INVESTORS AGREEMENT
This INVESTORS AGREEMENT (this "Agreement"), dated as of July 19, 2002,
is by and among CASTLE DENTAL CENTERS, INC., a Delaware corporation (the
"Corporation"), XXXXXX FINANCIAL, INC., a Delaware corporation ("Xxxxxx"),
MIDWEST MEZZANINE FUND II, L.P., a Delaware limited partnership ("Midwest") and,
solely for purposes of Section 5(a) hereof, Xxxxx X. Xxxxx ("Xxxxx").
RECITALS
A. Pursuant to the terms of that certain Senior Subordinated Note and
Subordinated Convertible Note Exchange Agreement, dated July 19, 2002 among the
Corporation, Xxxxxx and Midwest (the "Exchange Agreement"), the Corporation (i)
issued to Xxxxxx 119,520 shares of Series A-1 Convertible Preferred Stock of the
Corporation, par value $.001 per share (the "Series A-1 Preferred Stock"), and
(ii) issued to Midwest 59,760 shares of Series A-1 Preferred Stock.
B. Pursuant to the terms of that certain Senior Subordinated Note and
Warrant Purchase Agreement dated July 19, 2002 among the Corporation, Xxxxxx,
Midwest and Xxxxx (the "Note Purchase Agreement"), the Corporation, among other
things, issued to each of Xxxxxx and Midwest senior subordinated convertible
promissory notes of the Corporation (collectively, the "New Money Notes") which
may be converted in the aggregate into 1,826,834 shares of the fully-diluted
common stock of the Corporation, par value $.001 per share (the "Common Stock").
C. The parties hereto desire to enter into this Agreement to provide
for, among other things, (i) a right of first refusal between Xxxxxx and Midwest
with respect to transfers of the Series A-1 Preferred Stock and the New Money
Notes, (ii) special voting rights with respect to the designation and election
of directors of the Corporation and its Subsidiaries and (iii) certain covenants
to be complied with by the Corporation.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals and the mutual
agreements herein set forth, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
Section 1. Definitions. In addition to capitalized terms defined
elsewhere in this Agreement, the following capitalized terms shall have the
following respective meanings when used in this Agreement:
"Affiliate" of any Person shall mean (i) any Person directly or
indirectly controlled by, controlling or under common control with such first
Person, (ii) any director or officer of such first Person or of any Person
referred to in clause (i) above and (iii) if any Person in clause (i) above is
an individual, any member of the immediate family (including parents, spouse and
children) of such individual or any trust whose principal beneficiary is such
individual or one (1) or more members of such immediate family and any Person
who is controlled by any such member or trust. For purposes of this definition,
any Person which owns directly or indirectly
ten percent (10%) or more of the securities having ordinary voting power for the
election of directors or other governing body of a corporation or ten percent
(10%) or more of the partnership or other ownership interests of any other
Person (other than as a limited partner of such other Person) will be deemed to
"control" (including, with its correlative meanings, "controlled by" and "under
common control with") such corporation or other Person.
"Board Options" means options to purchase up to 1,389,747 Common Shares
issued to non-employee directors of the Corporation pursuant to the
Corporation's 2002 Stock Option Plan.
"Business Day" means any day other than a day on which commercial banks
are authorized or required to close in Chicago, Illinois.
"Common Shares" means the shares of Common Stock.
"Debt" means for any Person the sum of the following (without
duplication): (i) all obligations of such Person for borrowed money or evidenced
by bonds, debentures, notes or other similar instruments (including principal,
interest, fees and charges); (ii) all obligations of such Person (whether
contingent or otherwise) in respect of bankers' acceptances, letters of credit,
surety or other bonds and similar instruments; (iii) all obligations of such
Person to pay the deferred purchase price of property or services (other than
for borrowed money); (iv) all obligations under leases which shall have been, or
should have been, in accordance with GAAP, recorded as capital leases in respect
of which such Person is liable (whether contingent or otherwise); (v) all
obligations under leases which require such Person or its Affiliate to make
payments over the term of such lease, including payments at termination, which
are substantially equal to at least eighty percent (80%) of the purchase price
of the property subject to such lease plus interest as an imputed rate of
interest; (vi) all Debt (as described in the other clauses of this definition)
and other obligations of others secured by a lien, claim or other encumbrance on
any asset of such Person, whether or not such Debt is assumed by such Person;
(vii) all Debt (as described in the other clauses of this definition) and other
obligations of others guaranteed by such Person or in which such Person
otherwise assures a creditor against loss of the debtor or obligations of
others; (viii) all obligations or undertakings of such Person to maintain or
cause to be maintained the financial position or covenants of others or to
purchase the Debt or property of others; (ix) obligations to deliver goods or
services in consideration of advance payments; and (x) all obligations of such
Person under Hedging Agreements.
"GAAP" means generally accepted accounting principles in the United
States of America in effect from time to time.
"Hedging Agreements" means any interest rate swap, cap, floor, collar,
forward agreement or other protection agreements or any option with respect to
any such transaction.
"Xxxxxx Holders" means Xxxxxx and its successors and assigns, together
with any transferee(s) of the Securities initially held by Xxxxxx.
"Holders" means collectively the Xxxxxx Holders and the Midwest
Holders.
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"Indebtedness" means any and all amounts owing or to be owing by the
Corporation or any of its Subsidiaries to Note Holders in connection with the
Subordinated Note and Warrant Documents, now or hereafter entered into between
or among the Corporation or any of its Subsidiaries and any Note Holder, and all
renewals, extensions and/or rearrangements of any of the above.
"Management Options" means option to purchase up to 13,897,471 shares
of the Corporation's Common Stock issued to officers, employees or consultants
of the Corporation or its Subsidiaries pursuant to the Corporation's 2002 Stock
Option Plan.
"Midwest" means Midwest and its successors and assigns, together with
any transferee(s) of the Securities initially held by Midwest.
"Note Holders" means, collectively, Xxxxxx, Midwest and Xxxxx.
"Notes" means the New Money Notes issued to Xxxxxx and Midwest pursuant
to the Note Purchase Agreement, and any note or notes issued in exchange for
such notes.
"Person" means any individual, corporation, company, voluntary
association, partnership, limited liability company, joint venture, trust,
unincorporated organization or government or any agency, instrumentality or
political subdivision thereof, or any other form of entity.
"Preferred Shares" means the Series A-1 Preferred Shares and the Series
A-2 Preferred Shares.
"Registration Rights Agreement" means that certain Registration Rights
Agreement dated July 19, 2002 by and among the Corporation, the Senior Lenders,
Xxxxxx, Midwest, Xxxxx and certain other stockholders party thereto.
"Securities" means collectively the Series A-1 Preferred Shares and the
Notes.
"Senior Bank Warrants" means those certain warrants to purchase Series
A-2 Preferred Shares issued to the Senior Lenders pursuant to the Senior Loan
Agreement.
"Senior Indebtedness" means "Senior Debt" as such term is defined in
the Subordination Agreement.
"Senior Lenders" means Banc of America Strategic Solutions, Inc., a
Delaware corporation, Fleet National Bank, a national banking association,
Amsouth Bank, a national banking association, and Xxxxxx.
"Senior Loan Agreement" means that certain Second Amended and Restated
Credit Agreement dated as of July 19, 2002 between the Corporation and the
Senior Lenders.
"Series A-1 Preferred Shares" means the shares of Series A-1 Preferred
Stock and any shares issued in exchange for such shares (other than Common
Shares).
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"Series A-2 Preferred Shares" means the shares of Series A-2
Convertible Preferred Stock of the Corporation, par value $.001 per share, and
any shares issued in exchange for such shares (other than Common Shares).
"Stockholders Agreement" means that certain Stockholders Agreement
dated July 19, 2002 among the Corporation, Xxxxxx, Midwest and certain other
holders of the Corporation's capital stock and other securities.
"Sub-Debt Warrants" means those certain warrants to purchase Common
Shares issued pursuant to the Note Purchase Agreement.
"Subordinated Note and Warrant Documents" means collectively the Note
Purchase Agreement, the Notes, the Sub-Debt Warrants, the Subordinated Guaranty
Agreement entered into pursuant to the Note Purchase Agreement, the Stockholders
Agreement, the Registration Rights Agreement and any other agreements,
certificates or instruments executed or delivered pursuant to or entered into in
connection with any of the foregoing.
"Subordination Agreement" means that certain Subordination and
Intercreditor Agreement dated as of the date hereof among the Corporation,
certain guarantors named therein, Xxxxxx, Midwest, and Bank of America, N.A., a
national banking association (together with any duly appointed successor), as
agent for the Senior Lenders.
"Subsidiary" means any corporation, association or other business
entity of which securities or other ownership interests representing more than
fifty percent (50%) of the ordinary voting power are, at the time as of which
any determination is being made, owned or controlled by the Corporation or one
or more Subsidiaries of the Corporation or by the Corporation and one or more
Subsidiaries of the Corporation.
"Transfer" means any sale, gift, bequest, assignment, distribution,
conveyance, pledge, hypothecation, encumbrance or other transfer or disposition,
whether voluntary or involuntary by operation of law or otherwise, and whether
inter vivos or testamentary.
Section 2. Right of First Refusal.
(a) Except for dispositions permitted by Section 3, if a Holder desires
to Transfer any Securities (collectively, the "Offered Securities") to a third
party, such Holder (the "Selling Holder") will, prior to making or offering to
make any such Transfer or accepting any such offer, give written notice (the
"Offer Notice") to the other Holders (the "Non-Selling Holders") and to Xxxxx
stating (i) the name of the proposed transferee of the Offered Securities (the
"Proposed Transferee"), (ii) the number and type of Offered Securities, (iii)
the purchase price therefor, and (iv) other material terms and conditions upon
which the Selling Holder proposes to sell such Offered Securities to such
proposed transferee and making an offer to sell such Offered Securities (the
"Offer") to each of the Non-Selling Holders pursuant to the terms and conditions
of this Section, at the price and on the other terms described in the Offer
Notice. The date upon which the Offer Notice is given to the Non-Selling Holders
is called the "Offer Notice Date." The Offer shall remain open and irrevocable
for the period of ten (10) Business Days following the Offer Notice Date.
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(b) Each Non-Selling Holder may accept the offer to purchase all the
Offered Securities by giving written notice thereof (each, a "Holder's
Acceptance Notice") to the Selling Holder within 10 Business Days following the
Offer Notice Date, such notice to set forth the maximum number of Offered
Securities such Non-Selling Holder is willing to purchase. In the event that the
Holder's Acceptance Notice(s) reflect a willingness on the part of Non-Selling
Holders to purchase, in the aggregate, more than the number of Offered
Securities available, the Non-Selling Holders shall be entitled to purchase such
Offered Securities pro rata among themselves on the basis of the number of
Common Shares into which the Series A Preferred Shares and the Notes held by
each such Non-Selling Holder are then convertible.
(c) In the event after compliance with Section 2(b) above, the Offer
has been accepted in its entirety by the Non-Selling Holders, the Selling Holder
shall sell the Offered Securities to the Non-Selling Holders, and the
Non-Selling Holders shall purchase the Offered Securities, on the terms and
conditions set forth in the Offer Notice and the closing shall take place 25
Business Days after the Offer Notice Date, unless a later date is agreed to by
parties to such transaction.
(d) In the event after compliance with Section 2(b) above, the Offer
has not been accepted in its entirety by the Non-Selling Holders, the Selling
Holder may, within 25 Business Days thereafter, sell the Offered Securities to
the Proposed Transferee on the terms set forth in the Offer Notice. The Proposed
Transferee, as a condition to such Transfer, shall agree in writing to be bound
by the terms of this Agreement to the same extent as the Selling Holder. If such
sale has not been completed within such 25-Business Day period, such sale may
not be carried out without complying again with the provisions of this Section.
Any Transfer in violation of this Section 2 shall be void and ineffective.
Section 3. Permitted Transfers. Notwithstanding anything herein to the
contrary, a Holder may Transfer its Securities free of the restrictions
contained in Section 2 to the partners, members or Affiliates of such Holder,
provided that such transferee is not engaged in the business of providing dental
services in the United States and provided further that any such transferee
first agrees in a writing to be bound by the terms of this Agreement to the same
extent as such transferring Holder.
Section 4. Voting Agreement; Initial Designation of Directors.
(a) Each of the Holders acknowledges and agrees to take all action
within their respective power, including, but not limited to, the voting of
capital stock of the Corporation, required to (i) cause the Board of Directors
of the Corporation to at all times consist of up to five (5) members, (ii) cause
the Board of Directors as soon as possible following the execution of this
Agreement to initially consist of Xxxxx X. Xxxxx, Xxxxx Xxxx, Xxxx Xxxxx, as the
Midwest Designee (as defined below) and Xxx Xxxxxx, as one of the Xxxxxx
Designees (as defined below), and (iii) thereafter cause to be elected to the
Board of Directors the Chief Executive Officer of the Corporation.
(b) Each of the Holders acknowledges and agrees that the holders of the
Series A-1 Preferred Shares have the exclusive right, pursuant to the terms of
the Certificate of Incorporation of the Corporation, voting separately as a
single class, to elect a majority of the number of the members of the
Corporation's Board of Directors. Each of the Holders agrees
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that, (i) Holders holding a majority of the Series A-1 Preferred Shares
originally acquired by Xxxxxx pursuant to the Exchange Agreement shall have the
right to designate, at any time and from time to time, two members of the
Corporation's Board of Directors (the "Xxxxxx Designees"), and (ii) Holders
holding a majority of the Series A-1 Preferred Shares originally acquired by
Midwest pursuant to the Exchange Agreement shall have the right to designate, at
any time and from time to time, one member of the Corporation's Board of
Directors (the "Midwest Designee"). Each of the Holders agrees to take all
actions necessary at any time and from time to time including, but not limited
to, the voting of its shares of stock of the Corporation, the execution of
written consents, the calling of special meetings, the removal of directors, the
filling of vacancies in directorships, the waiving of notice, the attending of
meetings and the amendment of the Corporation's by-laws, so as to cause the
Corporation's Board of Directors to include the designees of Xxxxxx and Midwest.
Concurrently with the consummation of the transactions contemplated by the
Exchange Agreement, Midwest hereby designates Xxxx Xxxxx as the initial Midwest
Designee, and Xxxxxx hereby designates Xxx Xxxxxx as one of its initial Xxxxxx
Designees. The Corporation acknowledges that as of the date hereof, there is one
vacancy on the Corporation's Board of Directors, which is a vacancy of a Series
A-1 Director (as defined in the Certificate of Designation of the Series A
Preferred Shares). Xxxxxx shall use its reasonable efforts to designate an
additional Xxxxxx Designee that is reasonably acceptable to Midwest and Xxxxx
within 75 days of the date hereof.
Section 5. Covenants of the Corporation.
(a) So long as any Series A-1 Preferred Shares are outstanding, the
Corporation shall not, without first obtaining the written consent of (1)
Holders holding a majority of the Series A-1 Preferred Shares originally
acquired by Xxxxxx pursuant to the Exchange Agreement, (2) Holders holding a
majority of the Series A-1 Preferred Shares originally acquired by Midwest
pursuant to the Exchange Agreement and (3) Xxxxx, so long as he holds at least
seventy-five percent (75%) of the principal amount of the Note originally
acquired by him pursuant to the Note Purchase Agreement:
(i) authorize or issue, or enter into any agreement providing
for the issuance (contingent or otherwise) of, (A) any equity
securities of the Corporation or any securities convertible into or
exchangeable for equity securities of the Corporation or permit any
Subsidiary to authorize or issue, or enter into any agreement providing
for the issuance (contingent or otherwise) of, any equity securities of
such Subsidiary or any securities convertible into or exercisable for
equity securities of such Subsidiary, any notes or debt securities
containing equity features, including, but not limited to, any notes or
debt securities convertible into or exchangeable for equity securities,
issued in connection with the issuance of equity securities or
containing profit participation features, or (B) any capital
appreciation or profit participation rights, except, in each case, (w)
for the Preferred Shares, Senior Bank Warrants, the Management Options,
the Board Options, the Sub-Debt Warrants, the Notes and the capital
stock issuable upon conversion, exercise or exchange of any of the
foregoing, (x) for profit participation rights issued in the ordinary
course of business consistent with past practice, (y) for up to 150,000
Common Shares issued to directors of the Corporation in office on the
date of this Agreement, and (z) pursuant to customary management
compensation arrangements approved by the Compensation Committee;
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(ii) directly or indirectly repurchase, redeem or retire any
shares of capital stock of the Corporation (or any capital stock of a
Subsidiary) other than pursuant to (x) the Employment Agreement between
the Corporation and Xxxxx, dated as of the date hereof, (y) contractual
rights to repurchase Common Shares held by employees, directors or
consultants of the Corporation upon termination of their employment or
services or (z) cashless exercise provisions;
(iii) merge or consolidate with any Person or permit any
Subsidiary to merge or consolidate with any Person (other than a merger
of a wholly-owned Subsidiary into the Corporation or another
wholly-owned Subsidiary);
(iv) sell, lease or otherwise dispose of all or substantially
all (or a substantial portion) of the Corporation's (or its
Subsidiaries') assets or sell or otherwise dispose of, or permit any
Subsidiary to issue, sell or otherwise dispose of, any shares of the
capital stock of any Subsidiary;
(v) liquidate, dissolve or effect a recapitalization or
reorganization (or permit a Subsidiary to liquidate, dissolve or effect
a recapitalization or reorganization unless the assets of such
Subsidiary are transferred to the Corporation or another Subsidiary);
(vi) acquire another company or business (or permit a
Subsidiary to acquire another company or business);
(vii) directly or indirectly, declare or pay, any dividends,
or make any distributions on any of the Corporation's capital stock;
(viii) establish, acquire or permit to exist any Subsidiary
other than Subsidiaries existing on the date hereof and other
wholly-owned Subsidiaries;
(ix) increase or decrease the size of the Corporation's or any
Subsidiary's board of directors to a number greater than or less than
five (5) members;
(x) change the Corporation's primary business or enter into or
permit a Subsidiary of the Corporation to enter into, the ownership,
management or operation of any business other than the business
conducted by the Corporation on the date hereof;
(xi) amend the Certificate of Incorporation (including, but
not limited to, filing or amending any certificate of designations) or
by-laws of the Corporation (or any Subsidiary);
(xii) enter into, or permit any Subsidiary to enter into, any
transaction with any of its or any Subsidiary's Affiliates, except in
the ordinary course of business and upon fair and reasonable terms no
less favorable to the Corporation or any Subsidiary than would be
obtained by the Corporation or any Subsidiary in a comparable arm's
length transaction with a Person who is not the Corporation's or any
Subsidiary's Affiliate; provided, however, nothing in this clause (xii)
shall be deemed to prohibit payments to officers, directors and other
agents of the Corporation or any Subsidiary pursuant to employment
arrangements on customary terms or indemnities contained in the
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Corporation's or any Subsidiary's certificate of incorporation, by-laws
or any indemnity agreement to which the Corporation or any Subsidiary
is a party; or
(xiii) incur, create, assume or permit to exist any Debt,
except:
(A) the Notes, the Indebtedness or any guaranty of or
suretyship arrangement for the Notes or the Indebtedness;
(B) material accounts payable (for the deferred
purchase price of property or services) from time to time
incurred in the ordinary course of business which, if greater
than one hundred twenty (120) days past the invoice or billing
date, are being contested in good faith by appropriate
proceedings and reserves adequate under GAAP shall have been
established therefor;
(C) debt under capital leases (as required to be
reported on the financial statements of the Corporation
pursuant to GAAP) and purchase money Debt incurred after July
19, 2002, in a combined amount not to exceed $500,000 per year
or $2,000,000 in the aggregate outstanding at any one time;
(D) debt of the Corporation under Hedging Agreements
with a lender under the Senior Loan Agreement or otherwise
approved by the Note Holders;
(E) debt in existence on July 19, 2002 and described
in the Note Purchase Agreement; and
(F) Senior Indebtedness.
(b) The Corporation shall not take any of the following actions without
the affirmative vote of at least three directors of the Corporation:
(i) make capital expenditures or permit a Subsidiary to make
capital expenditures in excess of the annual budgeted amount approved
by the Board of Directors;
(ii) make, or permit any Subsidiary to make, any loans or
advances to, or guarantees for the benefit of, any Person, other than
loans to employees of the Corporation and its affiliated practices not
to exceed $25,000 at any one time per individual and $200,000 at any
one time in the aggregate;
(iii) make or permit to exist, or permit any Subsidiary to
make or permit to exist, any investment other than: (A) investments
existing on the date hereof, (B) investments in short-term obligations
issued by, or guaranteed by, the United States government, (C)
investments in negotiable certificates of deposit, bankers' acceptances
or money market securities issued by any bank or branch of a bank
having capital and surplus of at least $300,000,000 in the aggregate at
all times, and (D) investments in commercial paper rated P1 or A1 by
Xxxxx'x Investors Service, Inc. or Standard & Poor's Corporation,
respectively;
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(iv) approve any budget of the Corporation, or any material
amendment or modification thereto;
(v) make, or permit any Subsidiary to make, any material
changes in accounting methods, practices or principles, except in
accordance with GAAP; and
(vi) sell shares of capital stock of the Corporation or any
Subsidiary of the Corporation to the public or register such a sale,
whether for the Corporation's own account or the account of another,
pursuant to a registration statement under the Securities Act, except
for registrations and sales made pursuant to demand registrations
requested pursuant to the Registration Rights Agreement.
(c) The Board of Directors shall have a compensation committee (the
"Compensation Committee"), which shall perform such functions as are customarily
performed by compensation committees, specifically: (i) hiring and firing of
members of management or other significant senior executives and setting or
changing their compensation; and (ii) adoption and administration of any
employee compensation or benefit plan by the Corporation or its Subsidiaries,
including bonus plans, profit sharing arrangements and incentive compensation
programs (other than those plans adopted prior to the date hereof). The
Compensation Committee and any other committee established or empowered by the
Board of Directors shall consist of no more than three (3) members, one of whom
shall be a Xxxxxx Designee and one of whom shall be a Midwest Designee.
(d) The Corporation shall cause the board of directors of each
Subsidiary to at all times be composed of the same members as the Corporation's
Board of Directors.
(e) Not more than 20 Business Days after the date hereof, the
Corporation shall provide evidence reasonably satisfactory to the Xxxxxx
Designees and the Midwest Designee that the Corporation has obtained directors'
and officers' liability insurance in an amount reasonably acceptable to the
Xxxxxx Designees and the Midwest Designee (the "D&O Insurance"). The Corporation
shall maintain the D&O Insurance, in amounts reasonably acceptable to the
then-current Xxxxxx Designees and the Midwest Designee, at all times that the
holders of the Series A-1 Preferred Shares have the right to designate members
to the Corporation's Board of Directors. Not more than 20 Business Days after
the date hereof, the Corporation shall have entered into indemnification
agreements with the Xxxxxx Designees and the Midwest Designee, in form and
substance reasonably acceptable to each such Designee, pursuant to which the
Corporation shall agree to indemnify each such Designee to the fullest extent
permitted by law in connection with such Designees' service on the Corporation's
Board of Directors. The Corporation further agrees to enter into substantially
similar indemnification agreements with the successors to the Xxxxxx Designees
and the Midwest Designee.
Section 6. Term. This Agreement shall terminate and be of no further
force and effect at such time as (a) the Notes have been paid in full or are
otherwise no longer outstanding and (b) there are no Series A-1 Preferred Shares
outstanding.
Section 7. Legend. The Corporation will cause the Notes and each
certificate representing Series A-1 Preferred Shares governed by this Agreement
to be stamped or otherwise
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imprinted, throughout the term of this Agreement, with a legend in substantially
the following form:
The securities represented by this certificate are subject to certain
restrictions on transfer and certain voting agreements all as set forth
in a certain Investors Agreement of Castle Dental Centers, Inc., dated
as of July 19, 2002, a copy of which will be mailed to the holder
without charge within five days of a written request therefor."
Section 8. Notices to the Corporation and the Holders. Any notices
desired, required or permitted to be given hereunder shall be delivered
personally or mailed, certified or registered mail, return receipt requested,
postage prepaid or delivered by commercial overnight courier service, charges
prepaid to the following addresses, or such other addresses as shall be given by
notice delivered hereunder, and shall be deemed to have been given upon
delivery, if delivered personally, three Business Days after mailing, if mailed,
or one Business Day after delivery to the overnight courier service, if
delivered by overnight courier service:
If to the Corporation to:
Castle Dental Centers, Inc.
0000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxx
If to Xxxxxx to:
Xxxxxx Financial, Inc.
c/x Xxxxxx Healthcare Financial Services
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
If to Midwest to:
Midwest Mezzanine Fund II, L.P.
000 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: J. Xxxxx Xxxxxx
Any party may change the address to which notices to it are to be sent
by giving written notice given pursuant to this Section to the other parties
hereto.
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Section 9. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Corporation shall bind and inure to the
benefit of its respective successors and permitted assigns hereunder.
Section 10. Governing Law. This Agreement shall be deemed to be a
contract made under the laws of the State of Illinois and for all purposes shall
be construed in accordance with the internal laws of said State.
Section 11. Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
Section 12. Amendment; Waiver. This Agreement cannot be amended without
the prior written consent of the Holders and the Corporation. No provision of
this Agreement may be waived except by an instrument in writing signed by the
party to be bound. No failure or delay by any party in exercising any right or
remedy hereunder shall operate as a waiver thereof, and a waiver of a particular
right or remedy on one occasion shall not be deemed a waiver of any other right
or remedy or a waiver of the same right or remedy on any subsequent occasion.
[REMAINDER OF PAGE INTENTIONALLY BLANK. SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties hereto have caused this Investors
Agreement to be duly executed as of the day and year first above written.
CASTLE DENTAL CENTERS, INC.
By:
--------------------------------
Its:
-------------------------------
XXXXXX FINANCIAL, INC.
By:
--------------------------------
Its:
-------------------------------
MIDWEST MEZZANINE FUND II, L.P.
By: ABN AMRO Mezzanine Management
II, L.P., its General Partner
By: ABN AMRO Mezzanine Management
II, Inc., its General Partner
By:
--------------------------------
Its:
-------------------------------
Solely for purposes of
Section 5(a) hereof:
-----------------------------------
Xxxxx X. Xxxxx
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