AMENDMENT NO. 1 TO THE INTERIM INVESTORS AGREEMENT
Exhibit 99.21
AMENDMENT NO. 1 TO THE INTERIM INVESTORS AGREEMENT
AMENDMENT NO. 1 TO THE INTERIM INVESTORS AGREEMENT (this “Amendment”), dated as of
November 14, 2006, by and among Hercules Holding II, LLC, a Delaware limited liability company
(“Parent”), Xxxx Capital Fund IX, L.P. (“Bain”), KKR Millennium Fund, L.P.
(“KKR Millennium”), KKR 2006 Fund L.P. (“KKR 2006”), ML Global Private Equity Fund,
L.P. (“ML”), Banc of America Securities LLC (“BofA”), Citigroup Inc.
(“Citigroup”), Frisco, Inc. and Frisco Partners (and together with Frisco, Inc., Bain, KKR
Millennium, KKR 2006, ML, BofA and Citigroup, the “Investors”).
WITNESSETH:
WHEREAS, Parent and the Investors have previously entered into that certain Interim Investors
Agreement by and among them dated July 24, 2006 (the “Interim Investors Agreement”);
WHEREAS, pursuant to Section 4.1 of the Interim Investors Agreement, the Interim Investors
Agreement may be amended by a written agreement signed by the Requisite Investors, each of which is
a party hereto;
WHEREAS, pursuant to an Assignment and Assumption Agreement, dated as of the date hereof,
Bain, KKR 2006 and ML, among other things, assigned to Frisco, Inc. and Frisco Partners certain of
their rights and obligations under their respective equity commitment letters previously entered
into with Parent on July 24, 2006 to purchase an aggregate $150 million of equity of Parent at the
Effective Time (the “Assigned Commitment”);
WHEREAS, as a result of the Assigned Commitment, Parent and the Investors wish to amend the
Interim Investors Agreement and make certain other agreements with respect thereto.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements
hereinafter contained, the parties hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used but not defined herein have the
meanings ascribed to them in the Interim Investors Agreement.
SECTION 2. Amendment to Section 4.11. Section 4.11 of the Interim Investors Agreement
is hereby deleted in its entirety and the following is inserted in lieu thereof:
“Family Investor Rollover. Parent, the Family Investor and each Sponsor Investor
will cooperate to structure the contribution of the equity held by the Family Investor to
Parent as contemplated by the Equity Commitment Letter executed by the Family Investor and
the Assignment and Assumption Agreement, dated as of the date hereof, among the Sponsor
Investors and the Family Investor (the “Family Investor Assignment”) as a tax-free
exchange (other than with respect to any cash received by the Family Investor in the Merger
or as consideration for the purchase by Parent of any shares held by the Family Investor
pursuant to the last sentence of this Section 4.11) to the extent permitted by law;
provided, however, that under no circumstances shall any party be required
to take any
action or agree to any amendment, waiver or modification of the Merger Agreement or any
related agreement (including this Agreement) pursuant to this Section 4.11 if such action or
amendment, waiver or modification would be adverse to such person or any Sponsor Investor
(provided that the incurrence of immaterial costs or expenses shall not be deemed to be
adverse for purposes of this sentence). In addition, none of the Parent or any Sponsor
Investor may take any action to amend, modify or waive any provision of the Merger Agreement
or any related agreement (including this Agreement) if such amendment, waiver or
modification would result in an adverse change in the ability of the Family Investor to
contribute the equity held by it to Parent as a tax-free exchange (other than with respect
to any cash received by the Family Investor in the Merger or as consideration for the
purchase by Parent of any shares held by the Family Investor pursuant to the last sentence
of this Section 4.11). Notwithstanding anything to the contrary contained in this Agreement
(including Schedule B hereof), the Equity Commitment Letter executed by the Family Investor
or any other agreement or document, subject to the entry into a subscription agreement in a
form reasonably satisfactory to Parent and the satisfaction of any conditions set forth
therein, Parent hereby agrees that, immediately prior to the Closing, Parent will purchase
from the Family Investor and any Permitted Family Transferee and any Friends and Family
Participant at a purchase price per share payable in cash equal to the Merger Consideration
(less any applicable withholding) any shares beneficially owned by such Family Investor or
Permitted Family Transferee that (i) are not contributed to Parent in the roll over
contemplated by the Equity Commitment Letter executed by the Family Investor and/or the
Family Investor Assignment and (ii) the Family Investor has requested in writing, at least
three Business Days prior to the Closing Date, be so purchased.”
SECTION 3. Amendment to Schedule B.
(a) The last sentence of the first paragraph under the section “Sell-down” set forth in
Schedule B to the Interim Investors Agreement is hereby amended (i) by deleting the reference to
$100 million in the last sentence thereof and inserting in lieu thereof $150 million, (ii) by
deleting the phrase “and will reduce the Family Investor’s commitment amount” and (iii) by deleting
the proviso at the end thereof and inserting in lieu thereof the following:
“provided that the sell-down shall not relieve the Family Investor from its obligations under
its Equity Commitment Letter or the Family Investor Assignment except to the extent the commitments
contemplated thereby are actually funded by the Friends and Family Participants; provided further
that the Family Investor will control in all respects (including voting and disposition) such
Friends and Family Participants’ shares except that the Family Investor shall not be obligated to
control in all respects (including voting and disposition) any shares held by the Friends and
Family Participants, and in the amounts, identified on Schedule II hereto so long as such Friends
and Family Participants enter into a stockholders agreement with HCA or a joinder agreement with
Parent, in each case, in a form reasonably acceptable to the Requisite Investors pursuant to which
such Friends and Family Participants will be subject to substantially the same restrictions and
obligations as those contained in the limited liability company agreement for Hercules to be
entered into by the Sponsor Investors and the Family Investor in connection with the closing under
the Merger Agreement.”
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(b) The section “Transaction Fee” set forth in Schedule B to the Interim Investors Agreement
is hereby deleted in its entirety and the following is inserted in lieu thereof:
“Transaction fee will be split among the Sponsor Investors and the Family Investor in
proportion to their commitments in a manner as set forth in a mutually agreeable management
agreement.”
SECTION 4. No Implied Amendments. Except as herein provided, the Interim Investors
Agreement, including all Schedules thereto, shall remain in full force and effect and is ratified
in all respects. On and after the effectiveness of this Amendment, each reference in the Interim
Investors Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import,
and each reference to the Interim Investors Agreement in any other agreements, documents or
instruments executed and delivered pursuant to the Interim Investors Agreement, shall mean and be a
reference to the Interim Investors Agreement, as amended by this Agreement.
SECTION 5. Governing Law. This Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
SECTION 6. Counterparts. This Agreement may be executed by facsimile and in any
number of counterparts, each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the
date first above written.
| HERCULES HOLDING II, LLC |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | President | |||
| XXXX CAPITAL FUND IX, L.P. |
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| By: XXXX CAPITAL PARTNERS IX, L.P., its general partner |
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| By: XXXX CAPITAL INVESTORS, LLC, its general partner |
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| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | ||||
| KKR MILLENNIUM FUND L.P. |
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| By: KKR ASSOCIATES MILLENNIUM L.P., its general partner |
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| By: KKR MILLENNIUM GP LLC, its general partner | ||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxx | |||
| Title: | Member | |||
[signature page to Amendment No. 1 to Interim Investors Agreement]
| KKR 2006 FUND L.P. |
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| By: KKR Associates 2006 L.P. Its General Partner | ||||
| By: KKR 2006 GP LLC The General Partner of KKR Associates 2006 L.P. |
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| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxx | |||
| Title: | Member | |||
| ML GLOBAL PRIVATE EQUITY FUND, L.P. |
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| By: MLGPE LTD, its General Partner | ||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Managing Director | |||
| FRISCO, INC. |
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| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxx, Xx. | |||
| Title: | Authorized Person | |||
| FRISCO PARTNERS |
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| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxx, Xx. | |||
| Title: | Authorized Person | |||
| BANC OF AMERICA SECURITIES LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[signature page to Amendment No. 1 to Interim Investors Agreement]
| CITIGROUP INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
[signature page to Amendment No. 1 to Interim Investors Agreement]
Schedule II
| Name of Friend and Family Participant | Amount of Participation | |||
Xxxxx Foundation |
$ | 24,990,000.00 | ||
Xxxxx Visual Arts Center |
$ | 4,999,989.00 | ||
Xxxxxxxx High School |
$ | 12,000,000.00 | ||
