EXHIBIT 3.8
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
VANGUARD HEALTH HOLDING COMPANY II, LLC
This AMENDED AND RESTATED Limited Liability Company Agreement, dated as of
September 15, 2004 (this "Agreement"), of Vanguard Health Holding Company II,
LLC is entered into by and between the person or persons listed on the signature
pages hereto as member or members (collectively, the "Members"). This Agreement
amends and restates in its entirety the Limited Liability Company Agreement of
the Company dated July 29, 2004.
The Members hereby form a limited liability company pursuant to and in
accordance with the Delaware Limited Liability Company Act (6 Del. C. Section
18-101, et seq.), as amended from time to time (the "Act"), and hereby agree as
follows:
1. Name; Formation. The name of the limited liability company shall be
Vanguard Health Holding Company II, LLC (the "Company"), or such other name as
the Members may from time to time hereafter designate. The Company shall be
formed upon the execution and filing by any Member, by any person designated by
a Member or by any officer, agent or employee of the registered agent of the
Company in the State of Delaware (any such person being hereby authorized to
take such action) of a certificate of formation of the Company with the
Secretary of State of the State of Delaware setting forth the information
required by Section 18-201 of the Delaware Act.
2. Definitions. Capitalized terms not otherwise defined herein shall have
the meanings set forth in Section 18-101 of the Act.
3. Purpose. The Company is formed for the purpose of engaging in any
lawful business permitted by the Act or the laws of any jurisdiction in which
the Company may do business. The Company shall have the power to engage in all
activities and transactions that the Members deem necessary or advisable in
connection with the foregoing.
4. Offices; Registered Agent.
(a) The principal office of the Company, and such additional offices
as the Members may determine to establish, shall be located at such place or
places inside or outside the State of Delaware as the Members may designate from
time to time.
(b) The registered office of the Company in the State of Delaware is
located at National Registered Agents, Inc., 0 Xxxxxxxxxx Xxxxxx, Xxxxx 0X, in
the City of Dover, Delaware. The name and address of the registered agent of the
Company for service of process on the Company in the State of Delaware shall be
National Registered Agents, Inc., 0
Xxxxxxxxxx Xxxxxx, Xxxxx 0X, in the City of Dover, Delaware. The Members may
change such registered office and/or registered agent from time to time.
5. Members. The names and the mailing addresses of the Members are as set
forth on Schedule A attached hereto, as the same may be amended from time to
time.
6. Term. The term of the Company shall commence on the date of filing of
the certificate of formation of the Company in accordance with the Act and shall
continue until the Company is dissolved and its affairs are wound up in
accordance with Section 21 of this Agreement and a certificate of cancellation
is filed in accordance with the Act.
7. Powers; Management. Except as specifically provided otherwise in this
Agreement, the management and control of the business and affairs of the Company
shall to the maximum extent permitted under applicable law be vested exclusively
in the Board of Representatives of the Company (the "Board"), which shall
possess all rights and powers of managers as provided in the Act and otherwise
by Law. Except as otherwise expressly provided for herein, the Members hereby
consent to the exercise by the Board of all such powers and rights conferred on
them by the Act or otherwise by law with respect to the management and control
of the Company. No Member and no Representative, in its capacity as such, shall
have any power to act for, sign for, or do any act that would bind the Company.
8. Board of Representatives. (a) Initial Board. The Board shall initially
consist of the seven following individuals:
Xxxxxxx X. Xxxxxx, III
W. Xxxxxxxx Xxxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Xxxx Xxx
Xxxxxx Xxxxxx
(b) Chairman and Lead Representative. A Chairman of the Board (the
"Chairman") and a Lead Representative (the "Lead Representative") may, from time
to time, be appointed by the Representatives from among themselves or any other
member of the Board. The Chairman of the initial Board shall be Xxxxxxx X.
Xxxxxx, Xx. The Lead Representative of the initial Board shall be Xxxx Xxx. The
Chairman, if appointed, shall preside over meetings of the Board and shall
otherwise have no greater authority than any other Representative. In the
absence of the Chairman, the Lead Representative, shall preside at all meetings
of the Board. The Lead Representative, if appointed, shall have duties
customarily performed by a "lead director" or "presiding director" and shall
otherwise have no greater authority than any other Representative.
(c) Voting. Each Representative, including the Chairman and the Lead
Representative, shall have a single vote. Except as otherwise required by Law,
the affirmative vote of a majority of the Representatives in attendance at any
meeting at which a quorum is present in accordance with Section 9(c) shall be
required to authorize any action. Any vote,
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consent or other action of the Board may be undertaken with the unanimous
written consent (in lieu of meeting) of the Representatives, in each case who
have been appointed and who are then in office.
(d) Proxies. Any Representative may vote at a meeting of the Board
or any committee thereof either in person or by proxy executed in writing by
such Representative. A telegram, telex, cablegram or similar transmission by the
Representative, or a photographic, photostatic, facsimile or similar
reproduction of a writing executed by the Representative shall (if stated
thereon) be treated as a proxy executed in writing for purposes of this Section
8(d). Proxies for use at any meeting of the Board or any committee thereof or in
connection with the taking of any action by written consent shall be filed with
the Board, before or at the time of the meeting or execution of the written
consent, as the case may be. No proxy shall be valid after eleven months from
the date of its execution unless otherwise provided in the proxy. A proxy shall
be revocable unless the proxy form conspicuously states that the proxy is
irrevocable and the proxy is coupled with an interest.
(e) Certain Capitalized Terms. Capitalized Terms used in this
Section 8 and in Section 9 below but not defined in this Agreement shall have
the meanings given such terms in the Parent Company Operating Agreement.
9. Meetings of the Board.
(a) Meetings. The Board shall meet at least quarterly, at such time
and at such place as the Board may designate. Special meetings of the Board
shall be held at the request of the Chairman or the Lead Representative upon at
least seven days (if the meeting is to be held in person) or five days (if the
meeting is to be held telephonically) written notice to all of the
Representatives, or upon such shorter notice as may be approved by all of the
Representatives; provided that if the nature of the action to be taken is such
that time is of the essence with respect to such action, such meeting may be
held without such five days' notice if at least one business day's notice has
been given and (A) a good faith effort has been made to notify and consult with
each of the Representatives entitled to vote on such action and (B) a quorum
exists for the taking of such action. Any Representative may waive the
requirement of such notice as to itself, before, at or after the meeting.
(b) Conduct of Meetings. Any meeting of the Board may be held in
person, telephonically or through other communications equipment by means of
which all participating members of the Board can simultaneously hear each other
during the meeting.
(c) Quorum. A majority of the Representatives who have been
appointed pursuant to the provisions of this Agreement and who are then in
office shall be necessary to constitute a quorum of the Board for purposes of
conducting business.
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(d) Payments to Representatives; Reimbursements. All Representatives
will be entitled to reimbursement of their reasonable out-of-pocket expenses
incurred in connection with their attendance at Board meetings and such
reasonable and customary fees as may be authorized by the Board.
(e) Board Committees. The Board may organize an Audit Committee, a
Compensation Committee and such other committees of the Board as it deems
reasonably necessary to effectively govern the Company. Except as may be
required by applicable Law or any exchange or over the counter market on which
the securities of the Company are listed or quoted, Blackstone shall have
majority representation on all committees of the Board.
10. Member Action. Any action of the Members shall be authorized if the
affirmative vote of the holders of a majority of the membership interests
present at a meeting at which a quorum is present shall be obtained. Any action
which may be taken by the Members under this Agreement shall be authorized if
consents in writing setting forth the action so taken are signed by Members who
hold a majority of the membership interests then outstanding. All Members who do
not participate in taking the action by written consent shall be given written
notice thereof by the Secretary of the Company after such action has been taken.
The presence in person or by proxy of the holders of a majority of the
outstanding membership interests shall be necessary to constitute a quorum for
action by the Members. Whenever the giving of any notice to Members is required
by law or this Agreement, a waiver thereof, in writing and delivered to the
Company signed by the person or persons entitled to said notice, whether before
or after the event as to which such notice is required, shall be deemed
equivalent to notice. Attendance of a Member at a meeting or execution of a
written consent to any action shall constitute a waiver of notice of such
meeting or action.
11. Officers. (a) Designation and Appointment. The Board may, from time to
time, employ and retain persons as may be necessary or appropriate for the
conduct of the Company's business (subject to the supervision and control of the
Board), including employees, agents and other Persons (any of whom may be a
Member or Representative) who may be designated as Officers of the Company, with
titles including but not limited to "chief executive officer," "president,"
"vice chairman," vice president," "treasurer," "secretary," "general counsel,"
"director," "chief financial officer" and "chief operating officer" as and to
the extent authorized by the Board. Any number of offices may be held by the
same Person. In the Board's discretion, the Board may choose not to fill any
office for any period as it may deem advisable. Officers need not be residents
of the State of Delaware or Members. Any Officers so designated shall have such
authority and perform such duties as the Board may, from time to time, delegate
to them. The Board may assign titles to particular Officers. Each Officer shall
hold office until his successor shall be duly designated and shall have
qualified as an Officer or until his death or until he shall resign or shall
have been removed in the manner hereinafter provided. The salaries or other
compensation, if any, of the Officers of the Company shall be fixed from time to
time by the Board.
(b) Resignation and Removal. Any Officer may resign as such at any
time. Such resignation shall be made in writing and shall take effect at the
time specified therein, or if no time is specified, at the time of its receipt
by the Board. The acceptance by the Board of a resignation of any Officer shall
not be necessary to make such resignation effective, unless
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otherwise specified in such resignation. Any Officer may be removed as such,
either with or without cause, at any time by the Board. Designation of any
Person as an Officer by the Board shall not in and of itself vest in such Person
any contractual or employment rights with respect to the Company.
(c) Duties of Officers Generally. The Officers, in the performance
of their duties as such, shall (i) owe to the Company and the Members duties of
loyalty and due care of the type owed by the officers of a corporation to such
corporation and its stockholders under the laws of the State of Delaware, (ii)
keep the Board reasonably apprised of material developments in the business of
the Company, and (iii) present to the Board, at least annually, a review of the
Company's performance, an operating budget for the Company, and a capital budget
for the Company.
(d) Chief Executive Officer. Subject to the powers of the Board, the
chief executive officer of the Company shall be in general and active charge of
the entire business and affairs of the Company, and shall be its chief policy
making Officer.
(e) Vice Chairman. The Vice Chairman, or if there be more than one,
then each of them, shall, subject to the powers of the Board and the chief
executive officer of the Company, participate in the supervision of the business
and affairs of the Company, and shall have such other powers and perform such
other duties as may be prescribed by the chief executive officer or by the
Board. A Vice Chairman need not be a member of the Board.
(f) President. The president of the Company shall, subject to the
powers of the Board and the chief executive officer of the Company, have general
and active management of the business of the Company, and shall see that all
orders and resolutions of the Board are effectuated. The president of the
Company shall have such other powers and perform such other duties as may be
prescribed by the chief executive officer of the Company or by the Board.
(g) Chief Financial Officer. The chief financial officer of the
Company shall keep and maintain, or cause to be kept and maintained, adequate
and correct books and records of accounts of the properties and business
transactions of the Company, including accounts of the Company's assets,
liabilities, receipts, disbursements, gains, losses, capital and membership
interests. The chief financial officer of the Company shall have custody of the
funds and securities of the Company, keep full and accurate accounts of receipts
and disbursements in books belonging to the Company, and deposit all moneys and
other valuable effects in the name and to the credit of the Company in such
depositories as may be designated by such officer. The chief financial officer
of the Company shall have such other powers and perform such other duties as may
from time to time be prescribed by the chief executive officer of the Company or
by the Board.
(h) Vice President(s). The vice president(s) of the Company shall
perform such duties and have such other powers as the chief executive officer of
the Company or the Board may from time to time prescribe. A vice president may
be designated as an Executive Vice President, a Senior Vice President, an
Assistant Vice President, or a vice president with a functional title.
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(i) Secretary. The secretary of the Company shall, if requested by
the Board, attend meetings of the Board, record all the proceedings of the
meetings and perform similar duties for the committees of the Board when
required. The secretary of the Company shall keep all documents as may be
required under the Act. The secretary shall perform such other duties and have
such other authority as may be prescribed elsewhere in this Agreement or from
time to time by the chief executive officer of the Company or the Board. The
secretary of the Company shall have the general duties, powers and
responsibilities of a secretary of a Corporation. If the Board chooses to
appoint an assistant secretary or assistant secretaries, the assistant
secretaries, in the order of seniority, shall in the Company secretary's
absence, disability or inability to act, perform the duties and exercise the
powers of the secretary of the Company, and shall perform such other duties as
the chief executive officer of the Company or the Board may from time to time
prescribe.
(j) Treasurer. The treasurer of the Company shall receive, keep, and
disburse, or cause to be received, kept or disbursed, all moneys belonging to or
coming to the Company. The treasurer of the Company shall prepare, or cause to
be prepared, detailed reports and records of all expenses, losses, gains,
assets, and liabilities of the Company as directed by the chief financial
officer of the Company and shall perform such other duties in connection with
the administration of the financial affairs of the Company as may from time to
time be prescribed by the chief financial officer or the chief executive officer
of the Company or by the Board.
(k) Current Officers. Notwithstanding anything to the contrary
elsewhere in this Agreement, the Member hereby appoints and approves the
appointment of the persons named on Schedule B to the offices set forth opposite
their respective names, to serve in accordance with this Agreement and at the
discretion of the Board.
12. Capital Contributions. The Members shall make capital contributions to
the Company in such amounts and at such times as may be unanimously determined
by the Members, which amounts will be set forth in the books and records of the
Company, provided that on or about September 23, 3004, Vanguard Health Holding
Company I, LLC shall contribute to the capital of the Company all assets owned
by it, consisting of the 100% of the outstanding capital stock of Vanguard
Health Management, Inc. and Vanguard Health Financial Company.
13. Allocation of Profits and Losses. The Company's profits and losses
shall be allocated among the Members in proportion to their membership
percentages, as set forth on Schedule A (as to each Member, its "Membership
Percentage").
14. Distributions. Distributions shall be made to the Members at the times
and in the aggregate amounts as unanimously determined by the Members. Such
distributions shall be divided among the Members in the same proportion as their
Membership Percentages.
15. Assignments; Withdrawals. A Member may not assign in whole or in part
his limited liability company interest without the written consent of all of the
other Members, which consent may be granted or withheld in a Member's sole and
absolute discretion. No Member shall have the right to resign from the Company
except with the consent of the other Members and upon such terms and conditions
as may be specifically agreed upon between such other
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Members and the resigning Member. The provisions hereof with respect to
distributions upon resignation are exclusive and no Member shall be entitled to
claim any further or different distribution upon resignation under Section
18-604 of the Delaware Act or otherwise.
16. Membership Interest Certificates. Each Member's Membership Interest in
the Company shall be evidenced by a certificate in the form of Exhibit A
attached hereto (a "Certificate"), and shall constitute a security governed by
Article 8 of the Delaware Uniform Commercial Code-Investment Securities (Del
Code Title 6:Section 8-101, et. seq.).
17. Registrations, Registration of Transfers and Exchanges. The Company
shall maintain all records for the exchange and registration of the Certificates
including all forms of transfer for the Certificates and shall:
(a) Keep at its principal place of business a register (the
"Register") in such form as it may determine, in which, subject to such
reasonable regulations as it may prescribe, it shall provide for the
registration of the Certificates and of transfers thereof;
(b) Ensure that all Certificates presented for transfer shall be
duly endorsed for transfer or be accompanied by a written instrument of
transfer; and
(c) Ensure that each Certificate shall bear an original issue date.
Notwithstanding anything contained herein to the contrary, the Company shall not
be required to ascertain whether any transfer or exchange of Certificates
complies with the registration provisions or exemptions from the Securities Act
of 1933, as amended, the Securities Exchange Act of 1934, as amended, applicable
state securities law or the Investment Company Act of 1945, as amended; provided
that, if a Certificate is specifically required to be delivered to the Company
by a purchaser or transferee of a Certificate, the Company shall be under a duty
to examine the same to determine whether it conforms to the requirements of this
Agreement and shall promptly notify the party delivering the same if such
Certificate does not so conform.
18 Persons Deemed Owners. Prior to due presentment of a Certificate for
registration or transfer, the Company, or any agent or manager of the Company,
may treat the person in whose name such Certificate is registered as the owner
of the Certificate for the purpose of receiving distributions pursuant to this
Agreement and for all other purposes whatsoever, and the Company shall not be
affected by notice to the contrary.
19. Mutilated, Lost, Stolen or Destroyed Certificates. If (i) any
mutilated Certificate is surrendered to the Company, or (ii) the Company
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate, together with indemnity or security sufficient to hold it harmless,
the Company shall execute, and upon its written request the Company shall
authenticate and deliver, in exchange for any such mutilated Certificate or in
lieu of any such destroyed, lost or stolen Certificate, a new Certificate of
like tenor and principal amount, bearing a number not contemporaneously
outstanding. Upon the issuance of any new Certificate under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses in connection therewith. The provisions of this Section are exclusive
and shall preclude (to the
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extent permissible under applicable law) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Certificates.
20. New Members. New Members may be admitted to the Company on such terms
as may be agreed to by all existing Members, and in connection with any such
admission, the Schedule A shall be amended to reflect the name, address and
capital contribution (if any) of the additional Member and any changes in
Membership Percentage of the Members in connection with the admission of the
additional Member.
21. Dissolution. The Company shall dissolve, and its affairs shall be
wound up upon the first to occur of the following (a) the written consent of all
of the Members, (b) the death, retirement, expulsion, insolvency, bankruptcy or
dissolution of a Member or the occurrence of any other event which terminates
the continued membership of a Member in the Company provided that the Company
shall not be dissolved if, within 90 days after any such event, all remaining
Members agree in writing to continue the business of the Company, or (c) the
entry of a decree of judicial dissolution under Section 18-802 of the Act.
22. Limitation on Liability. The debts, obligations and liabilities of the
Company, whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the Company, and no Member or officer of
the Company shall be obligated personally for any such debt, obligation or
liability of the Company solely by reason of being a Member or officer.
23. Amendments. This Agreement may be amended, restated, modified or
supplemented from time to time, only upon the unanimous written approval of the
Members.
24. Governing Law. This Agreement shall be governed by, and construed
under, the laws of the State of Delaware, all rights and remedies being governed
by said laws.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto hereby execute this Agreement of
the Company as of the day and year first above written.
VANGUARD HEALTH HOLDING COMPANY I, LLC
its Member
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx
Executive Vice President
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SCHEDULE A
MEMBERSHIP INTEREST AND
MEMBER AND ADDRESS MEMBERSHIP PERCENTAGE
------------------ -----------------------
VANGUARD HEALTH HOLDING COMPANY I, LLC 100%
00 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
SCHEDULE B
Name Office
---- ------
Xxxxxxx X. Xxxxxx, Xx. Chairman of the Board & Chief Executive Officer
Xxxxx X. Xxxxx Vice Chairman
W. Xxxxxxxx Xxxxx President & Chief Operating Officer
Xxxxxx X. Xxxxx Executive Vice President, Chief Financial Officer & Treasurer
Xxxxxx X. Xxxxxxx Executive Vice President, General Counsel & Secretary
Xxxxxxxx X. Xxxxxxxxxx III Senior Vice President-Market Strategy & Government Relations
Xxxxx X. Xxxxxx Senior Vice President-Compliance & Ethics
Xxxx X. Xxxxxxxx Senior Vice President & Chief Information Officer
Xxxxxx X. Xxxxxxxx Senior Vice President-Development
Xxxxx Xxxxxxxx Senior Vice President-Human Resources
Xxxxxx X. Xxxxxx Senior Vice President-Operations
Xxxxxxx X. Xxx Senior Vice President, Controller & Chief Accounting Officer
Xxxxx X. Xxxxxxxx Senior Vice President, Assistant General Counsel
& Assistant Secretary
Xxxx X. Xxxxxx Senior Vice President-Operations Finance
Xxxx X. Xxxxxxx Senior Vice President-Operations
Xxxxxx X. Ways Senior Vice President-Managed Care & Physician Integration
Xxxxx X. Xxxxxx Vice President-Reimbursement
Xxxxx Xxxxxxxx, M.D. Vice President-Chief Medical Officer
Xxxxxx Xxxxxx Vice President-Physician Services
Xxxxxx X. Xxxxxxx Vice President-Health Information Management
Xxxx X. Xxxx Vice President-Development
Xxxxxx X. Xxxxxx Vice President-Facilities Development
Xxxxx X. Xxxxxx Vice President-Information Systems
Xxxxxxx X. Little Vice President-Regional Financial Operations Controller
Xxxx X. XxXxxx Vice President, Assistant General Counsel & Assistant Secretary
Xxxx X. XxXxxxxx Vice President-Internal Audit
Xxxxxxx X. XxXxxxxxx Vice President, Assistant General Counsel & Assistant Secretary
Xxxxxxxxx X. Xxxxxxx Vice President, Assistant General Counsel & Assistant Secretary
Xxxxx X. Xxxxxxxx Vice President-Regional Financial Operations Controller
Xxxxxxx X. Xxxxx Vice President-Finance
Xxxx X. Xxxxxxx Vice President-Development
Xxxx X. Xxxxxxx Vice President-Tax
Xxxx X. Xxxxxxx Vice President-Business Office Services
Xxxxxx Xxxxxx Vice President-Regional Financial Operations Controller
Xxxxxxx Xxxxx Vice President-Regional Operations
EXHIBIT A
This Certificate has not been and will not be registered under the Securities
Act of 1933, as amended (the "Securities Act"), or any state securities laws and
neither this Certificate nor any interest herein may be offered, sold, pledged
or otherwise transferred except in accordance with the Amended and Restated
Limited Liability Company Agreement of Vanguard Health Holding Company II, LLC,
the Securities Act, and applicable securities laws of any state of the united
states.
CERTIFICATE FOR LIMITED LIABILITY COMPANY
MEMBERSHIP INTERESTS OF VANGUARD HEALTH HOLDING COMPANY II, LLC
Certificate Number _____ Membership Interest - ___%
Vanguard Health Holding Company II, LLC, a Delaware limited liability
company (the "Company"), hereby certifies that ____________________ (the
"Holder") is the registered owner of _____% of the Membership Interests in the
Company (the "Certificate"). This Certificate shall constitute a security
governed by Article 8 of the Delaware Uniform Commercial Code-Investment
Securities (Delaware Code Title 6: Section 8-101, seq.) The rights, powers,
preferences, restrictions and limitations of the Membership Interests are set
forth in, and this Certificate and the Membership Interests hereby represented
are issued and shall in all respects be subject to the terms and provisions of,
the Amended and Restated Limited Liability Company Agreement of the Company,
dated as of September 22, 2004, as the same may be amended from time to time
(the "Company Agreement"). Capitalized terms used herein and not otherwise
defined have the meaning ascribed to them in the Company Agreement. THIS
CERTIFICATE IS TRANSFERABLE ONLY IN ACCORDANCE WITH THE TERMS OF THE COMPANY
AGREEMENT, WHICH IMPOSES CERTAIN LIMITATIONS AND RESTRICTIONS ON TRANSFERS OF
MEMBERSHIP INTERESTS. By acceptance of this Certificate, and as a condition to
being entitled to any rights and/or benefits with respect to the Membership
Interests evidenced hereby, a registered Holder hereof (including any registered
transferee hereof) is deemed to have agreed, to comply with and be bound by all
terms and conditions of the Company Agreement. The Company will furnish a copy
of such Company Agreement to each Member without charge upon written request to
the Company at is principal place of business or registered office, as the case
may be.
Date: __________, 2004 VANGUARD HEALTH HOLDING COMPANY II, LLC
By: Vanguard Health Holding Company I, LLC
Sole Member
By:_____________________________
Xxxxxx X. Xxxxxxx
Executive Vice President
