Amendment No. 5 to Amended and Restated Registration Rights Agreement among United Surgical Partners International, Inc., Baylor Health Services, and Others

Summary

This amendment updates the Registration Rights Agreement between United Surgical Partners International, Inc., Baylor Health Services, and other parties. It adds Baylor as a party with rights to register shares obtained through a convertible note, clarifies procedures for transferring restricted stock, and updates notice information. The amendment also revises how the agreement can be changed, ensuring no holder loses material rights without consent. The agreement is governed by Delaware law and remains otherwise unchanged.

EX-4.3.6 11 0011.txt EXHIBIT 4.3.6 AMENDMENT NO.5 TO AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT AMENDMENT NO.5 to the Amended and Restated Registration Rights Agreement, dated as of June 1, 1999 (the "Amendment"), among United Surgical Partners International, Inc., a Delaware corporation (the "Company"), and the several other parties named at the foot hereof, amending the Amended and Restated Registration Rights Agreement dated as of April 30, 1998 among the Company and the several signatories thereto (the "Registration Rights Agreement"). All capitalized terms used and not defined herein shall have the meaning set forth in the Contribution and Purchase Agreement dated as of May 11, 1999 (the "Contribution Agreement") among USP North Texas, Inc., Baylor Health Services, Texas Health Ventures Group L.L.C. and THVG/HealthFirst L.L.C. On the date hereof, USP, Baylor, THVGl and THVG2 are consummating the transactions contemplated by the Contribution Agreement pursuant to which the Company has agreed to issue to Baylor a Convertible Subordinated Promissory Note (the "Note") convertible into shares of the Company's Class A Common Stock, $.01 par value ("Class A Common Stock"). It is a condition to the closing of the transactions contemplated by the Contribution Agreement that the Company and the parties hereto execute this Amendment. Pursuant to Section 13(d) of the Registration Rights Agreement, the Registration Rights Agreement is hereby amended as follows: 1. Baylor is hereby made a party to the Registration Rights Agreement with the same rights (including the right to receive notices under Sections 4, 5 and 6 of the Registration Rights Agreement) and obligations as a holder of "Restricted Stock" (with respect to the shares of Class A Common Stock into which the Note is convertible) as set forth in the Registration Rights Agreement. Baylor is hereby deemed to be a holder of "Restricted Stock" with all the rights and, with respect to the shares of Class A Common Stock into which the Note is convertible, obligations of such a holder as set forth in the Registration Rights Agreement. Baylor, or its assignee, shall continue to be deemed such a holder of Restricted Stock for so long as Baylor, or its assignee, holds the Note. Upon any conversion of the Note, the converted shares held by Baylor, or its assignee, will be "Restricted Stock" and Baylor, or its assignee, will be a holder of "Restricted Stock" with respect to such converted shares and will have all the rights and obligations of a holder of "Restricted Stock." 2. Section 13(d) of the Registration Rights Agreement is hereby amended and restated in its entirety as follows: 1 "(d) This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and may not be modified or amended except in writing signed by the Company and the holders of not less than two thirds of the Restricted Stock and Investor Shares then outstanding; PROVIDED that no such modification or amendment shall deprive any holder of Restricted Stock (including Baylor or its assignee) or Investor Shares of any material right under this Agreement without such holder's consent. The Company will not grant any registration rights to any other person without the written consent of the holders of at least two-thirds of the Restricted Stock and Investor Shares then outstanding if such rights could reasonably be expected to conflict with, or be on a parity with, the rights of holders of Restricted Stock or Investor Shares granted under this Agreement; PROVIDED, HOWEVER, that notwithstanding the foregoing, any amendment solely to grant registration rights to additional holders of the capital stock of the Company may be effected in a writing executed solely by the Company and such additional holders if such registration rights are no more favorable than the registration rights granted to any holder of Investor Shares. Any amendment to this Agreement to grant such registration rights to such additional holders of the capital stock of the Company shall not be deemed to be an amendment that adversely affects the rights of any holder hereunder." 3. The first paragraph of Section 3 of the Registration Rights Agreement is hereby amended and restated in its entirety as follows: "3. NOTICE OF PROPOSED TRANSFER. Prior to any proposed transfer of any Restricted Stock or Investor Shares, as the case may be, (other than under the circumstances described in Section 4, 5 or 6 hereof), the holder thereof shall give written notice to the Company of its intention to effect such transfer. Each such notice shall describe the manner of the proposed transfer and, if requested by the Company, shall be accompanied by an opinion of counsel reasonably satisfactory to the Company (it being agreed that Nossaman, Guthner, Knox & Elliott, LLP shall be satisfactory) to the effect that the proposed transfer of the Restricted Stock or Investor Shares, as the case may be, may be effected without registration under the Securities Act, whereupon the holder of such Restricted Stock or Investor Shares, as the case may be, shall be entitled to transfer such Restricted Stock or Investor Shares, as the case may be, in accordance with the terms of its notice; PROVIDED, HOWEVER, that no such opinion or other documentation shall be required if such notice shall cover a distribution by Welsh, Carson, Anderson & Stowe VII, L.P. ("WCAS VII") or WCAS Healthcare Partners, L.P. to their respective partners; and FURTHER PROVIDED, that no such opinion or documentation shall be required if such notice shall cover a transfer by Baylor Health Services ("Baylor") to an entity to which Baylor may transfer its membership interest in Texas Health 2 Ventures Group L.L.C. ("THVGl") under Section 4.1(a) of the Second Amended and Restated Regulations of THVGl dated as of June 1,1999, so long as Baylor delivers other evidence, reasonably acceptable to the Company, to the effect that the proposed transfer may be effected without registration under the Securities Act. Each certificate for Restricted Stock or Investor Shares, as the case may be, transferred as above provided shall bear the legend set forth in Section 2, unless (i) such transfer is in accordance with the provisions of Rule 144 (or any other rule permitting public sale without registration under the Securities Act) or (ii) the opinion of counsel referred to above is to the further effect that the transferee and any subsequent transferee (other than an affiliate of the Company) would be entitled to transfer such securities in a public sale without registration under the Securities Act." 4. Schedule I to the Registration Rights Agreement is hereby amended by adding the following Baylor notice information under the heading of "Restricted Stockholders": Baylor Health Services 3500 Gaston Avenue Dallas, Texas 75246 Attention: M. Timothy Parris, Chief Operating Officer Fax Number: (214) 820-8840 5. The Registration Rights Agreement, as amended by this Amendment, is hereby in all respects confirmed. 6. This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware. 7. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. [SIGNATURE PAGES FOLLOW] 3 UNITED SURGICAL PARTNERS INTERNATIONAL, INC. By /s/ SUE H. SHELLEY Sue H. Shelley Executive Vice President BAYLOR HEALTH SERVICES By /s/ M. TIMOTHY PARRIS Name M. Timothy Parris Title EVP WELSH, CARSON, ANDERSON & STOWE VII, L.P. By: WCAS VII Partners L.P. General Partner By: /s/ LAURA VANBUREN Laura VanBuren General Partner WCAS HEALTHCARE PARTNERS, L.P. By: WCAS HC Partners General Partner By: /s/ LAURA VANBUREN Laura VanBuren Attorney-in-Fact 4 Patrick J. Welsh Russell L. Carson Bruce K. Anderson Richard H. Stowe Andrew M. Paul Thomas E. McInerney Robert A. Minicucci Anthony J. deNicola Paul B. Queally By: /s/ LAURA VANBUREN Laura VanBuren Attorney-in-Fact /s/ LAURA VANBUREN Laura VanBuren /s/ RUDOLPH E. RUPERT Rudolph E. Rupert /s/ D. SCOTT MACKESY D. Scott Mackesy /s/ LAUREN MELKUS Lauren Melkus HEALTH CARE CAPITAL PARTNERS, L.P. By: Ferrer Freeman Thompson & Co., LLC General Partner By /s/ CARLOS A. FERRER Name Carlos A. Ferrer Title General Partner 5 HEALTH CARE EXECUTIVE PARTNERS, L.P. By: Ferrer Freeman Thompson & Co., LLC General Partner By /s/ CARLOS A. FERRER Name Carlos A. Ferrer Title General Partner MANAGEMENT PURCHASERS /s/ DONALD STEEN Donald Steen /s/ WILLIAM WILCOX William Wilcox /s/ SUE SHELLEY Sue Shelley /s/ JEFFREY STOCKARD Jeffrey Stockard /s/ LAURIE HOGUE Laurie Hogue /s/ MICHAEL CREWS Michael Crews /s/ DAVID C. MCDONALD David McDonald FBO Tracy McDonald /s/ JAMES BRANON James Branon 6