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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Rockingham No. 2007-537 FOUNDATION FOR SEACOAST HEALTH v. HCA HEALTH SERVICES OF NEW HAMPSHIRE, INC. & a. Argued: May 22, 2008 Opinion Issued: July 15, 2008 Devine, Millimet & Branch P.A., of Manchester (George R. Moore and Daniel E. Will on the brief, and Mr. Moore orally), and McDermott, Will & Emery LLP, of Boston, Massachusetts (Emily E. Smith-Lee on the brief), for the plaintiff. McLane, Graf, Raulerson & Middleton P.A., of Manchester (Wilbur A. Glahn, III on the brief), and Latham & Watkins LLP, of Washington, D.C. (Everett C. Johnson, Jr. & a. on the brief and Mr. Johnson orally), for the defendants. HICKS, J. The plaintiff, Foundation for Seacoast Health (Foundation), appeals decisions of the Superior Court (McHugh, J.) granting the defendants', Hospital Corporation of America (HCA) and its successors and HCA Health Services of New Hampshire, Inc. (HCA-NH), motion for summary judgment and

motion to dismiss, and denying the Foundation's motion for partial summary judgment. We affirm in part, vacate in part and remand. I. Background

The trial court found or the record supports the following. In 1895, the New Hampshire legislature created the Portsmouth Regional Hospital (hospital) as a public trust. In 1983, the trustees of the hospital decided to sell the hospital and entered into an Asset Purchase Agreement (APA) with HCA and HCA-NH. When the parties entered into the APA, HCA was a publicly traded national corporation that owned all of the common stock of HCA-NH. Upon closing, HCA-NH became the owner of the hospital's assets and operator of the hospital. The proceeds of the sale went to the creation of the Foundation, a nonprofit entity charged with, among other things, ensuring that the hospital continued to meet the healthcare needs of the community. The APA affords the Foundation a right of first refusal (ROFR) to repurchase the hospital's tangible assets under certain circumstances. We note here that HCA has undergone numerous transactions since 1983 and is currently survived by a successor. For ease of reference, we adopt the defendants' use of the term "HCA3" to refer to the 1983 iteration of HCA and all its successors. We also note that the defendants acknowledge that HCA3 took HCA's place under the APA. The ROFR provision reads as follows: 5.2.11. Right to Repurchase Hospital.

(a) Right of First Refusal. Neither [HCA3] nor HCA-NH will directly or indirectly by merger or transfer of stock or otherwise sell, transfer, assign, or otherwise dispose of all or any substantial part of the assets of the Hospital (a "Transfer") unless (i) [HCA3] shall have received a bona fide arm's length written offer with respect to the Transfer of such assets of the Hospital (a "Bona Fide Offer"), and (ii) prior to the making of any such Transfer, [HCA3] shall have given written notice to the Foundation stating its desire to dispose of such assets and enclosing a copy of the Bona Fide Offer. Thereafter, the Foundation shall have an assignable option to purchase all (but not less than all) of the tangible assets specified in such notice,

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said option to be exercised by the giving, by the Foundation or its assignee (the "Purchaser"), as appropriate, within 120 days after delivery of such notice, of a counter-notice stating that the sender of such counter-notice desires to purchase all of such assets. . . . Notwithstanding the foregoing, this Section 5.2.11(a) shall not apply to a Transfer by [HCA3] or HCA-NH to a wholly-owned subsidiary of [HCA3] ("Transferee") if, from and after such Transfer, the Transferee shall perform and assume all obligations of [HCA3] and HCA-NH under this Agreement and prior to such Transfer shall agree to such performance and assumption of obligations in a writing satisfactory to the Seller; provided, however, that no such Transfer shall relieve [HCA3] from any of its obligations hereunder. APA

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