicable law to be withheld.
IN WITNESS WHEREOF, this Agreement has been signed by or on
behalf of each of the parties hereto, all as of the date first above written.
OPTIONEE COMMUNITY HEALTH SYSTEMS
HOLDINGS CORP.
___________________________ By: ___________________________
Name: [[Name]]
Address: [[Address]]
The undersigned acknowledges that the undersigned has read the
foregoing Agreement between Community Health Systems Holdings Corp. and the
undersigned's spouse, understands that the undersigned's spouse has been granted
an option to acquire shares of Class A Common Stock of Community Health Systems
Holdings Corp., which option is subject to certain restrictions reflected in
such Agreement and agrees to be bound by the foregoing Agreement.
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Optionee's Spouse
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