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STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT (this "Agreement") is made and entered
into as of September 30, 1997, by and among Physicians Clinical Laboratory,
Inc., a Delaware corporation (the "Company"), and each of the entities listed
under the caption "Stockholders" on the signature pages hereof (collectively,
the "Stockholders").
W I T N E S S E T H
WHEREAS, pursuant to the Articles (as defined below) the total
number of shares of capital stock which the Company has authority to issue is
50,000,000 shares of common stock;
WHEREAS, the Stockholders acquired the Securities (as defined below)
in exchange for claims against the Company that were relieved pursuant to the
Company's Plan of Reorganization approved by a court of appropriate jurisdiction
(the "Plan");
WHEREAS, on the date hereof the Stockholders own the Securities in the
number of shares and percentage of outstanding Securities set forth in Schedule
I; and
WHEREAS, the Company and the Stockholders deem it to be in their
best interests to provide for continuity in the control and operation of the
Company and for various other matters set forth herein.
NOW, THEREFORE, in consideration of the agreements and mutual
covenants set forth herein, the parties agree as follows:
Section 1. Definitions. As used in this Agreement, the following
terms have the following meanings:
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or
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under direct or indirect common control with such specified Person. For purposes
of this definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise; provided that beneficial ownership of 10% or more of the voting stock
of a Person shall be deemed to be control.
"Agreement" means this Agreement, as the same shall be amended from
time to time.
"Articles" means the Certificate of Incorporation of the Company as
in effect on the date hereof.
"Business Day" means a day other than Saturday, Sunday or any other
day on which banks located in the State of California and New York are
authorized or obligated to close.
"Cerberus" means Cerberus Partners, L.P. and any Affiliate of
Cerberus.
"Common Stock" means the Company's common stock, $0.01 par value per
share.
"Company" has the meaning assigned to such term in the preamble.
"Company Transferee" has the meaning assigned to such term in
Section 3(a).
"Company Transfer Notice" has the meaning assigned to such term in
Section 3(a).
"Company Transfer Securities" has the meaning assigned to such term
in Section 3(a).
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"Employment Agreement" means that certain Employment Agreement dated
as of September 30, 1997 by and between the Company and J. Xxxxxx Xxxxxxxxxx.
"Exchange Act" has the meaning assigned to such term in Section
4(b).
"Initial Public Offering" means the public offering of shares of
Common Stock of the Company pursuant to a Registration Statement in a
transaction where (A) the aggregate Proceeds to be paid to the Company in such
public offering (aggregated with the proceeds paid to the Company in any prior
public offerings of shares of Common Stock of the Company in any prior public
offerings of shares of Common Stock of the Corporation pursuant to a
Registration Statement) are not less than $10,000,000 and (B) the number of
shares of Common Stock sold pursuant to such Registration Statement (aggregated
with the shares previously sold pursuant to any Registration Statement filed by
the Company, including in each case any shares sold or to be sold by selling
shareholders) is not less than fifteen percent (15%) of the fully-diluted number
of outstanding shares of Common Stock after giving pro forma effect to such
Initial Public Offering.
"Noteholders" means the original holders of the Company's Senior
Notes due 2004, issued pursuant to that certain indenture dated as of September
30, 1997 by and between the Company and First Trust National Association, as
trustee.
"OCM" has the meaning assigned to such term in Section 4(b).
"Offer to Sell" has the meaning assigned to such term in Section
3(b).
"Qualifying Acquisition" has the meaning assigned to such term in
Section 3(a).
"Person" shall mean any individual, corporation, partnership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization or government or agency or political
subdivision thereof.
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"Proceeds" shall mean the proceeds of the Company in a public
offering net of underwriting discounts and commissions and before deducting any
other expenses payable by the Company.
"Pro Rata" shall mean, with respect to any offer of shares of Common
Stock or securities exercisable or convertible into shares of Common Stock, an
offer based on the relative percentages of Common Stock then held by or issuable
to all of the Stockholders to whom such offer is made.
"Public Offering" means any offering of Common Stock to the public,
including the Initial Public Offering, either on behalf of the Company or any of
its stockholders, pursuant to an effective Registration Statement under the
Securities Act.
"Registration Statement" means a registration statement filed by the
Company pursuant to the Securities Act, other than registrations on Form S-8 or
Form S-4 or any other registration form to be used for a business combination or
any successor form to either of such forms.
"Securities" shall mean the shares of Common Stock and any
securities exercisable for or convertible into shares of Common Stock, and
whenever an amount of Securities is calculated or used in any provision of this
Agreement, exercisable and convertible securities shall be counted as the number
of shares of Common Stock issuable upon such exercise or conversion.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Stockholders" has the meaning assigned to such term in the
preamble.
"Stock Purchase Agreement" has the meaning assigned to such term in
Section 5(b).
"Transfer" has the meaning assigned to such term in Section 2(a).
"Transfer Notice" has the meaning assigned to such term in Section
2.
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"Warrants" means the warrants issued pursuant to the Plan.
Section 2. General Provisions Regarding Transfer.
(a) General Restrictions. Subject to Section 10(g), so long as this
Agreement shall remain in force, none of the Securities may be issued, sold,
assigned, transferred, given away or in any way disposed of by the Stockholders
(any of the foregoing being hereinafter referred to as a "Transfer") unless:
(i) the Person in whose favor such Transfer is made shall
deliver to the Company a written acknowledgment that the Securities to be
transferred are subject to this Agreement and that such Person and such Person's
successors in interest are bound hereby on the same terms as the Transferor of
such Securities, but prior to any such Transfer, the Person proposing to make
such Transfer shall give the Company (1) notice describing the manner and
circumstances of the proposed Transfer and (2) if reasonably requested by the
Company, a written opinion in form and substance reasonably satisfactory to
legal counsel of the Company to the effect that the proposed Transfer may be
effected without registration under the Securities Act or any applicable state
law;
(ii) such Transfer shall be made pursuant to a public offering
registered under the Securities Act and in accordance with applicable state law;
(iii) such Transfer is made to a Person who is an Affiliate of
the transferring Stockholder; or
(iv) such Transfer is made by Nu-Tech in a pro rata
distribution of Securities to its stockholders.
Any attempted Transfer other than in accordance with this Agreement shall be
void, and the Company shall refuse to recognize any such Transfer and shall not
reflect on its records any change in record ownership of the Securities pursuant
to any such attempted Transfer.
(b) Mechanics of Transfer. Any Stockholder who Transfers Securities
shall (i) take all such actions and execute and deliver all such documents as
may be necessary or reasonably
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requested by the Company in order to consummate the Transfer of such Securities
and (ii) pay to the Company such amounts as may be required for any applicable
stock transfer taxes.
(c) Restrictions on Transfers by Stockholders. Each of the
Stockholders hereby agrees that, so long as this Agreement is in effect, it will
not, without the prior written consent of the Company, sell or otherwise
transfer any of the shares of Common Stock held by such Stockholder to Cerberus
or any entity which owns, directly or indirectly, 5% or more of the issued and
outstanding equity securities of any entity that conducts clinical or
specialized laboratory services as its principal business.
Section 3. Preemptive Rights. If the Company proposes to issue or
otherwise Transfer any Securities to any Person, then the Company shall make the
offer to sell and otherwise comply with the requirements set forth in this
Section 3. Notwithstanding the foregoing, (A) the Company may Transfer
Securities, and any right, title or interest therein, without making the offer
to sell set forth in this Section 3 in connection with (i) an Initial Public
Offering, (ii) the issuance of up to 200,000 shares of Common Stock to
management and employees of the Company pursuant to the Company's 1997 Equity
and Performance Incentive Plan or any other incentive plan which provides for
the issuance of Securities to directors, officers or employees of the Company,
(iii) the issuance of shares of Common Stock pursuant to the Employment
Agreement and the Warrants or (iv) an issuance of Securities in consideration
for and upon consummation of (x) a merger with respect to which the holders of
Voting Stock immediately prior to such merger beneficially own not less than a
majority of the issued and outstanding shares of Voting Stock of the surviving
entity or (y) an acquisition of assets or stock by the Company so long as, in
either the case of (x) or (y), such transaction has been approved by the
affirmative vote of at least one director appointed by OCM (a "Qualifying
Acquisition") and (B) any rights or obligations pursuant to this Section 3 shall
terminate upon an Initial Public Offering. For purposes of this Section 3,
"Voting Stock" shall mean stock of the Company of any class or series entitled
to vote generally in the election of directors of the Company.
(a) Transfer Notice. If the Company desires in good faith to
Transfer any Securities to any Person, the Company shall
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deliver a written notice of the proposed Transfer (the "Company Transfer
Notice") to each Stockholder. The Company Transfer Notice shall contain a
description of the proposed transaction and the terms thereof including the
number of Securities and type of Securities proposed to be transferred
(collectively, the "Company Transfer Securities"), the name of each person to
whom or in favor of whom the proposed Transfer is to be made (the "Company
Transferee") and a description of the consideration to be received by the
Company upon Transfer of the Company Transfer Securities. The Company Transfer
Notice shall be accompanied by a copy of the bona fide third party written offer
(for purposes of this Section 3, an executed letter of intent stating the terms
of such offer, or incorporating by reference a separate summary of terms, shall
be deemed a written offer). On a day that is not earlier than ten (10) days
following the delivery of the Company Transfer Notice and after having received
the requisite approval from the Board of Directors, the Company may issue the
Company Transfer Securities to the Company Transferee on the terms set forth in
the Company Transfer Notice.
(b) Terms of Offer. Upon completion of the issuance of the Company
Transfer Securities referred to in paragraph (a) above, the Company shall
deliver a written offer to sell (the "Offer to Sell") to each Stockholder a Pro
Rata portion of the Company Transfer Securities based upon such Stockholder's
holdings of Common Stock. The Offer to Sell shall be on the same terms and
conditions, and shall be for the same consideration, as described in the Company
Transfer Notice; provided, however, that any such Stockholder may, at its
option, pay fair market value in cash in lieu of any non-cash consideration.
(c) Acceptance of Offer. For a period of thirty (30) days after
receipt of an Offer to Sell, any Stockholder may, by written notice to the
Company, accept the Offer to Sell in whole or in part.
(d) Transfer of Shares. Transfers of Securities pursuant to offers
made and accepted in accordance with this Section 3 shall occur simultaneously
on a Business Day not more than sixty (60) days after the last date on which any
offer made in accordance with this Section 3 could have been accepted and each
such Transfer shall be made in accordance with Sections 2(a) and (b).
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Section 4. Board of Directors.
(a) Initial Board of Directors; Designated Directors. The initial
Board of Directors shall consist of the following members:
Xx. Xxxxxx Xxxxx
Mr. J. Xxxxxx Xxxxxxxxxx
Xx. Xxxxxxx X. Xxxxxxx
Mr. Xxxxx Xxxxxxxx
Xx. Xxxxxxx X. Xxxxxx
Each of such director shall hold office until the next annual or special meeting
called on or after the date one year from the date hereof for the purpose of
electing directors in accordance with the provisions of the Company's Bylaws.
Thereafter, each Stockholder shall cause all Securities that are entitled to
vote and are beneficially owned by such Stockholder or its Affiliates, with
respect to which such Stockholder or its Affiliates may direct the voting, or
that are registered in the name of such Stockholder or its Affiliates to be
voted as required, and will otherwise take or cause to be taken all such other
action as may be necessary, (i) to cause the Board of Directors of the Company
to consist of five (5) members, and (ii) until such time as the Noteholders or
their Affiliates collectively no longer beneficially own, in the aggregate, at
least 20% of the issued and outstanding Common Stock held by the Noteholders on
the date hereof, to elect two individuals designated in writing by OCM
Administrative Services, L.L.C. or its designee ("OCM"), as members of the Board
of Directors, and (iii) until such time as (A) Nu-Tech and its Affiliates no
longer beneficially own more than 30% of the issued and outstanding Common Stock
or (B) any "person" (as defined in Section 13(a) of the Exchange Act of 1934, as
amended (the "Exchange Act")) or a "group" (as defined in Section 13(a)(3) and
14(a)(2) of the Exchange Act), other than Oaktree Capital Management, LLC, The
Copernicus Fund, L.P., DDJ Overseas Corp., Belmont Fund, L.P. and Belmont
Capital Partners II, L.P. and their respective Affiliates, holds a number of
shares of Common Stock of the Company that is greater than the number of shares
of Common Stock of the Company held by Nu-Tech and its Affiliates, to elect
three individuals designated in writing by Nu-Tech; provided, that the
requirement that Nu-Tech and its Affiliates beneficially own more than 30% of
the issued and outstanding Common Stock shall be adjusted in the event of
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the issuance by the Company of shares of Common Stock in a Qualifying
Acquisition such that the percentage of the issued and outstanding Common Stock
required to be beneficially owned by Nu-Tech and its Affiliates following such
issuance of Common Stock shall be equal to the quotient determined by dividing
(x) the number of shares held by Nu-Tech as of the date hereof by (y) the sum of
(I) the number of shares of Common Stock issued and outstanding as of the date
hereof plus (II) the number of shares of Common Stock issued in such Qualifying
Acquisition, plus (III) the number of shares of Common Stock issued in all
previously consummated Qualifying Acquisitions.
(b) Filling Vacancies, etc. At such time as a vacancy is created on
the Board of Directors by the death, removal or resignation of any one of the
directors, the remaining directors shall meet in person or by telephone for the
purpose of approving and appointing a director to fill such vacancy in
accordance with the provisions of the Bylaws of the Company. Notwithstanding the
foregoing sentence, if a director designated by OCM or Nu-Tech, as the case may
be, resigns or is removed from or vacates such position for any reason prior to
the expiration of his or her term as a director of the Company, then, OCM or
Nu-Tech, respectively, shall have the right to nominate a replacement designee
so long as it continues to beneficially own not less than the applicable
percentage of outstanding Securities set forth in paragraph (a) of this Section
4, and the other Stockholders shall cause the directors to elect such
replacement designee to the Board of Directors or the Stockholders shall vote
their Securities at any regular or special meeting called for the purpose of
filling positions on the Board of Directors, or in any written consent executed
in lieu of such a meeting of stockholders, and shall take all other actions
necessary, to ensure the election to the Board of Directors of such replacement
designee to fill the unexpired term of the director whom such new designee is
replacing. Each director elected to the initial Board of Directors and each
nominee to the Board of Directors shall provide each of the Stockholders with
his or her resume prior to such time as he or she is elected to the Board of
Directors.
(c) Voting Agreement. All parties to this Agreement agree that this
Section 4 shall constitute a voting agreement within the meaning of Section 218
of the Delaware General Corporation Law.
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(d) Termination. The rights and obligations of the Stockholders
pursuant to this Section 4 shall terminate at such time as the Noteholders and
their Affiliates cease to collectively own, in the aggregate, at least 20% of
the issued and outstanding shares of Common Stock held by the Noteholders on the
date hereof.
Section 5. Corporate Governance.
(a) During such time as OCM has the right to appoint directors
pursuant to Section 4 hereof, an affirmative vote of at least one director
appointed by OCM pursuant to Section 4 hereof shall be required to:
i) authorize, issue or enter into, or proposing to authorize,
issue or enter into, any agreement, including, without limitation,
options, warrants or other rights providing for the issuance or sale
(contingent or otherwise) of any equity securities or any notes or debt
securities containing equity features (including, without limitation, any
notes or debt securities convertible into or exchangeable for equity
securities, or containing provisions that set or provide a mandatory
formula for determining, directly or indirectly, the participation in
earnings and profits, or options, warrants or rights to acquire securities
exchangeable or exercisable for any such securities) of the Company other
than issuances of securities pursuant to the Warrants, employee benefit
plans, management incentive plans or employment agreements with officers
of the Company;
ii) issue, or propose to issue, any capital stock whether of
the same series as, or of a different series from, the Securities;
iii) supplement, modify, amend, rescind, alter or restate, or
propose to supplement, modify, amend, rescind, alter or restate, in any
manner the Articles or the By-Laws of the Company;
iv) directly or indirectly, redeem, purchase or otherwise
acquire, or propose to redeem, purchase or otherwise acquire, any of its
capital stock, including any options, warrants or rights to acquire any of
its capital stock, or any security exercisable or exchangeable for or
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convertible into any of its capital stock, directly or indirectly;
v) liquidate or dissolve or propose to liquidate or dissolve,
or effecting, or propose to effect, a recapitalization or reorganization
of the Company in any form of transaction;
vi) consolidate or merge, or propose to consolidate or merge,
with or into any other Person or transfer (by lease, assignment, sale or
otherwise) all or substantially all of the properties and assets of the
Company, in a single transaction or through a series of related
transactions;
vii) incur, or cause any subsidiary of the Company to incur,
after the date hereof, any indebtedness or other payment obligation out of
the ordinary course of business (other than amounts borrowed pursuant to
that certain Loan and Security Agreement dated as of September 30, by and
between Bio-Cypher Funding Corp., a Delaware corporation, and Daiwa
Healthco-2, LLC, as in effect on the date hereof) that, when aggregated
with all other then outstanding indebtedness of the Company and its
subsidiaries incurred after the date hereof and payment obligations of the
Company and its subsidiaries incurred after the date hereof, exceeds
$1,000,000;
viii) make any Capital Expenditure (as hereinafter defined)
after the date hereof that, when aggregated with all other Capital
Expenditures made in the immediately preceding twelve (12) month period,
which initial twelve (12) month period shall begin on the date hereof,
exceed $1,000,000. As used herein, Capital Expenditure means expenditures
made in connection with the purchase, construction or improvement of items
properly categorized, in accordance with generally accepted accounting
principles, on the balance sheet of the Company as property, plant or
equipment, but not including any Capital Expenditures that are made out of
the proceeds of casualty insurance covering any property, plant and
equipment of the Company; or
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ix) modify, amend, extend or renew the Employment Agreement or
otherwise approve any compensation arrangement or other transaction for
the benefit of Xx. Xxxxxxxxxx other than as provided in the Employment
Agreement.
(b) During such period of time as indemnification claims may be
instituted pursuant to that certain Stock Purchase Agreement by and between the
Company and Nu-Tech dated as of February 24, 1997 (the "Stock Purchase
Agreement") and notwithstanding anything to the contrary contained in the
General Corporation Law of the State of Delaware or the contrary vote of
directors constituting the majority of the Board of Directors, upon the
affirmative vote of two directors, the Company shall institute claims for
indemnification pursuant to Section 10.6 of the Stock Purchase Agreement. In
furtherance of the foregoing, the Stockholders shall take or cause to be taken
all action as may be necessary to cause the Board of Directors to adopt
resolutions substantially in the form attached hereto as Exhibit A (the
"Resolutions"), which Resolutions shall establish an Indemnity Committee
composed of two Directors designated by OCM and, so long as Nu-Tech is entitled
to designate Directors pursuant to Section 4 hereof, one Director designated by
Nu-Tech, which committee shall have the sole authority to institute such claims
for indemnification and which committee shall cease to be a committee of the
Board of Directors of the Company at such time as the Company is no longer
permitted to institute claims for indemnification pursuant to the Stock Purchase
Agreement. Further, the Stockholders shall take or cause to be taken all action
as may be necessary to ensure that the Resolutions are not amended or rescinded,
and that no resolutions inconsistent therewith are adopted by the Board of
Directors, until the expiration of the term of the Indemnity Committee as set
forth in the Resolutions. In addition, the Company shall reimburse any such
director for the reasonable costs and expenses incurred by such director in
prosecuting claims instituted on behalf of the Company pursuant to the
provisions of this Section 5(b) and shall, to the fullest extent permitted by
Delaware law and the certificate of incorporation and bylaws of the Company,
indemnify and hold harmless such director for any liability incurred in
connection with the initiation or prosecution of such claims.
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Section 6. Certificates.
(a) Restrictive Endorsements. Each certificate evidencing any
Securities shall bear a legend in substantially the following form:
"The securities evidenced by this certificate are subject to a
Stockholders Agreement dated as of September 30, 1997, copies of which are
on file at the principal office of the Company and will be furnished to
the holder on request to the Secretary of the Company. Such Stockholders
Agreement provides, among other things, for certain restrictions on
voting, sale, transfer, pledge, hypothecation or other disposition of the
securities evidenced by this certificate."
(b) Replacement Certificates. Upon receipt by the Company of
evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of any certificate evidencing any Securities, and (in the case of
loss, theft or destruction) of indemnity reasonably satisfactory to the Company,
upon surrender and cancellation of such certificate or receipt of such
indemnity, the Company will execute, register and deliver a new certificate of
like tenor in lieu of such lost, stolen, destroyed or mutilated certificate.
Section 7. Representations. Each Stockholder represents that such
Stockholder is the record and beneficial owner of the number of issued and
outstanding Securities appearing opposite such Stockholder's name in Schedule I
attached hereto, free and clear of any option, lien, encumbrance or charge of
any kind whatsoever, except as created by or described in this Agreement.
Section 8. Equitable Relief. The parties hereto agree and declare
that legal remedies may be inadequate to enforce the provisions of this
Agreement and that equitable relief, including specific performance and
injunctive relief, may be used to enforce such provisions.
Section 9. Miscellaneous.
(a) Notices. All communications under this Agreement shall be in
writing and shall be personally delivered, sent by
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facsimile transmission or mailed by first class mail, postage prepaid:
i) if to the Company, at
Physicians Clinical Laboratory, Inc.
0000 X Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
ii) if to the Stockholders, at
NU-TECH BIO-MED, INC.
Attn: Mr. J. Xxxxxx Xxxxxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
OAKTREE CAPITAL MANAGEMENT, LLC
Attn: Mr. Xxxxxxx Xxxxxxx
000 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: 000-000-0000
or at such other address as the appropriate party to this Agreement may have
furnished in writing to each other party hereto, or
iii) if to any other Person who is the registered holder of
any Securities to the address for the purpose of such holder as it appears
in the stock ledger of the Company.
Any notice shall be deemed to have been duly given when delivered by hand if
personally delivered, by confirmation of completed facsimile transmission if
delivered by facsimile, and if sent by mail, two (2) Business Days after being
deposited in the mail, postage prepaid.
(b) Waiver. No failure or delay on the part of the parties or any of
them in exercising any right, power or privilege hereunder, nor any course of
dealing between the parties or any of them shall operate as a waiver of any such
right, power or privilege nor shall any single or partial
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exercise of any such right, power or privilege preclude the simultaneous or
later exercise of any other right, power or privilege. The rights and remedies
herein expressly provided are cumulative and are not exclusive of any rights or
remedies which the parties or any of them would otherwise have. No notice to or
demand on the Company in any case shall entitle the Company to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the other parties or any of them to take any other or
further action in any circumstances without notice or demand.
(c) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
(d) Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of Delaware.
(e) Filing. A copy of this Agreement and of all amendments hereto
shall be filed at the principal office of the Company.
(f) Amendment or Termination. This Agreement may be amended or
terminated at any time only by an instrument in writing signed by each of the
parties hereto.
(g) Benefit and Binding Effect. Notwithstanding any other provision
of this Agreement to the contrary, the rights of the Stockholders pursuant to
Section 4 of this Agreement shall not be assignable or transferable and any
attempted assignment or transfer in violation of this provision shall be void;
provided, however, that the obligations of each Stockholders pursuant to Section
4 of this Agreement shall be binding upon a Person who receives Securities in a
Transfer permitted pursuant to Section 2(a)(i) hereof and any Affiliate of a
Stockholder who receives Securities from a Stockholder. Subject to compliance
with the terms of this Agreement regarding Transfer of Securities, this
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. This Agreement does not create and shall
not be construed as creating any rights enforceable by any Person not a party
hereto.
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(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provisions in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
Section 10. Limitations on Liability.
Each of the parties hereto acknowledges and agrees that in no event
shall any of the partners, officers, directors, shareholders, employees, agents,
affiliates or investment managers (collectively "Representatives") of Oaktree
Capital Management, LLC ("Oaktree"), as agent and on behalf of the funds and
accounts set forth on Schedule II attached hereto (the "Funds"), have any
obligation or liability to such party for any action taken or omitted by or on
behalf of such Funds or in connection herewith (such obligation and liability
being the sole responsibility of such Funds). Each party hereto further
acknowledges and agrees that (a) all obligations and liabilities of each Fund
under this Agreement or in connection herewith are enforceable solely against
such Fund and its assets and not against the assets of Oaktree, any other Fund
or any Representatives of Oaktree and (b) the obligations and liabilities of
each Fund shall be several in the proportions set forth on Schedule II hereto
and not joint and several.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this
Stockholders Agreement as of the day and year first above written.
The Company: PHYSICIANS CLINICAL LABORATORY, INC.
By: ______________________________
J. Xxxxxx Xxxxxxxxxx
Chief Operating Officer
Stockholders:
NU-TECH BIO-MED, INC.
By: ______________________________
J. Xxxxxx Xxxxxxxxxx
Chief Executive Officer
OAKTREE CAPITAL MANAGEMENT, LLC, as agent
and on behalf of certain funds and accounts
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
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SCHEDULE I
STOCKHOLDER SECURITIES
----------- ----------
Nu-Tech Bio-Med, Inc. 52.6% of Common Stock
Oaktree Capital Management, LLC, 47.4% of Common Stock
as agent and on behalf of the
funds and accounts set forth on
Schedule II hereto (without
taking into account the Securities
issued in connection with OCM's
Old Debenture Claims)
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SCHEDULE II
OCM Opportunities Fund, L.P. 93.0%
Columbia/HCA Master Retirement Trust 7.0%
