EXHIBIT 10.1
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VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made as of October 18, 2000, by
and between Triad Hospitals, Inc., a Delaware corporation ("Triad"), and Welsh,
Carson, Xxxxxxxx & Xxxxx VIII, L.P. (the "Stockholder").
WHEREAS, Quorum Health Group, Inc., a Delaware corporation (the "Company"),
and Triad have entered into an Agreement and Plan of Merger, dated as of the
date hereof (as the same may be amended or supplemented, the "Merger
Agreement"), providing for the merger of the Company with and into Triad (the
"Merger"), upon the terms and subject to the conditions set forth in the Merger
Agreement;
WHEREAS, as of the date hereof, the Stockholder beneficially owns the
number of shares of common stock, par value $.01 per share ("Company Common
Stock"), of the Company set forth opposite its name on Schedule A attached
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hereto (such shares of Company Common Stock, together with the 6.0% Convertible
Subordinated Debentures, shares of Company Common Stock issuable upon conversion
of such debentures and any other shares of capital stock of the Company acquired
by the Stockholder after the date hereof and during the term of this Agreement,
being collectively referred to herein as the "Subject Shares"); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Triad has requested that the Stockholder enter into this Agreement
pursuant to which the Stockholder shall, among other things, vote in favor of
adopting and approving the Merger Agreement and the Merger in accordance with
the terms hereof and thereof.
NOW, THEREFORE, to induce Triad to enter into, and in consideration of its
entering into, the Merger Agreement, and in consideration of the promises and
the representations, warranties and agreements contained herein, the parties
agree as follows:
1. Proxy. Contemporaneously with the execution of this Voting Agreement,
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Stockholder shall deliver to Triad a proxy in the form attached to this Voting
Agreement as Schedule B, which shall be irrevocable to the fullest extent
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permitted by law, with respect to the shares referred to therein (the "Proxy").
2. Representations and Warranties of Stockholder. The Stockholder hereby
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represents and warrants to Triad as follows:
(a) Authority; No Conflict. The Stockholder has all requisite
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power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Stockholder and constitutes a valid and binding obligation of
the Stockholder enforceable against the Stockholder in accordance with its
terms. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, conflict with, result in any violation of, or constitute
(with or without notice of lapse of time or both) default under, any provision
of any material
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trust agreement, loan or credit agreement, bond, note, mortgage, indenture,
lease, partnership agreement or other contract, agreement, obligation,
commitment, arrangement, understanding, instrument, permit, concession,
franchise or license or any statute, law, ordinance, rule, regulation, judgment,
order, notice or decree applicable to the Stockholder or to any of the
Stockholder's property or assets.
(b) The Subject Shares. The Stockholder is the record and beneficial
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owner of, and has good and marketable title to, the Subject Shares, free and
clear of any Liens (as defined in the Merger Agreement) whatsoever. The
Stockholder does not own, of record or beneficially, any shares of capital stock
of the Company other than the Subject Shares set forth opposite its name on
Schedule A attached hereto. The Stockholder has the sole right to vote such
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Subject Shares (other than the 6.0% Convertible Subordinated Debentures which
may not be voted prior to the issuance of the Company Common Stock upon
conversion), and none of such Subject Shares is subject to any voting trust or
other agreement, arrangement or restriction with respect to the voting of such
Subject Shares, except as contemplated by this Agreement.
3. Representations and Warranties of Triad. Triad hereby represents and
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warrants to the Stockholder that Triad has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by Triad and constitutes a valid and binding obligation of Triad
enforceable against Triad in accordance with its terms. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof will not, conflict
with, result in any violation of, or constitute (with or without notice or lapse
of time or both) default under, any provisions of the Certificate of
Incorporation, as amended, or Bylaws of Triad or any material trust agreement,
loan or credit agreement, bond, note, mortgage, indenture, lease or other
contract, agreement, obligation, commitment, arrangement, understanding,
instrument, permit, concession, franchise or license or any statute, law,
ordinance, rule, regulation, judgment, order, notice or decree applicable to
Triad or any of Triad's property or assets.
4. Covenants of Stockholder. Subject to Section 7 hereof, the
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Stockholder agrees as follows:
(a) Without in any way limiting the Stockholder's right to vote the
Subject Shares in its sole discretion on any other matters that may be submitted
to a stockholder vote, consent or other approval (including by written consent),
at any meeting of the stockholders of the Company called upon to vote upon the
Merger and the Merger Agreement or at any adjournment thereof or in any other
circumstances upon which a vote, consent or other approval (including written
consent) with respect to the Merger and the Merger Agreement is sought, the
Stockholder shall vote (or cause to be voted) the Subject Shares (other than the
6.0% Convertible Subordinated Debentures which may not be voted prior to
conversion) (which number of shares may be greater or less than the number of
shares as of the date hereof):
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(i) in favor of the Merger, the approval and adoption by the Company
of the Merger Agreement and approval of the other transactions contemplated by
the Merger Agreement; and
(ii) against (A) any merger agreement or merger (other than the Merger
and the Merger Agreement), consolidation, combination, sale of substantially all
of the Company's assets, sale or issuance of securities of the Company or its
subsidiaries, reorganization, joint venture, recapitalization, dissolution,
liquidation or winding up of or by the Company or its subsidiaries and (B) any
amendment of the Company's Certificate of Incorporation or Bylaws or other
proposal or transaction involving the Company or any of its subsidiaries which
amendment or other proposal or transaction would or could reasonably be expected
to impede, frustrate, prevent, nullify or result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under or with respect to, the Merger, the Merger Agreement or any of the
transactions contemplated by the Merger Agreement or by this Agreement.
(b) The Stockholder hereby agrees to convert the 6.0% Convertible
Subordinated Debentures immediately prior to the Effective Time (as defined in
the Merger Agreement).
(c) The Stockholder shall not, except as contemplated by this
Agreement, directly or indirectly, grant any proxies or powers of attorney with
respect to the Subject Shares, deposit the Subject Shares into a voting trust or
enter into a voting agreement with respect to the Subject Shares.
5. Certain Events. The Stockholder agrees that this Agreement and the
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obligations hereunder shall attach to the Subject Shares and shall be binding
upon any person or entity to which legal or beneficial ownership of such Subject
Shares shall pass, whether by operation of law or otherwise, including the
Stockholder's successors. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of the Company affecting the Company Common Stock, or the acquisition
of additional shares of Company Common Stock or other voting securities of the
Company by the Stockholder (whether by purchase, conversion or otherwise), the
number of Subject Shares listed in Schedule A beside the name of the Stockholder
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shall be adjusted appropriately and this Agreement and the obligations hereunder
shall attach to any additional or decreased shares of Company Common Stock or
other voting securities of the Company issued to or acquired or disposed of by
the Stockholder.
6. Assignment. Neither this Agreement nor any of the rights, interests
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or obligations hereunder shall be assigned by the Stockholder, on the one hand,
without the prior written consent of Triad nor by Triad, on the other hand,
without the prior written consent of the Stockholder, except that Triad may
assign, in its sole discretion, any or all of its rights, interests and
obligations hereunder to any direct or indirect wholly owned subsidiary of
Triad. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.
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7. Termination. This Agreement shall terminate, and the provisions
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hereof shall be of no further force or effect, upon the earlier of the
effectiveness of the Merger or the termination of the Merger Agreement in
accordance with its terms.
8. General Provisions.
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(a) Amendments. This Agreement may not be amended except by an
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instrument in writing signed by each of the parties hereto.
(b) Notice. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of delivery)
to Triad in accordance with Section 11.1 of the Merger Agreement and to the
Stockholder at its address set forth on the Company's stock ledger (or at such
other address for a party as shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to a
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Section or Schedule, such reference shall be to a Section of or Schedule to this
Agreement unless otherwise indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
(d) Counterparts. This Agreement may be executed in one or more
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counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other parties.
(e) Entire Agreement; No Third Party Beneficiaries. This Agreement
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(i) constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and (ii) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
(f) Governing Law. This Agreement shall be governed by, and
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construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof.
9. Enforcement. The parties agree that irreparable damage would occur in
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the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any other
remedy to which they are entitled at law or in equity. Without limiting the
generality of the foregoing, the parties hereto expressly agree that the
obligations of the Stockholder set forth in Section 4 hereof shall be subject to
the foregoing provisions of this Section 9.
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10. Public Announcements. Except as required by law, the Stockholder shall
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not issue any press release or other public statement with respect to the
transactions contemplated by this Agreement and the Merger Agreement without the
prior written consent of Triad.
11. Severability. In the event that any provision of this Agreement or
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the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement shall continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as to effect
the intent of the parties hereto. The parties further agree to replace such void
or unenforceable provision of this Agreement with valid and enforceable
provision that will achieve, to the fullest extent possible, the original intent
of the parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
TRIAD HOSPITALS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Chairman and
Chief Executive Officer
Welsh, Carson, Xxxxxxxx & Xxxxx VIII,
L.P.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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SCHEDULE A
Schedule of Share Ownership
Name Shares
Welsh, Carson, Xxxxxxxx & 6,840,000 shares of common stock
Xxxxx VIII, L.P.
12,698,413 shares of common stock
issuable upon conversion of $150.0
million convertible subordinated
debenture
SHEDULE B
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FORM OF IRREVOCABLE PROXY
The undersigned stockholder of Quorum Health Group, Inc., a Delaware
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Triad Hospitals, Inc., a Delaware corporation
("Triad"), the attorney and proxy of the undersigned with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to (i) all outstanding shares of capital stock of the Company owned
of record by the undersigned as of the date of this proxy, which shares are
specified on Schedule A to the Voting Agreement (as hereinafter defined), and
(ii) any and all other shares of capital stock of the Company which the
undersigned may acquire on or after the date hereof and which are Subject Shares
(as defined in the Voting Agreement). (The shares of the capital stock of the
Company referred to in clauses (i) and (ii) of the immediately preceding
sentence are collectively referred to as the "Shares.") Upon the execution
hereof, all prior proxies given by the undersigned with respect to any of the
Shares are hereby revoked, and the undersigned agrees that no subsequent proxies
will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted
in connection with the Voting Agreement, dated as of the date hereof, between
Triad and the undersigned (the "Voting Agreement"), and is granted in
consideration of Triad entering into the Agreement and Plan of Merger, dated as
of the date hereof, between Triad and the Company, as the same may be amended or
supplemented (the "Merger Agreement").
The attorney and proxy named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the earlier to occur of the
valid termination of the Merger Agreement or the closing of the transactions
contemplated thereby at any meeting of the stockholders of the Company, however
called, or in connection with any solicitation of written consents from
stockholde rs of the Company:
2. in favor of the Merger (as defined in the Merger Agreement), the approval
and adoption by the Company of the Merger Agreement and approval of the other
transactions contemplated by the Merger Agreement; and
3. against (A) any merger agreement or merger (other than the Merger and the
Merger Agreement), consolidation, combination, sale of substantially all of the
Company's assets, sale or issuance of securities of the Company or its
subsidiaries, reorganization, joint venture, recapitalization, dissolution,
liquidation or winding up of or by the Company or its subsidiaries and (B) any
amendment of the Company's Certificate of Incorporation or Bylaws or other
proposal or transaction involving the Company or any of its subsidiaries which
amendment or other proposal or transaction would or could reasonably be expected
to impede, frustrate, prevent, nullify or result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under or
with respect to, the Merger, the Merger Agreement or any of the transactions
contemplated by the Merger Agreement or by this Agreement.
This proxy shall be binding upon any person or entity to which legal
or beneficial ownership of the Subject Shares shall pass, whether by operation
of law or otherwise, including the Stockholder's successors.
If any provision of this proxy or any part of any such provision is
held under any circumstances to be invalid or unenforceable in any jurisdiction,
then (a) such provision or part thereof shall, with respect to such
circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part under
such circumstances and in such jurisdiction shall not affect the validity or
enforceability of such provision or part thereof under any other circumstances
or in any other jurisdiction, and (c) the invalidity or unenforceability of such
provision or part thereof shall not affect the validity or enforceability of the
remainder of such provision or the validity or enforceability of any other
provision of this proxy. Each provision of this proxy is separable from every
other provision of this proxy, and each part of each provision of this proxy is
separable from every other part of such provision.
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This proxy shall terminate upon the earlier of the valid termination
of the Merger Agreement or the closing of the transactions contemplated by the
Merger Agreement.
Dated: October 18, 2000.
By:
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NUMBER OF SHARES OF COMMON STOCK OF THE COMPANY OWNED OF RECORD AS OF
THE DATE OF THIS PROXY:
19,538,413 common $150.0 million of convertible subordinated debentures
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