1
EXHIBIT 99.3
CONFORMED COPY
STOCKHOLDERS AGREEMENT
This AGREEMENT made as of the 26th day of February, 2001 is by and among
those entities identified on the signature page hereto as the Former Senior
Noteholders (collectively with any of their Affiliate Transferees, the "Former
Senior Noteholders" and singularly a "Former Senior Noteholder") and Xxxxxxxxxxx
Xxxxx and Xxxxxxxx Xxxxxx (collectively with any of their Affiliate Transferees,
"Executive Management") and Medical Resources, Inc., a Delaware corporation (the
"Corporation") and DVI Financial Services, Inc., a Delaware corporation
(collectively, with any of its Affiliate Transferees, "DVI"). Each of the Former
Senior Noteholders, Executive Management and any Transferee of a Former Senior
Noteholder or Executive Management is hereinafter sometimes collectively
referred to as the "Stockholders" or individually as a "Stockholder"). Pursuant
to the Plan (as defined below) the Former Senior Noteholders are to be issued
shares of Common Stock representing in the aggregate 83.96% of the issued and
outstanding Common Stock as of the effective date of the Plan, Executive
Management are to be issued shares of Common Stock representing 2% of the issued
and outstanding Common Stock as of the effective date of the Plan and DVI is to
be issued shares of Common Stock representing 5.86% of the issued and
outstanding Common Stock as of the effective date of the Plan. The Stockholders
desire to set forth certain agreements among themselves and the Corporation as
to the management of the Corporation and the ownership of their shares of Common
Stock. DVI is a party to this Agreement as a holder of Registrable Securities
solely for the purposes of accepting and agreeing to the provisions of ARTICLES
4 and 5 and the defined terms used therein.
NOW THEREFORE, in consideration of the mutual promises contained herein and
other good and valuable consideration, receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree as follows.
ARTICLE 1. DEFINITIONS.
1.1 All capitalized terms used herein and otherwise undefined shall have
the meaning ascribed to them in the Plan.
1.2 "Affiliate" means, as to any entity or person, any other entity or
person that such entity or person controls, or by which it is controlled, or
with which it is under common control and in the case of any natural person,
such person's spouse or issue or any trust for the benefit of such person and
such person's spouse or issue. As used in this definition the term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of an entry or person, whether
through the ownership of voting securities, by contract or otherwise.
1.3 "Affiliate Transferee" means any Affiliate of a Former Senior
Noteholder or Executive Management to which such Former Senior Noteholder or
Executive Management shall have transferred any of its Shares or any Affiliate
of DVI to which DVI shall have transferred any of its Registrable Securities.
2
1.4 "Common Stock" means the Corporation's authorized common stock, $.01
par value per share.
1.5 "Demand Registration" has the meaning given therefor in SECTION 4.1.
1.6 "Demand Request" has the meaning given therefor in SECTION 4.1.
1.7 "Exchange Act" means the United States Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
1.8 "indemnified party" has the meaning given therefor in SECTION 4.7.
1.9 "indemnifying party" has the meaning given therefor in SECTION 4.7.
1.10 "Initial Post-Effective Public Offering" means the Corporation's first
firm commitment underwritten public offering of any of its equity securities
registered under the Securities Act after the effective date of the Plan.
1.11 "Piggyback Registration" has the meaning given therefor in SECTION
4.2.
1.12 "Plan" means the Third Amended Joint Plan of Reorganization dated
November 6, 2000 as filed by the Corporation in the United States Bankruptcy
Court of the Southern District of New York.
1.13 "Plan Value" means $10 per share of Common Stock as appropriately
adjusted from time to time to reflect any stock splits, combinations or similar
transactions in respect of the Common Stock or dividends paid on the Common
Stock after the effective date of the Plan.
1.14 "Register," registered," and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of effectiveness of such
registration statement.
1.15 "Registrable Securities" means all shares of Common Stock issued to
the Former Senior Noteholders, Executive Management or DVI pursuant to the Plan
and any other shares of capital stock of the Corporation which may be issued in
exchange for or in respect of such shares of Common Stock (whether by way of
stock split, stock dividend, combination, reclassification, reorganization or
any other means) provided any such shares of Common Stock (or other capital
stock) which have been sold after the date hereof pursuant to a registration
statement or to the public through a broker, dealer or market maker or in
compliance with Rule 144 or Rule 144A (or any similar rule then in force) under
the Securities Act or repurchased by the Corporation or any subsidiary of the
Corporation shall cease to be Registrable Securities.
1.16 "Registration Expense" has the meaning given therefor in SECTION 4.6.
1.17 "Requisite Former Senior Noteholders" means at the time in question
Former Senior Noteholders owning at least 50% of the Shares then owned by all
Former Senior Noteholders in the aggregate.
- 2 -
3
1.18 "SEC" means the United States Securities and Exchange Commission.
1.19 "Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
1.20 "Selling Former Senior Noteholders" has the meaning given therefor in
SECTION 3.1.
1.21 "Shares" means and includes all shares of Common Stock registered in
the stock records books of the Corporation in the name of any Stockholder or a
nominee of such Stockholder and any other shares of capital stock of the
Corporation which may be issued in exchange for or in respect of such shares of
Common Stock (whether by way of stock split, stock dividend, combination,
reclassification, reorganization or any other means).
1.22 "Transferee" means any person to whom Shares are transferred or
assigned by a Stockholder and any heirs or successors in interest of any
Stockholder, whether by operation of law or otherwise and, in the case of DVI,
any person to whom any of DVI's Registrable Securities are transferred or
assigned by DVI and any successor in interest, whether by operation of law or
otherwise.
ARTICLE 2. VOTING AGREEMENTS
2.1 Board of Directors. Each Stockholder agrees to vote all of his Shares
in favor of, and otherwise take all actions as the holder of such Shares
required for:
(a) the election to the Board of Directors of the Corporation of up
to six nominees selected by the Requisite Former Senior
Noteholders; and
(b) the removal from the Board of Directors of any director nominated
by the Requisite Former Senior Noteholders, at the request of the
Requisite Former Senior Noteholders, and the election to the
Board of Directors of any substitute therefor nominated by the
Requisite Former Senior Noteholders.
2.2 Modification of Charter Documents; Other Voting Agreement. Each
Stockholder covenants and agrees that he will:
(a) not vote any of his Shares, and to the extent he has the power to
do so and otherwise may lawfully exercise such power, will not to
permit any director elected by the Stockholders pursuant to
SECTION 2.1 to vote, in favor of:
(i) the adoption of any amendment to or waiver of any provision
of the Corporation's Certificate of Incorporation or Bylaws
as in effect as of the date hereof pursuant to the Plan
(other than in connection with the Initial Post-Effective
Public Offering if such amendments have been recommended by
the underwriters in connection therewith);
- 3 -
4
(ii) any alteration or change to the designation or the powers,
preferences or rights or the qualifications, limitations or
restrictions of the Common Stock (other than in connection
with the Initial Post-Effective Public Offering if such
amendments have been recommended by the underwriters in
connection therewith);
(iii) any (A) authorization or creation of or amendment to any
class or series of stock ranking, either as to payment of
dividends, distribution of assets or redemption, prior to
the Common Stock, or (B) authorization or creation of or
amendment to any shares of any class or series or any
bonds, debentures, notes or other obligations convertible
into or exchangeable for, or having optional rights to
purchase, any stock having any such ranking prior to the
Common Stock;
(iv) any increase in the authorized number of shares of Common
Stock (other than in connection with the Initial
Post-Effective Public Offering if such amendments have been
recommended by the underwriters in connection therewith);
(v) the liquidation, dissolution, winding-up or similar
transaction of the Corporation or sale of all or
substantially all of the assets of the Corporation or any
subsidiary thereof;
(vi) the redemption or repurchase of any shares of Common Stock
(except for shares of Common Stock issued to employees,
officers, directors or consultants which is redeemed in
connection with the termination of such person's employment
with the Corporation);
(vii) the authorization of a dividend on any shares of capital
stock; or
(viii) any merger, consolidation, sale of stock or other
transaction in which the holders of Common Stock of the
Corporation, in the aggregate, immediately prior to such
transaction will hold, immediately after such transaction,
less than fifty percent (50%) of the aggregate voting power
of outstanding stock of the surviving Corporation;
unless otherwise consented to by the Requisite Former Senior
Noteholders; and
(b) if requested by Former Senior Noteholders owning Shares
representing more than fifty (50%) percent of the then issued and
outstanding shares of Common Stock, vote all his Shares and, to
the extent he has the power to do so and otherwise may lawfully
exercise such power, will instruct any director elected by the
Stockholders pursuant to SECTION 2.1 to vote,
- 4 -
5
in favor (A) of any transaction identified in clauses (a)(i)
through (a)(vii) above; and (b) of any transaction identified in
clause (a)(viii) if the consideration to be received by the
holders of shares of Common Stock in such transaction is not less
than the then current Plan Value.
ARTICLE 3. RIGHTS OF CO-SALE; REQUIRED CO-SALE.
3.1 Tag-Along/Drag-Along. If one or more Former Senior Noteholders
("Selling Former Senior Noteholders") propose to sell, in a single transaction
or series of related transactions, Shares representing more than 40% of the
Common Stock at the time outstanding to a party who is not a Former Senior
Noteholder or who will not be an Affiliate Transferee of a Former Senior
Noteholder after such sale, the other Stockholders have the right to participate
in such sale to the extent provided in SECTION 3.2. Further, if such sale of
Shares by the Selling Former Noteholders represents more than 50% of the Common
Stock at the time outstanding and is at a price per share not less than the
current Plan Value, the other Stockholders shall, if requested by the Selling
Former Senior Noteholders, sell to the purchaser of such Selling Former Senior
Noteholders' Shares all of their Shares on the same terms and conditions as such
Selling Former Senior Noteholders; provided, the other Stockholders shall not be
obligated to sell their Shares pursuant to this sentence unless the Selling
Former Senior Noteholders propose to sell all of their Shares in such
transaction. Not less than thirty (30) days prior to any proposed sale of Shares
by Selling Former Senior Noteholders, the Selling Former Senior Noteholders
shall give the other Stockholders written notice of the proposed sale (a "Sale
Notice") which shall specify the terms and conditions of such sale and whether
or not the Selling Former Senior Noteholders are exercising their rights under
clause (b) of this SECTION 3.1 to require to other Stockholders to sell their
Shares on the same terms and conditions.
3.2 Participation Procedures. If the other Stockholders are not required,
but are entitled and wish, to participate in such sale (each a "Participating
Stockholder"), each Participating Stockholder shall give the Selling Former
Senior Noteholders written notice (a "Participation Notice") of its election to
participate not later than fifteen (15) days after the date of the delivery of
the Sale Notice and specifying the number of Shares which it wishes to sell. If
the Selling Former Senior Noteholders receive any Participation Notices, they
shall not sell any Shares in such transaction unless the purchaser thereof at
the same time purchases from each Participating Stockholder on the same terms
and conditions, that number of Shares at least equal to the lesser of:
(a) the total number of Shares which such Participating Stockholder
specified in its Participation Notice that it wished to sell; or
(b) the number of Shares derived by multiplying the total number of
Shares then owned by such Participating Stockholder by a
fraction, the numerator of which is equal to the number of Shares
that are to be purchased by the proposed purchaser from the
Selling Former Senior Noteholders and the denominator of which is
the aggregate number of Shares owned by the Selling Former Senior
Noteholders prior to such sale;
- 5 -
6
provided, the number of Shares to be included by each Participating Stockholder
and each Selling Former Senior Noteholders in such sale shall be reduced pro
rata based on the number of Shares proposed to be included by each in such sale
until the aggregate number of Shares to be sold is equal to the number of Shares
that the proposed purchaser desires to purchase.
ARTICLE 4. REGISTRATION RIGHTS
4.1 Demand Registration.
(a) Requests for Registration. At any time following the first
anniversary of the effective date of the Plan, Former Senior
Noteholders owning Registrable Securities representing at least
15% of the then issued and outstanding shares of Common Stock
shall be entitled to request registration (a "Demand Request")
under the Securities Act of all or any portion of their
Registrable Securities. A registration requested pursuant to this
SECTION 4.1(a) is referred to in this Agreement as a "Demand
Registration". The Demand Request shall specify the approximate
number of Registrable Securities requested to be registered and
the intended method of distribution thereof. Within ten days
after receipt of a Demand Request, the Corporation shall give
written notice of such requested registration to each other
holder of Registrable Securities and shall include in such
registration all Registrable Securities with respect to which the
Corporation has received written requests for inclusion therein,
including without limitation, but subject to SECTION 4.1(c), all
Registrable Securities requested for inclusion pursuant to
SECTION 4.2, and the intended method of distribution thereof
within 30 days after the receipt of the Corporation's notice.
(b) Number of Demand Registrations. The Former Senior Noteholders as
a group shall be entitled to request two Demand Registrations.
The Corporation shall pay all Registration Expenses in connection
with the Demand Registration and shall pay all Registration
Expenses in connection with a registration initiated as a Demand
Registration whether or not it becomes effective or is not
otherwise counted as a Demand Registration. A registration shall
not count as a Demand Registration until it has become effective
under the Securities Act and any blue sky laws of any applicable
state and remains so effective until the earlier of the date all
Registrable Securities included therein have been sold pursuant
thereto or the time periods for which such registration statement
is required to be maintained as effective under SECTION 4.4(a)
have expired (unless such registration statement is withdrawn at
the request of the holders of not less than a majority of the
Registrable Securities included therein (other than a withdrawal
in the case described in the next following sentence or in the
case described in SECTION 4.1(d)). If so requested in the Demand
Request and if the market value of the Registrable Securities to
be included in such registration shall have current market value
of not less than $5,000,000, the Corporation shall
- 6 -
7
use its best efforts to effect such Demand Registration as an
underwritten offering on a firm commitment basis, provided if the
Corporation is unable to effect the registration as an
underwritten offering on a firm commitment basis, the Corporation
will continue to effect such registration if requested to do so
by holders of not less than a majority of the Registrable
Securities to be included therein in accordance with the method
of distribution as is specified by such holders and in such case
the registration statement shall count as a Demand Registration;
otherwise such Demand Request shall be deemed not to have been
made and shall not count as a Demand Registration.
(c) Priority on Demand Registration. All Registrable Securities
requested to be included in the Demand Registration shall be
included unless the offering is to be underwritten and the
managing underwriters advise the Corporation in writing that all
of the Registrable Securities requested to be included may not be
sold without adversely affecting the marketability of the
offering. In such case, the number of such Registrable Securities
included in the offering, if any, shall be allocated first, pro
rata among the Former Senior Noteholders on the basis of the
total number of Registrable Securities requested by each such
holder to be included and second, pro rata among the other
holders of Registrable Securities requested to be included
pursuant to SECTION 4.2 on the basis of the total number of
Registrable Securities requested to be included pursuant to
SECTION 4.2. If all Registrable Securities requested to be
included in the Demand Registration are so included, the
Corporation may include in the Demand Registration other
securities to be sold by the Corporation for its own account or
to be sold by other Persons, unless the managing underwriters
advise the Corporation in writing that in their opinion the
inclusion of such other securities will cause the number of
Registrable Securities and other securities requested to be
included in the offering to exceed the number which may be sold
without adversely affecting the marketability of the offering.
(d) Restrictions on Demand Registration. The Corporation shall not be
obligated to effect a Demand Registration within 120 days after
the effective date of a previous registration of securities by
the Corporation under the Securities Act if the holders of
Registrable Securities were given piggyback rights in such
previous registration pursuant to SECTION 4.2 and all Registrable
Securities requested to be included in such registration pursuant
to SECTION 4.2 were included therein. The Corporation shall be
entitled to postpone, for up to 90 days (or for up to 120 days if
the Demand Request relating to the registration statement is
received during the month of December or the first quarter of any
calendar year) the filing of any registration statement otherwise
required to be prepared and filed by it pursuant hereto if, at
the time it receives a Demand Request, the Corporation would be
required to prepare for inclusion or incorporation into the
registration statement any financial
- 7 -
8
statements other than those that it customarily prepares or the
Corporation determines in its reasonable business judgment that
such registration and offering would materially interfere with
any financing, refinancing, acquisition, disposition, corporate
reorganization or other material corporate transactions or
development involving the Corporation or any of its subsidiaries
and promptly gives the holders of the Registrable Securities
making the Demand Request written notice of such determination;
provided, that if the Corporation shall so postpone the filing of
a registration statement, the holders of a majority of the
Registrable Securities making the Demand Request shall have the
right to withdraw the Demand Request by giving written notice to
the Corporation within 30 days after the receipt of notice of
postponement and, in the event of such withdrawal, the withdrawn
Demand Request shall be deemed not to have been made and shall
not count as a Demand Registration.
(e) Selection of Underwriters. The Corporation shall have the right
to select the investment banker(s) and manager(s) to administer
the Demand Registration, subject to the approval of the holders
of a majority of the Registrable Securities to be included
therein, which approval shall not be unreasonably withheld.
(f) Grant of Other Demand Registration Rights. From and after the
date hereof, the Corporation shall not grant to any Persons the
right to request the Corporation to register any equity
securities of the Corporation without the prior written consent
of Former Senior Noteholders owning Registrable Securities
representing a majority of Registrable Securities owned by all
Former Senior Noteholders at the time provided, that the
Corporation may without the consent of such Former Senior
Noteholders, grant rights to other Persons to (i) participate in
Piggyback Registrations so long as such rights are subordinate to
the rights of the holders of Registrable Securities with respect
to such registrations; and (ii) request registrations so long as
the holders of Registrable Securities are entitled to participate
in any such registrations pari passu with such Persons.
4.2 Piggyback Registrations.
(a) Right to Piggyback. Whenever the Corporation proposes to register
any of its equity securities under the Securities Act (including,
without limitation, in a Demand Registration) and the
registration form to be used may be used for the registration of
Registrable Securities, the Corporation shall give prompt written
notice to each holder of Registrable Securities of its intention
to effect such a registration and shall include in such
registration (a "Piggyback Registration") all Registrable
Securities with respect to which the Corporation has received
written requests for inclusion therein (which request shall state
the
- 8 -
9
intended method of distribution thereof) within 30 days after the
receipt of the Corporation's notice on the same terms and
conditions as the other securities included therein.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities shall be paid by the Corporation in all
Piggyback Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the
Corporation, and the managing underwriters advise the Corporation
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, the Corporation shall include
in such registration first, the securities the Corporation
proposes to sell and second, the Registrable Securities requested
to be included therein and then (and only then) any other
securities requested to be included in such registration. If less
than all the Registrable Securities requested to be included in
the Piggyback Registration may be so included, the number of
Registrable Securities included in the Piggyback Registration
shall be allocated pro rata among the holders of Registrable
Securities on the basis of the number of Registrable Securities
requested by each such holder to be included therein.
(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of other
holders of the Corporation's securities other than a Demand
Registration, and the managing underwriters advise the
Corporation 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, the Corporation
shall include in such registration the Registrable Securities and
the other securities on whose behalf the registration was
initially being made pro rata among the holders of the
Registrable Securities and the holders of such other securities
on the basis of the number of Registrable Securities and other
securities requested by each such holder to be included therein.
If the Piggyback Registration is a Demand Registration and the
managing underwriters advise the Corporation 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, the provisions of SECTION 4.1(c) shall govern.
(e) Continued Obligation for Demand Registration. No registration of
Registrable Securities effected under this SECTION 4.2 shall
relieve the Corporation of its obligation to effect registration
of the Registrable
- 9 -
10
Securities upon any Demand Request made pursuant to the
provisions of SECTION 4.1.
(f) Withdrawal or Delay. If at any time after giving written notice
of its intention to register any securities and prior to the
effective date of the registration statement filed in connection
with such registration, the Corporation shall determine for any
reason not to register or to delay registration of such
securities, the Corporation may, at its election, give written
notice of such determination to each holder of Registrable
Securities requested to be included in such offering and (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 any obligation of
the Corporation to pay the Registration Expenses in connection
therewith), without prejudice, however, to the rights of any
holder of Registrable Securities to include Registrable
Securities in any future registrations pursuant to this SECTION
4.2 or to cause a registration to be effected as a Demand
Registration under SECTION 4.1, 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 such other securities.
4.3 Holdback Agreements.
(a) No holder of Registrable Securities shall effect any public sale
or distribution (which shall not include any sales pursuant to
Rule 144 or 144A) of equity securities of the Corporation, or any
securities convertible into or exchangeable or exercisable for
such securities, during the seven days prior to and the 120-day
period following the effective date of the registration statement
for a Demand Registration or any underwritten Piggyback
Registration in which Registrable Securities are or may be
included (except as part of the offering covered by such
registration statement) unless the underwriters managing the
registered public offering otherwise agree.
(b) The Corporation shall not effect any public sale or distribution
of shares of Common Stock or any other equity securities of the
Corporation, during the seven days prior to and during the 90-day
period following the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except
as part of such underwritten registration or pursuant to
registrations on Form S-8 or any successor form or pursuant to
any shelf registration statement then in effect for the benefit
of any holders of the Corporation's securities), unless the
underwriters managing the registered public offering otherwise
agree.
4.4 Registration Procedures. Whenever any Registrable Securities are
required to be registered pursuant to this Agreement, the Corporation shall use
its reasonable best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the
- 10 -
11
intended method of disposition thereof and pursuant thereto the Corporation
shall as expeditiously as possible:
(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities on Form S-1 or such other
form of general applicability satisfactory to the managing
underwriter (or if the offering is not underwritten, the holders
of a majority of Registrable Securities included therein) and use
its reasonable best efforts to cause such registration statement
to become effective (provided that the Corporation may delay or
discontinue any registration statement effected under SECTION 4.1
in accordance with SECTION 4.1(d) or SECTION 4.2 in accordance
with SECTION 4.2(f)) and prepare and file with the SEC such
amendments and post-effective amendments to such registration
statement and supplements to the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective under the Securities Act and the blue sky laws of any
applicable state for a period of not less than 90 days in the
case of an underwritten offering, and in any other offering,
until the disposition of all Registrable Securities covered by
such registration statement, but not longer than a period of six
months, unless at the expiration of such six month period, less
than 75% of the Registrable Securities covered by such
Registration Statement have been sold, then such period shall
automatically be extended for six additional months; provided
that at any time after the registration statement has been
continuously effective for six consecutive months, if the
Corporation determines in its reasonable business judgment that
having such registration statement remain in effect would
materially interfere with any financing, refinancing,
acquisition, disposition, corporate reorganization or other
material corporate transaction or development involving the
Corporation or any of its Subsidiaries or at any time after such
registration statement has been declared effective if the
Corporation becomes the subject of an unsolicited tender offer
for at least a majority of its equity securities, the Corporation
may, upon prior written notice to each holder of Registrable
Securities included therein, suspend such registration statement
for a period of not more than ninety (90) days, and in no event
shall the Corporation be entitled to exercise such right more
than once in any 12-month period;
(b) before filing a registration statement or prospectus or any
amendments or supplements thereto or incorporating any document
by reference therein, the Corporation shall furnish to the
holders of Registrable Securities included in such registration
statement copies of all such documents proposed to be filed or
incorporated therein, which documents shall be subject to the
review and comment of such holders and one counsel selected by
such holders;
- 11 -
12
(c) notify in writing each holder of Registrable Securities included
in such registration statement of (i) the filing and
effectiveness of such registration statement or any amendment or
post-effective amendments thereto and the prospectus and any
supplement thereto, (ii) any request by the SEC for amendments or
post-effective amendments to the registration statement or
supplements to the prospectus or for additional information,
(iii) the issuance by the SEC of any stop order suspending the
effectiveness of such registration statement or the initiation or
threatening of any proceedings for that purpose, and (iv) the
receipt by the Corporation of any notification with respect to
the suspension of the qualification of the Registrable Securities
for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose;
(d) comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration
statement during the period of, and in accordance with the
intended methods of, disposition by the sellers thereof as set
forth in such registration statement;
(e) furnish, without charge, to each holder of Registrable Securities
included in a registration statement such number of copies of
such registration statement, the prospectus included in such
registration statement (including each preliminary prospectus),
each amendment and supplement thereto, and such other documents
as such holder may reasonably request in order to facilitate the
disposition of the Registrable Securities included therein owned
by such holder and the Corporation hereby consents to the use of
each prospectus or any supplement thereto by each such holder and
the underwriters, if any, in connection with the offering and
sale of the Registrable Securities covered by such registration
statement or any amendment thereto;
(f) use its reasonable best efforts to register or qualify all
Registrable Securities included in a registration statement under
such other securities or blue sky laws of such jurisdictions as
any holder of such Registrable Securities reasonably requests and
do any and all other acts and things which may be reasonably
necessary or advisable to enable such holder to consummate the
disposition in such jurisdictions of such Registrable Securities
(provided that the Corporation shall not be required to (i)
qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this
SUBPARAGRAPH (f), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in
any such jurisdiction);
(g) immediately notify each holder of Registrable Securities included
in a registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the
prospectus included in such
- 12 -
13
registration statement contains an untrue statement of a material
fact or omits any fact necessary to make the statements therein
not misleading, and shall prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall
not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not
misleading;
(h) cause all Registrable Securities included in a registration
statement to be listed on each securities exchange on which
similar securities issued by the Corporation are then listed and,
if not so listed, but similar securities are then listed on the
NASD automated quotation system, to be listed on the NASD
automated quotation system and, if listed on the NASD automated
quotation system, use its reasonable best efforts to secure
designation of all such Registrable Securities as a NASDAQ
national market system security within the meaning of Rule
11Aa2-1 of the SEC or failing that, at such time as the
Corporation becomes eligible for such authorization, to secure
NASDAQ authorization for such Registrable Securities if available
and, without limiting the generality of the foregoing, to arrange
for at least two market makers to register as such with respect
to such Registrable Securities with the NASD;
(i) if the offering is underwritten, use its reasonable best efforts
to furnish on the date that Registrable Securities are delivered
to the underwriters for sale pursuant to such registration
statement, and to the extent required by any underwriting
agreement or from time to time upon request by any holder of
Registrable Securities in connection with its disposition of its
Registrable Securities under such registration statement: (i) an
opinion dated such date of counsel representing the Corporation
for the purposes of such registration, addressed to the
underwriters and to each such holder, stating that such
registration statement has become effective under the Securities
Act and that (A) to the best knowledge of such counsel, no stop
order suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are pending
or contemplated under the Securities Act, (B) the registration
statement, the related prospectus and each amendment or
supplement thereof appear on their face to be appropriately
responsive in all material respects with the requirements of the
Securities Act (except that such counsel need not express any
opinion as to financial statements or financial data contained
therein) and (C) to such other effect as may be reasonably
requested by counsel for the underwriters or by such holder or
its counsel if such offering is not underwritten and (ii) to the
extent accounting standards then permit, a letter dated such date
from the independent public accountants retained by the
Corporation, addressed to the underwriters and to each such
holder, stating that they are independent public accountants
within the meaning of the Securities Act and that, in the opinion
of such accountants, the financial statements of
- 13 -
14
the Corporation included in the registration statement or the
prospectus, or any amendment or supplement thereof, comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including
information as to the period ending no more than five Business
Days prior to the date of such letter) with respect to such
registration as such underwriters, or such holder if such
offering is not underwritten, may reasonably request;
(j) provide a transfer agent and registrar for all Registrable
Securities included in a registration statement not later than
the effective date of such registration statement, and a CUSIP
number for all such Registrable Securities and provide the
applicable transfer agent with printed certificates or
instruments for such Registrable Securities which are in a form
eligible for deposit with Depositary Trust Corporation and
otherwise meeting the requirements of any securities exchange on
which such Registrable Securities are then listed;
(k) cooperate with the holders of Registrable Securities included in
a registration statement and the underwriters, if any, to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold not bearing any
restrictive legends; and to enable such Registrable Securities to
be in such denominations and registered in such names as the
underwriters may request at least two Business Days prior to any
sale of such Registrable Securities to the underwriters;
(l) enter into such customary agreements (including underwriting
agreements in customary form) as the underwriters of any
registration statement pursuant to an underwritten offering,
reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including effecting a
stock split or a combination of shares);
(m) make available for inspection by any holder of Registrable
Securities included in a registration statement, any underwriter
participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by
any such holder or underwriter, all financial and other records,
pertinent corporate documents and properties of the Corporation
as they deem necessary to conduct their due diligence review, and
cause the Corporation's officers, directors, employees and
independent accountants to supply all information reasonably
requested by any such holder, underwriter, attorney, accountant
or agent in connection with such registration statement;
(n) otherwise comply with the Securities Act, the Exchange Act, all
applicable rules and regulations of the SEC and all applicable
state blue sky and other securities laws, rules and regulations,
and make generally available to its security holders, earnings
statements satisfying the
- 14 -
15
provisions of Section 11(a) of the Securities Act, no later than
30 days after the end of any 12 month period (or 90 days if the
end of such 12 month period coincides with the end of a fiscal
quarter or fiscal year, respectively) of the Corporation (A)
commencing at the end of any month in which Registrable
Securities are sold to underwriters in an underwritten offering,
or, (B) if not sold to underwriters in such an offering,
beginning within the first three months commencing after the
effective date of the registration statement, which statements
shall cover said 12 month periods;
(o) permit any holder of Registrable Securities which, in such
holder's sole and exclusive judgment, might be deemed to be an
underwriter or a controlling person of the Corporation, to
participate in the preparation of such registration or comparable
statement and to require the insertion therein of material,
furnished to the Corporation in writing, which in the reasonable
judgment of such holder and its counsel should be included; and
(p) if the offering is underwritten, promptly upon notification to
the Corporation from the managing underwriter of the price at
which the securities are to be sold under such registration
statement, and, in any event, prior to the effective date of the
registration statement filed in connection with such
registration, the Corporation shall advise each holder requesting
inclusion of Registrable Securities in such registration
statement of such price. If such price is below the price which
is acceptable to a holder of Registrable Securities requested to
be included in such offering, then such holder shall have the
right, by written notice to the Corporation given prior to the
effectiveness of such registration statement, to withdraw its
request to have its Registrable Securities included in such
registration statement.
4.5 Conditions to Registration. Each holder's right to have its
Registrable Securities included in any registration statement filed by the
Corporation in accordance with the provisions of this Agreement shall be subject
to the following conditions:
(a) The holders of Registrable Securities to be included in such
registration statement shall furnish the Corporation in a timely
manner with all information requested by the Corporation in
writing and required by the applicable rules and regulations of
the SEC or otherwise reasonably required by the Corporation or
its counsel in order to enable them properly to prepare and file
such registration statement in accordance with applicable
provisions of the Securities Act and if the offering is
underwritten such holder shall (i) agree to sell its Registrable
Securities on any reasonable and customary basis provided in any
underwriting arrangements approved by (A) the holders of not less
than a majority of the Registrable Securities included therein in
the case of a Demand Registration, or (B) the Corporation or such
other holders of securities on
- 15 -
16
whose account the registration is initially being made in the
case of a Piggyback Registration and (ii) complete and execute
all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the
terms of such underwriting arrangements on a timely basis;
provided that in no case shall a holder of Registrable Securities
included in any registration be required to make any
representations or warranties to the Corporation or the
underwriters other than representations and warranties regarding
such holder, the Registrable Securities held by such holder and
such holder's intended method of distribution;
(b) If any such holder desires to sell and distribute Registrable
Securities over a period of time, or from time to time, at then
prevailing market prices, then any such holder shall execute and
deliver to the Corporation such written undertakings as the
Corporation and its counsel may reasonably request in order to
assure full compliance with applicable provisions of the
Securities Act and the Exchange Act;
(c) Such holder shall agree that as of the date that a final
prospectus is made available to it for distribution to
prospective purchasers of Registrable Securities it shall cease
to distribute copies of any preliminary prospectus prepared in
connection with the offer and sale of such Registrable Securities
and will deliver or cause to be delivered a copy of such final
prospectus to each Person who received a copy of any preliminary
prospectus prior to sale of any of the Registrable Securities to
such Persons; and
(d) Upon receipt of any notice from the Corporation of the existence
of any event of the nature described in SECTION 4.4(g), such
holder will forthwith discontinue disposition of Registrable
Securities until such holder receives copies of the supplemented
or amended prospectus contemplated by SECTION 4.4(g) or until it
is advised in writing by the Corporation that the use of the
prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by
reference in the prospectus, and, if so directed by the
Corporation, such holder will deliver to the Corporation (at the
Corporation's expense) all copies, other than permanent file
copies then in such holder's possession, of the prospectus
covering such Registrable Securities current at the time of
receipt of such notice.
4.6 Registration and Selling Expenses.
(a) All expenses incident to the Corporation's performance of or
compliance with this Agreement and the preparation, filing,
amendment or supplement of any registration statement in which
Registrable Securities are to be included, including without
limitation all registration and filing fees, fees and expenses
(including the Corporation's counsel fees) of
- 16 -
17
compliance with securities or blue sky laws, printing and copying
expenses, messenger and delivery expenses, fees and disbursements
of custodians, and fees and disbursements of counsel for the
Corporation and all independent certified public accountants,
underwriters (excluding discounts and commissions and fees in
lieu of discounts and commissions) and other Persons retained by
the Corporation, the expenses and fees for listing the securities
to be registered on each securities exchange on which similar
securities issued by the Corporation are then listed or on the
NASD automated quotation system, transfer taxes, fees of transfer
agents and registrars and cost of insurance (all such expenses
being called "Registration Expenses") shall be borne by the
Corporation, whether or not any such registration statement
becomes effective.
(b) In connection with each registration effected pursuant to SECTION
4.1 or 4.2, the Corporation shall reimburse the holders of
Registrable Securities included in such registration for the
reasonable fees and disbursements of one counsel chosen by the
holders of a majority of the Registrable Securities included in
such registration.
(c) All underwriting discounts and selling commissions applicable to
the sale of Registrable Securities and all fees and disbursements
of counsel for the holders of Registrable Securities, other than
fees and expenses referred to in SECTION 4.6(b), shall be paid by
the holders of Registrable Securities.
4.7 Indemnification.
(a) The Corporation agrees to indemnify, hold harmless and reimburse,
to the extent not prohibited by law, each holder of Registrable
Securities included in a registration statement, its directors,
officers, employees and each Person who controls such holder
(within the meaning of the Securities Act) against all losses,
claims, damages, liabilities and expenses, whether joint or
several (including legal expenses and any expenses incurred in
investigating any claims) caused by any untrue or alleged untrue
statement of material fact contained in such registration
statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to
make the statements therein not misleading or any other violation
or breach of the Securities Act, the Exchange Act or any state
securities or blue sky law or any other law by the Corporation or
its officers or directors or any other Person acting or
purporting to act on the Corporation's behalf, except insofar as
the same are caused by or contained in any information furnished
in writing to the Corporation by such holder specifically stating
that it is to be used in the preparation thereof or by such
holder's failure to deliver a copy of the registration statement
or prospectus or any
- 17 -
18
amendments or supplements thereto after the Corporation has
furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the
Corporation shall indemnify such underwriters, their officers and
directors and each Person who controls such underwriters (within
the meaning of the Securities Act) to the same extent as provided
above with respect to the indemnification of the holders of
Registrable Securities.
(b) In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder
shall indemnify the Corporation, its managers, officers and
employees and each Person who controls the Corporation (within
the meaning of the Securities Act) against any losses, claims,
damages, liabilities and expenses (including legal expenses and
any expenses incurred in investigating any claims) resulting from
any untrue or alleged untrue statement of material fact contained
in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or
omission is contained in any information or affidavit so
furnished in writing by such holder specifically stating that it
is to be used in the preparation thereof; provided that the
obligation to indemnify shall be individual to each holder and in
no event shall the aggregate liability of a holder for
indemnities pursuant to this SECTION 4.7 exceed the net amount of
proceeds received by such holder from the sale of its Registrable
Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder (an "indemnified
party") shall (i) give prompt written notice to any Person
obligated to make such indemnification (an "indemnifying party")
of any claim with respect to which it seeks indemnification
(provided that the failure to give prompt notice shall not impair
any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii)
unless in such indemnified party's reasonable judgment a conflict
of interest between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party
to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party shall not be subject to any
liability for any settlement made by the indemnified party
without its consent (but such consent shall not be unreasonably
withheld). An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one counsel
for all parties indemnified by such indemnifying party with
respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such
indemnified party and any other of such
- 18 -
19
indemnified parties with respect to such claim or that there may
be reasonable defenses available to it which are different from
or additional to those available to the indemnifying party or if
the interests of the indemnified party reasonably may be deemed
to conflict with the interests of the indemnifying party, the
indemnified party shall have the right to select a separate
counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as
incurred.
(d) In order to provide for just and equitable contribution to joint
liability in any case in which either (i) the indemnity provided
for in this SECTION 4.7 is unavailable to a party that would
otherwise have been an indemnified party, or (ii) contribution
under the Securities Act or any other applicable law may be
required on the part of any such holder of Registrable Securities
or any controlling Person of such a holder in circumstances for
which indemnification is provided under this SECTION 4.7; then,
and in each such case, the indemnifying and indemnified party
will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from
others) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and such
indemnified party on the other in connection with the statement
or omission or circumstance which resulted in such loss, claims,
damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault shall be determined
by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the indemnifying party or such indemnified party and
the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission;
provided, however, that, in any such case, (A) no such holder
will be required to contribute any amount in excess of the
amounts received by it from the sale of its Registrable
Securities pursuant to such registration statement; and (B) no
Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) will be entitled to
contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(e) The indemnification provided for under this Agreement shall
remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer,
director or controlling Person of such indemnified party and
shall survive the transfer of any Registrable Securities and any
termination of this Agreement.
- 19 -
20
ARTICLE 5. MISCELLANEOUS.
5.1 Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their Transferees; provided:
(a) in no event shall Executive Management be permitted to sell,
gift, pledge, assign or otherwise transfer any of their Shares
except to an Affiliate Transferee;
(b) no Transferee shall be entitled to any benefits under this
Agreement unless such Transferee shall have executed and
delivered to the Corporation its written agreement to be bound by
the terms of this Agreement to the same extent as its transferor
in form and substance satisfactory to the Requisite Former Senior
Noteholders; and
(c) no Transferee shall be entitled to any benefits under Article 4
unless (x) such Transferee is already a Stockholder, DVI or an
Affiliate Transferee or (y) the transfer to such Transferee is of
Registrable Securities constituting at least 5% of the then
issued and outstanding Common Stock or (z) the transfer to such
Transferee is of the original number of shares of Common Stock
issued to such Transferee's transferor under the Plan (as such
number may be adjusted to reflect any subsequent stock split,
combination or reclassification of Common Stock).
5.2 Term and Termination. The rights and obligations of the parties:
(a) under ARTICLES 2 and 3 hereunder shall terminate upon the earlier
of (i) the mutual written agreement of all of the Stockholders,
(ii) 18 months following the effective date of the Plan, (iii)
the effective date of the Corporation's Initial Post-Effective
Public Offering or (iv) such time as the number of Shares owned
by the Former Senior Noteholders is less than forty percent (40%)
of the then issued and outstanding shares of Common Stock;
(b) under ARTICLE 4 shall terminate upon the earlier of (i) the time
there are no more Registrable Securities or (ii) the consummation
of any merger, consolidation, sale of stock or other transaction
in which the holders of Common Stock of the Corporation, in the
aggregate, immediately prior to such transaction will hold,
immediately after such transaction, less than fifty percent (50%)
of the aggregate voting power of outstanding stock of the
surviving Corporation provided such transaction has been
consented to by Former Senior Noteholders owning at least
two-thirds of Shares then owned by Former Senior Noteholders or
(iii) upon mutual written agreement of all parties hereto.
5.3 Amendments. This Agreement may be amended or modified in whole or in
part only by an instrument in writing signed by all Stockholders and the
Corporation; provided, no amendment which amends any provision of ARTICLE 4,
this ARTICLE 5 or the defined terms as
- 20 -
21
used herein or therein shall be effective without the consent of DVI or any
Transferee thereof entitled to the benefits of ARTICLE 4 for so long as DVI or
such Transferee owns any Registrable Securities.
5.4 Entire Agreement. This Agreement constitutes the entire agreement
between the parties, and all premises, representations, understandings,
warranties and agreements with reference to the subject matter hereof have been
expressed herein or in the documents incorporated herein by reference.
5.5 Applicable Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware.
5.6 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
5.7 Effect of Headings. Any title of an article or section heading herein
contained is for convenience or reference only and shall not affect the meaning
or construction of any of the provisions hereof.
5.8 Injunctive Relief. It is acknowledged that it will be impossible to
measure the damages that would be suffered by a party if any other party fails
to comply with the provisions of this Agreement and that in the event of any
such failure, the non-defaulting parties will not have an adequate remedy at
law. The non-defaulting parties shall, therefore, be entitled to obtain specific
performance of the defaulting party's obligations hereunder and to obtain
immediate injunctive relief. The defaulting party shall not argue, as a defense
to any proceeding for such specific performance or injunctive relief, that the
non-defaulting parties have an adequate remedy at law.
5.9 Severability. In case any provision of the Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
5.10 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance of any other party under this Agreement shall impair
any such right, power or remedy, nor shall it be construed to be a waiver of or
in any such breach, default or noncompliance, or any acquiescence therein, or of
or in any similar breach, default or noncompliance thereafter occurring. It is
further agreed that any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach, default or noncompliance under
the Agreement or any waiver on the part of any party of any provisions or
conditions of this Agreement must be in writing and shall be effective only to
the extent specifically set forth in such writing.
5.11 Notices and Consents; Notices. All notices and other written
communications provided for hereunder shall be given in writing and sent by
overnight delivery service (with charges prepaid) or by facsimile transmission
with the original of such transmission being sent by overnight delivery service
(with charges prepaid) by the next succeeding Business Day and (i) if to a
Stockholder or DVI addressed to such Stockholder or DVI at such address or fax
- 21 -
22
number as is specified for such Stockholder or DVI after its signature to this
Agreement; and (ii) if to the Corporation, addressed to it at 000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: General Counsel, Fax No. (000) 000-0000
or at such other address or fax number as such Stockholder, DVI or the
Corporation shall have specified to other party hereto in writing given in
accordance with this SECTION 5.11. Notice given in accordance with this SECTION
5.11 shall be effective upon the earlier of the date of delivery or the second
Business Day at the place of delivery after dispatch.
5.12 Pronouns. All pronouns contained herein, and any variations thereof,
shall be deemed to refer to the masculine, feminine or neutral, singular or
plural, as to the identity of the parties hereto may require.
5.13 Legend. Each certificate evidencing any of the Shares shall bear a
legend substantially as follows:
"The shares represented by this certificate are subject to certain
restrictions on transfer and voting agreements and may be entitled to
certain benefits in accordance with and subject to all the terms and
conditions of a certain Stockholders Agreement dated as of February
26, 2001, a copy of which the Corporation will furnish to the holder
of this certificate upon request and without charge."
- 22 -
23
IN WITNESS WHEREOF, this Agreement has been executed under seal as of the
date and year first written above.
COMPANY: MEDICAL RESOURCES, INC.
By: /s/ Xxxxxxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Co-Chief Executive Officer
EXECUTIVE MANAGEMENT: /s/ Xxxxxxxxxxx Xxxxx
--------------------------------------
Xxxxxxxxxxx Xxxxx
Address for Notices:
c/o Medical Resources, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
/s/ Xxxxxxxx Xxxxxx
--------------------------------------
Xxxxxxxx Xxxxxx
Address for Notices:
c/o Medical Resources, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Signature Page to Stockholders Agreement
24
FORMER SENIOR
NOTEHOLDERS: XXXX XXXXXXX LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
Address for Notices:
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Bond & Corporate Finance
Group, T-57
Signature Page to Stockholders Agreement
25
XXXX XXXXXXX VARIABLE LIFE INSURANCE
COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
Address for Notices:
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Bond & Corporate
Finance Group, T-57
Signature Page to Stockholders Agreement
26
INVESTORS PARTNER LIFE INSURANCE
COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
Address for Notices:
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Bond & Corporate
Finance Group, T-57
Signature Page to Stockholders Agreement
27
MELLON BANK, N.A., solely in its capacity
as Trustee for The Long Term Investment
Trust, (as directed by Xxxx Xxxxxxx Financial
Services, Inc.), and not in its individual
capacity
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
Address for Notices:
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Bond & Corporate
Finance Group, T-57
The decision to participate in the investment, any representations made herein
by the participant, and any actions taken hereunder by the participant has/have
been made solely at the direction of the investment fiduciary who has sole
investment discretion with respect to this investment.
Signature Page to Stockholders Agreement
28
THE NORTHERN TRUST COMPANY, AS
TRUSTEE OF THE LUCENT TECHNOLOGIES
INC. MASTER PENSION TRUST
By: XXXX XXXXXXX LIFE INSURANCE
COMPANY, as Investment Manager
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
Address for Notices:
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Bond & Corporate Finance
Group, T-57
Signature Page to Stockholders Agreement
29
AUSA LIFE INSURANCE COMPANY, INC.
By: /s/ Xxxx X. Xxxx
-----------------------------
Name: Xxxx X. Xxxx
Title: Vice President
Address for Notices:
AEGON USA Investment Management
0000 Xxxxxxxx Xxxx, X.X.
Xxxxx Xxxxxx, XX 00000
Attention: Xxxx Xxxx
Signature Page to Stockholders Agreement
30
LIFE INVESTORS INSURANCE COMPANY OF
AMERICA
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
Address for Notices:
AEGON USA Investment Management
0000 Xxxxxxxx Xxxx, X.X.
Xxxxx Xxxxxx, XX 00000
Attention: Xxxx Xxxx
Signature Page to Stockholders Agreement
31
GREAT AMERICAN LIFE INSURANCE
COMPANY
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President
Address for Notices:
American Financial Group
0 Xxxx 0xx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Signature Page to Stockholders Agreement
32
XXXXXXX & CO., (as nominee of General Electric
Capital Assurance Company (f/k/a Great Northern
Insured Annuity Corporation)
By: /s/ Xxxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Reorganization Administrator
Address for Notices:
GE Capital Assurance Co.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Signature Page to Stockholders Agreement
33
COVA FINANCIAL SERVICES LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxx X. Xxxxxxx
Title: Authorized Signatory
Address for Notices:
MetLife
000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Signature Page to Stockholders Agreement
34
HARE & CO (as nominee of Lincoln
National Life Insurance Company)
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Officer
Address for Notices:
Liberty Capital
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxx
Signature Page to Stockholders Agreement
35
AMERICAN BANKERS INSURANCE
COMPANY OF FLORIDA
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Address for Notices:
Fortis Corporation
1 Chase Xxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Signature Page to Stockholders Agreement
36
OCCIDENTAL LIFE INSURANCE COMPANY
OF NORTH CAROLINA
By: /s/ J. Xxxxxx Xxxxxxx
--------------------------------
Name: J. Xxxxxx Xxxxxxx
Title: Executive Vice President
Address for Notices:
Xxxx Investment Advisors, Inc.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attn: J. Xxxxxx Xxxxxxx
Signature Page to Stockholders Agreement
37
PENINSULAR LIFE INSURANCE COMPANY CO.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Address for Notices:
Conning Asset Management
000 Xxxxxx Xxxxxx
City Place II
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Signature Page to Stockholders Agreement
38
EXECUTIVE RISK INDEMNITY INC.
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
Address for Notices:
Chubb Financial Group
00 Xxxxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Signature Page to Stockholders Agreement
39
DVI: DVI FINANCIAL SERVICES, INC.
By: /s/ Xxxx Xxx Xxxxxx
-----------------------------------
Name: Xxxx Xxx Xxxxxx
Title: Deputy General Counsel
Address for Notices:
DVI Financial Services, Inc.
0000 Xxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, President
Signature Page to Stockholders Agreement
