MANAGEMENT AGREEMENT
Exhibit 10.20
This Management Agreement (this “Agreement”) is entered into as of November 17, 2006
by and among HCA Inc., a Delaware corporation (the “Company”), Xxxx Capital Partners, LLC
(“Bain”), Kohlberg Kravis Xxxxxxx & Co. L.P. (“KKR”), Xx. Xxxxxx X. Xxxxx, Xx.,
Xxxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx and Xxxxxx X. Xxxxx III (each, a “Xxxxx” and
collectively, “Xxxxx”) (“Xxxxx”) and Xxxxxxx Xxxxx Global Partners, Inc.
(“ML” and together with Bain, KKR and each Xxxxx, the “Managers”), provided that
each such entity shall cease to be a “Manager” for all purposes hereunder at such time as
investment funds affiliated with or Affiliated Entities of such Manager are no longer entitled to
designate any members of the Board of Managers of Hercules Holding II, LLC (“LLC”).
Certain capitalized terms used herein are specifically defined in Section 6.
RECITALS
WHEREAS, each of LLC and Hercules Acquisition Corporation, a Delaware corporation
(“Hercules Acquisition”), has been formed for the purpose of engaging in a transaction in
which Hercules Acquisition will be merged with and into the Company, with the Company surviving
(the “Merger”), pursuant to an Agreement and Plan of Merger between Hercules Acquisition,
the Company and LLC dated as of July 24, 2006 (as amended from time to time, the “Merger
Agreement”).
WHEREAS, to enable Hercules Acquisition to engage in the Merger and related transactions, the
Managers provided financial and structural advice and analysis as well as assistance with due
diligence investigations and negotiations (the “Financial Advisory Services”); and
WHEREAS, the Company wants to retain the Managers to provide certain management, consulting
and advisory services to the Company, and the Managers are willing to provide such services, on the
terms set forth below.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Services. Each of the Managers hereby agrees that, during the term of this
Agreement (the “Term”), it will provide the following management, consulting and financial
and other advisory services to the Company as requested from time to time by the Board of Directors
of the Company:
(a) advice in connection with the negotiation of agreements, contracts, documents and
instruments relating to the Company’s financing;
(b) financial, managerial and operational advice in connection with the Company’s
business, including, without limitation, advice with respect to the development and
implementation of strategies for improving the operating and financial performance of the
Company and its subsidiaries; and
(c) advice in connection with financing, acquisition, disposition, merger, combination
or change of control transactions involving the Company or any of its subsidiaries (however
structured).
(d) such other services (which may include financial and strategic planning and
analysis, consulting services, human resources and executive recruitment services and other
services) as such Manager and the Company may from time to time agree in writing.
Each of the Managers shall devote such time and efforts to the performance of services contemplated
hereby as such Manager deems reasonably necessary or appropriate; provided, however, that no
minimum number of hours is required to be devoted by Bain, KKR, ML or each Xxxxx on a weekly,
monthly, annual or other basis. The Company acknowledges that each of the Managers’ services are
not exclusive to the Company and that each Manager will render similar services to other persons
and entities. The Managers and the Company understand that the Company may, at times, engage one
or more investment bankers or financial advisers to provide services in addition to, but not in
lieu of, services provided by the Managers under this Agreement. In providing services to the
Company, each Manager will act as an independent contractor and it is expressly understood and
agreed that this Agreement is not intended to create, and does not create, any partnership, agency,
joint venture or similar relationship and that no party has the right or ability to contract for or
on behalf of any other party or to effect any transaction for the account of any other party.
2. Payment of Fees.
(a) The Company will pay to the Managers (or such affiliates as they may respectively
designate), in consideration of the Managers providing the Financial Advisory Services, an
aggregate transaction fee (the “Transaction Fee”) in the amount of $175,000,000,
such fee being payable at the closing of the Merger. The Transaction Fee shall be divided
among the Managers as follows:
Bain: |
$ | 48,611,111.11 | ||
KKR: |
$ | 48,611,111.11 | ||
ML: |
$ | 48,611,111.11 | ||
Frist1: |
$ | 29,166,666.67 |
(b) During the Term, the Company will pay to the Managers (or such affiliates as they
may respectively designate), an annual fee (the “Periodic Fee”) of $15,000,000, such
fee to be increased annually at a rate equal to the Percentage Increase in Adjusted EBITDA
over the previous year, effective as of March 31 of each such year, (the first such increase
to be effective March 31, 2008) in exchange for the ongoing services provided by the
Managers under Section 1 of this Agreement, such fee being payable by the Company in equal
quarterly installments in arrears at the end of each
| 1 | To be allocated as follows: (i) Xxxxxx X. Xxxxx, Xx.: $10,496,208.33; (ii) Xxxxxxxx X. Xxxxx: 6,117,416.67; (iii) Xxxxxx X. Xxxxx III: $4,503,800.00 and (iv) Xxxxxxx X. Xxxxx: $8,049,241.67. |
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calendar quarter. The initial quarterly Periodic Fee payment shall be pro rated to
reflect the portion of the current fiscal quarter that will elapse after the Merger. The
final quarterly Periodic Fee payment shall be pro rated to reflect the portion of the final
quarter prior to the end of the Term. The Periodic Fee shall initially be divided among the
Managers as follows: 3/15ths to Frist2 and 4/15ths to each of Bain, KKR and ML.
The allocation of the Periodic Fee shall be appropriately adjusted in the event of any
changes to the proportion of the number of Shares owned in the aggregate by each Manager and
its Affiliated Entities (directly, or indirectly through their holdings of units of the LLC)
on the last business day in the applicable calendar quarter for which such Periodic Fee is
required to be paid (provided that, for purposes of this Agreement, (i) the Xxxx Group and
their respective Affiliated Entities shall be deemed to be investment funds affiliated with
Bain; (ii) the KKR Group and their respective Affiliated Entities shall be deemed to be
investment funds affiliated with KKR, (iii) the ML Group and their respective Affiliated
Entities shall be deemed to be investment funds affiliated with ML; and (iv) the Family
Group and their respective Family Affiliates shall be deemed to be investment funds
affiliated with Xxxxx).
(c) The Company will, for each financing, acquisition, disposition, merger, combination
or change of control transaction involving the Company or any of its subsidiaries (however
structured), which has a gross transaction value of at least $100,000,000, pay to the
Managers (or such affiliates as they may respectively designate) an aggregate fee (the
“Subsequent Fee”) in connection with each such transaction equal to one percent (1%)
of the gross transaction value (including the purchase price paid (whether in cash or other
property) and all liabilities assumed or otherwise included in the transaction) of such
transaction or such other amount as may be mutually agreed by the Company and the Requisite
Members, such fee to be due and payable for the foregoing services at the closing of such
transaction and, in the case of financing transactions, whether or not any such financing is
actually committed or drawn upon. Each Subsequent Fee shall be divided among the Managers
in the same proportion as the Periodic Fee would be apportioned if the date such Subsequent
Fee is required to be paid were the last business day of a quarter.
3. Term. This Agreement shall continue in full force and effect until December 31,
2016; provided that this Agreement shall be automatically extended each December 31 for an
additional year unless the Company or the Requisite Members provide written notice of their desire
not to automatically extend the term of this Agreement to the other parties hereto at least 90 days
prior to such December 31; provided, however, (a) that the Requisite Members may cause this
Agreement to terminate at any time and (b) this Agreement shall terminate automatically immediately
upon the consummation of an initial public offering unless the Requisite Members determine
otherwise. In the event of a termination of this Agreement, the Company shall pay each of the
Managers (or such affiliates as they may respectively designate) (i) all unpaid Periodic Fees
(pursuant to Section 2(b) above), Subsequent Fees (pursuant to
| 2 | To be allocated to each Xxxxx, in consideration of each Xxxxx providing the ongoing services provided by the Managers under Section 1 as follows: (i) Xxxxxx X. Xxxxx, Xx.: 35.987023%; (ii) Xxxxxxxx X. Xxxxx: 20.974009%; (iii) Xxxxxx X. Xxxxx III: 15.441588% and (iv) Xxxxxxx X. Xxxxx: 27.597380%. |
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Section 2(c) above) and expenses (pursuant to Section 4(a) below) due with respect to periods
prior to the date of termination plus (ii) the sum of the net present values (using discount rates
equal to the then yield on U.S. Treasury Securities of like maturity) of the Periodic Fees that
would have been payable with respect to the period from the date of termination until the
expiration date in effect immediately prior to such termination. The amounts described in clause
(ii) above shall be divided among the Managers in the same proportion as the Periodic Fee would be
apportioned if the applicable termination date were the last business day of a quarter. Sections 4
and 5 of this Agreement and any and all accrued and unpaid obligations under Section 2 shall survive
any termination of this Agreement with respect to matters occurring before, on or after the date of
such termination.
4. Expenses; Indemnification.
(a) Expenses. The Company will pay on demand all Reimbursable Expenses. As
used herein, “Reimbursable Expenses” means (i) all expenses incurred or accrued
prior to the date on which the transactions contemplated by the Merger Agreement are
consummated (the “Closing Date”) by any of the Managers or their affiliates
(including, in the case of Xxxxx, the Family Group and their respective Family Affiliates)
in connection with this Agreement, the Merger or any related transactions, consisting of
their respective out-of-pocket expenses for travel and other incidentals in connection with
such transactions (including, without limitation, all air travel (by first class on a
commercial airline, by charter or by privately owned airplane, as determined by the party
seeking reimbursement) and other travel related expenses) and the out-of-pocket expenses and
the fees and charges of outside counsel and any other consultants or advisors retained by
the Managers in connection with such transactions, (ii) reasonable out-of-pocket expenses
incurred from and after the Closing Date relating to their affiliated funds’ or Affiliated
Entities’ investment in, the operations of, or the services provided by the Managers or
former Managers to, the Company or any of its affiliates from time to time (including,
without limitation, all air travel (by first class on a commercial airline, by charter or by
privately owned airplane, as determined by the appropriate Manager or former Manager) and
other travel related expenses), provided, however, that the Requisite Members must approve
any expenses referred to in this clause (ii) other than routine out-of-pocket expenses (it
being understood that expenses of outside counsel incurred by the Managers for advice in the
ordinary course regarding the investment, as well as regarding any transactions involving
such investment, shall be deemed approved hereunder), and (iii) expenses incurred from and
after the Closing Date by the Managers or former Managers, and their affiliates, which the
Requisite Members agree are properly allocable to the Company under this Agreement.
(b) Indemnity and Liability. The Company will indemnify, exonerate and hold
each of the Managers and former Managers, and each of their respective partners,
shareholders, members, affiliates, directors, officers, fiduciaries, managers, controlling
Persons, employees and agents and each of the partners, shareholders, members, affiliates,
directors, officers, fiduciaries, managers, controlling Persons, employees and agents of
each of the foregoing (collectively, the “Indemnitees”) free and harmless from and
against any and all actions, causes of action, suits, claims, liabilities, losses, damages
and costs and out-of-pocket expenses in connection therewith (including reasonable
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attorneys’ fees and expenses) incurred by the Indemnitees or any of them before or
after the date of this Agreement (collectively, the “Indemnified Liabilities”), as a
result of, arising out of, or in any way relating to (i) this Agreement, the Merger, any
transaction to which the Company is a party or any other circumstances with respect to the
Company (other than any such Indemnified Liabilities to the extent such Indemnified
Liabilities arise out of any breach of the LLC Agreement or any related agreements by such
Indemnitee or its affiliated or associated Indemnitees or any transaction entered into after
the Closing Date or (ii) operations of, or services provided by any of the Managers or
former Managers to the Company, or any of its affiliates from time to time, whether pursuant
to this Agreement or otherwise; provided that the foregoing indemnification rights shall not
be available to the extent that any such Indemnified Liabilities arose on account of such
Indemnitee’s gross negligence or willful misconduct, and further provided that, if and to
the extent that the foregoing undertaking may be unavailable or unenforceable for any
reason, the Company hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under applicable
law. For purposes of this Section 4(b), none of the circumstances described in the
limitations contained in the two provisos in the immediately preceding sentence shall be
deemed to apply absent a final non-appealable judgment of a court of competent jurisdiction
to such effect, in which case to the extent any such limitation is so determined to apply to
any Indemnitee as to any previously advanced indemnity payments made by the Company, then
such payments shall be promptly repaid by such Indemnitee to the Company.
The rights of any Indemnitee to indemnification hereunder will be in addition to any other
rights any such person may have under any other agreement or instrument referenced above or
any other agreement or instrument to which such Indemnitee is or becomes a party or is or
otherwise becomes a beneficiary or under law or regulation. None of the Indemnitees shall
in any event be liable to the Company or any of its affiliates for any act or omission
suffered or taken by such Indemniee in connection with, relating to or arising out of this
Agreement, including without limitation the services provided by such Indemniee to the
Company or any of its affiliates (a) that does not constitute gross negligence or willful
misconduct or (b) in excess of the fees received by the applicable Manager hereunder. If
the Indemnitees related to more than one Manager or former Manager are similarly situated
with respect to their interests in connection with a matter that may be an Indemnified
Liability and such Indemnified Liability is not based on a Third-Party Claim, the
Indemnitees may enforce their rights pursuant to this Section 4(b) with respect to such
matter only with the consent of at least a majority of the Managers or former Managers whose
Indemnitees are so involved. In the event that any party that was previously a Manager
hereunder ceases to be a Manager in accordance with the definition thereof, the provisions
hereof for the benefit of Indemnitees of such party shall inure to such Indemnitees and
their successors and assigns.
5. Disclaimer and Limitation of Liability; Opportunities.
(a) Disclaimer; Standard of Care. None of the Managers or former Managers
makes any representations or warranties, express or implied, in respect of the services to
be provided by any Manager or former Manager hereunder. In no event shall any
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Manager or former Manager be liable to the Company or any of its affiliates for any
act, alleged act, omission or alleged omission that does not constitute gross negligence or
willful misconduct of such Manager or former Manager as determined by a final,
non-appealable determination of a court of competent jurisdiction.
(b) Limitation of Liability. In no event will any of the Managers or former
Managers or any of their Indemnitees be liable to the Company or any of its affiliates or
either of the other Managers or former Managers or their Indemnitees for any indirect,
special, incidental or consequential damages, including, without limitation, lost profits or
savings, whether or not such damages are foreseeable, or for any third party claims (whether
based in contract, tort or otherwise), relating to, in connection with or arising out of
this Agreement, including without limitation the services to be provided by the Managers or
former Managers hereunder, or for any act or omission that does not constitute gross
negligence or willful misconduct or in excess of the fees received by the applicable Manager
hereunder.
6. Definitions. For purposes of this agreement, the following terms shall have the
following meanings:
“Adjusted EBITDA” shall have the meaning given to such term in the Indenture
dated as of November 17, 2006 between and among the Company, the guarantors listed on the
signature pages thereto and The Bank of New York, as trustee, relating to the issuance of
the 9 1/8% Senior Secured Notes due 2014, the 9 1/4 Senior Secured Notes due 2016 and the 9
5/8%/10 3/8% Senior Secured Toggle Notes due 2016.
“Affiliated Entities” shall have the same meaning given to it in the LLC
Agreement.
“Xxxx Group” shall have the meaning given to such term in the LLC Agreement.
“Family Affiliates” shall have the same meaning given to it in the LLC
Agreement.
“Family Group” shall have the meaning given to such term in the LLC Agreement.
“KKR Group” shall have the meaning given to such term in the LLC Agreement.
“LLC Agreement” means the Amended and Restated Limited Liability Company
Agreement dated November 17, 2006 among Hercules Holding II, LLC and the other parties
thereto, as the same may be amended from time to time in accordance with its terms.
“Xxxxxxx Xxxxx Group” shall have the meaning given to such term in the LLC
Agreement.
“Percentage Increase in Adjusted EBITDA” means the amount of increase,
expressed as a percentage, of the Adjusted EBITDA for the most recently completed
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fiscal year as compared to the Adjusted EBITDA of the next most recently completed
fiscal year; provided that if there is no such increase, then the “Percentage Increase in
Adjusted EBITDA” shall be 0% for such applicable year.
“Person” means any individual or corporation, association, partnership, limited
liability company, joint venture, joint stock or other company, business trust, trust,
organization, or other entity of any kind.
“Requisite Members” shall have the meaning given to such term in the LLC
Agreement.
“Shares” shall mean the shares of HCA Common Stock (as defined in the LLC
Agreement).
“Third-Party Claim” means any (i) claim brought by a Person other than the
Company, LLC, a Manager or any indemnified Person related to a Manager and (ii) any
derivative claim brought in the name of the Company or LLC that is initiated by a Person
other than a Manager or any indemnified Person related to a Manager.
7. Assignment, etc. Except as provided below, none of the parties hereto shall have
the right to assign this Agreement without the prior written consent of each of the other parties.
Notwithstanding the foregoing, (a) any Manager may assign all or part of its rights and obligations
hereunder to any of its respective affiliates which provides services similar to those called for
by this Agreement, in which event such Manager shall be released of its rights to fees under
Section 2 and reimbursement of expenses under Section 4(a) and all of its obligations hereunder,
(b) the provisions hereof for the benefit of Indemnitees of the Managers shall inure to the benefit
of such Indemnitees and their successors and assigns and (c) all amounts due and owing or payable
hereunder to any of the individuals identified in footnote 2 hereof shall be paid when due or owing
under the terms hereof to such person’s estate ; provided, that, the Company shall have
received written notice of such person’s death and all amounts that would be payable hereunder to
any of the individuals identified in footnote 2 hereof shall, after such persons death, be payable
pro rata among the other individuals identified in footnote 2.
8. Amendments and Waivers. No amendment or waiver of any term, provision or condition
of this Agreement shall be effective, unless in writing and executed by the Requisite Members and
the Company; provided, that any amendment or waiver that discriminates against or would adversely
affect a Manager will require the consent of such Manager; and provided, further that any Manager
may waive any portion of any fee to which it is entitled pursuant to this Agreement, and, unless
otherwise directed by such Manager, such waived portion shall revert to the Company. No waiver on
any one occasion shall extend to or effect or be construed as a waiver of any right or remedy on
any future occasion. No course of dealing of any person nor any delay or omission in exercising
any right or remedy shall constitute an amendment of this Agreement or a waiver of any right or
remedy of any party hereto.
9. Governing Law: Jurisdiction.
(a) Choice of Law. This Agreement and all matters arising under or related to
this Agreement shall be governed by and construed in accordance with the domestic
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substantive laws of the State of Delaware without giving effect to any choice or
conflict of law provision or rule that would cause the application of the domestic
substantive laws of any other jurisdiction.
(b) Consent to Jurisdiction. Each party to this Agreement, by its execution
hereof, (i) hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the State of Delaware for the purpose of any action, claim, cause
of action or suit (in contract, tort or otherwise), inquiry, proceeding or investigation
arising out of or based upon this Agreement or relating to the subject matter hereof, (ii)
hereby waives to the extent not prohibited by applicable law, and agrees not to assert, and
agrees not to allow any of its subsidiaries to assert, by way of motion, as a defense or
otherwise, in any such action, any claim that it is not subject personally to the
jurisdiction of the above-named courts, that its property is exempt or immune from
attachment or execution, that any such proceeding brought in one of the above-named courts
is improper, or that this Agreement or the subject matter hereof or thereof may not be
enforced in or by such court and (iii) hereby agrees not to commence or maintain any action,
claim, cause of action or suit (in contract, tort or otherwise), inquiry, proceeding or
investigation arising out of or based upon this Agreement or relating to the subject matter
hereof or thereof other than before one of the above-named courts nor to make any motion or
take any other action seeking or intending to cause the transfer or removal of any such
action, claim, cause of action or suit (in contract, tort or otherwise), inquiry, proceeding
or investigation to any court other than one of the above-named courts whether on the
grounds of inconvenient forum or otherwise. Notwithstanding the foregoing, to the extent
that any party hereto is or becomes a party in any litigation in connection with which it
may assert indemnification rights set forth in this agreement, the court in which such
litigation is being heard shall be deemed to be included in clause (i) above.
Notwithstanding the foregoing, any party to this Agreement may commence and maintain an
action to enforce a judgment of any of the above-named courts in any court of competent
jurisdiction. Each party hereto hereby consents to service of process in any such
proceeding in any manner permitted by Delaware law, and agrees that service of process by
registered or certified mail, return receipt requested, at its address specified pursuant to
Section 11 hereof is reasonably calculated to give actual notice.
(c) WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH
CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT
(WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN
RESPECT OF ANY ISSUE OR ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR
OTHERWISE), INQUIRY, PROCEEDING OR INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT
OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING.
EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO THAT
THIS SECTION 9(c) CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY ARE RELYING AND WILL
RELY IN ENTERING INTO THIS AGREEMENT AND
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THE TRANSACTIONS CONTEMPLATED HEREBY. ANY PARTY HERETO MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION 9(c) WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
10. Entire Agreement. This Agreement contains the entire understanding of the parties
with respect to the subject matter hereof and supersedes any prior communication or agreement with
respect thereto.
11. Notice. Any notices and other communications required or permitted in this
Agreement shall be in writing and (a) delivered personally, (b) sent by facsimile or e-mail (if
provided and the recipient acknowledges receipt thereof by reply e-mail or otherwise), or (c) sent
by overnight courier, in each case, addressed as follows:
If to the Company, to it:
HCA Inc.
Xxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Email:
Xxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Email:
with copies to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esq.
Email: xxxxxxx@xxxxxx.xxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esq.
Email: xxxxxxx@xxxxxx.xxx
If to Bain, to it:
Xxxx Capital Partners, LLC
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxxxxxx
E-mail: xxxxxxxxxxxx@xxxxxxxxxxx.xxx
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxxxxxx
E-mail: xxxxxxxxxxxx@xxxxxxxxxxx.xxx
with copies to:
Ropes & Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: X. Xxxxxxx Xxxxxxxxx, Esq.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: X. Xxxxxxx Xxxxxxxxx, Esq.
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Xxxxx X. Xxxxx, Esq.
E-mail: xxxxxxxxxx@xxxxxxxxx.xxx
xxxxxx@xxxxxxxxx.xxx
E-mail: xxxxxxxxxx@xxxxxxxxx.xxx
xxxxxx@xxxxxxxxx.xxx
If to KKR, to it:
x/x Xxxxxxxx Xxxxxx Xxxxxxx & Xx. X.X.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx
E-mail: xxxxx@xxx.xxx
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx
E-mail: xxxxx@xxx.xxx
with copies to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esq.
Xxxx Xxxxxxx, Esq.
E-mail: xxxxxxx@xxxxxx.xxx
xxxxxxxx@xxxxxx.xxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esq.
Xxxx Xxxxxxx, Esq.
E-mail: xxxxxxx@xxxxxx.xxx
xxxxxxxx@xxxxxx.xxx
If to ML, to it:
c/o Merrill Xxxxx Global Private Equity
Four World Financial Xxxxxx, Xxxxx 00
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
Xxxxxxxxxxx Xxxxxxx
Four World Financial Xxxxxx, Xxxxx 00
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
Xxxxxxxxxxx Xxxxxxx
with copies (which shall not constitute notice) to:
c/o Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Gerkis, Esq.
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxx X. Xxxxxxx, Esq.
and a copy to:
Xxxxxxx Xxxxx Global Private Equity
Strategic M&A and Private Equity Counsel
Strategic M&A and Private Equity Counsel
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Four World Financial Xxxxxx, Xxxxx 00
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
If to Xxxxx, to it:
c/o Xx. Xxxxxx X. Xxxxx, Xx.
0000 Xxxx Xxx Xxx., Xxxxx 000
Xxxxxxxxx, XX 000000
Telecopy: (000) 000-0000
0000 Xxxx Xxx Xxx., Xxxxx 000
Xxxxxxxxx, XX 000000
Telecopy: (000) 000-0000
with copies to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
Unless otherwise specified herein, such notices or other communications shall be deemed
effective and duly given upon actual receipt (or refusal of receipt). Each of the parties hereto
shall be entitled to specify a different address by giving notice as aforesaid to each of the other
parties hereto.
12. Severability. In the event that any provision hereof would, under applicable law,
be invalid or unenforceable in any respect, such provision shall be construed by modifying or
limiting it so as to be valid and enforceable to the maximum extent compatible with, and possible
under, applicable law. The provisions hereof are severable, and in the event any provision hereof
should be held invalid or unenforceable in any respect, it shall not invalidate, render
unenforceable or otherwise affect any other provision hereof.
13. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which taken together shall constitute one instrument.
A facsimile signature shall be considered due execution and shall be binding upon the signatory
thereto with the same force and effect as if the signature were an original.
14. Payments. Each payment made pursuant to Section 2, 3 or 4 shall be paid by wire
transfer of immediately available federal funds to the accounts specified to the Company in writing
prior to such payment.
[Remainder of Page Intentionally Left Blank]
11
IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement (or caused this
Agreement to be executed on its behalf by its officer or representative thereunto duly authorized)
under seal as of the date first above written.
| HCA INC. |
||||
| By: | /s/ R. Xxxxxx Xxxxxxx | |||
| Name: | R. Xxxxxx Xxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[Management Agreement Signature Page]
| HERCULES HOLDING II, LLC |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | President | |||
[Management Agreement Signature Page]
| XXXX CAPITAL PARTNERS, LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Managing Director | |||
[Management Agreement Signature Page]
| KOHLBERG KRAVIS XXXXXXX & CO. L.P. |
||||||
| By: KKR & CO. LLC, its general partner | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Member | |||
[Management Agreement Signature Page]
| XXXXXXX XXXXX GLOBAL PARTNERS, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Managing Director | |||
[Management Agreement Signature Page]
IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement (or \
caused this Agreement to be executed on its behalf by its officers or representatives as thereunto duly
authorized) under seal as of the date that above written.
| HCA INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXX CAPITAL PARTNERS, LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| KOHLBERG FRAVIS XXXXXXX CO, L.P. |
||||||
| By: KKR & CO. LLC, its general partner | ||||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXXXXX XXXXX GLOBAL PARTNERS, INC. |
||||
| By: | ||||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | President | |||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||
| Name: | Xx. Xxxxxx X. Xxxxx, Xx. | |||
| By: | /s/ Xxxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxxx X. Xxxxx | |||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| By: | /s/ Xxxxxx X. Xxxxx III | |||
| Name: | Xxxxxx X. Xxxxx III | |||
