EXHIBIT 2.2
EXECUTION VERSION
FIRST AMENDMENT
TO AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT dated as of September 23, 2004 to the Agreement and Plan
of Merger (the "AGREEMENT") dated as of July 23, 2004, by and among VHS Holdings
LLC, a Delaware liability limited company ( "PARENT"), Health Systems
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Parent (the "SUB") and Vanguard Health Systems, Inc. a Delaware Corporation (the
"COMPANY") (collectively, the "PARTIES").
W I T N E S S E T H:
WHEREAS, the Parties, pursuant to Section 9.03 of the Agreement, desire to
amend the Agreement to reflect the changes set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
Section 1. Escrow . Section 3.09 of the Agreement is hereby amended and
restated in its entirety as follows:
Notwithstanding any other provision of this Article 3 to the contrary,
with respect to any holder of Company Series B Stock, Common Shares,
Options or the 8.18% Note that is not and does not become prior to the
Effective Time a party to the Indemnification Agreement or otherwise
elects to be subject to this Section 3.09, Parent and the Company shall
withhold from the aggregate consideration otherwise payable to such holder
pursuant to Section 3.01(b), 3.01(c), 3,04(a) or 3.08, respectively, an
amount equal to (a) the product of (i) $50,000,000 times (ii) the
applicable escrow percentage with respect to such holder as set forth in a
schedule to be delivered by the Company to Parent prior to the Effective
Time plus (b) the product of (i) $100,000 times (ii) the applicable escrow
percentage with respect to such holder as set forth in a schedule to be
delivered by the Company to Parent prior to the Effective Time. All such
amounts so withheld shall be deposited in escrow promptly after the
Effective Time with a third-party escrow agent reasonably acceptable to
each of Parent and the Company (pursuant to an escrow agreement containing
commercially reasonable terms among Parent, the Company and the
Stockholders' Representative (as defined in the Indemnification
Agreement)) for the purpose of funding indemnification and other payments
(including payments to the
Stockholder's representative pursuant to Section 5.04 of the
Indemnification Agreement) substantially on the terms, subject to the
conditions and in the manner described in, and on a pro rata basis with
any indemnification or other payments (including payments to the
Stockholder's representative pursuant to Section 5.04 of the
Indemnification Agreement) made under, the Indemnification Agreement.
Section 2. Metalmark Subadvisor LLC. Sections 8.02(c) and 8.03(g) of the
Agreement are hereby amended by deleting the term "Metalmark Subadvisor LLC" and
inserting, in lieu thereof, the term "Metalmark Management LLC".
Section 3. Effect of Amendment. This First Amendment shall not constitute
an amendment or modification of any provision of, or schedule to, the Agreement
not expressly referred to herein. Except as expressly amended or modified
herein, the provisions and schedules of the Agreement are and shall remain in
full force and effect.
Section 4. Choice of Law. This First Amendment and the rights of the
parties under it will be governed by and construed in all respects in accordance
with the laws of the State of Delaware, without giving effect to the provisions
thereof relating to conflicts of law.
SECTION 5. References. Capitalized terms used herein and not otherwise
defined shall have the meanings assigned to such terms in the Agreement. Each
reference to "hereof", "hereunder", "herein" and "hereby" and each other similar
reference and each reference to "this Agreement" and each other similar
reference contained in the Agreement shall refer to the Agreement as amended
hereby.
Section 6. Counterparts. This First Amendment may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which shall constitute one and the same agreement. This First Amendment shall
become effective when each party hereto shall have received a counterpart hereof
signed by each of the other parties hereto. Until and unless each party has
received a counterpart hereof signed by each of the other parties hereto, this
First Amendment shall have no effect and no party shall have any right or
obligation hereunder (whether by virtue of any other oral or written agreement
or other communication).
2
EXECUTION VERSION
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
as of the day and year first above written.
VHS HOLDINGS LLC
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: President and Treasurer
HEALTH SYSTEMS ACQUISITION CORP.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: President and Treasurer
VANGUARD HEALTH SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President,
Treasurer and Chief Financial
Officer
