AMENDMENT NO. 5 TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.94
AMENDMENT NO. 5
TO
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amendment No. 5 (this “Amendment’) dated as of May 31, 2011, is made by and
between Vanguard Health Systems, Inc., a Delaware corporation (the “Company”), and Xxxxx X.
Xxxxx (the “Executive”).
WHEREAS, the Company and the Executive executed a certain Amended and Restated Employment
Agreement dated as of September 23, 2004, as further amended (collectively, the “EA”), to
secure the services of the Executive as Vice Chairman; and
WHEREAS, the Company and the Executive wish the make certain technical amendments to the EA in
contemplation of, among other things, the Company’s initial public offering of its common stock.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
the Company and the Executive hereby agree that the EA is amended as follows:
1. Defined Terms. Except for those terms defined above and the change in the
definition of “Change in Control” adopted pursuant to this Amendment, the definitions of
capitalized terms used in this Amendment are as provided in the EA.
2. Amendment to Section 10(h). Section 10(h) of the EA is hereby deleted and replaced
with the following new Section 10(h):
“(h) Change in Control. For purposes of this Agreement, a Change in Control of the
Company shall mean the occurrence of any of the following events:
(i) any person or group, other than the Permitted Holders, is or becomes the
“beneficial owner” (as defined in rules 13d-3 and 13d-5 under the Act) directly or
indirectly of more than 50% of the total voting power of the voting stock of the Company,
including by way of merger, consolidation or otherwise;
(ii) a reorganization, recapitalization, merger or consolidation (a “Corporate
Transaction”) involving the Company, unless securities representing 50% or more of the
combined voting power of the then outstanding voting securities entitled to vote generally
in the election of directors of the Company or the corporation resulting from such Corporate
Transaction (or the parent of such corporation) are held subsequent to such transaction by
the person or persons who were the “beneficial owners” of the outstanding voting securities
entitled to vote generally in the election of directors of the Company immediately prior to
such Corporate Transaction, in substantially the same proportions as their ownership
immediately prior to such Corporate Transaction;
(iii) the sale or disposition, in one or a series of related transactions, of all or
substantially all, of the assets of the Company to any “person” or “group” (as such
terms are defined in Sections 13(d)(3) or 14(d)(2) of the Act) other than the Permitted
Holders; or
(iv) during any period of 12 months, individuals who at the beginning of such period
constituted the Company’s Board of Directors (the “Board), together with any new directors
whose election by the Board or whose nomination for election by the stockholders of the
Company was approved by a vote of a majority of the directors of the Company (then still in
office) who were either directors at the beginning of such period or whose election or
nomination for election was previously so approved, cease for any reason to constitute a
majority of the Board, then in office;
provided, however, that such transaction also constitutes a change in control event within
the meaning of Section 409A.
The term Permitted Holders as used above shall mean any of (i) Blackstone or its affiliates,
(ii) an employee benefit plan (or trust forming a part thereof) maintained by (A) the
Company or (B) any corporation or other person or entity of which a majority of its voting
power of its voting equity securities or equity interest is owned, directly or indirectly,
by the Company, and (iii) VHS Holdings LLC, a Delaware limited liability company, or any of
its subsidiaries. The term Blackstone as used above shall mean each of of Blackstone FCH
Capital Partners IV L.P., Blackstone Health Commitment Partners L.P., Blackstone Capital
Partners IV-A L.P., Blackstone Family Investment Partnership IV-A L.P., Blackstone Health
Commitment Partners-A L.P., Blackstone FCH Capital Partners IV-B L.P., and Blackstone FCH
Capital Partners IV-A L.P., and their respective Affiliates.”
3. Amendment to Section 11(e)(i). Section 11(e)(i) of the EA shall be amended by
adding the following phrase to the end of the paragraph as follows:
“; for greater certainty, the pro-rata portion of the Executive’s current year annual bonus
will be determined following the end of the applicable measurement period and will be paid
at the same as annual bonuses are otherwise paid to the Company’s senior executives.”
4. Amendment to Section 11(g). Section 11(g) of the EA shall be amended by adding the
following sentence to the end of Section 11(g):
“Notwithstanding the foregoing, for purposes of Section 409A, the right to a series of
installment payments under this Agreement shall be treated as a right to a series of
separate payments and, in addition, any payment that is otherwise exempt from the
application of Section 409A shall not be included in the calculation of Deferred
Compensation Separation Benefits.”
5. Ratification. All other provisions of the EA remain unchanged and are hereby
ratified by the Company and the Executive.
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IN WITNESS WHEREOF, the Company has caused this Amendment to be executed by its duly
authorized officer and the Executive has executed this Amendment, each as of the day and year first
set forth above.
| Vanguard Health Systems, Inc. | ||||||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||||
| Name: Xxxxxx X. Xxxxxxx | ||||||||
| Title: Executive Vice President | ||||||||
| Executive: | ||||||||
| /s/ Xxxxx X. Xxxxx | ||||||||
| Xxxxx X. Xxxxx | ||||||||
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