EXHIBIT 4.5
VOTING PROXY
AGREEMENT, dated as of June 1, 1998, among Xxxxxxx X. Xxxxxx, Xx., Xxxxxx
X. Xxxxx, each of the other Persons listed on the signature pages hereof (each,
a "Holder") and Vanguard Health Systems, Inc., a Delaware corporation (the
"Company").
WHEREAS, the Company, the Holders and certain other parties have entered
into a Subscription Agreement dated as of June 1, 1998 pursuant to which the
Holders have agreed, among other things, to purchase shares of common stock,
par value $0.01 per share, of the Company (the "Common Shares"); and
WHEREAS, the parties hereto desire to provide for certain rights and
obligations relating to the voting of their capital stock of the Company and
certain other matters.
NOW, THEREFORE, in consideration of the mutual promises set forth below
(the mutuality, adequacy and sufficiency of which are hereby acknowledged), the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein, have
the following meanings:
"Designated Actions" means (i) the voting of any Common Shares and any
action to be taken with respect to a matter properly brought before the
stockholders of the Company holding Common Shares, including without limitation
the election of members of the Board of Directors of the Company, (ii) any
action to be taken by any Holder in its capacity as a stockholder of the
Company under any of the Transaction Agreements, including without limitation
any consent or waiver relating to any such Transaction Agreement and (iii) all
actions taken in connection with any of the actions referred to in clauses (i)
and (ii) above.
"Designated Shareholders" means each Holder and each Person to whom the
Common Shares of such Holder are sold or transferred (other than any such
transfer pursuant to a Public Offering or to the Company).
"Proxyholder" means (i) Xxxxxxx X. Xxxxxx, Xx. for so long as he is
employed by, or a director of, the Company and available to act as Proxyholder
hereunder or (ii) Xxxxxx X. Xxxxx at any time that Xx. Xxxxxx is not employed
by, or a director of, the Company or available to act as Proxyholder hereunder.
"Shareholders Agreement" means the Shareholders Agreement among the
Company and the other parties thereto dated as of the date hereof.
(b) Terms used but not defined herein shall have the meanings set forth in
the Shareholders Agreement.
ARTICLE 2
PROXY
SECTION 2.01. Designated Actions and Irrevocable Proxy. (a) Each
Designated Shareholder, so long as he, she or it owns any Common Shares, hereby
agrees to take all Designated Actions in the manner that the Proxyholder, in
his sole and absolute discretion, shall direct, at any annual or special
meeting of stockholders of the Company, at any and all adjournments thereof,
and on any other occasion in respect of which the consent of such Designated
Shareholder with respect to his, her or its Common Shares may be given or may
be requested or solicited by the Company or any other Person, whether at a
meeting, pursuant to the execution of a written consent, under any of the
Transaction Agreements or otherwise, for all purposes in connection with any
Designated Action, and such Designated Shareholder hereby ratifies and confirms
all that such Proxyholder may do by virtue hereof.
(b) For purposes of effecting any Designated Action, each Designated
Shareholder does hereby irrevocably constitute and appoint the Proxyholder,
his, her or its true and lawful attorney, agent and proxy for and in his, her
or its name, place and stead, with the exclusive right to take all Designated
Actions, in such Proxyholder's sole and absolute discretion, at any annual or
special meeting of stockholders of the Company, at any and all adjournments
thereof, and on any other occasion in respect of which the consent of such
Designated Shareholder may be given or may be requested or solicited by the
Company or any other Person, whether at a meeting, pursuant to the execution of
a written consent, under any of the Transaction Agreements or otherwise, for
all purposes in connection with any Designated Action, and such Designated
Shareholder hereby ratifies and confirms all that the Proxyholder may do by
virtue hereof. Each Designated Shareholder agrees with the Proxyholder that,
without the prior written consent of the Proxyholder, he, she or it will not,
so long as this Agreement shall be in effect with respect to any such
Designated Shareholder, take any Designated Action, appoint any person other
than the Proxyholder as his, her or its attorney, agent or proxy with respect
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to such Common Shares, or take any action inconsistent with the appointment of
the Proxyholder as his, her or its lawful attorney, agent and proxy, or the
exercise by the Proxyholder of the powers granted to him, hereunder.
(c) The parties hereto agree that, in taking or giving directions for the
taking of any Designated Action or in otherwise acting hereunder, the
Proxyholder shall have no responsibility in respect of the management of the
Company by directors for whom he shall have voted or for any action taken by
any such directors or for any action taken pursuant to any consent given or
vote cast by him or other action taken by him, and the Proxyholder's powers
herein shall be discretionary and any of them may be exercised from time to
time when he sees fit and without leave of any court or any other Person and
the Proxyholder may refrain from exercising any powers or rights from time to
time as he sees fit in each case irrespective of any relationship that the
Proxyholder or any of his Affiliates may have with any of the parties hereto
otherwise than pursuant to this Agreement.
(d) The powers granted pursuant to this Section 2.01, and the proxy
granted pursuant hereto, are coupled with an interest and shall be irrevocable
during the term of this Agreement.
(e) Each Designated Shareholder agrees not to sell, transfer or otherwise
dispose of any of his, her or its Common Shares (other than pursuant to a
Public Offering or to the Company) unless the proposed transferee shall have
executed and delivered an instrument to the Proxyholder and the Company,
substantially in the form of Exhibit A hereto, pursuant to which such proposed
transferee has agreed to be bound as a "Designated Shareholder" by the terms
hereof.
SECTION 2.02. Acceptance of Appointment. Each of Xxxxxxx X. Xxxxxx, Xx.
and Xxxxxx X. Xxxxx accepts his appointment as the Proxyholder and agrees to
serve in such capacity pursuant to the terms hereof.
ARTICLE 3
MISCELLANEOUS
SECTION 3.01. Expenses. All costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or expense.
SECTION 3.02. Reasonable Best Efforts. Each party hereto will use its
reasonable best efforts to take, or cause to be taken, all actions and to do,
or cause to be done, all things necessary or desirable under applicable laws
and regulations to consummate the transactions contemplated by this Agreement.
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SECTION 3.03. Remedies. Each party hereto acknowledges that the remedies
at law of the other parties for a breach or threatened breach of this Agreement
would be inadequate and, in recognition of this fact, any party to this
Agreement, without posting any bond, and in addition to all other remedies
which may be available, shall be entitled to obtain equitable relief in the
form of specific performance, a temporary restraining order, a temporary or
permanent injunction or any other equitable remedy which may then be available.
The rights and remedies herein provided shall be cumulative and not exclusive
of any rights or remedies provided by law.
SECTION 3.04. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including telecopier) and shall be
deemed to have been duly given or made if sent by telecopy, delivered
personally or sent by registered or certified mail (postage prepaid, return
receipt requested) to such party at its address or telecopier number set forth
on the signature pages hereof, or such other address or telecopier number as
such party may hereinafter specify for the purpose to the party giving such
notice. All such notices, requests and other communications shall be deemed
received on the date of receipt by the recipient thereof if received prior to
5:00 p.m. in the place of receipt and such day is a business day in the place
of receipt. Otherwise, any such notice, request or communication shall be
deemed not to have been received until the next succeeding business day in the
place of receipt.
SECTION 3.05. Waivers; Amendments. (a) No failure or delay on the part of
any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege.
(b) Any provision of this Agreement may be waived if, but only if, such
waiver is in writing and is signed, by the party or parties against whom the
waiver is to be effective. No provision of this Agreement may be amended or
otherwise modified except by an instrument in writing executed by the
Proxyholder, each Designated Shareholder, and MSCP III.
SECTION 3.06. Termination. This Agreement shall terminate and be of no
further force and effect on the earlier to occur of (i) the tenth anniversary
of the date hereof and (ii) the consummation of a Liquidity Event. This
Agreement (other than Section 2.01(e)) shall also terminate and be of no
further force and effect with respect to any Designated Shareholder when such
Designated Shareholder ceases to hold any Common Shares. Notwithstanding
anything herein to the contrary, the provisions of Section 3.01 shall survive
any termination hereof.
SECTION 3.07. Successors and Assigns; Third Party Rights. The provisions
of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Nothing in this
Agreement, expressed
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or implied, is intended to confer on any entity other than the parties hereto
and their respective successors and permitted assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement; provided that
the MSCP Entities shall be express third party beneficiaries of this Agreement.
SECTION 3.08. Applicable Law; Submission to Jurisdiction. This Agreement
shall be construed in accordance with and governed by the laws of the State of
New York, without regard to the conflicts of law rules of such state. Each of
the parties hereto hereby consents to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York, or any
other New York State court sitting in New York, New York (and of the
appropriate appellate courts therefrom) over any suit, action or proceeding
arising out of or relating to this Agreement. Each party hereto irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of venue in any such court or that any such
proceeding which is brought in accordance with this Section has been brought in
an inconvenient forum. Subject to applicable law, process in any such
proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the foregoing and
subject to applicable law, each party agrees that service of process on such
party as provided in Section 3.04 shall be deemed effective service of process
on such party. Nothing herein shall affect the right of any party to serve
legal process in any other manner permitted by law or at equity or to enforce
in any lawful manner a judgment obtained in one jurisdiction in any other
jurisdiction. WITH RESPECT TO A PROCEEDING IN ANY SUCH COURT, EACH OF THE
PARTIES IRREVOCABLY WAIVES AND RELEASES TO THE OTHER ITS RIGHT TO A TRIAL BY
JURY, AND AGREES THAT IT WILL NOT SEEK A TRIAL BY JURY IN ANY SUCH PROCEEDING.
SECTION 3.09. Severability. The invalidity or unenforceability of any
provisions of this Agreement in any jurisdiction shall not affect the validity,
legality or enforceability of the remainder of this Agreement in such
jurisdiction or the validity, legality or enforceability of this Agreement,
including any such provision, in any other jurisdiction, it being intended that
all rights and obligations of the parties hereunder shall be enforceable to the
fullest extent permitted by law.
SECTION 3.10. Entire Agreement. The Transaction Agreements (as defined in
the Shareholders Agreement) and the other agreements referred to herein and
therein constitute the entire agreement and understanding of the parties hereto
or thereto in respect of the subject matter contained herein and therein, and
there are no restrictions, promises, representations, warranties, covenants, or
undertakings with respect to the subject matter hereof or thereof, other than
those expressly set forth or referred to herein or therein. The Transaction
Agreements and the other agreements referred to herein and therein supersede
all prior agreements and understandings between the parties hereto and thereto
with respect to the subject matter hereof and thereof, including, without
limitation
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the letter of intent dated as of April 2, 1998 between Xxxxxx Xxxxxxx Capital
Partners III, Inc. and each of the other parties thereto.
SECTION 3.11. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
SECTION 3.12. Headings. The headings in this Agreement are for convenience
of reference only and shall not control or affect the meaning or construction
of any provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
VANGUARD HEALTH SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman, President and Chief
Executive Officer
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ W. Xxxxxxxx Xxxxx
----------------------------------------------
Name: W. Xxxxxxxx Xxxxx
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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/s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ Xxxxx Xxxxxx
----------------------------------------------
Name: Xxxxx Xxxxxx
Address: 0000 Xxx Xxxx Xxxxxx, X.X.
Suite 400
District of Columbia 20005
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
8
/s/ Xxxx X. Xxxx
----------------------------------------------
Name: Xxxx X. Xxxx
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ Xxxxx Xxxxxxxx
----------------------------------------------
Name: Xxxxx Xxxxxxxx
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ Xxxxxxx X. Xxx
----------------------------------------------
Name: Xxxxxxx X. Xxx
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ Xxxxxx Xxxxxx
----------------------------------------------
Name: Xxxxxx Xxxxxx
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
9
/s/ Xxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxx X. Xxxxxxx
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ Xxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxx X. Xxxxxxx
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ Xxxx X. Xxxxxx
----------------------------------------------
Name: Xxxx X. Xxxxxx
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
10
/s/ Xxxxxx X. Ways
----------------------------------------------
Name: Xxxxxx X. Ways
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ Xxxxxxxx Xxxxxx
----------------------------------------------
Name: Xxxxxxxx Xxxxxx
Address: 0000 Xxxx Xxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ Xxx Xxxxxx
----------------------------------------------
Name: Xxx Xxxxxx
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ Xxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxx
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
11
/s/ Xxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxx
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ Xxxxxxx Xxxxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxxxx
Address: 0000 Xxxx Xxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Address: 000 Xxxx Xxxxxxxx Xxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ Xxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxx
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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/s/ Xxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxx
Address: c/o Paragon Health Network, Inc.
Xxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
MPSW PARTNERS
By: /s/ Xxxxxx Xxxxxx
----------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Partner
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ Xxxx X. Xxxxxx
----------------------------------------------
Name: Xxxx X. Xxxxxx
Address: 00000 Xxxxxxxx Xx.
Xxxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ Xxxx Xxxxx
----------------------------------------------
Name: Xxxx Xxxxx
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
13
/s/ Xxxxxxx X. X. Xxxx
----------------------------------------------
Name: Xxxxxxx X. X. Xxxx
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
/s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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XXXXXXX XXXXXXXX XXXXX
GRANTOR RETAINED ANNUITY TRUST
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Trustee
Address: 00 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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EXHIBIT A
FORM OF AGREEMENT TO BE BOUND
[Date]
To the Parties to the Voting Proxy
dated as of June 1, 1998
Ladies and Gentlemen:
Reference is made to the Voting Proxy dated as of June 1, 1998 (the
"Voting Proxy") among the Persons listed on the signature pages thereof and
each other Person who has or shall become a party to the Voting Proxy as
provided therein. Capitalized terms used herein and not defined have the
meanings ascribed to them in the Voting Proxy.
In consideration of the covenants and agreements contained in the Voting
Proxy, the undersigned hereby confirms and agrees that it shall be bound as a
"Designated Shareholder" by all of the provisions of the Voting Proxy.
This letter shall be construed and enforced in accordance with the
internal laws of the State of Delaware.
Very truly yours,
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A-1
