exv10w35






Exhibit 10.35




INDEMNIFICATION PRIORITY AND INFORMATION SHARING AGREEMENT




     This INDEMNIFICATION PRIORITY AND INFORMATION SHARING AGREEMENT, dated as of November 1, 2009
(this “Agreement”), between the management companies and other entities set forth on Annex
II (the “Management Companies”), and HCA, Inc., a Delaware corporation (the
“Company”).



     WHEREAS, the Company has entered into one or more monitoring, stockholder, indemnification and
other agreements (any such agreement or agreements, collectively, the “Company Indemnification
Agreements”) providing for, among other things, the indemnification of and advancement of
expenses incurred by the funds set forth on Annex I (the “Funds”), the Management Companies, and
their respective directors, members, managers, partners, affiliates and controlling persons for
certain matters described therein (the Funds, the Management Companies and their respective
directors, members, managers, partners, affiliates and controlling persons, collectively, the
“Sponsor Indemnified Parties”);



     WHEREAS, one or more executives of the Management Companies or their respective affiliates may
serve as a directors, officers or consultants of the Company and one or more other persons (who are
not executives of the Management Companies or their respective affiliates) may serve as a
directors, officers or consultants of the Company as an appointee or designee of the Funds or the
Management Companies (any such person or persons, the “Designated Directors”);



     WHEREAS, the Designated Directors may have entered into indemnification agreements with the
Company providing for indemnification and advancement of expenses for the Designated Directors in
connection with their service as a director of the Company and the Designated Directors may, in
their capacities as directors of the Company, be indemnified and/or entitled to advancement of
expenses under the Company’s certificate or articles of incorporation, by-laws, limited liability
company operating agreement, limited partnership agreement or other organizational documents (in
each case, a “Company Director Indemnity”);



     WHEREAS, the Funds, the Management Companies and/or their respective affiliates and
controlling persons (in this capacity, collectively, the “Sponsor Indemnitors”) have (i)
entered into one or more limited partnership agreements, limited liability company operating
agreements and other agreements or arrangements, (ii) certificates and articles of incorporation,
by-laws, and other organizational documents and (iii) obtained insurance (any such agreements,
documents or insurance, collectively, the “Sponsor Indemnification Agreements”), in each
case, providing for, among other things, indemnification of and advancement of expenses for the
Designated Directors designated by such Sponsor Indemnitor for, among other things, the same
matters that are subject to indemnification and advancement of expenses under the Company
Indemnification Agreements and the Company Director Indemnity; and



     WHEREAS, the Company, the Funds and the Management Companies wish to clarify certain matters
regarding the indemnification and advancement of expenses provided under the Company
Indemnification Agreements and the Company Director Indemnity as it relates to the indemnification
and advancement of expenses provided for under the Sponsor Indemnification Agreements.



 









 





     NOW, THEREFORE, in consideration of the foregoing recitals and the premises hereinafter set
forth, the Company, the Funds and the Management Companies hereby agree as follows.



     1. The Company hereby acknowledges and agrees that the obligation of the Company under either
any Company Indemnification Agreements or the Company Director Indemnity to indemnify or advance
expenses to any Designated Director for the matters covered thereby shall be the primary source of
indemnification and advancement of such Designated Director in connection therewith and any
obligation on the part of any Sponsor Indemnitor under any Sponsor Indemnification Agreement to
indemnify or advance expenses to such Designated Director shall be secondary to the Company’s
obligation and shall be reduced by any amount that the Designated Director may collect as
indemnification or advancement from the Company. In the event that the Company fails to indemnify
or advance expenses to a Designated Director as required or contemplated by any Company
Indemnification Agreement or Company Director Indemnity (such amounts, the “Unpaid Director
Indemnity Amounts”) and any Sponsor Indemnitor makes any payment to such Designated Director in
respect of indemnification or advancement of expenses under any Sponsor Indemnification Agreement
on account of such Unpaid Director Indemnity Amounts, such Sponsor Indemnitor shall be subrogated
to the rights of such Designated Director under any Company Indemnification Agreement or Company
Director Indemnity, as the case may be, in respect of such Unpaid Director Indemnity Amounts.



     2. The Company hereby agrees that, to the fullest extent permitted by applicable law, its
obligation to indemnify Sponsor Indemnified Parties under the Company Indemnification Agreements
shall include any amounts expended by any Sponsor Indemnitor under the Sponsor Indemnification
Agreements in respect of indemnification or advancement of expenses to any Designated Director in
connection with litigation or other proceedings involving his or her service as a director of the
Company to the extent such amounts expended by such Sponsor Indemnitor are on account of any Unpaid
Director Indemnity Amounts.



     3. The Company hereby agrees that it will not amend any Company Director Indemnity as in
effect on the date hereof to alter the rights of any Designated Director in any manner that would
alter any Designated Director’s rights with respect to conduct pre-dating the date of any such
amendment without the consent of each of the Management Companies.



     4. The Company hereby consents to (i) the Designated Directors sharing any information such
Designated Directors receive in their capacity as directors of the Company and (ii) representatives
of the Management Companies sharing any information sent to such representatives by or on behalf
the Company, in either case, with officers, directors, members, employees and representatives of
such Management Company and its affiliates (other than portfolio companies) provided that such
Management Company maintain internal procedures with respect to the use and safekeeping of such
information.



     5. Except as otherwise provided herein, this Agreement may be amended or modified only by a
writing executed by each of the parties hereto.



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     6. The provisions of this Agreement shall inure to the benefit and be binding upon the
parties hereto and (i) the provisions of Section 3 shall inure to the benefit of the Designated
Directors and (ii) all of the provisions of this Agreement shall inure to the benefit of the Funds,
all of whom are intended to be third party beneficiaries hereof.



     7. This Agreement shall be governed by and construed in accordance with the laws of the state
of incorporation of the Company regardless of the law that might be applied under principles of
conflict of laws to the extent such principles would require or permit the application of the laws
of another jurisdiction. No suit, action or proceeding with respect to this Agreement may be
brought in any court or before any similar authority other than in a court of competent
jurisdiction in the state of incorporation of the Company, and the parties hereto hereby submit to
the exclusive jurisdiction of such courts for the purpose of such suit, proceeding or judgment.
Each party irrevocably waives trial by jury in any legal action or proceeding in relation to this
Agreement and for any counterclaim therein.



     8. Wherever possible, each provision of this Agreement shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this Agreement is held to
be invalid, illegal or unenforceable in any respect under applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision
or any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision had never been contained
herein.



     9. This Agreement may be executed in two or more counterparts, each of which shall be deemed
an original, and all of which together shall constitute one and the same instrument. A signature
of a party transmitted by facsimile or other electronic means shall constitute an original for all
purposes.



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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth
in the first paragraph hereof.



	 	 	 	 	 
	 	KOHLBERG KRAVIS ROBERTS & CO. L.P.

 	 
	 	By:  	/s/ David Sorkin
 	 
	 	 	Name:  	David Sorkin 	 
	 	 	Title:  	Member 	 
	 



	 	 	 	 	 
	 	BAIN CAPITAL PARTNERS, LLC

 	 
	 	By:  	/s/ Christopher Gordon
 	 
	 	 	Name:  	Christopher Gordon 	 
	 	 	Title:  	Managing Director 	 
	 



	 	 	 	 	 
	 	MERRILL LYNCH GLOBAL PRIVATE EQUITY, INC.

 	 
	 	By:  	/s/ Christopher Birosak
 	 
	 	 	Name:  	Christopher Birosak 	 
	 	 	Title:  	Vice President and Managing Director 	 
	 



	 	 	 	 	 
	 	FRISCO, INC.

 	 
	 	By:  	/s/ Patricia C. Frist
 	 
	 	 	Name:  	Patricia C. Frist 	 
	 	 	Title:  	Authorized Person 	 
	 



	 	 	 	 	 
	 	FRISCO PARTNERS

 	 
	 	By:  	/s/ Thomas F. Frist, Jr.
 	 
	 	 	Name:  	Thomas F. Frist, Jr. 	 
	 	 	Title:  	Authorized Person 	 
	 



	 	 	 	 	 
	 	HCA INC.

 	 
	 	By:  	/s/ R. Milton Johnson
 	 
	 	 	Name:  	R. Milton Johnson 	 
	 	 	Title:  	Executive Vice President  & Chief Financial Officer 	 



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ANNEX II — MANAGEMENT COMPANIES AND OTHER ENTITIES




Kohlberg Kravis Roberts & Co. L.P.




Bain Capital Partners, LLC




Merrill Lynch Global Private Equity, Inc.




Frisco, Inc.




Frisco Partners