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2020-09-29 PAG FinalPARTNERSHIP ADVISORY GROUP SEPTEMBER 29, 2020 MEETING PAGE 1 ASSEMBLY The Partnership Advisory Group met to hold a meeting on Tuesday, September 29, 2020, at 5:30 p.m. in the Burney Center at UNC -Wilmington, 601 South College Road, Wilmington, North Carolina. Members present via roll call: Co -Chair Barbara Biehner; Co -Chair Spence Broadhurst; Vice Co -Chair Bill Cameron; Vice Co -Chair Dr. Joseph Pino; Members: Dr. Virginia Adams; Chris Coudriet; Cedric Dickerson; Hannah Gage; John Gizdic; Dr. Sandra Hall; Tony McGhee; Dr. Michael Papagikos; Dr. Mary Rudyk; Dr. Rob Shakar; Jason Thompson; Meade Van Pelt. Members participating via teleconference via roll call: Robert Campbell, Brian Eckel, Jack Fuller, and David Williams. Evelyn Bryant arrived at 6:58 p.m. Staff present via roll call: County Attorney Wanda Copley; Clerk to the Board Kymberleigh G. Crowell; Assistant County Manager Tufanna Bradley; Chief Financial Officer Lisa Wurtzbacher; Chief Communications Officer Jessica Loeper; Intergovernmental Affairs Coordinator Tim Buckland; New Hanover Regional Medical Center (NHRMC) Director of Marketing and Public Relations Carolyn Fisher; NHRMC Chief Legal Officer Lynn Gordon; NHRMC Chief Strategy Officer Kristy Hubard; NHRMC Executive Vice -President and Chief Financial Officer Ed 011ie; Joseph Kahn, Shareholder with Hall Render and outside counsel for NHRMC; David Burik, Managing Director with Guidehouse; Eb LeMaster, Managing Director with Ponder & Company; Karl Henkel, Associate with Ponder & Company; and Robert Jaeger, Vice President with Ponder & Company. Co -Chair Broadhurst called the meetingto order stating it is being held as a permissible, combined in-person and virtual meeting with public access to open session components in accordance with state law. As with all other meetings, the public can hear the open session portion of the meeting. It is not participating in the meeting discussion. There will be no questions from the public in this forum. The public can access the slides that will be reviewed during the meeting on nhrmcfuture.org. When the PAG goes into closed session, the public access will have no audio; audio will be turned back upon return to the open session portion of the meeting. Any public attending in person will be excused from the room for any closed session component. It is anticipated the closed session will not last more than 30 minutes. APPROVAL OF MINUTES Co -Chair Biehner asked for a motion to approve the September 9, 2020 regular and closed session minutes as presented. Motion: Vice Co -Chair Cameron MOVED, SECONDED by Member Gage to approve the September 9, 2020 regular and closed session minutes as presented. Upon vote, the MOTION CARRIED UNANIMOUSLY. PARTNERSHIP EXPLORATION PROCESS MILESTONES (SLIDES 4-6) Co -Chair Biehner provided an overview of what the PAG has achieved as a comprehensive set of milestones in its yearlong partnership exploration process. It received extensive education on the current state of NHRMC and the larger healthcare industry before drafting a complete list of goals and objectives that focused on increasing access, quality, value, and health equity in the community. Six competitive proposals were received and, after evaluating the proposals, conducting site visits, and attending presentations by the respondents, the PAG recommended a partnership with Novant Health (Novant), UNC, and UNC School of Medicine. ASSET PURCHASE AGREEMENT (APA) SUMMARY OF CORE TERMS AND COMMITMENTS (SLIDES 7-16) Mr. Kahn provided an overview ofthe APA summary noting that the PAG has gone through a whole process, which included the development of goals and objectives that then evolved into the key performance indicators that then evolved into the core considerations that were incorporated into the letter of intent (LOI). Once the LOI was signed, those items were then pulled forward into a binding APA. As has been previously discussed, the LOI had some binding provisions in it but for the most part, specifically as it relates to the deal terms, it was non-binding. The process that has been undertaken over the last two months has been to convert the non-binding LOI into a binding APA, which has been done and was posted a week or so ago and is about a 167 -page document. Mr. Kahn then provided a high level overview of the goals and objectives included in the APA noting that the focus has been kept on hospital staff who have made the hospital what it is and making sure that they are appropriately taken care of, addressing quality of care and access to care; making sure that the level of care is the highest it can be; promoting health equity throughout the community, which was a key tenant of the arrangement; and improving the strategic position of the hospital, making sure that when it comes to the provision of healthcare and the access to healthcare in southeastern North Carolina that NHRMC is at the center of that effort. It is really the cornerstone of the effort in this region and the objective is to capitalize on this incredible asset that is here in this community and growing it. That was the focus of the PAG and Novant throughout this process to not to come in and change, but to capitalize on it, build it, expand it, and make sure that the entire region gets the benefit of everything that is being done. The arrangement that Novant entered into with UNC Health and the UNC School of Medicine was to ensure that the GME program and that pipeline of providers into this community is retained, maintained, strengthened, and expanded over the years. It was a key component of Novant's proposal and is also now a key component of the APA. In review of the governance structure, Mr. Kahn stated that one of the other key elements of Novant's proposal was that while it is contributing an incredible amount of money into the region and into the facilities, it is also allowing for local control through the local board. What has been worked out with Novant is that there will be essentially a regional entity at which the local board will sit, and it will oversee both New Hanover and Brunswick, and as the system continues to expand other facilities that might be brought into the fold. The local board that has been discussed has been considered the new local board. It will be made up of 17 trustees, at least 12 of whom have PARTNERSHIP ADVISORY GROUP SEPTEMBER 29, 2020 MEETING PAGE 2 to live somewhere in the service area, and at least three of those individuals are to be providers and physicians on the medical staff. It has been discussed about the various powers and authority that the local board will be invested with, some of which are shown on slide 12, and it is really incredible. The PAG has accomplished, in terms of ensuring that there are meaningful local voices in the operation of the health system going forward, that Novant is going to come in and be a partner at the table, which is exactly what it will be as opposed to someone coming in and dictating how the health system should be run. These are really meaningful powers and authorities that have been vested in the local board, sitting at the regional level. Brunswick and New Hanover both at the operational level will each have its own specific board that will be focused on credentialing, quality, oversight, what would be considered to be the core accreditation functions for the local hospital level. In response to questions on providing an explanation of what a self-perpetuating board is due to the misinformation and misunderstanding that is in the community, Mr. Kahn explained the local board will be named in the APA. It will be set forth prior to closing and everyone will know who the local board is. Novant will be witness to that, but it is not dictating who those individuals are. Once the initial board is seated, they will be the ones deciding who will be their own replacements going forward. In the event there is a vacancy on the board, with the exception of a couple of the seats as they are for ex -officio members like the UNC representative, but for the most part for 15 of the 17, the other 14 board members will be the ones deciding who fills that seat and they will present that name to Novant simply for ratification and approval. In the unlikely event that Novant does not agree with the nomination, it will go back to the local board who will identify another individual. At no point will Novant dictate who is sitting on the local board. Novant will have a ratification role, but it will not have a direct appointment role with respect to the local board, so it truly is self-perpetuating in that only the members of the local board will decide who is sitting on the local board on a going forward basis. As to what ratification means and what happens if there is a disagreement with an appointment, Mr. Kahn stated ratification is simply that the local board will identify Jane Doe to take on a seat on the board which will go to the Novant Health system board. They will ratify that and it cannot be unreasonably withheld, so there would have to be a good reason for denying or withholding ratification or approval ofthat nomination. Otherwise, that Jane Doe will be seated on the local board. Again, in the unlikely event that Novant identifies a legitimate reason for objecting to the nomination of Jane Doe to the board, then the process would go back to the local board and they would get together and identify a new nominee to present to the Novant board. Again, no one can be seated on the local board without the local board's approval, and in fact nomination. It is then simply a confirmation on the part of Novant as part ofthat process. Regarding if there is a process where citizens can put in an application for nomination to the local board, Mr. Kahn stated there is not, as of now, a formal process for that. These are going to be residents of the service area and people in the community will have every opportunity of indicating their interest in serving on the board going forward, or proposing someone in the community who they think would be a real asset to the board going forward. Everyone in the community would have the opportunity when a vacancy arises on the local board to make the board members aware of either their interest or someone else's interest in serving on the board. Then it would be up to the local board to evaluate that candidacy, along with any others that are presented to the local board. Again, it is the local board who would ultimately make the decision on who to nominate for that seat. He reiterated that the new appointees will be identified prior to closing. That process is being worked out with respect to who those appointees will be. From closingforward, it will be the new local board that will make those decisions goingforward. There is not a process for citizens to put in an application prior to the board being selected for the first round. Again, while there is not a formal process, he believes if any citizen was interested in serving they should make the current hospital board aware ofthat interest, certainly could make anyone on the PAG aware ofthat interest, and he is sure that message would be communicated to the people putting together the list. Regardingthe difference between the hospital board and local board, Mr. Kahn confirmed thatthe hospital board is more of a facility board versus the regional board which oversees all of the facilities. The hospital board is the one responsible for approving and credentialing of the medical staff and overseeing quality at the local level. Whereas the local board, as defined on slide 12, is really just sort of a step higher, thinking more strategically, and evaluating decisions on more of a regional level that would include not just New Hanover, but Brunswick and all the other facilities and physician practices involved in the system as a whole. Again, that hospital board would be expected to have decisions that are necessary to remain at the local level under accreditation standards. In terms of day to day operations, he thinks the management team at New Hanover is going to be largely reporting to the local board. The Newco Board ("hospital board") is to be responsible, again, for medical staff issues and quality issues, but he thinks there is an opportunity to work out the dynamics in terms of capital needs or financial decisions, whether that starts at an organic level at the hospital board and rises up to the local board as a recommendation, or whether it starts at the local board and comes down to the hospital board as a recommendation to be ratified. Mr. Kahn then reviewed the financial commitments stating that it has been well documented with respect to the different buckets of money that Novant is contributing as part of this deal, starting with the $1.5 billion of upfront payments at closing, of which $100 million will be held in escrow with $75 million being released to the County at the two-year mark and the remainder will be released at the four-year mark, post -closing. $50 million will be contributed to the NHRMC foundation, $600 million is going to be earmarked for routine capital expenditures over the next 10 years, and then $2.5 billion is earmarked for strategic capital expenditures. It is a tremendous amount of investment being made, not only in the facility but in the region, in the furtherance of access to care and all of the core considerations that were discussed earlier. Mr. Kahn then reviewed the key transaction points noting that the slide is an overview of the legal structure of the deal. It is being structured as an asset purchase, as opposed to if you were in the for-profit world as a stock PARTNERSHIP ADVISORY GROUP SEPTEMBER 29, 2020 MEETING PAGE 3 sale. Again, this is being structured as an asset purchase meaning that Novant is not necessarily stepping into the shoes of ownership. Novant is acquiring all of the assets used in the operation of the facility, and then using those assets to operate the facility going forward. As part of that, in the purchase agreement, are various sections associated with acquired assets, excluded assets, assumed obligations, excluded liabilities and again, that is in reflection of the structure that is being used for this transaction. The vast majority of the assets used currently in operation of the hospital are being assigned to Novant as part of this transaction. The vast majority of operational liabilities associated with all ofthe contracts, for example, that are currently being maintained are being assigned to Novant and it will take on those obligations on a go forward basis. Certain excluded liabilities reflect those associated with, for example, the COVID-19 relief programs, certain pension obligations, and certain legal liabilities that arose pre-closing that Novant will not be taking over. Again, that is where the $100 million general escrow comes into play to the extent that those are identified post -closing, there is that bucket of money available to address those obligations following closing. The deal includes a number of other key elements such as Novant is getting a robust representation and warranty insurance. The APA includes tens of pages of representations and warranties where New Hanover is representing that the assets that Novant is acquiring are what we say they are. Certainly an extensive level of due diligence took place, but in the binding contract there is also an element of representing and warranting that in exchange for the capital being invested here, they are getting what they are expecting to get. In the unlikely event that there is an inaccuracy in any of those representations or warranties, Novant has procured an insurance policy against which they withdraw. There is a certain deductible that has to be cleared first which will be split between Novant and the general escrow fund, but once that deductible has been cleared, Novant would seek as their sole exclusive remedy for any inaccuracy via the general representations and warranties recourse from the insurance policy as opposed to, for example, coming after the County or taxpayers for any liability. That was a really key element reflected in the LCI and again, it was carried forward into the APA that Novant's sole recourse beyond the deductible for inaccuracies in the general representations and warranties is the insurance policy. Again, that is a really key element. Beyond that, for certain fundamental representations or other excluded liabilities, again, their sole recourse ifthe policy does not provide coverage would be the general escrowfund. A fence has been put around the potential liability coming out ofthis transaction that it is either the policy or the general escrow fund. At no point will County tax dollars ever be in jeopardy as a result of this transaction, which is a key point to emphasize with respect to the APA. Member Gizdic stated as a point of clarification, the one other aspect to point out would be working capital. In terms of the transaction, it is not like the hospital stops on a Monday night and starts over again on Tuesday morning after closing. It is really kind of saying this is a multi -million -dollar operation that is on an ongoing basis, on a day by day basis, so there are things that could occur before closing or after closing because everything is happening in real time. There is a bucket of money in escrow called working capital to make sure the organization continues to operate and function. There will be a crossover from when the County owns it to when Novant owns it and it is just not a clean break point, so typically a very short term fund is setup for those things that might occur, a few days before and exists for a few days after the transaction as it requires that level of specificity and cleanup. Then any of those working capital escrows that are not used certainly get returned and are not left in the deal. Mr. Kahn stated that it is essentially a transfer of a balance sheet, think ofthe assets versus liabilities. It is being estimated that the assets will exceed the liabilities by a certain dollar amount at the closing, but being able to account for the immense number of moving parts that this organization has at any snapshot in time, it just would not be possible on the day of closing to accurately account for all ofthe moving dollars within the system. As such, an estimate is made, we peg against that and then, after closing, there is what is called a reconciliation period where now that the dust is settled, we go back and we look as of the day of closing, not what happens afterward, truly what were the assets versus the liabilities. To the extent there is a gap between what they actually were and what we estimated it to be, there is a reconciliation there. Monies have been set aside in a separate escrow account to make sure that any gap can be addressed and to the extent that money is not needed as part ofthe reconciliation, it will be pushed forward to the County and the community as with all the other dollars. Mr. Kahn confirmed it is a short term fund as it will take roughly 120 days for the reconciliation. In review of slide 15 regarding the break fee, Mr. Kahn stated it is typical of a transaction ofthis size. There has been an incredible amount of resources expended to date, which will continue leading up to the closing on all sides. When it is said this is a binding agreement, the concept is intended to underscore those commitments. In the event that we get to closing and one side fails to follow through on its obligations to move forward with the closing as set forth in the APA, then there would be a payment due by the party responsible for that breach to the other side. Again, reflecting the fact that when the agreement was signed, it is intended to be binding and subject to the contingencies for closing and once those contingencies are satisfied, the parties expect to move forward with closing. Mr. Kahn then reviewed the use of the proceeds stating that as it has been discussed when talking about net proceeds, it is important to note it is unknown the exact dollar figure at closing for the reasons Member Gizdic alluded to, that is networking capital. Certain buckets of money have been identified that the net proceeds will be directed to, but that includes not just the $1.5 billion payment or $1.4 billion when taking out the $100 million escrow, but it also includes the cash of the organization after the bonds are paid off and other debts are paid. It is still expected to be hundreds of millions of dollars' worth of cash that will accrue as part of the net proceeds to the community. Again, it is unknown exactly what that dollar amount will be as we sit here today, there is a reasonable estimate of what it will be, but that will be ascertained at the time ofthe closing. Then that cash will be used, again, to pay offthe bond debt and other debt liabilities and then will accrue as part ofthe net proceeds. It will be spent in the three buckets shown on slide 16. A portion of it will be retained by New Hanover County, and then New Hanover County will direct and grant $200 million of it to the employees and provide a resiliency fund. The remainder of that, which is estimated to be about a $1.25 billion, which he thinks is a good faith estimate of where it is thought the net balance will land, will be granted to the public benefit community foundation that has been discussed and is intended to address some really key issues within the community to address the health and welfare of the community. In PARTNERSHIP ADVISORY GROUP SEPTEMBER 29, 2020 MEETING PAGE 4 response to questions, Mr. Kahn confirmed that it was correct that the New Hanover County amount are fixed dollars, then under NHRMC the $200 million is a fixed amount that will go to the resiliency fund. The escrow that he described earlier that has some potential flow back over two years and four years which then floats into the approximate number after the reconciliation will flow to the proposed community foundation. It starts with $1.5 billion which is added again using a rough estimate of $300 or $400 million in cash after all debts have been paid, so it is from that aggregate amount, around $1.8 - $1.9 billion, that $350 million goes to the County, the $300 million into the second bucket on the slide, and the remainder will go to the foundation. As to if the $100 million in escrow flows back to the County into the rainy day fund or flows to the foundation, Mr. Kahn stated he believes 50% goes into the public benefit foundation and 50% goes to the hospital foundation. A brief conversation was held about the Commissioners' September 28th public hearing where several speakers may have stated incorrectly that Novant would have a say over what happened with the community fund. As to if there is any legal authority that Novant has over the $1.25 billion fund, Mr. Kahn stated the short answer is no. The slightly expanded answer is that as it is intended, the County will appoint five members of the community foundation and the local hospital board will appoint the other six. As discussed earlier, the local board will be self- perpetuating. Novant will not have a role in appointing anyone on that board. Ratification, yes, but Novant can only ratify a nominee from the local board. That local board will not have any influence from Novant with respect to the six appointees it makes to the community foundation board. When looking at it from that dynamic, there is just no entry point at which Novant would have influence over either the appointment to the governing board or the activity ofthe community foundation itself. Member Campbell thanked Mr. Kahn for the explanation because he wanted to be sure it was discussed in this forum. While it is all laid out in the documentation and on the web, a lot of times people do not read it for themselves and they may believe what others are saying. He was surprised to hear it mentioned during the public hearing. Vice Co -Chair Cameron stated that it is his understanding that the founding documents of the foundation will also further limit where the money can be spent and who can benefit from the money. It is going to be spent locally, as he understands it, and that just further removes any concern in his mind that it is taken somewhere it does not need to be. Mr. Kahn stated that was correct. The foundation will have its own charter and once the appointments are made to the board, that board will have autonomy and independence to make decisions with respect to grants from the foundation funds, consistent with that charter. He reconfirmed there will be parameters within which they can make grants, but within those parameters, they will have the independence to make those decisions without either the County's or Novant's influence. That will be a decision retained autonomously by the community foundation board. CLOSED SESSION Co -Chair Broadhurst announced that the meeting would move into closed session for confidential discussion and review of confidential information, pursuant to North Carolina General Statute (NCGS) 143- 318.11(a)(1), NCGS 143-318.11(a)(3), and NCGS 131E-97.3. These protect competitive healthcare activities and attorney-client matters. He asked for a motion to move into Closed Session. Motion: Member Gage MOVED, SECONDED by Vice Co -Chair Pino to enter into a closed session pursuant to NCGS 143-318.11(a)(1), NCGS 143-318.11(a)(3), and NCGS 131E-97.3. These protect competitive healthcare activities and attorney-client matters. Upon vote the MOTION CARRIED UNANIMOUSLY. Co -Chair Broadhurst excused the public participants and convened to Closed Session at 6:20 p.m. CONVENE TO OPEN SESSION Co -Chair Broadhurst called the meeting back to order at 7:02 p.m. and thanked the members for a good discussion and expressed appreciation to public for their patience during that time. CHARTER DELIVERABLE #6 DISCUSSION AND VOTE (SLIDE 16) Co -Chair Broadhurst stated the next order of business is to consider the PAG Charter deliverable number six to make a final recommendation to the Boards based on the PAG's work to date as to (i) whether or not it would, overall, be in the best interest of the citizens of New Hanover County and the surrounding communities for the parties to execute and implement such final definitive agreement(s), and (ii) whether or not, overall, executing and implementing such agreement(s) would be in the best interests of NHRMC in fulfilling its mission and meeting its charitable purposes now and into the future. He stated he would entertain a motion to recommend approval to both Boards, the asset purchase agreement as it has been presented. Motion: Vice Co -Chair Cameron MOVED, SECONDED by Member McGhee to make a final recommendation to the Boards based on the PAG's work to date as to (i) whether or not it would, overall, be in the best interest of the citizens of New Hanover County and the surrounding communities for the parties to execute and implement such final definitive agreement(s), and (ii) whether or not, overall, executing and implementing such agreement(s) would be in the best interests of NHRMC in fulfilling its mission and meeting its charitable purposes now and into the future. Co -Chair Broadhurst further stated as this will be the final meeting ofthe PAG, members will vote either in support of, or not in support of the final definitive agreement(s) and will deliver that written recommendation to the Boards. Again, this will be the PAG's sixth and final deliverable to the Boards. Hearing no further discussion, Co - Chair Broadhurst asked for a vote on the motion on the floor. Upon vote, the MOTION CARRIED UNANIMOUSLY. CLOSING REMARKS AND ADJOURNMENT Co -Chair Broadhurst congratulated all ofthe PAG members on all the work they have done. For him, it has been an honor to work with everyone and to get to know so many in the group that he did not know before and some who he knows, but not as well. It has been an honor to make new friends and he counts on these relationships PARTNERSHIP ADVISORY GROUP SEPTEMBER 29, 2020 MEETING PAGE 5 carrying forward for the rest of his life and he appreciates the opportunity to be with everyone and it has been a true pleasure. Co -Chair Biehner stated it has been a journey and the PAG has had hundreds of hours and thousands of pages that the members read, a lot of hours of preparation, many conversations, many questions that have been answered, many hours of lost sleep for some, and hours of homework. The PAG has been through so much and has done so much and she thinks the support team needs to be recognized for what they have done to help the members and their tireless hours, days, nights, and weekends to support the members. In this time in the journey, they all have really gotten through one of the most difficult discussions regarding one of the most impactful decisions she thinks that this community and the citizens of this region will ever have. The PAG was asked to provide six deliverables and as of tonight, it has completed that journey. The members have found respect for what each of them have brought to the table. She stated it has been an honor and a pleasure to work with everyone and she greatly appreciates it and considers all new or renewed friends. She looks forward to continuing those discussions and opportunities to be together again. Member Gage thanked the chairs and co-chairs on behalf of the group. She thinks they have done a remarkable job and showed incredible leadership. It was like herding cats the first six months. When one looks back at some point, without even articulating, they all came together. She thinks it has restored everybody's faith in what working on a great committee can be like, because there are many boards and committees that are not like this. She reiterated her thanks to the chairs and co-chairs. Member Adams stated she does appreciate working with this group, but more importantly, she appreciates the thought that they always kept the community first. In all of their discussions whatever they were about, the group always ended up thinking about what was best for the communities that they live in. Member Campbell thanked Members Coudriet and Gizdic for their courage, especially Member Gizdic. When Member Gizdic first brought this up to him, Member Campbell asked him what was in it for him, why was he doing this and he is glad that Member Gizdic looked down the road, over the horizon, and thought to bring this question to the County. It has been a real honor being a part of a group that really came to work. He thanked everyone for what they have done for the community, and thanked Member Gizdic for making a tough call and being willing to endure all that came with it. Hearing no further discussion, Co -Chair Broadhurst recognized Member Gizdic for final remarks. Member Gizdic stated over a year ago, this group came together as a group of individuals. Tonight the group finishes as one united team. Each member gave a year oftheir life to volunteer for something bigger than all of them. Each kept an open mind, learned, evaluated, challenged, and in the end, did what many thought was not possible. The group came to a unanimous recommendation, but it did not stop there, despite it not being in charter. The group went above and beyond to educate the community and to advocate for PAG's decision. Quite honestly, what this group has achieved is nothing short of remarkable. Each member put their personal reputations on the line to do what is best for the organization and for the community, despite being judged and judged harshly at times. He asked that the members know that history is the one true judge and he believes history will look very favorably upon this group. The work the group has done over the past year and the decision it has made will make a difference. The members' service will create an enduring legacy in this community for generations to come. On behalf of New Hanover Regional Medical Center and for himself personally, he thanked the members for their perseverance, diligence, personal sacrifice, but most of all, for having the courage to choose possibility and a better future for this organization and this community. There being no further business, Co -Chair Broadhurst adjourned the meeting at 7:19 p.m. Respectfully submitted, /Kymberleigh G. Crowell/ Kymberleigh G. Crowell Clerk to the Board Please note the above minutes are not a verbatim record of the Partnership Advisory Group meeting. Meeting materials associated with this meeting are included as attachments to these minutes for reference. 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