EXHIBIT 2
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STOCKHOLDERS' AGREEMENT
AGREEMENT made this 6th day of November, 1996, by and among (i)
Occupational Health + Rehabilitation Inc, a Delaware corporation (the
"Company"), (ii) the individuals and entities listed under the heading "Holders"
on Schedule I attached hereto, and (iii) those persons whose names are set forth
under the heading "Investors" on Schedule I hereto (the "Investors").
WHEREAS, the Investors are acquiring up to an aggregate of 1,666,667
shares of the Series A Preferred Stock, $.001 par value per share, of the
Company (the "Series A Preferred Stock") pursuant to a certain Series A
Convertible Preferred Stock Purchase Agreement dated as of November 6, 1996, by
and among the Investors and the Company (the "Purchase Agreement");
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Company, the Holders and the Investors
agree as follows:
1. Election of Directors.
Each of the parties hereto agrees to vote all of the Stock (as
hereinafter defined) of the Company now owned or hereafter acquired by such
party (and attend, in person or by proxy, all meetings of stockholders called
for the purpose of electing directors), and the Company agrees to take all
actions (including, but not Limited to the nomination of specified persons) to
cause and maintain the election to the Board of Directors of the Company, to the
extent permitted pursuant to the Company's Restated Certificate of
Incorporation, as amended, the following:
(a) the Chief Executive Officer of the Company, who shall
initially be Xxxx X. Xxxxxxxxx;
(b) a person designated by those persons designated as Telor
Principal Stockholders on Schedule II hereto by a majority in interest of Stock
held by them, who shall initially be Xxxxx X. Xxxxxx;
(c) a person designated by those persons designated as OH+R
Principal Stockholders on Schedule II hereto by a majority in interest of Stock
held by them, who shall initially be Xxxxx X. Xxxxxxxxx;
(d) two persons designated by Xxxxxx, Xxxxxxx Strategic
Partners Fund, L.P., one of whom shall initially be Xxxxxx X. Xxxxxx and the
other of whom shall be designated at a later date, and
(e) two persons who shall be unaffiliated with the management
of the Company and mutually agreeable to all of the other directors.
Each of the parties further covenants and agrees to vote, to
the extent possible, all shares of Stock of the Company now owned or hereafter
acquired by such party so that the Company's Board of Directors shall consist of
no more than seven (7) members. For the purposes of this Agreement, "Stock"
shall mean and include all Series A Preferred Stock and all shares of Common
Stock, and all other
securities of the Company which may be exchangeable for or issued in exchange
for or in respect of shares of Common Stock (whether by way of stock split,
stock dividend, combination, reclassification, reorganization or any other
means).
In the absence of any designation from the persons or groups
so designating directors as specified above, the director previously designated
by them and then serving shall be reelected if still eligible to serve as
provided herein.
No party hereto shall vote to remove any member of the Board
of Directors designated in accordance with the aforesaid procedure unless the
persons or groups so designating directors as specified above so vote, and, if
such persons or groups so vote then the non-designating party or parties shall
likewise so vote.
Any vacancy on the Board of Directors created by the
resignation, removal, incapacity or death of any person designated under this
Section 1 shall be filled by another person designated in a manner so as to
preserve the constituency of the Board as provided above.
If any party to this Agreement shall fail to vote such party's
Stock as provided in this Agreement, without further action by such party, the
President of the Company shall be, and hereby is, irrevocably constituted the
attorney-in-fact and proxy of such party for the purpose of voting the shares of
such Stock and shall vote the same in accordance with the terms of this
Agreement and is hereby authorized to revoke any proxy providing for any other
vote of such shares with respect to the election of directors.
2. Termination. This Agreement, and the respective rights and
obligations of the parties hereto, shall terminate upon the earliest to occur of
the following: (i) the expiration of ten years from the date first written
above; (ii) a Mandatory Conversion pursuant to the terms of Paragraph 6O of the
Company's Certificate of Designations; or (iii) the sale of the Company, whether
by merger, sale, or transfer of more than eighty percent (80%) of its capital
stock, or sale of substantially all of its assets.
3. Notices. All notices, requests, demands and other communications
provided for hereunder shall be in writing (including electronic communication)
and delivered personally, or by overnight courier, or by facsimile or other
electronic means or sent by certified or registered United States mail, postage
prepaid, return receipt requested and addressed as follows:
If to any Investor: at such Investor's address for notice as set forth
in the register maintained by the Company, or, as to each of the foregoing, at
the addresses set forth on Schedule I hereto or at such other address as shall
be designated by such Person in a written notice to the other parties complying
as to delivery with the terms of this Section, with a copy to Xxxxxx X. Xxxxx,
Esq., Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, High Street Tower, 000 Xxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000.
If to the Company: at 000 Xxxxx Xxxxxx, Xxxxx 00, Xxxxxxx,
Xxxxxxxxxxxxx 00000, or at such other address as shall be designated by the
Company in a written notice to the other parties complying as to delivery with
the terms of this Section, with a copy to Xxxxx X. Xxxxxx, Esq., Xxxxxxx &
Xxxxxxx LLP, Xxx Xxxxxxxx Xxx, Xxxxxxxx, XX 00000.
All such notices, requests, demands and other communications shall be
effective three days after deposited in the mails or upon receipt when delivered
electronically, by facsimile, by hand or by overnight courier, respectively,
addressed as aforesaid, unless otherwise provided herein.
4. Specific Performance. The rights of the parties under this Agreement
are unique and, accordingly, the parties shall, in addition to such other
remedies as may be available to any of them at law or in equity, have the right
to enforce their rights hereunder by actions for specific performance to the
extent permitted by law.
5. Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings between them or any of them as to such
subject matter, including, without limitation, that certain Voting Agreement of
the Company dated as of June 6, 1996.
6. Waivers and Further Agreements. Any of the provisions of this
Agreement may be waived with the consent of the Investors holding at a majority
in interest of the issued and outstanding shares of Series A Preferred Stock
(including shares of Common Stock into which any such shares may have been
converted) then held or deemed to be held by all Investors by an instrument in
writing. Any waiver by any party of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach of that
provision or of any other provision hereof. Each of the parties hereto agrees to
execute all such further instruments and documents and to take all such further
action as any other party may reasonably require in order to effectuate the
terms and purposes of this Agreement. Notwithstanding the foregoing, no waiver
approved in accordance herewith shall be effective if and to the extent that
such waiver grants to any one or more Investors any rights more favorable than
any rights granted to all other Investors or otherwise treats any one or more
Investors differently than all other Investors.
7. Amendments. Except as otherwise expressly provided herein, this
Agreement may not be amended except by an instrument in writing executed by (i)
the Company, (ii) Investors holding a majority in interest of the issued and
outstanding shares of Series A Preferred Stock (including shares of Common Stock
into which any such shares may have been converted), and (iii) Holders holding a
majority of the shares of Common Stock subject to this Agreement.
Notwithstanding the foregoing, no such amendment shall be effective if and to
the extent that such amendment creates any additional affirmative obligations to
be complied with by any or all of the Investors.
8. Assignment; Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, executors, legal representatives, successors and permitted transferees.
9. Severability. In case any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, and such invalid,
illegal and unenforceable provision shall be reformed and construed so that it
will be valid, legal, and enforceable to the maximum extent permitted by law.
10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11. Section Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
12. Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the General Corporation Law of the State of
Delaware as to matters within the scope thereof, and as to all other matters
shall be governed by and construed in accordance with the internal laws of the
Commonwealth of Massachusetts.
13. Legend. The certificates representing the shares of Series A
Preferred Stock shall bear a legend substantially in the following form:
"The shares represented by this certificate are subject to the terms
and conditions of a Stockholders' Agreement dated as of November 6, 1996, a copy
of which will be furnished to any interested party upon written request without
charge."
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as a sealed instrument as of the day and date first above written.
INVESTORS: THE COMPANY:
XXXXXX, XXXXXXX STRATEGIC OCCUPATIONAL HEALTH +
PARTNERS FUND, L.P. REHABILITATION INC
By: Xxxxxx, Xxxxxxx Strategic
Partners, L.P. By: /s/ Xxxx X. Xxxxxxxxx
------------------------
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Title: General Partner
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HOLDERS:
STRATEGIC ASSOCIATES, L.P. PRINCE VENTURE PARTNERS III
LIMITED PARTNERSHIP
By: Xxxxxx, Xxxxxxx & Company, LLC
By: Prince Ventures, L.P.,
General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Title: Managing Member
---------------------- By: /s/Xxxxx X. Xxxxxx
------------------------
AXA U.S. GROWTH FUND, LLC *THE VENTURE CAPITAL FUND OF
NEW ENGLAND III, L.P.
By: /s/ Xxxxxx X. XxXxxxxx
-------------------------- By: FH & Co. III, L.P., Its
Title: Managing Member General Partner
-----------------------
By: /s/ Xxxxx X. Xxxxxxxxx
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U.S. GROWTH FUND PARTNERS,
C.V.
*BANCBOSTON VENTURES, INC.
By: /s/ Xxxxxx X. XxXxxxxx
-------------------------
Title: General Partner
--------------------- By: /s/ Xxxxxx Xxxxx
---------------------
DOUBLE BLACK DIAMOND II, LLC
/s/ Xxxx X. Xxxxxxxxx
------------------------
Xxxx X. Xxxxxxxxx
By: /s/ Xxxxxx X. XxXxxxxx
-------------------------
Title: Managing Member
---------------------- /s/ Xxxxx X. Xxxxx
-----------------------
Xxxxx X. Xxxxx
ALMANORI LIMITED
*VENROCK ASSOCIATES
By: /s/ Xxxxxx X. XxXxxxxx
-------------------------
Title: Attorney-in-Fact
---------------------- By: /s/ Xxxxxxx Sun
----------------------
*VENROCK ASSOCIATES II, L.P.
By: /s/ Xxxxxxx Sun
----------------------
*ASSET MANAGEMENT ASSOCIATES,
1989, L.P.
By: AMC Partners 89, L.P.,
General Partner
By: /s/ Xxxxx X. Xxxxxx
----------------------
*In their capacities as Holders and Investors hereunder.
SCHEDULE I
OCCUPATIONAL HEALTH + REHABILITATION INC
HOLDERS
Prince Venture Partners III Limited Partnership The Venture Capital Fund of New
England III, L.P.
BancBoston Ventures, Inc.
Xxxx X. Xxxxxxxxx
Xxxxx X. Xxxxx
Venrock Associates
Venrock Associates II, L.P.
Asset Management Associates, 1989, L.P.
INVESTORS
Xxxxxx, Xxxxxxx Strategic Partners Fund, L.P.
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
Strategic Associates, L.P.
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
Axa U.S. Growth Fund, LLC
c/o Partech International
00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. XxXxxxxx
U.S. Growth Fund Partners, C.V.
c/o Partech International
00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. XxXxxxxx
Double Black Diamond II, LLC
c/o Partech International
00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. XxXxxxxx
Almanori Limited
c/o Partech International
00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. XxXxxxxx
Asset Management Associates, 1989, L.P.
0000 Xxxx Xxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxx
Venrock Associates
000 Xxxx Xxxx Xxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxxxxxx
Venrock Associates II, L.P.
000 Xxxx Xxxx Xxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxxxxxx
The Venture Capital Fund of New England, III, L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxxxxx
BancBoston Ventures, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxx
SCHEDULE II
OCCUPATIONAL HEALTH + REHABILITATION INC
OH+R Principal Stockholders
Prince Venture Partners III Limited Partnership
The Venture Capital Fund of New England III, L.P.
BancBoston Ventures, Inc.
Telor Principal Stockholders
Prince Venture Partners III, Limited Partnership
Venrock Associates
Venrock Associates II, L.P.
Asset Management Associates, 1989, L.P.
