13D Filing: Glenview Capital and Tenet Healthcare Corp (THC)

SCHEDULE 13D

In addition, under the Support Agreement, unless the Board finds that one or both of the Independent Nominees are not reasonably acceptable to the Board, as set forth in the Support Agreement, then the Board agrees to appoint the Independent Nominees to the Board effective January 31, 2017 (or a date promptly thereafter as set forth in the Support Agreement).  Subject to the Glenview Parties compliance with certain terms of the Support Agreement, including the restrictions during the Standstill Period (defined herein), the Company agrees to (i) include the Independent Nominees in its slate of nominees for election as directors of the Company at the 2017 Annual Meeting, and (ii) use reasonable best efforts to cause the election of the Independent Nominees to the Board at the 2017 Annual Meeting, including recommending that the Company’s shareholders vote in favor of the election of the Independent Nominees (along with all the Company’s nominees) and otherwise supporting the Independent Nominees for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate.

Pursuant to the Support Agreement, the Company also agreed not to increase the size of the Board to larger than (i) fourteen directors through the date of the 2017 Annual Meeting, and thereafter (ii) twelve directors through the end of the Standstill Period.

Also pursuant to the Support Agreement, absent a material breach by the Company, the Glenview Parties agreed to abstain from engaging in certain actions listed in Section 2(a) of the Support Agreement (the “Standstill Obligations”) from the date of the Support Agreement until the later of (x) the completion of the 2017 Annual Meeting (including any postponements, adjournments and continuations thereof, but not later than May 31, 2017) and (y) 15 days after the date that both Glenview Designees (including any Replacement (as defined in the Support Agreement)) cease to serve as director (the “Standstill Period”).  Under the Support Agreement, it is understood and agreed that the Standstill Obligations shall not apply to the Glenview Designee’s boardroom discussions conducted solely in such person’s capacity as a director of the Company.

In addition, pursuant to the Support Agreement, and subject to the 2017 Proportional Voting Obligations (as defined herein), the Glenview Parties agreed, during the Standstill Period, to vote all Shares owned by them (i) for all directors nominated by the Board for election at a shareholders meeting and (ii) in accordance with the recommendation of the Board on any other proposals or other business that comes before any shareholder meeting, including with respect to the 2016 Annual Meeting (other than any proposals that require shareholder approval relating to mergers, acquisitions or other business combinations or extraordinary transactions, or the issuance of Company equity securities in connection with any such transaction).  Further, the Glenview Parties agreed, at the 2017 Annual Meeting, and at all annual or special meetings of shareholders of the Company (or any solicitation of shareholder action by written consent) thereafter during the Standstill Period, to vote all Shares in the same proportion “for”, “against” and “abstain” votes as the other shareholders of the Company vote in the aggregate on each of the matters properly brought before such shareholders meeting, including the election of directors (other than with respect to proposals that require shareholder approval relating to mergers, acquisitions or other business combinations or extraordinary transactions, or the issuance of Company equity securities in connection with any such transaction) (the “2017 Proportional Voting Obligations”).  The foregoing voting obligations shall not apply to Shares owned personally by either Mr. Ripperger or Mr. Simpson.