EXHIBIT 10.3
EMPOWER HEALTH CORPORATION
SUPERIOR CONSULTANT HOLDINGS CORPORATION
XXXX XXXXXXXX
ADVENTIST HEALTH SYSTEM SUNBELT HEALTHCARE CORPORATION
_______________________________________
EMPOWER HEALTH CORPORATION
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
_______________________________________
January 29, 1999
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this "Agreement")
is made as of January 29, 1999, by and among EMPOWER HEALTH CORPORATION, a Texas
corporation ("Empower"), SUPERIOR CONSULTANT HOLDINGS CORPORATION, a Delaware
corporation ("Superior"), XXXX XXXXXXXX ("Xxxxxxxx") and ADVENTIST HEALTH SYSTEM
SUNBELT HEALTHCARE CORPORATION, a Florida not-for-profit corporation
("Adventist").
RECITALS
A. Empower and Superior are parties to a Registration Rights Agreement
dated April 28, 1998 (the "the Former Registration Rights Agreement"), pursuant
to which Empower granted to Superior certain registration rights relating to the
shares of the capital stock of Empower purchased by Superior in connection with
a Stock Issuance and Sale Agreement between Empower and Superior dated as of
April 28, 1998 (the "Sale Agreement").
B. The execution, delivery and effectiveness of the Investment Agreement
of even date herewith (the "Investment Agreement") among Adventist, Empower and
HealthMagic, Inc., a Delaware Corporation, is contingent upon the simultaneous
execution and delivery of this Agreement;
C. Pursuant to the Investment Agreement, Adventist acquired shares of
Series C Convertible Preferred Stock of Empower (the "Series C Preferred
Stock"), which shares are convertible into 10% of the issued and outstanding
common stock of Empower on a fully diluted basis;
D. Pursuant to the Loan Agreement between Empower and Xxxxxxxx dated
December 30, 1998 (the "Loan Agreement"), Xxxxxxxx has the right to acquire up
to approximately 27,000 shares of Series C Preferred Stock;
E. Empower and Superior wish to supersede and replace the Former
Registration Rights Agreement with this Agreement; and
F. Empower has agreed to provide Adventist and Superior the registration
rights set forth in this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS. The following terms, when capitalized herein, shall have
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the following meanings.
1.1 "ADVENTIST SHARES" means (a) the shares of Series C Preferred Stock
issued to Adventist pursuant to the Investment Agreement, and (b) any other
shares of any class of Empower's common stock which Adventist acquires from
Empower in a non-registered
transaction, whether directly or upon conversion of any security, warrant or
instrument acquired from Empower in a non-registered transaction.
1.2 "BUSINESS DAYS" means any that is not a day on which banking
institutions in the city of Austin, Texas are authorized by law, regulation or
executive order to close; and Saturdays and Sundays shall not be considered
"Business Days."
1.3 "COMMISSION" means the Securities and Exchange Commission.
1.4 "COMMON STOCK" means the common stock, par value $.01 per share, of
Empower.
1.5 "CONVERSION SHARES" means shares of Common Stock (i) received by
Superior, Xxxxxxxx or Adventist upon conversion of their respective Shares and
(ii) issued or issuable to Superior, Xxxxxxxx or Adventist in respect of or in
exchange for any of their respective Shares by way of a stock dividend or stock
split or in connection with a combination of Shares, recapitalization,
reclassification, merger, consolidation, or exchange offer.
1.6 "DEMAND NOTICE" means a written notice delivered to Empower pursuant
to Section 2 below demanding that Empower effect a Demand Registration.
1.7 "DEMAND REGISTRATION" means a registration by Empower of all or a
part of the Registrable Securities under the 1933 Act pursuant to a Demand
Notice delivered in accordance with Section 2.1 of this Agreement.
1.8 "DEMANDING REGISTRABLE SECURITIES HOLDER" means the Registrable
Securities Holder(s) who has delivered to Empower a Demand Notice pursuant to
Section 2.1 of this Agreement.
1.9 "EXCHANGE ACT" means the Securities and Exchange Act of 1934, as
amended.
1.10 "INDEMNIFIED PARTY" means each party entitled to indemnification
pursuant to Section 7.
1.11 "INDEMNIFYING PARTY" means each party required to provide
indemnification pursuant to Section 7.
1.12 "XXXXXXXX SHARES" means (a) the shares of Series C Preferred Stock
issued to Xxxxxxxx pursuant to the Loan Agreement and (b) any other shares of
any class of Empower's common stock which Xxxxxxxx acquires from Empower in a
non-registered transaction, whether directly or upon conversion of any security,
warrant or instrument acquired from Empower in a non-registered transaction.
1.13 "INITIAL PUBLIC OFFERING" means the first (and only the first) firm
commitment underwritten sale by Empower to the public (a) of a number of shares
of its common stock which, when added to any other outstanding shares then
eligible for public trading without registration or other restriction under the
1933 Act, constitute at least 20% of the number of shares of common stock
outstanding, on a fully diluted basis, after completion of such offering
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and (b) for an aggregate offering price (before payment of underwriters, or
brokers, commissions or discounts and the expenses of the offering) which, when
added to the aggregate offering price received by Empower from all other
offerings of its common stock pursuant to effective 1933 Act registration
statements, equals not less than $30 Million.
1.14 "NON-DEMANDING REGISTRABLE SECURITIES HOLDER" means a Registrable
Securities Holder(s) other than the Demanding Registrable Securities Holder.
1.15 "OTHER SHAREHOLDERS" means collectively, officers or directors of
Empower who own Common Stock, or holders of Common Stock other than the
Registrable Securities Holders or their assignees, who are entitled, by contract
with Empower, to have their Common Stock included in a registration of Empower
securities.
1.16 "PARTICIPATING REGISTRABLE SECURITIES HOLDER" means Registrable
Securities Holder that is participating in the registration of Common Stock
pursuant to this Agreement.
1.17 "PERSON" means any individual, corporation, partnership, limited
partnership, limited liability company or other business entity.
1.18 "PIGGYBACK NOTICE" means a written notice delivered by Empower to The
Registrable Securities Holders stating that Empower intends to conduct a
Piggyback Registration, which notice shall include a list of the jurisdictions
in which Empower intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws.
1.19 "PIGGYBACK REGISTRATION" means any registration by Empower of any of
its Common Stock under the 1933 Act for sale in an underwritten public offering,
other than (a) a Demand Registration or (b) a registration on Form S-8 or Form
S-4, or any other form which in the future may be approved by the SEC in lieu of
such forms for the same purposes.
1.20 "REGISTRABLE SECURITIES" means (a) the Conversion Shares, and (b) any
securities issued or issuable in respect of or in exchange for any of the
Conversion Shares by way of a stock dividend or stock split or in connection
with a combination of Conversion Shares, recapitalization, reclassification,
merger, consolidation, or exchange offer. For purposes of this Agreement, a
security ceases to be a Registrable Security (i) when it has been effectively
registered under the 1933 Act and disposed of in a public market transaction
pursuant to the registration statement, (ii) when it has been sold pursuant to
Rule 144 (or any successor provision) under the 1933 Act, (iii) when it has been
otherwise transferred and a new certificate therefor, not bearing a legend
restricting further transfer, has been delivered by Empower following Empower's
receipt of a reasonably satisfactory opinion of counsel that the issuance and
delivery of such a certificate is legal and proper under this Agreement and
applicable law or (iv) when it is no longer outstanding.
1.21 "REGISTRABLE SECURITIES HOLDER" means the holder(s) of any
Registrable Securities that assumes in writing the obligations of a Registrable
Securities Holder under this Agreement.
1.22 "REGISTRATION EXPENSES" means all expenses, other than Selling
Expenses, incurred in connection with any registration of securities including,
without limitation, all
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registration and filing fees, printing expenses, fees and disbursements of
independent auditors and counsel for Empower, blue sky fees and expenses, the
fees and disbursements of one counsel to The Registrable Securities Holders in
connection with the registration of the Registrable Securities incident to or
required by any such registration (but excluding the compensation of regular
employees of Empower, which shall be paid in any event by Empower).
1.23 "1933 ACT" means the Securities Act of 1933, as amended.
1.24 "SELLING EXPENSES" means all underwriting discounts and selling
commissions incurred in connection with any registration of securities.
1.25 "SHARES" means (a) the Superior Shares, (b) the Xxxxxxxx Shares and
(c) the Adventist Shares.
1.26 "SUPERIOR SHARES" means (a) the shares of Empower's Series B
Convertible Preferred Stock issued pursuant to the Sale Agreement, and (b) any
other shares of any class of Empower's common stock which Superior acquires from
Empower in a non registered transaction, whether directly or upon conversion of
any security, warrant or instrument acquired from Empower in a non-registered
transaction.
2. DEMAND REGISTRATION.
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2.1 DEMAND FOR REGISTRATION. If Empower shall receive from a Demanding
Registrable Securities Holder a Demand Notice, then, subject to Section 2.2,
Empower will, as soon as practicable, provide notice of such Demand Notice to
each Registrable Securities Holder and use its reasonable best efforts to effect
such registration (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate qualifications under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the 0000 Xxx) as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of the Registrable Securities as are identified in the Demand Notice and
written notices provided to Empower and the Demanding Registrable Securities
Holder by the Non-Demanding Registrable Securities Holder within 15 days of
receipt of Empower's notice of a Demand Notice.
2.2 EXCEPTIONS TO OBLIGATION. Notwithstanding the provisions of Section
2.1, Empower's obligation to effect, or to take any action to effect, any
registration demanded pursuant to that Section shall be subject to the
following:
(a) Empower shall not be obligated to effect, or take any action to
effect, any registration in any particular jurisdiction in which Empower
would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance, unless Empower is
already subject to service in such jurisdiction and except as may be
required by the 1933 Act or applicable roles or regulations thereunder.
(b) Except as provided in Section 2.5 and 2.6, Empower shall not be
obligated to effect, or take any action to effect, any registration after
Empower has effected one such registration for each of Superior, Adventist
and Xxxxxxxx pursuant to Section 2.1, provided that such registration has
been declared or ordered effective and no stop order
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has been entered with respect to such registration statement which has not
been lifted or discontinued.
(c) If prior to the receipt by Empower of the Demand Notice from a
Demanding Registrable Securities Holder, Empower has given written notice
to the Registrable Securities Holders of Empower's intent to register in a
proposed public offering of Empower Common Stock for employer's own account
under the 1933 Act other than a registration relating solely to employee
benefit plans or Rule 145 transactions), then, provided thereafter Empower
files the registration statement with the Commission within 60 days after
Empower has given notice of its intent to register and provided the
offering is declared or becomes effective within 60 days after the initial
filing of the registration statement, the following shall apply:
(i) If all Registrable Securities held by a Registrable
Securities Holder are registered and sold in that public offering as
a consequence of the piggyback registration rights arising under
Section 4 below, then the right of such Registrable Securities Holder
under this Agreement to demand registration of the Registrable
Securities pursuant to this Section 2.1 shall be extinguished.
(ii) If all Registrable Securities of a Registrable Securities
Holder are not registered and sold in that public offering, then such
Registrable Securities Holder may not make its request under this
Section 2, prior to the earlier of (A) one hundred twenty (120) days
after the date Empower sent out the first notice of the intent to
register (provided the registration statement has not become
effective) or (B) six months after the effective date of the
registration statement.
(iii) Empower may not give any written notice of intent to
register as provided in this Section 2.2(c) prior to one hundred
eighty (180) days after it has previously given any such notice which
has led to a completed offering of Common Stock.
(d) Empower shall not be obligated to effect, or take any action to
effect, the registration of any Registrable Securities with respect to
which Superior has exercised its option, under the Put and Option Agreement
dated April 28, 1998 between Superior and Empower, to require Empower to
repurchase such Registrable Securities, provided that Empower is not in
default in the performance of such obligation.
(e) Empower shall not be obligated to effect, or take any action to
effect, any registration if (i) Empower delivers to the Demanding
Registrable Securities Holder, within twenty (20) days after its receipt of
a Demand Notice, an opinion (reasonably acceptable to the Participating
Registrable Securities Holders and their counsel) of outside counsel
qualified in Federal securities law issues to the effect that all
Registrable Securities can be sold or disposed of in a single public
transaction without registration under the 1933 Act and that the resale of
such securities to any purchaser does not require registration under the
1933 Act and (ii) Empower agrees to remove all restrictive legends on the
certificates evidencing the Registrable Securities. Empower agrees to
indemnify the Participating Registrable Securities Holders against and to
hold them harmless from
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all damages, losses and liabilities (including liability for rescission),
costs and expenses including reasonable attorneys' fees) based upon or
arising out of the failure to comply with Section 5 of the 1933 Act as a
consequence of the Registrable Securities Holders proceeding in accordance
with such outside counsel's opinion.
(f) Empower may delay filing a registration statement for a period of
not more than ninety (90) days after the date of receipt of the request
from a Demanding Registrable Securities Holder if a majority of the
directors then comprising Empower's Board of Directors (including a
majority of the independent Directors) determine that compelling corporate
requirements necessitate the postponement.
(g) Empower shall not be obligated to effect, or take action to
effect, any registration until 180 days after the completion of an Initial
Public Offering.
(h) Empower shall, in any event, not be obligated to effect any
registration unless the anticipated aggregate offering proceeds, net of
underwriting discounts and commissions, are expected to exceed $5,000,000.
(i) Any registration under this Agreement shall be for resale only;
Empower shall have no obligation to attempt to register the original
issuances of securities subject to options, warrants or other derivative
securities.
2.3 EFFECTING REGISTRATION. Subject to the foregoing Section 2.2, Empower
shall use its reasonable best efforts to file a registration statement covering
the Registrable Securities identified in a Demand Notice as soon as practicable
after receipt of the Demand Notice, and shall use reasonable best efforts to do
all of the things required pursuant to Section 5 below.
2.4 UNDERWRITING.
(a) If the Demanding Registrable Securities Holder intends to
distribute the Registrable Securities covered by the Demand Notice by means
of an underwriting, it shall so advise Empower in the Demand Notice. The
lead underwriter shall be chosen by the Demanding Registrable Securities
Holder, which underwriter shall be acceptable to Empower in the exercise of
its reasonable judgment.
(b) If the Non-Demanding Registrable Securities Holder wishes to
include shares of Common Stock held by it in the underwritten offering, it
shall notify the Demanding Registrable Securities Holder in writing within
thirty (30) days after receiving the Registrable Securities Holder's Demand
Notice of the number of shares it wishes to include in the registration and
the Demanding Registrable Securities Holder shall include such shares in
the underwriting. If Empower wishes to include, in the underwritten
registration, Common Stock to be sold for the account of Empower it shall
notify the Demanding Registrable Securities Holder in writing within thirty
(30) days after Empower has received the Demand Notice of the number of
shares Empower wishes to include in the registration. If any Other
Shareholders of Empower wish to include shares of Common Stock held by them
in the underwritten offering, they shall notify the Demanding Registrable
Securities Holder in writing within thirty (30) days after Empower has
received the Registrable Securities Holder's Demand Notice. If the
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Demanding Registrable Securities Holder consents to the inclusion of Common
Stock offered for Empower's account or the Other Shareholders, (i) Empower
shall offer to include the shares of the Participating Registrable
Securities Holder and the Other Shareholders in the underwriting and shall
condition such offer on their acceptance of the further applicable
provisions of this Agreement, and (ii) Empower shall (together with the
Registrable Securities Holders and the Other Shareholders proposing to
distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by the Demanding Registrable
Securities Holders as set forth above.
(c) Notwithstanding any other provision of this Section 2.4, if the
underwriter advises the Registrable Securities Holders in writing that
marketing factors require a limitation on the number of shares to be
underwritten,
(i) Common Stock held by Other Shareholders shall be excluded
from such registration to the extent so required by such limitation
in proportion, as nearly as practicable, to the respective amounts of
securities which each such Other Shareholder and Participating
Registrable Securities Holder has a contractual right to be included;
(ii) If a limitation of the number of shares is still required,
the number of shares of Common Stock which Empower has requested to
be included in the registration and underwriting shall be reduced or
eliminated, as required; and
(iii) If a limitation on the number of shares is still required,
Common Stock held by the Demanding Registrable Securities Holders and
the Participating Registrable Securities Holder shall be excluded
from such registration to the extent so required by such limitation
in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities which each such Registrable Securities Holder
holds.
No securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. If any Other
Shareholder or the Participating Securities Holder has requested inclusion
in such registration as provided above disapproves of the terms of the
underwriting, such Other Shareholder or Participating Securities Holder may
elect to withdraw therefrom by written notice to Empower, the underwriter
and the Demanding Registrable Securities Holder. The securities so
withdrawn shall also be withdrawn from registration.
(d) If the Registrable Securities being registered pursuant to this
Section 2 are not to be distributed by means of an underwriting, then the
provisions of Section 3 shall apply.
2.5 EXCHANGE ACT REGISTRATION AND FORM S-3. Within thirty days after the
effectiveness of the registration statement pursuant to which Empower first
registers Common Stock under the 1933 Act, Empower shall register its Common
Stock under Section 12 of the Exchange Act and use its best efforts to maintain
that Exchange Act registration. After Empower has qualified for the use of Form
S-3, then (i) Empower shall use Form S-3 for any
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registration demanded by a Demanding Registrable Securities Holder pursuant to
Section 2.1 and (ii) Section 2.2(b) shall not be applicable; provided, that the
Registrable Securities Holders shall not be entitled to require Empower to
register Registrable Securities on a Form S-3 which has been declared effective,
pursuant to a Demand Notice delivered under Section 2.1, more than once in any
twelve month period.
2.6 WITHDRAWAL. A Demanding Registrable Securities Holder may withdraw a
Demand Notice prior to the effective date of the registration statement if a
material adverse change has occurred in the condition, business or prospects of
Empower and its subsidiaries from that known to the Demanding Registrable
Securities Holder at the time of delivery of its Demand Notice. In such event,
the Demanding Registrable Securities Holder's right to demand registration
pursuant to Section 2.1 shall be reinstated.
3. SELLING RESTRICTIONS. The following provisions shall apply if the
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registration demanded pursuant to Section 2.1 is not an underwritten
registration:
3.1 NOTICE TO COMPANY. The Demanding Registrable Securities Holder shall
notify Empower, at least two (2) Business Days prior to any disposition of
Registrable Securities pursuant to the registration statement, of its intent to
dispose of such Registrable Securities. Each Other Shareholder and Participating
Registrable Securities Holder whose shares shall have been registered shall
provide a similar notice to Empower with respect to any shares which such Other
Shareholder or Participating Registrable Securities Holder intends to dispose of
pursuant to the registration statement. Such notice shall be in writing, by
facsimile or by an actual telephone conversation with either Empower's Chief
Financial Officer, General Counsel or Director of Investor Relations, at the
address, facsimile number or the phone number, as the case may be, of Empower,
all as set forth in Section 11 below. Empower will exert reasonable efforts to
respond to such notice by the next Business Day, but in any event, Empower shall
respond no later than the second Business Day following the date of receipt.
Such response shall consist of one of the following:
(a) an oral or written confirmation that Empower knows of no reason
why the Demanding Registrable Securities Holder, the Participating
Registrable Securities Holder or the Other Shareholder should not proceed
with the proposed sale or disposition; or
(b) a notification that the proposed disposition must be delayed for
a period of up to thirty (30) days as provided in Section 3.2 below; or
(c) a confirmation from either the Chief Financial Officer or the
General Counsel of Empower that Empower requires a limited time, not to
exceed three (3) Business Days following the receipt of Empower's receipt
of the notice, within which to determine which of the foregoing responses
is appropriate under the circumstances.
(d) The failure by Empower to respond by the end of the second
Business Day (or the end of the third Business Day thereafter if a
confirmation pursuant to Section 3.1 (c) has been delivered) shall be
deemed to waive any objection to the proposed sale or disposition.
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3.2 RESTRICTION ON SALE. Following the effectiveness of a non-
underwritten registration, Empower may restrict disposition of Registrable
Securities or Common Stock, in which event the holders will not dispose of those
securities for the period designated by Empower, but not exceeding thirty days;
provided that:
(a) Empower shall have delivered a notice in writing to the Demanding
Registrable Securities Holder(s), the Participating Registrable Securities
Holder and such Other Shareholders stating that a delay in the disposition
of Registrable Securities or other shares is necessary because Empower, in
its reasonable judgment, exercised in good faith, has determined that such
sales would require public disclosure by Empower of material nonpublic
information that Empower deems advisable not to disclose at that time; and
(b) Empower shall exert commercially reasonable efforts to amend the
registration statement or amend or supplement the prospectus relating
thereto, if necessary, and to take all other actions necessary to allow the
proposed disposition to take place as promptly as practicable after the
conditions referred to therein have ceased to exist. Empower agrees to Use
all commercially reasonable efforts to keep the registration statement, as
amended pursuant to this Section 3.2, effective for an additional period of
time equal to the period during which sales were restricted pursuant to
this Section 3.2.
3.3 DISCONTINUANCE OF SALE. Each Registrable Security Holder and each
Other Shareholder whose shares are included in any registration contemplated
hereunder shall agree as a condition to the inclusion of their shares, that upon
receipt of any notice from Empower specified in Section 5.4(a) below, such
Person shall forthwith discontinue all sales and distributions of Registrable
Securities pursuant to the then-current prospectus until such Person receives
copies of a supplemental or amended prospectus as contemplated by Section 3.2,
or until such Person is advised in writing by Empower that the use of the
prospectus may be resumed, and, if so directed by Empower, such Person will
deliver to Empower all copies then in the possession of such Shareholder of the
prospectus in effect with respect to the Registrable Securities or other shares
at the time of such notice. Empower shall promptly take all such action as may
be necessary or appropriate, including, without limitation, the filing of an
amendment to the registration statement and/or the filing of an amended
prospectus or a prospectus supplement, to limit the duration of any
discontinuance with respect to the sale and distribution of Registrable
Securities pursuant to this Section 3.3, and shall keep the registration
statement, as amended, effective for an additional period of time equal to the
period during which sales were required to be discontinued.
4. PIGGYBACK REGISTRATION.
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4.1 INCLUSION IN OFFERING. If at any time during the period commencing on
the date of this Agreement and ending on the third anniversary of the closing
date of its Initial Public Offering, Empower shall determine to conduct a
Piggyback Registration either for its own account or the account of a security
holder or holders, Empower will use its reasonable best efforts to:
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(a) promptly deliver a Piggyback Notice to each Non-Demanding
Registrable Securities Holder; and
(b) include in such registration (and any related qualification under
blue sky laws or other compliance) and in any underwriting involved therein
all of the Registrable Securities specified in a written request or
requests made by a Participating Registrable Securities Holder within
fifteen (15) business days after receipt of the Piggyback Notice from
Empower.
4.2 UNDERWRITING. If the registration of which Empower gives notice is
for a registered public offering involving an underwriting, Empower shall so
advise the Participating Registrable Securities Holders in the Piggyback Notice.
In such event the right of a Registrable Securities Holder to registration
pursuant to this Section 4 shall be conditioned upon its participation in such
underwriting and the inclusion of the Participating Registrable Securities in
the underwriting. The Registrable Securities Holder shall (together with Empower
and any Other Shareholders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for the underwriting by Empower. If a
Participating Registrable Securities Holder or any Other Shareholder disapproves
of the terms of any such underwriting, such Person may elect to withdraw
therefrom by written notice to Empower and the underwriter. Any Registrable
Securities or other securities excluded or withdrawn from such underwriting
shall be withdrawn from such registration, and the allocation (if any) pursuant
to the following sections shall be adjusted accordingly. Any such withdrawal
shall be without prejudice to the right of a Registrable Securities Holder to
include Registrable Securities in future offerings pursuant to this Section 4.
4.3 PRIORITY IN PRIMARY REGISTRATIONS. If a Piggyback Registration is an
underwritten offering on behalf of Empower, and the managing underwriters advise
Empower in writing that in their opinion the number of securities requested to
be included in such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the offering, Empower
will include securities in such registration in the following order of priority:
(i) there shall first be included all securities which Empower proposes to sell;
(ii) to the extent additional shares may be included, there shall next be
included all Registrable Securities requested to be included in such
registration by the Participating Registrable Securities Holders pro rata based
on the respective number of shares of Common Stock held by each Participating
Registrable Securities Holder and (iii) to the extent additional shares may be
included, there shall next be included the Common Stock requested to be included
in such registration by Other Shareholders, pro rata based on the respective
number of shares of Common Stock held by each Other Shareholder.
4.4 PRIORITY IN SECONDARY REGISTRATIONS. If a Piggyback Registration is
an underwritten secondary offering on behalf of holders of Empower's securities,
and the managing underwriters advise Empower in writing that in their opinion
the number of securities requested to be included in such registration exceeds
the number which can be sold in such offering without adversely affecting the
marketability of the offering, Empower will include securities in such
registration in the following order of priority: (i) there shall first be
included Common Stock requested to be included in such registration by Other
Shareholders and any Participating Registrable Securities Holders, pro-rata,
based on their respective number of shares of Common
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Stock, and (ii) to the extent additional shares may be included, there shall be
included additional Empower securities which Empower has requested to be
included in such registration.
4.5 WITHDRAWAL OR DELAY OF REGISTRATION. The provisions of Sections 4.1
through 4.4 notwithstanding, if, at any time after delivering a Piggyback Notice
and prior to the effective date of the registration statement for such Piggyback
Registration Empower shall determine for any reason not to register or to delay
registration of the securities covered thereby, Empower may, at its election,
give written notice of such determination the Participating Registrable
Securities Holders and, thereupon (i) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation, if
any, to pay Registration Expenses in connection therewith), without prejudice,
however, to the right of the Participating Registrable Securities Holders to
include Registrable Securities in a subsequent registration and (ii) in the case
of a determination to delay registering, shall be permitted to delay registering
any Registrable Securities, for the same period as the delay in registering the
other securities covered by the registration statement.
5. REGISTRATION PROCEDURES. In the case of any Demand Registration or
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Piggyback Registration effected by Empower, upon request Empower will keep the
Registrable Securities Holders advised in writing as to the initiation of each
registration and as to the completion thereof. At its expense, Empower will use
its reasonable best efforts to.
5.1 REGISTRATION STATEMENT. Prepare and file with the Securities and
Exchange Commission such amendments and supplements to the registration
statement and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective for a period of one hundred twenty
(120) days or until the Participating Registrable Securities Holders have
completed the distribution described in the registration statement relating
thereto (which period shall be extended as contemplated in Section 3.2(b) or
Section 3.3), whichever first occurs, and comply with the provisions of the 1933
Act with respect to the disposition of all securities covered by such
registration statement during such period.
5.2 BLUE SKY QUALIFICATION. Subject to Section 2.2(a) above, to register
and qualify the Registrable Securities included in the registration under the
securities or blue sky laws of such states and the District of Columbia the
Demanding Registrable Securities Holder reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable to enable
the Participating Registrable Securities Holders to consummate the disposition
in such states and the District of Columbia of the Registrable Securities so
included.
5.3 FURNISH PROSPECTUSES. Furnish the number of prospectuses (including
preliminary prospectuses conforming to the requirements of the 1933 Act and
roles and regulations thereunder) and other documents incident thereto as The
Registrable Securities Holders from time to time may reasonably request.
5.4 NOTIFICATION.
(a) Notify the Participating Registrable Securities Holders, at any
time when a prospectus relating to Registrable Securities covered by a
registration statement is
11
required to be delivered under the 1933 Act, of the happening of any event;
as a result of which the prospectus included in such registration statement
includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of circumstances then
existing.
(b) Notify the Participating Registrable Securities Holders and the
managing underwriters, if any, promptly, and (if requested by any such
person) confirm such advice in writing, (i) when the registration
statement, the prospectus or any prospectus supplement or post-effective
amendment, has been filed, and, with respect to the registration statement
or any post-effective amendment, when the same has become effective; (ii)
of the issuance by the Commission of any stop order suspending the
effectiveness of a registration statement or of any order preventing or
suspending the use of any preliminary prospectus or the initiation of any
proceedings for that purpose; Empower shall promptly use its reasonable
best efforts to prevent the issuance of any stop order or to obtain a
withdrawal of any stop order should one be issued; and (iii) of the receipt
by Empower of any notification with respect to the suspension of the
qualification or exemption from qualification of a registration statement
of any Registrable Securities for offer or sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose.
5.5 OPINIONS AND COMFORT LETTERS. To the extent requested, furnish to the
underwriter, in an underwritten offering, or to the Registrable Securities
Holders, in a non-underwritten offering, (i) a signed opinion of Empower's
counsel, and (ii) "comfort" letters signed by Empower's independent public
accountants who have examined and reported on Empower's financial statements
included in the registration statement, to the extent permitted by the American
Institute of Certified Public Accountants, coveting the same matters with
respect to the registration statement (and prospectus included therein) and with
respect to the events subsequent to the date of the financial statements, as are
customarily covered in opinions of counsel and in accountants' "comfort" letters
delivered to the underwriters in underwritten public offerings of securities.
5.6 EXCHANGE OR NASDAQ LISTING. Use reasonable efforts to cause all
Registrable Securities included in the registration to be listed or admitted for
trading on such exchanges or markets (including but not limited to the NASDAQ
Stock Market, if applicable) as the Common Stock is otherwise listed or admitted
for trading.
5.7 EARNINGS STATEMENT. Otherwise use all reasonable efforts to comply
with all applicable roles and regulations of the Securities and Exchange
Commission, and make available to its security holders, as soon as reasonably
practicable, an earnings statement coveting the period of at least twelve months
beginning with the first day of Empower's first full calendar quarter after the
effective date of the Registration Statement, which earnings statement shall
satisfy the provisions of Section 1 ll(a) of the 1933 Act and Rule 158
thereunder.
6. EXPENSES OF REGISTRATION. All Registration Expenses incurred in
-------------------------
connection with any registration, qualification or compliance pursuant to this
Agreement shall be borne by Empower, and all Selling Expenses shall be borne by
the holders of the securities so registered
12
(including the Registrable Securities Holders, Other Shareholders and Empower,
to the extent securities are offered for its account) pro rata on the basis of
the gross sales proceeds received by each in the offering.
7. INDEMNIFICATION.
---------------
7.1 COMPANY INDEMNIFICATION. Empower shall indemnify and hold harmless, to
the fullest extent permitted by law, each seller of Registrable Securities, any
underwriter for such registration and each person or entity, if any, controlling
such seller or underwriter within the meaning of the 1933 Act or the Exchange
Act, against all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and legal expenses) to which such seller,
underwriter or controlling person or entity, as the case may be, may become
subject under the 1933 Act, the Exchange Act or other federal or state law,
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) arise out of or are based upon any of the following:
(a) any untrue statement or alleged untrue statement of a material
fact contained in any registration statement, any prospectus or any
amendments or supplements thereto;
(b) the omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
or
(c) any violation or alleged violation by Empower, in connection with
such registration, of the 1933 Act, the Exchange Act, any state securities
law or any role or regulation promulgated under the 1933 Act, the Exchange
Act or any state securities law;
provided, however, that Empower shall not be liable in any such case for any
such loss, claim, damage, liability or action to the extent that it arises out
of or is based upon any untrue statement or omission made in reliance upon and
in conformity with written information furnished for use in connection with such
registration by any such seller, underwriter or controlling person or entity.
7.2 INDEMNIFICATION BY REGISTRABLE SECURITIES HOLDERS. Each Registrable
Securities Holder shall indemnify and hold harmless, to the fullest extent
permitted by law, Empower, its officers, directors, employees, representatives
and agents, each Person who controls (within the meaning of the 0000 Xxx)
Empower, any underwriter, each other Registrable Securities Holder and each
Other Shareholder whose shares have been included in any registration in which
Registrable Securities have been included, against all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and legal
expenses) resulting from such Registrable Security Holder's (i) untrue or
alleged untrue statement of a material fact contained in any Registration
Statement, any Prospectus, or any amendment or supplement thereto, and (ii)
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, to the extent that such untrue statement
or alleged untrue statement or omission or alleged omission is made in reliance
upon and in conformity with written information furnished to Empower by such
Registrable Securities Holder expressly for
13
use therein, or (iii) if such offering is not an underwritten offering, from
such Registrable Securities Holder's failure to deliver a copy of the
registration statement, prospectus or any amendment or supplement thereto after
Empower has furnished such Registrable Securities Holder with a sufficient
number of copies of the same; provided, however, the obligation of a Registrable
Security Holder to indemnify will be several, not joint and several among the
Registrable Securities Holders, and in no event shall a Registrable Securities
Holder's aggregate indemnification obligation under this Section 7.2 exceed the
net proceeds from the offering received by such Registrable Securities Holder.
7.3 NOTICE OF CLAIM. Each Indemnified Party shall give notice to each
Indemnifying Party promptly after such Indemnified Party has actual knowledge of
any claim as to which indemnity may be sought, and shall permit the Indemnifying
Party to assume the defense of any such claim or any litigation resulting
therefrom; provided, that counsel for the Indemnifying Party, who will conduct
the defense of such claim or litigation at its expense, is approved by the
Indemnified Party (whose approval will not be unreasonably withheld or delayed);
and provided, further, that the failure of any Indemnified Party to give notice
as provided herein shall not relieve the Indemnifying Party of its obligations
except to the extent that its defense of the claim or litigation involved is
prejudiced by such failure. The Indemnified party may participate in such
defense at such party's expense. No Indemnifying Party, in the defense of any
such claim or litigation, except with the consent of each Indemnified Party,
shall consent to entry of any judgment or enter into any settlement that does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
of any claim or litigation, and no Indemnified Party will consent to entry of
any judgment or settle any claim or litigation without the prior written consent
of the Indemnifying Party. Each Indemnified Party shall furnish such information
regarding himself, herself or itself and the claim in question as the
Indemnifying Party may reasonably request and as shall be reasonably required in
connection with the defense of such claim and litigation resulting therefrom.
7.4 CONTRIBUTION. If for any reason the indemnification provided for in
this Section 7 from an Indemnifying Party, although otherwise applicable by its
terms, is determined by a court of competent jurisdiction to be unavailable to
an Indemnified Party hereunder, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by the Indemnified Parties as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of such Indemnifying Party and the Indemnified Parties in
connection with the actions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and the Indemnified Parties shall
be determined by reference, among other things, to whether any action in
question, including any untrue or alleged untrue statement of a material fact,
has been made by, or relates to information supplied by, such Indemnifying Party
or the Indemnified Parties, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such action. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include any legal
or other fees or expenses reasonably incurred by such party in connection with
any investigation or proceeding. Notwithstanding the foregoing, in no event
shall the amount contributed by a Registrable Securities Holder exceed under
this Section 7.4 exceed the net proceeds from the offering received by such
Registrable Securities Holder.
14
7.5 FROM OTHER SHAREHOLDERS. Empower agrees that, to the extent that it
shall grant to Other Shareholders the right to have Empower securities held by
them included in any registration of Empower securities, or to require Empower
to register their securities, it shall require as a condition to such grant that
such Other Shareholders agree to indemnify Empower and the Registrable
Securities Holders, and the officers, directors, employees, representatives and
agents of each as well as each Person who controls (within the meaning of the
0000 Xxx) each, with respect to any registration of their securities, on terms
substantially identical to that provided by the Registrable Securities Holders
in Section 7.2.
8. LOCK UP AGREEMENTS. In consideration for Empower agreeing to its
------------------
obligations under this Agreement, in connection with any Initial Public Offering
(whether or not a Registrable Securities Holder is participating in such
registration), upon the written request of Empower and the underwriters managing
any underwritten offering of Empower's securities, Registrable Securities
Holders agree not to sell, make any short sale of, loan, grant any option for
the purchase of, or otherwise dispose of any Registrable Securities (other than
those included in the registration) without the prior written consent of Empower
or such underwriters, as the case may be, for such period of time (not to exceed
one hundred eighty (180) days from the effective date of such registration) as
Empower and the underwriters may specify, so long as the Registrable Securities
Holders and all executives, officers and directors of the Company and Other
Shareholders holding more than one percent (1%) of the outstanding Common Stock
are bound by a comparable obligation provided, however, that nothing herein
shall prevent the Registrable Securities Holders from making a distribution of
Registrable Securities to its shareholders that is otherwise in compliance with
applicable securities laws, so long as such distributees agree to be so bound.
9. REPORTS UNDER EXCHANGE ACT. With a view to making available to the
--------------------------
Registrable Securities Holders the benefits of Rule 144 and any other rule or
regulations of the Securities and Exchange Commission that may at any time
permit a holder to sell securities of Empower to the public without
registration, Empower agrees to use its reasonable best efforts to do all of the
following at any time after it shall become subject to the reporting
requirements of Sections 13 and 14 of the Exchange Act:
9.1 PUBLIC INFORMATION. Make and keep public information available as
contemplated in Rule 144, at all times.
9.2 SEC REPORTS. File with the Securities and Exchange Commission all
reports and other documents required of Empower under the 1933 Act and the
Exchange Act.
9.3 RULE 144 STATEMENT. Furnish to the Registrable Securities Holders, so
long as each of them holds any Registrable Securities, forthwith upon request, a
written statement by Empower that it as to whether or not it has complied with
the reporting requirements of Rule 144, the 1933 Act and the Exchange Act, a
copy of the most recent annual or quarterly report of Empower and such other
reports and documents so filed with the Securities and Exchange Commission by
Empower as may be reasonably requested in availing any holder, under any rule or
regulation of the Securities and Exchange Commission, of the right to sell any
such Registrable Securities without registration.
15
10. TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS. The right to cause
----------------------------------------------
Empower to register Registrable Securities in a Demand Registration granted
under Section 2, the right to include Registrable Securities in a Piggyback
Registration granted under Section 4 and the other rights granted to a
Registrable Securities Holders hereunder may be transferred or assigned by such
Registrable Securities Holder to one or more transferees or assignees of the
Registrable Securities Holder, provided that Empower is given written notice by
such Registrable Securities Holder at the time of or within a reasonable time
after said transfer or assignment, stating the name and address of each
transferee or assignee and identifying the number of shares of Registrable
Securities with respect to which such registration rights are being transferred
or assigned, and provided further that the transferee or assignee of such rights
assumes in writing the obligations of the Registrable Securities Holder under
this Agreement. Notwithstanding the foregoing, Empower shall have no obligation
to recognize any assignment of Registrable Securities by a Registrable
Securities Holder, nor to cause Registrable Securities to be transferred on its
books or records, unless such transfer is made in accordance with the
registration or qualification requirements of the 1933 Act and all applicable
blue sky or other state securities laws or pursuant to available exemptions
therefrom (as evidenced by an opinion of counsel satisfactory in form and
substance to counsel for Empower).
11. INFORMATION FROM REGISTRABLE SECURITIES HOLDERS. Each Registrable
-----------------------------------------------
Securities Holder shall furnish to Empower such information regarding such
Registrable Securities Holder, the Registrable Securities and the distribution
proposed by such Registrable Securities Holder as Empower may reasonably request
in writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Agreement.
12. MISCELLANEOUS.
--------------
12.1 NO INCONSISTENT AGREEMENT. Empower will not hereafter enter into any
agreement with respect to rights securities which violates the rights granted to
the Registrable Securities Holders in this Agreement or grants to any holders
rights to demand registration of Empower securities, or have Empower securities
included in any registration, which rights are superior to those granted to the
Registrable Securities Holders herein.
12.2 AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of Empower and of the holders of seventy five percent (75%) of
the Registrable Securities; notwithstanding the foregoing, if an amendment to
this Agreement shall provide (i) the holder(s) of the Adventist Shares with
rights that are materially less than, or obligations that are materially greater
than, the rights of the Registrable Securities Holders in general, then such
amendment must be approved by the holders of 51% of the Adventist Shares, (ii)
the holder(s) of the Superior Shares with rights that are materially less than,
or obligations that are materially greater than the rights of the Registrable
Securities Holders in general, then such amendment must be approved by the
holders of 51% of the Superior Shares, or (iii) the holder(s) of the Xxxxxxxx
Shares with rights that are materially less than, or obligations that are
materially greater than the rights of the Registrable Securities Holders in
general, then such amendment must be approved by the holders of 51% of the
Xxxxxxxx Shares.
16
12.3 SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and permitted assigns.
12.4 SEVERABILITY. Whenever possible, each provision of this Agreement
will 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 prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement.
12.5 REMEDIES. The parties hereto agree and acknowledge that money
damages may not be any adequate remedy for any breach of the provisions of this
Agreement and that any party to this Agreement may apply to any court of law or
equity of competent jurisdiction (without posting bond or other security) for
specific performance and for other injunctive or equitable relief in order to
enforce or prevent violation Of the provisions of this Agreement.
12.6 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
12.7 DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
12.8 GOVERNING LAW. The corporate law of Texas will govern all issues
concerning the internal governance of Empower and the relative rights of Empower
and its stockholders in connection therewith. All other questions concerning the
construction, validity and interpretation of this Agreement and the exhibits and
schedules hereto will be governed by the laws of Michigan without regard to
choice of law principles which would require the application of the laws of any
other jurisdiction.
12.9 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, representations,
warranties, statements, promises, information, arrangement, and understandings,
whether oral or written, express or implied, with respect to the subject matter
hereof including the Former Registration Rights Agreement. Upon the execution
and delivery of this Agreement, the Former Registration Rights Agreement will be
terminated without any liability to any party, and fully superceded by this
Agreement.
12.10 NOTICES. Any and all notices and other communications hereunder
shall be in writing addressed to the parties at the addresses specified below or
such other addresses as either party may direct by notice given in accordance
with this section, and shall be delivered in one of the following manners' (i)
by personal delivery, in which case notice shall be deemed to have been duly
given when delivered; (ii) by certified mail, return receipt requested, with
postage prepaid, in which case notice shall be deemed to have been duly given on
the date indicated on the return receipt; (iii) by reputable delivery service
(including, by way of example and not limitation, Federal Express, UPS and DHL)
which makes a record of the date and time of delivery, in which case notice
shall be deemed to have been duly given on the date indicated on
17
the delivery service's record of delivery, or (iv) by fax transmission to the
fax numbers given below, with confirmation of good receipt and confirmed by
letter to the addresses set forth below, in which case notice shall be deemed to
have been duly given on the date indicated in the confirmation of fax
transmission (or the next Business Day if such date is not a Business Day or the
transmission is made after business hours):
if to Superior, to:
Superior Consultant Holdings Corporation
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Vice President and General Counsel
Fax: (000) 000-0000
if to Empower, to:
Empower Health Corporation 0000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
President and CEO
Fax: (000) 000-0000
if to Adventist to
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx Xxxxx
000-000-0000 (facsimile)
if to Xxxxxxxx to:
0000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
12.11 LEGEND. Each certificate representing shares of Common Stock that are
-------
subject to this Agreement shall bear a legend substantially in the following:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES OR BLUE SKY LAWS
AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE ASSIGNED
EXCEPT (1) PURSUANT TO A REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES
WHICH IS EFFECTIVE UNDER THE ACT OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE ACT RELATING THE
18
DISPOSITION OF SECURITIES AND (3) IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
AND BLUE SKY LAWS. THESE SECURITIES ARE ALSO SUBJECT TO THE PROVISIONS OF A
REGISTRATION RIGHTS AGREEMENT DATED AS OF JANUARY 29, 1999 AND A COMPLETE AND
CORRECT COPY OF THIS AGREEMENT IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL
OFFICE OF THE CORPORATION AND WILL BE FURNISHED UPON WRITTEN REQUEST AND WITHOUT
CHARGE
19
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
--------------------------------------------------------------------------------
EMPOWER HEALTH CORPORATION, SUPERIOR CONSULTANT HOLDINGS
a Texas corporation CORPORATION,
a Delaware corporation
--------------------------------------------------------------------------------
By:____________________________ By:______________________________
--------------------------------------------------------------------------------
Its:___________________________ Its:_____________________________
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ADVENTIST HEALTH SYSTEM XXXXXXXX
SUNBELT HEALTHCARE
CORPORATION,
a Florida not-for-profit corporation
--------------------------------------------------------------------------------
By: /s/ Xxxxxx X. Xxxxx
---------------------------- _________________________________
--------------------------------------------------------------------------------
Its: Senior Vice President Xxxx Xxxxxxxx
----------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
20
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
--------------------------------------------------------------------------------
EMPOWER HEALTH CORPORATION, SUPERIOR CONSULTANT HOLDINGS
a Texas corporation CORPORATION,
a Delaware corporation
--------------------------------------------------------------------------------
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------------ -------------------------------
--------------------------------------------------------------------------------
Its: CEO/PRES. Its: VP & GENERAL COUNSEL
----------------------------- ------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ADVENTIST HEALTH SYSTEM XXXXXXXX
SUNBELT HEALTHCARE
CORPORATION,
a Florida not-for-profit corporation
--------------------------------------------------------------------------------
By: _____________________________ /s/ Xxxx Xxxxxxxx
-------------------------------
--------------------------------------------------------------------------------
Its: Senior Vice President Xxxx Xxxxxxxx
-----------------------------
--------------------------------------------------------------------------------
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