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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
August 22, 1995
VENCOR, INC.
(Exact name of registrant as specified in its charter)
STATE OF DELAWARE 1-10989 61-1055020
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
3300 PROVIDIAN CENTER
400 WEST MARKET STREET
LOUISVILLE, KENTUCKY 40202
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (502) 569-7300
N/A
(Former name or former address, if changed since last report)
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Item 5. Other Events
On August 22, 1995, the Registrant, Vencor, Inc., entered into
an Agreement, dated as of August 22, 1995 (the "Agreement"), among the
Registrant, The Hillhaven Corporation, a Nevada corporation ("Hillhaven")
and Tenet Healthcare Corporation, a Nevada corporation and stockholder of
Hillhaven ("Tenet"). The Agreement is filed as an exhibit hereto.
Pursuant to the Agreement, Tenet has agreed to vote the shares
of Hillhaven Series C Preferred Stock, par value $0.15 per share, and
Hillhaven Series D Preferred Stock, par value $0.15 per share, it
beneficially owns in favor of the Amended and Restated Agreement and Plan
of Merger, dated as of April 23, 1995 and as amended and restated as of
July 31, 1995 providing for the merger of Hillhaven with and into the
Registrant (the "Merger"). In addition, Tenet has agreed that, unless
Hillhaven receives a proposal for a merger or consolidation that Tenet deems
superior to the Merger, it will not solicit proxies or participate in a
solicitation in opposition to the consummation of the Merger. Tenet has not
entered into any agreement with respect to voting its shares of common stock
of Hillhaven.
Tenet has further agreed, among other things, that after any
Request Event (as defined below) for seven years following the consummation
of the Merger it will not (a) acquire any common stock, or any rights,
securities or options to acquire common stock, of the Registrant ("Voting
Securities") or advise, encourage or influence any person to acquire Voting
Securities, (b) participate in the solicitation of proxies to vote, or
communicate with or seek to advise, encourage or influence a person to vote
any Voting Securities, (c) participate in a group in connection with Voting
Securities, (d) deposit Voting Securities into a voting trust or subject
Voting Securities to any such arrangement or agreement, except as provided
for in the Agreement, (e) otherwise seek, or assist or encourage another
person to seek, control or influence the management, Board of Directors,
policies or affairs of the Registrant, or (f) request the Registrant to
waive or amend any of (a) through (e) above. A "Request Event" includes
(a) a request by Tenet of the Registrant, made within five business days
after the effective date of the Merger, to publish the combined operation's
financial results not later than 90 days after the effective date of the
Merger, and (b) a request by Tenet to cause the Registrant's executive
officers to meet with investors in an offering of common stock by the
Registrant and for the Registrant to otherwise assist in the orderly
distribution of the Registrant's common stock received in the Merger.
In addition, Tenet and Hillhaven will continue to stay certain
legal proceedings relating to the acquisition proposal of
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Horizon Healthcare Corporation and agreed that, upon consummation of the
Merger, each will voluntarily dismiss such proceedings and all pending
claims, litigation or court proceedings it may have against the other
relating to such acquisition proposal or the Merger.
Furthermore, the Agreement provides that, after the effective
time of the Merger, the Registrant will provide Tenet with certain
registration rights for all shares of the Registrant's common stock
received by Tenet in the Merger on the same terms and subject to the same
conditions as exist in the Warrant and Registration Rights Agreement, dated
as of January 30, 1990, between Hillhaven and Tenet.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
1. Agreement, dated as of August 22, 1995, among the Registrant,
The Hillhaven Corporation, a Nevada corporation, and Tenet
Healthcare Corporation, a Nevada corporation and
stockholder of The Hillhaven Corporation.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
VENCOR, INC.
Date: August 22, 1995 By: /s/ Jill L. Force
Jill L. Force
General Counsel and Secretary
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EXHIBIT INDEX
Sequential
Exhibit No. Description Page Number
1. Agreement, dated as of August 22, 1995,
among the Registrant, The Hillhaven
Corporation, a Nevada corporation, and
Tenet Healthcare Corporation, a Nevada
corporation and stockholder of The
Hillhaven Corporation.
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AGREEMENT
AGREEMENT (the "Agreement"), dated as of August 22, 1995,
between Tenet Healthcare Corporation, a Nevada corporation and stockholder
("Stockholder") of The Hillhaven Corporation, a Nevada corporation
("Hillhaven"), Hillhaven and Vencor, Inc., a Delaware corporation (the
"Company").
WHEREAS, the Company and Hillhaven have entered into an Amended
and Restated Agreement and Plan of Merger, dated as of April 23, 1995 and
as amended and restated as of July 31, 1995 (as the same may be further
amended from time to time, the "Merger Agreement"), providing for the
merger (the "Merger") of Hillhaven with and into the Company pursuant to
the terms and conditions of the Merger Agreement, and setting forth certain
representations, warranties, covenants and agreements of the parties
thereto in connection with the Merger; and
WHEREAS, to facilitate the transactions contemplated by the
Merger Agreement, Stockholder, Hillhaven and the Company have agreed to the
matters set forth herein.
NOW, THEREFORE, for good and valuable consideration, the
receipt, sufficiency and adequacy of which is hereby acknowledged, the
parties hereto agree as follows:
1. Representations of the Parties. (a) Stockholder
represents and warrants to the Company and Hillhaven that (i) Stockholder
owns beneficially (as such term is defined in the Securities Exchange Act
of 1934, as amended (the "1934 Act")) 8,878,147 shares of Hillhaven's
Common Stock, par value $0.75 per share (the "Hillhaven Common Stock"),
35,000 shares of Series C Preferred Stock, par value $.15 per share (the
"Series C Preferred Stock"), of Hillhaven and 65,430 shares of Series D
Preferred Stock, par value $.15 per share (the "Series D Preferred Stock"),
of Hillhaven (collectively, the Series C Preferred Stock and the Series D
Preferred Stock the "Shares") free and clear of all liens, claims, charges,
security interests or other encumbrances and, except for this Agreement and
the Merger Agreement and except as set forth in publicly available
documents prior to the date hereof, there are no options, warrants or other
rights, agreements, arrangements or commitments of any character to which
Stockholder is a party relating to the pledge, disposition or voting of any
shares of capital stock of Hillhaven and there are no voting trusts or
voting agreements with respect to such Shares, (ii) Stockholder does not
beneficially own any shares of Hillhaven Common Stock or Shares other than
as set forth above and does not have any options, warrants or other rights
to acquire any additional shares of capital stock of
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Hillhaven or any security exercisable for or convertible into shares of
capital stock of Hillhaven, and (iii) Stockholder has full power and
authority to enter into, execute and deliver this Agreement and to perform
fully its obligations hereunder. This Agreement has been duly executed and
delivered by Stockholder and constitutes the legal, valid and binding
obligation of Stockholder in accordance with its terms.
(b) The Company represents and warrants to Stockholder and
Hillhaven that the Company has full power and authority to enter into,
execute and deliver this Agreement and to perform fully its obligations
hereunder. This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the
Company in accordance with its terms.
(c) Hillhaven represents and warrants to the Company and
Stockholder that (i) Hillhaven has full power and authority to enter into,
execute and deliver this Agreement and to perform its obligations hereunder
and (ii) Hillhaven has taken all action, including, without limitation, any
action required by its Board of Directors, so that this Agreement will not
cause any "fair price", "moratorium", "control share acquisition" or other
similar antitakeover statute or regulation enacted under any state or
federal laws in the United States applicable to Hillhaven (including,
without limitation, the Nevada Control Share Acquisition Act) to be
applicable to the Merger or the transaction contemplated by the Merger
Agreement. This Agreement has been duly executed and delivered by
Hillhaven and constitutes the legal, valid and binding obligation of
Hillhaven in accordance with its terms.
2. Agreement to Vote Shares. Subject to the terms and
conditions of this Agreement, Stockholder agrees during the term of this
Agreement to vote the Shares, and to cause any holder of record of such
Shares to vote, in favor of adoption and approval of the Merger Agreement
and the Merger at every meeting of the stockholders of Hillhaven at which
such matters are considered and at every adjournment thereof.
Notwithstanding the foregoing, Stockholder shall be free to vote its
Hillhaven Common Stock in its sole discretion in connection with the
Merger.
3. No Voting Trusts. Stockholder agrees that it will not,
nor will it permit any entity under its control to, deposit any of the
Shares in a voting trust or subject any of the Shares to any arrangement
with respect to the voting of such Shares other than agreements entered
into with the Company.
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4. No Proxy Solicitations. (a) Stockholder agrees that
unless Hillhaven receives a proposal for a merger or consolidation that
Stockholder concludes is superior in its sole discretion to the Merger to
Stockholder, Stockholder will not, nor will it permit any entity under its
control to, (i) solicit proxies or become a "participant" in a
"solicitation" (as such terms are defined in Regulation 14A under the 1934
Act) in opposition to or competition with the consummation of the Merger or
(ii) become a member of a "group" (as such term is used in Section 13(d) of
the 1934 Act) with respect to any voting securities of Hillhaven for the
purpose of opposing or competing with the consummation of the Merger.
(b) In consideration for the undertaking in 4(a) above,
Hillhaven agrees (i) not to set a record date or meeting date for a meeting
(whether annual or special) of stockholders for the election of directors
prior to the meeting of Hillhaven stockholders to consider the Merger
Agreement and the Merger and (ii) if the Agreement is not approved by
Hillhaven shareholders or the Merger Agreement is terminated, at the option
of Hillhaven, to (x) waive the existing advance notice provisions of
Sections 1.10 and 1.11 of Hillhaven's Amended and Restated By-Laws in
connection with the next annual meeting of Hillhaven stockholders for the
election of directors and apply the provisions relating to advance notice
in connection with a special meeting for the election of directors to such
annual meeting or (y) provide Stockholder with sufficient advance notice
(whether orally or in writing) of the date of the next annual meeting of
Hillhaven's stockholders to permit Stockholder to comply with such By-law
Sections.
5. Transfer and Encumbrance. (a) Stockholder agrees not to
transfer, sell, offer, exchange, pledge or otherwise dispose of or encumber
(i) any of the Shares, or any shares of common stock, par value $.25 per
share, of the Company (or any security into which such stock is converted
or exchanged) (the "Company Common Stock"), from and after the date hereof
or (ii) any shares of Hillhaven Common Stock from and after the date 30
days prior to the meeting of Hillhaven stockholders to consider the Merger
Agreement and, in each case, until such time following the Merger as
results covering at least 30 days of combined operations of Hillhaven and
the Company (the "Combined Operations Results") have been published by the
Company in the form of a quarterly earnings report, an effective
registration statement filed with the Securities and Exchange Commission
(the "Commission"), a report to the Commission on Form 10-K, 10-Q or 8-K,
or any other public filing or announcement which includes such combined
results of operations (the
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"Expiration Date"). The Company agrees that if requested to do so by
Stockholder within five business days after the Effective Date of the
Merger, the Company will publish the Combined Operations Results not later
than 90 days after the Effective Date of the Merger (such request shall be
a "Request Event" for purposes of this agreement). Notwithstanding the
foregoing, Stockholder may tender its shares of Hillhaven Common Stock into
a tender offer that Stockholder concludes is superior in its sole
discretion to the Merger to Stockholder. Stockholder agrees not to
exercise in connection with the Merger any appraisal or similar rights with
respect to any Hillhaven Common Stock.
(b) Stockholder agrees that after the time of any Request
Event and for so long as it is the beneficial owner of more than 5% of the
issued and outstanding Company Common Stock it shall not transfer, sell,
offer, exchange, or otherwise dispose of any of the Company Common Stock
except pursuant to (i) a bona fide public offering of the Company Common
Stock, registered under the Securities Act of 1933, as amended (the "1933
Act"), with the lead manager of such public offering being selected by
Stockholder and the co-manager of such public offering being selected by
the Company, if such offering shall be an underwritten offering; (ii) a
private placement exempt from registration under federal securities laws,
and (iii) the issuance by Stockholder (or an affiliate of Stockholder or an
entity established by or at the request of Stockholder) of debt or equity
securities of Stockholder (or an affiliate of Stockholder or an entity
established by or at the request of Stockholder) that would be exchangeable
or convertible into shares of Company Common Stock in a transaction in
which the lead manager or lead placement agent is selected by the
Stockholder and the co-manager or co-placement agent shall be selected by
the Company; provided, however, that no sales or series of sales of more
than 2.5% of the voting power of the then outstanding Company Common Stock
shall be made to any person or related group of persons who would
immediately thereafter own or have the right to acquire more than 5% of the
voting power of the then outstanding Company Common Stock. Stockholder
agrees that after the time of any Request Event it will not pledge or
encumber any shares of Company Common Stock except in a bona fide financing
transaction with a person or persons who are regularly engaged in the
business of entering into such transaction.
6. Additional Purchases. Stockholder agrees that it will
not purchase or otherwise acquire (except for shares of Series D Preferred
Stock acquired as a dividend from Hillhaven in accordance with the terms
hereof) beneficial ownership of any shares of Series C Preferred
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Stock or Series D Preferred Stock after the execution of this Agreement
("New Shares"). Stockholder also agrees that any New Shares acquired or
purchased by it shall be subject to the terms of this Agreement to the same
extent as if they constituted Shares.
7. Litigation. Stockholder and Hillhaven are parties to
Stipulation re: Stay of Present Action in National Medical Enterprises,
Inc. v. The Hillhaven Corporation (Case No. BC 122083, Los Angeles County
Superior Court), filed March 24, 1995 (the "Stipulation"). Stockholder and
Hillhaven agree to extend the Stipulation during the term of this
Agreement, provided that all parties in all actions pending against
Hillhaven and certain of its directors in other courts in other
jurisdictions as well as an action by Hillhaven pending against Horizon
Healthcare Corporation in Nevada Federal District Court agree to stay all
litigation against and by Hillhaven and its directors on the terms set
forth in the Stipulation. Stockholder and Hillhaven further agree that
upon consummation of the Merger each shall voluntarily dismiss with
prejudice any and all pending claims, litigation or court proceedings it
may have against the other or any of its respective subsidiaries, directors
or executive officers with respect to the matters relating to the
acquisition proposal of Horizon Healthcare Corporation or the Merger.
8. Certain Actions. Stockholder agrees that after any
Request Event, subject to the terms and conditions of this Agreement, for
the period ending seven years following the consummation of the Merger
neither it nor any of its Affiliates (as such term is defined in Rule 12b-2
under the 1934 Act) at such time, regardless of whether such person or
entity is an Affiliate on the date hereof, will, directly or indirectly,
alone or in concert with others (a) acquire, offer to acquire, or agree to
acquire, by purchase, gift or otherwise, any Company Common Stock or direct
or indirect rights, securities or options to acquire (through purchase,
exchange, conversion or otherwise) any Company Common Stock (collectively,
including such rights, securities and options, the "Voting Securities") or
seek to advise, encourage or influence any person or entity with respect to
the acquisition of Voting Securities of the Company, (b) make, or in any
way participate in, any "solicitation" of "proxies" (as such terms are
defined in Regulation 14A promulgated by the Commission pursuant to Section
14 of the 1934 Act) to vote, or communicate with or seek to advise,
encourage or influence any person or entity with respect to the voting of,
any Voting Securities, (c) form, join or in any way participate in a
"group" within the meaning of Section 13(d)(3) of the 1934 Act with respect
to
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any Voting Securities, (d) deposit any Voting Securities into a voting
trust or subject any such securities to any arrangement or agreement with
respect to the voting thereof, except as provided herein, (e) otherwise act
to seek, or to assist or encourage in any respect any other person or
entity to seek, to control or influence in any manner the management, Board
of Directors, policies or affairs of the Company, or (f) request that the
Company waive or amend any provisions of this Section 8. Notwithstanding
the foregoing, if Stockholder acquires Voting Securities as a result of the
acquisition of an entity that beneficially owns Voting Securities, then
Stockholder shall be permitted to dispose of such Voting Securities as
promptly as is practicable.
9. Consent. (a) At the effective time of the Merger
(the "Effective Time"), (i) the Company hereby agrees to assume all of the
obligations of Hillhaven under the Guarantee Reimbursement Agreement, dated
as of January 31, 1990, as amended from time to time, between Stockholder
and Hillhaven (the "Guarantee Agreement") and to deliver to Stockholder a
certificate of the Chief Financial Officer of the Company to the effect
that no Default (as such term is defined in the Guarantee Agreement) or
Event of Default (as such term is defined in the Guarantee Agreement) has
occurred or is continuing or shall have occurred after giving effect to the
Merger, and (ii) Stockholder hereby agrees (A) to consent to the assignment
of the Guarantee Agreement to the Company, (B) that such assignment will
not constitute an Event of Default under the Guarantee Agreement, (C) to
waive any rights it may have to terminate the Guarantee Agreement as a
consequence of the Merger or such assignment and (D) to consent to the
Company's entering into a credit facility pursuant to which the Company
will incur indebtedness secured by a first lien on certain assets and
properties of the Company, as described in the Registration Statement on
Form S-4 (File No. 33-59345).
(b) At the Effective Time, (i) the Company hereby agrees to
assume all of the obligations of Hillhaven under the Services Agreement,
dated as of January 31, 1990, as amended from time to time, between
Stockholder and Hillhaven (the "Services Agreement") and (ii) Stockholder
hereby agrees (A) to consent to the assignment of the Services Agreement to
the Company and (B) to waive any rights it may have to terminate the
Services Agreement as a consequence of the Merger or such assignment.
10. Specific Performance. Each party hereto acknowledges
that it will be impossible to measure in money the damage to the other
party if a party hereto fails to
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comply with any of the obligations imposed by this Agreement, that every
such obligation is material and that, in the event of any such failure, the
other party will not have an adequate remedy at law or damages.
Accordingly, each party hereto agrees that injunctive relief or any other
equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of
such relief on the basis that the other party has an adequate remedy at
law.
11. Other Agreements. (a) Tax Matters. (i) With respect to
the Tax Sharing Agreement between Stockholder and Hillhaven dated as of
January 31, 1990 (the "Tax Sharing Agreement"), Stockholder agrees that:
(A) Sections 2.1, 2.2 3.2(b) and 4.1 of the Tax Sharing
Agreement shall have no effect with respect to any Taxes or Tax
Returns (as such terms are defined in the Tax Sharing
Agreement) for any taxable period that ends after the closing
date of the Merger Agreement,
(B) anything in the Tax Sharing Agreement to the contrary
notwithstanding, the Tax Sharing Agreement shall not restrict
the Surviving Corporation (as defined in the Merger Agreement)
from taking or omitting to take any action with respect to the
Surviving Corporation's Taxes or Tax Returns for any taxable
period that ends after the closing date of the Merger
Agreement,
(C) unless otherwise required by applicable law or pursuant to
a settlement with any Tax authority, Stockholder shall not, on
or after the date hereof, change any election referred to in
Section 2.1 of the Tax Sharing Agreement or make any additional
elections thereunder,
(D) to the extent that any refund claim or suit referred to in
Section 3.2(b) of the Tax Sharing Agreement as modified by
Section 11(a)(i)(A) hereof, effects any material Tax Item (as
defined in the Tax Sharing Agreement) of the Surviving
Corporation, Stockholder agrees to consult in good faith with,
and keep reasonably informed, the Surviving Corporation and the
Company, in regard to such refund claims, or suits; provided,
however, that any such refund claims or suits shall be
contested, negotiated, and settled under the control, and at
the sole discretion, of Stockholder, and
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(E) anything in Section 4.1(b) of the Tax Sharing Agreement to
the contrary notwithstanding, the Company or Surviving
Corporation shall not be liable for any outside professional
fees or similar third party costs reasonably incurred in the
course of any Tax controversy which is controlled by
Stockholder, provided that (w) Surviving Corporation shall, and
the Company shall cause Surviving Corporation to, make its
records available to Stockholder during normal business hours
and permit Stockholder to make copies thereof to the extent
reasonably necessary to contest, negotiate, and settle such Tax
controversy, (x) the Company and Surviving Corporation shall
make their employees available to render any assistance during
normal business hours that may be reasonably requested by
Stockholder in preparation for or during the course of such Tax
controversy at no charge to Stockholder, (y) Stockholder shall
have the opportunity to review and approve any material outside
professional fees or similar third party costs, as described
above, that are proposed to be incurred by the Company or
Surviving Corporation, which approval shall not be unreasonably
withheld, and (z) the Company and Surviving Corporation shall
not be entitled to any reimbursement from Stockholder pursuant
to this Section 11(a)(i)(E) for any outside professional fees
or similar third party costs incurred in connection with
services that could be reasonably rendered by employees of the
Company or Surviving Corporation.
(ii) Stockholder agrees to permit the Surviving Corporation
and its representatives reasonable access to the records (other than
records that are subject to an attorney-client privilege) of Stockholder to
facilitate an understanding of matters relating to the spin-off of
Hillhaven from Stockholder, provided that the Surviving Corporation
executes a customary form of confidentiality agreement.
(b) Registration Rights. The Company agrees after the
Effective Time of the Merger to provide Stockholder with registration
rights for all shares of Company Common Stock received by Stockholder (or
its subsidiaries) in the Merger (whether offered for sale directly or in
connection with the issuance of debt or equity securities of Stockholder
(or an affiliate of Stockholder or an entity established by or at the
request of Stockholder) that would be exchangeable or convertible into
shares of Company Common
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Stock) on (except as contemplated by Section 5(b) of this Agreement) the
same terms and subject to the same conditions as exist in the Warrant and
Registration Rights Agreement, dated as of January 30, 1990, between
Hillhaven and Stockholder. In addition to its obligations under the
Warrant and Registration Rights Agreement, the Company agrees upon the
request of Stockholder to cause its executive officers to be available for
a reasonable period of time for meetings with investors and potential
investors in any such offering of Company Common Stock and to otherwise use
its reasonable efforts to assist in the orderly distribution of Company
Common Stock received in the Merger (any such request shall be a "Request
Event" for purposes of this Agreement).
12. Representation Letter. Stockholder agrees to provide the
Company and Hillhaven, at or before the Effective Time of the Merger, with
the representation letter previously agreed upon between the parties
stating that Stockholder has no present plan or intention to dispose of any
Company Common Stock which Stockholder receives in the Merger, if such
letter will be required in order for the Company's or Hillhaven's counsel
to provide the tax opinion required under Section 8 of the Merger
Agreement.
13. Entire Agreement. This Agreement supersedes all prior
agreements, written or oral, among the parties hereto with respect to the
Merger Agreement and the Merger and contains the entire agreement among the
parties with respect to the Merger Agreement and the Merger. This
Agreement may not be amended, supplemented or modified, and no provisions
hereof may be modified or waived, except by an instrument in writing signed
by all the parties hereto. No waiver of any provisions hereof by any party
shall be deemed a waiver of any other provisions hereof by any such party,
nor shall any such waiver be deemed a continuing waiver of any provision
hereof by such party.
14. Notices. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent
by telecopy or like transmission and on the next business day when sent by
Federal Express, Express Mail or other reputable overnight courier service
to the parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
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If to the Company:
Vencor, Inc.
1300 Providian Center
4000 West Market Street
Louisville, Kentucky 40202
Attention: Jill L. Force
Telecopy: (502) 569-1104
With a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Joseph B. Frumkin
Telecopy: (212) 558-3588
If to Stockholder:
Tenet Healthcare Corporation
2700 Colorado Avenue
Santa Monica, California 90404
Attention: General Counsel
Telecopy: (310) 998-6956
With a copy to:
Skadden, Arps, Slate, Meagher & Flom
300 South Grand Avenue
Los Angeles, California 90071
Attention: Brian J. McCarthy
Telecopy: (213) 687-5600
If to Hillhaven:
1148 Broadway Plaza
Tacoma, Washington 98402
Attention: Richard P. Adcock, Sr. V.P. and
General Counsel
Telecopy: (206) 502-3623
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With a copy to:
Fried, Frank, Harris, Shriver & Jacobson
1 New York Plaza
New York, New York 10004
Attention: Peter Golden
Telecopy: (212) 859-4000
15. Miscellaneous.
(a) This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the laws
of the State of Delaware.
(b) If any provision of this Agreement or the
application of such provision to any person or circumstances shall be held
invalid or unenforceable by a court of competent jurisdiction, such
provision or application shall be unenforceable only to the extent of such
invalidity or unenforceability and the remainder of the provision held
invalid or unenforceable and the application of such provision to persons
or circumstances, other than the party as to which it is held invalid, and
the remainder of this Agreement, shall not be affected.
(c) This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
(d) This Agreement shall terminate upon the earlier to
occur of (i) termination of the Merger Agreement in accordance with its
terms, (ii) by Stockholder, if the Merger has not been consummated by
December 31, 1995, (iii) by Stockholder, if the product of the Parent
Average Price (as defined in the Merger Agreement) times the Conversion
Number (as defined in the Merger Agreement) is less than $31 per share,
provided, however, that Stockholder may not terminate if Hillhaven has been
advised in writing by the Company that the Conversion Number shall be
determined by dividing $31 by the Parent Average price (without regard to
any maximum imposed on the Conversion Number absent this clause by Section
1.02(b) of the Merger Agreement), (iv) when Stockholder no longer owns
Voting Securities, and (v) the date specified in a written agreement duly
executed and delivered by the Company, Hillhaven and Stockholder; provided
that Sections 8 and 11(a) of this Agreement shall survive any termination
of this Agreement pursuant to clause (iv) above.
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(e) All Section headings herein are for convenience of
reference only and are not part of this Agreement, and no construction or
reference shall be derived therefrom.
(f) The parties agree that there is not and has not
been any other agreement, arrangement or understanding between the parties
hereto with respect to the matters set forth herein.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first written above.
VENCOR, INC.
By: /s/ W. Earl Reed, III
W. Earl Reed, III
Vice President, Finance
and Development
TENET HEALTHCARE CORPORATION
By: /s/ Raymond L. Mathiasen
Raymond L. Mathiasen
Senior Vice President
THE HILLHAVEN CORPORATION
By: /s/ Bruce L. Busby
Bruce L. Busby
Chairman and Chief
Executive Officer
