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1994 MOMED HOLDING CO. PROXY STATEMENT EXHIBIT 10.39
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (this "Agreement") is made and entered into
as of the 21st day of July, 1994, by and between MOMED HOLDING CO., a Missouri
corporation ("MOMED"), and MISSOURI STATE MEDICAL ASSOCIATION, a Missouri
not-for-profit corporation ("MSMA").
In consideration of the premises and the mutual terms and provisions set
forth in this Agreement, the parties hereto agree as follows:
ARTICLE ONE
ACQUISITION AND EXCHANGE OF SHARES
SECTION 1.1. ACQUISITION OF THE MSMA SHARES. Subject to the terms and
conditions hereof, on the Closing Date (as hereinafter defined), MSMA agrees to
assign, transfer, deliver and convey unto MOMED, and MOMED agrees to acquire
from MSMA for retirement, all of MSMA's right, title and interest in and to the
24,185 shares of MOMED's authorized and outstanding Class B Common Stock now
owned by MSMA (the "MSMA Shares").
SECTION 1.2. EXCHANGE OF SHARES; NOMINATION AND ENDORSEMENT AGREEMENT.
(a) In exchange for the transfer of the MSMA Shares, on the Closing
Date, MOMED agrees to issue to MSMA, subject to the terms and conditions hereof,
24,185 shares of MOMED's Class A Common Stock and 24,185 shares of its Class C
Common Stock. When exchanged, the shares issued to MSMA hereunder shall be duly
authorized and validly issued, fully paid and non-assessable, and not issued in
violation of any preemptive rights.
(b) The shares of MOMED's Class A Common Stock issued to MSMA in
connection herewith (the "Class A Shares") shall, once issued, have the same
dividend rights, conversion rights, voting powers, preferences, priorities and
other special rights and powers as all other issued and outstanding shares of
MOMED's Class A Common Stock.
(c) The shares of MOMED's Class C Common Stock issued to MSMA in
connection herewith (the "Class C Shares") shall be non-voting, MSMA shall have
an option to sell (i.e. "put") the Class C Shares to MOMED, and MOMED shall be
required to purchase such shares, at any time from and after the Closing Date,
in the maximum quantities set forth on Schedule A attached hereto and
incorporated herein by this reference and for the per share cash consideration
hereinafter described. On the second and third anniversaries of the Closing
Date, MOMED shall have an option to purchase (i.e. "call") those Class C Shares
not yet put to MOMED in the maximum quantities set forth on Schedule A and for
the per share cash consideration hereinafter described. The put or call cash
consideration payable for the Class C Shares pursuant to this Section 1.2(c)
shall be $24.81 per share (for an aggregate cash consideration not to exceed
$600,000) plus an interest factor which shall accrue from the Closing Date
through the date of sale or purchase pursuant to a put or call provided for in
this Section 1.2(c). The interest shall be a fixed annual rate equal to the
prime rate announced by The Boatmen's National Bank of St. Louis on the Closing
Date plus one percent (1%). Any party exercising its rights to a put or call
hereunder shall give written notice thereof to the other party in accordance
with the provisions of Section 7.1 hereof. The notice shall specify the number
of shares covered, the purchase price of such shares (including the interest
factor to the date of payment and delivery) as well as the date of payment and
delivery which shall be a date not less than seven (7) nor more than thirty (30)
days following the date such notice shall be deemed to have been given or made
as in Section 7.1 provided. On the delivery date, MSMA shall surrender to
MOMED, or its duly authorized designee, possession of all certificates
representing the Class C shares covered by the put or call notice, endorsed in
blank or accompanied by duly executed stock powers, and such Class C shares
shall be free and clear of any claims, liens, charges, encumbrances or other
restrictions of commitments of any nature whatsoever.
(d) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of MOMED, the holders of the Class C Shares shall be
entitled to receive out of the assets of MOMED available for distribution to the
stockholders, before any distribution of assets shall be made to the holders of
other shares of MOMED capital stock, an amount equal to the value of any
unexercised put or call rights provided for in Section 1.2(c) above. Except for
this preference payment, the holders of the Class C Shares shall have no other
rights to share in the assets of MOMED upon the liquidation, dissolution or
winding up of MOMED.
(e) Concurrently with the exchange of the MSMA Shares for the Class C
Shares, (i) MSMA and MOMED shall enter into a five (5) year nomination agreement
substantially in the form of Exhibit A attached hereto (the "Nomination
Agreement"), and (ii) MOMED and the Select Stockholders (as hereinafter
defined) shall enter into a five (5) year voting agreement substantially in the
form of Exhibit B attached hereto (the "Voting Agreement").
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SECTION 1.3. EXCHANGE PROCEDURES; SURRENDER OF CERTIFICATES.
On the Closing Date, MSMA shall surrender to MOMED, or its duly authorized
designee, possession of all certificates representing the MSMA Shares, endorsed
in blank or accompanied by duly executed stock powers effectively transferring
the MSMA Shares to MOMED, together with a duly executed letter indicating MSMA's
intent to have the surrendered shares canceled (substantially in the form of
Exhibit C attached hereto). Once the certificates representing the MSMA Shares
have been surrendered to MOMED, those certificates shall be marked "canceled"
and, together with all other authorized but unissued shares of MOMED Class B
Common Stock, shall be deemed retired. Thereupon, MOMED shall issue, in the
name of MSMA, certificates representing the Class A Shares and the Class C
Shares.
SECTION 1.4. THE CLOSING. The closing of the transactions contemplated
hereunder (the "Closing") shall take place at MOMED's principal executive
office, 0000 Xxxxxx Xxxx., Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000, at 2:00 p.m.
St. Louis time on Tuesday, August 16, 1994, or at such other date, time or
place upon which the parties may mutually agree (the "Closing Date").
SECTION 1.5. ACTIONS AT CLOSING.
At the Closing, the following deliveries shall be made, each to be deemed
concurrent with all others:
(a) MOMED shall deliver the following documents to MSMA:
(1) A certificate signed by an authorized officer of MOMED
stating that each of the representations and warranties contained in Article Two
is true and correct in all material respects at the time of Closing with the
same force and effect as if such representations and warranties had been made at
Closing;
(2) A copy of the resolutions duly adopted by the Board of
Directors and stockholders of MOMED authorizing the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby,
duly certified, as of the Closing Date, by the secretary of MOMED;
(3) Certificates representing the Class A Shares and the Class
C Shares registered in the name of MSMA; and
(4) The Nomination Agreement duly executed by MOMED and the
Voting Agreement duly executed by MOMED and Xxxxxxx X. Xxxxxxx, M.D., Xxxxxx X.
Xxxxxxx and Xxxxxxx X. Xxxxx, Xx., M.D. (collectively referred to as the
"Select Stockholders"); and
(5) The opinion of MOMED's counsel substantially in the form of
Exhibit D attached hereto.
(b) MSMA shall deliver the following documents to MOMED:
(1) A certificate signed by an authorized officer of MSMA
stating that each of the representations and warranties contained in Article
Three is true and correct in all material respects at the time of Closing with
the same force and effect as if such representations and warranties had been
made at Closing;
(2) A copy of the resolutions duly adopted by the Executive
Committee of MSMA authorizing the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby, duly certified, as of
the Closing Date, by the secretary of MSMA;
(3) The certificates representing the MSMA Shares, endorsed in
blank or accompanied by duly executed stock powers effectively transferring the
MSMA Shares to MOMED for retirement, together with a duly executed letter
indicated MSMA's intent to have the surrendered shares canceled (substantially
in the form of Exhibit C attached hereto); and
(4) The Nomination Agreement and the Voting Agreement, each
duly executed by MSMA.
ARTICLE TWO
REPRESENTATIONS AND WARRANTIES OF MOMED
SECTION 2.1. CORPORATE ORGANIZATION AND CAPITAL STOCK.
(a) MOMED is a corporation duly organized, validly existing and in
good standing under the laws of the State Missouri with full power and authority
to carry on its business as now being conducted.
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(b) The authorized capital stock of MOMED, consists of (i) 500,000
shares of Class A Common Stock, of which, as of the date hereof, 219,881 shares
are issued and outstanding, and (ii) 125,000 shares of Class B Common Stock, of
which, as of the date hereof, 24,185 shares are issued and outstanding. All of
the issued and outstanding shares of MOMED's capital stock are duly and validly
issued and outstanding and are fully paid and non-assessable. None of the
outstanding shares of MOMED's capital stock has been issued in violation of any
preemptive rights of the current or past stockholders of MOMED.
(c) The Class A Shares and the Class C Shares that are to be issued to
MSMA hereunder, when so issued in accordance with the terms of this Agreement,
will be validly issued and outstanding, fully paid and non-assessable.
SECTION 2.2. AUTHORIZATION. On the Closing Date, (i) there will be no
provision in MOMED's Restated Articles of Incorporation or in its By-Laws, as
amended, which prohibits or limits MOMED's ability to consummate the
transactions contemplated hereby, (ii) MOMED shall have the right, power and
authority to enter into this Agreement and to consummate all of the transactions
and fulfill all of the obligations contemplated hereby, and (iii) the execution
and delivery of this Agreement and the due consummation by MOMED of the
transactions contemplated hereby will have been duly authorized by all necessary
corporate action of the Board of Directors and stockholders of MOMED. This
Agreement constitutes a legal, valid and binding agreement of MOMED enforceable
against MOMED in accordance with its terms.
SECTION 2.3. NO CONFLICT OR VIOLATION. Subject to the fulfillment of
all of the conditions set forth in Article Five hereof, neither the execution
and delivery of this Agreement, nor the consummation of the transactions
contemplated hereby in accordance herewith, not compliance by MOMED with any of
the provisions hereof will result in, as of the Closing Date: (i) a violation of
or a conflict with any provision of MOMED's Restated Articles of Incorporation
or By-Laws, as amended, (ii) a breach of or default under any term, condition or
provision of any obligation, agreement or undertaking, whether oral or written
to which MOMED is a party, or an event which, with the giving of notice, lapse
of time, or both, would result in any such breach, (iii) a violation of any
applicable law, rule, regulation, order, decree or other requirement having the
force of law, or order, judgment, writ, injunction, decree or award, or an event
which, with the giving of notice, lapse of time, or both, would result in any
such violation, or (iv) any person having the right to enjoin, rescind or
otherwise prevent or impede the transactions contemplated hereby or to obtain
damages from MSMA or to obtain any other judicial or administrative relief as a
result of any transaction carried out in accordance with the provisions of this
Agreement.
SECTION 2.4. LITIGATION AND PROCEEDINGS. There is no action, suit,
proceeding or investigation pending or, to the knowledge of MOMED, threatened
which challenges the validity of this Agreement or the transactions contemplated
hereby, or otherwise seeks to prevent, directly or indirectly, the consummation
of such transactions.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES OF MSMA
SECTION 3.1. CORPORATE ORGANIZATION. MSMA is a not-for-profit
corporation duly organized, validly existing and in a good standing under the
laws of the State Missouri with full power and authority to carry on its
business as it is now being conducted.
SECTION 3.2. AUTHORIZATION. MSMA has full right, power and authority to
enter into this Agreement and to consummate or cause to be consummated all of
the transactions and to fulfill all of the obligations contemplated hereby. The
execution and delivery of this Agreement and the due consummation by MSMA of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action of the Executive Committee of MSMA. This Agreement constitutes
a legal, valid and binding agreement of MSMA enforceable against MSMA in
accordance with its terms.
SECTION 3.3. NO CONFLICT OR VIOLATION. Neither the execution and
delivery of this Agreement, nor the consummation of the transactions
contemplated hereby nor compliance by MSMA with any of the provisions hereof
will result in: (i) a violation of or a conflict with any provision of the
Articles of Incorporation or By-Laws of MSMA, (ii) a breach of or default under
any term, condition or provision of any obligation, agreement or undertaking,
whether oral or written to which MSMA is a party, or an event which, with the
giving of notice, lapse of time, or both, would result in any such breach, (iii)
a violation of any applicable law, rule, regulation, order, decree or other
requirement having the force of law, or order, judgment, writ, injunction,
decree or award, or an event which, with the giving of notice, lapse of time, or
both, would result in any such violation, or (iv) any person having the right to
enjoin, rescind or otherwise prevent or impede the transactions contemplated
hereby or to obtain damages from MOMED or to obtain any other judicial or
administrative relief as a result of any transaction carried out in accordance
with the provisions of this Agreement.
SECTION 3.4. LITIGATION AND PROCEEDINGS. There is no action, suit,
proceeding or investigation pending or, to the knowledge of MSMA, threatened
which challenges the validity of this Agreement or the transactions contemplated
hereby, or otherwise seeks to prevent, directly or indirectly, the consummation
of such transactions.
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SECTION 3.5. TITLE TO MSMA SHARES. MSMA possesses good and marketable
title to the MSMA Shares and has full right to transfer the same as contemplated
herein. The MSMA Shares are, and will be as of the Closing Date, free and clear
of any claims, lien, charges, encumbrances or other restrictions or commitments
of any nature whatsoever;
SECTION 3.6. SALE OF SUBSTANTIALLY ALL ASSETS. The MSMA Shares do not
constitute all or substantially all of the assets of MSMA.
ARTICLE FOUR
AGREEMENTS OF PARTIES
SECTION 4.1. AGREEMENTS OF MOMED.
(a) MOMED shall, in the event it has knowledge of the occurrence, or
impending or threatened occurrence, of any event or condition which would cause
or constitute a breach (or would have caused or constituted a breach had such
event occurred or been known prior to the date hereof) of any of its
representations, warranties or agreements contained or referred to herein, give
prompt written notice thereof to MSMA and use reasonable efforts to prevent or
promptly remedy the same.
(b) MOMED shall submit the following matters for the approval of the
MOMED stockholders at the next annual meeting of such stockholders, or at any
adjournment or adjournments thereof: (i) This Agreement; (ii) The Nomination
Agreement; (iii) An amendment to MOMED's Restated Articles of Incorporation
authorizing the issuance of a new class of non-voting common stock to be
designated "Class C Common Stock" with the rights and preferences set forth in
Section 1.2 above; and (iv) Such other amendments to MOMED's Restated Articles
of Incorporation and By-Laws, as amended, as may be required to effect this
Agreement and the transactions contemplated hereby. The Board of Directors of
MOMED shall (subject to compliance with its fiduciary duties as advised by
counsel) recommend to its stockholders the approval of such matters and shall
use reasonable efforts to obtain such stockholder approval.
(c) MOMED shall use reasonable efforts to perform and fulfill all
conditions and obligations on its part to be performed or fulfilled under this
Agreement and to effect the exchange contemplated hereby in accordance with the
terms and conditions hereof.
SECTION 4.2. AGREEMENTS OF MSMA.
(a) MSMA shall, in the event it has knowledge of the occurrence, or
impending or threatened occurrence, of any event or condition which would cause
or constitute a breach (or would have caused or constituted a breach had such
event occurred or been known prior to the date hereof) of any of its
representations, warranties or agreements contained or referred to herein, give
prompt written notice thereof to MOMED and use reasonable efforts to prevent or
promptly remedy the same.
(b) At the next annual meeting of MOMED stockholders, or at any
adjournment or adjournments thereof, MSMA shall, as record holder of all
24,185 shares of the issued and outstanding MOMED Class B Common Stock, vote
all such shares of MOMED Class B Common Stock in favor of this Agreement, the
Nomination Agreement, an amendment to MOMED's Restated Articles of
Incorporation authorizing the issuance of a new class of non-voting common
stock to be designated "Class C Common Stock" with the rights and preferences
set forth in Section 1.2 above, and such other amendments to MOMED's Restated
Articles of Incorporation and By-Laws, as amended, as may be required to effect
this Agreement and the transactions contemplated hereby.
(c) MSMA shall use reasonable efforts to perform and fulfill all
conditions and obligations on its part to be performed or fulfilled under this
Agreement and to effect the exchange contemplated hereby in accordance with the
terms and conditions hereof.
ARTICLE FIVE
CONDITIONS PRECEDENT TO THE EXCHANGE
SECTION 5.1. CONDITIONS TO THE OBLIGATIONS OF MOMED. MOMED's obligations
to effect the exchange shall be subject to the satisfaction (or waiver by MOMED)
of the following conditions prior to or on the Closing Date:
(a) The representations and warranties made by MSMA in this Agreement
shall be true in all material respects on and as of the Closing Date with the
same effect as though such representations and warranties had been made or
given on and as the Closing Date;
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(b) MSMA shall have performed and complied in all material respects with
all of its obligations and agreements required to be performed prior to the
Closing Date under this Agreement;
(c) No temporary restraining order, preliminary or permanent injunction or
other order issued by any court of competent jurisdiction or other legal
restraint or prohibition preventing the consummation of the exchange
contemplated herein shall be in effect, nor shall any proceeding by any
authority or other person seeking any of the foregoing be pending. There shall
not be any action taken, or any statute, rule, regulation or order enacted,
entered, enforced or deemed applicable to the exchange which makes the
consummation of the exchange illegal; and
(d) all necessary approvals, consents and authorizations required by law
for consummation of the exchange including, without limitation, (i) approval by
the MOMED stockholders of this Agreement, all other agreements required to be
submitted to such stockholders in connection herewith, and those amendments to
MOMED's Restated Articles of Incorporation as are required to effect the
transactions herein contemplated, and (ii) approval by the MSMA Executive
Committee of this Agreement on or before August 1, 1994, shall have been
obtained.
(e) MOMED shall have received all executed documents required to be
received from MSMA on or prior to the Closing Date, all in form and substance
reasonably satisfactory to MOMED, including, without limitation, the Nomination
Agreement duly executed by MSMA and the Voting Agreement duly executed by MSMA
and the Select Stockholders.
SECTION 5.2. CONDITIONS TO THE OBLIGATIONS OF MSMA. MSMA's obligations to
effect the exchange shall be subject to the satisfaction (or waiver by MSMA) of
the following conditions prior to or on August 1, 1994:
(a) The representations and warranties made by MOMED in this Agreement
shall be true in all material respects on and as of the Closing Date with the
same effect as though such representations and warranties had been made or given
on and as of the Closing Date;
(b) MOMED shall have performed and complied in all material respects with
all of its obligations and agreements required to be performed prior to the
Closing Date under this Agreement;
(c) No temporary restraining order, preliminary or permanent injunction or
other order issued by any court of competent jurisdiction or other legal
restraint or prohibition preventing the consummation of the exchange
contemplated herein shall be in effect, nor shall any proceeding by any
authority or other person seeking any of the foregoing be pending. There shall
not be any action taken, or any statute, rule, regulation or order enacted,
entered, enforced or deemed applicable to the exchange which makes the
consummation of the exchange illegal; and
(d) All necessary approvals, consents and authorizations required by law
for consummation of the exchange including, without limitation, approval by the
MSMA Executive Committee of this Agreement on or before August 1, 1994, shall
have been obtained.
(e) MSMA shall have reached the opinion of MOMED's counsel substantially
in the form of Exhibit D attached hereto.
(f) MSMA shall have received all executed documents required to be
received from MOMED on or prior to the Closing Date, all in form and substance
reasonably satisfactory to MSMA.
ARTICLE SIX
TERMINATION OR ABANDONMENT
SECTION 6.1. MUTUAL AGREEMENT. This Agreement may be terminated by the
mutual written consent of the parties at any time prior to the Closing Date,
regardless of whether stockholder approval of this Agreement and the
transactions contemplated hereby shall have been previously obtained.
SECTION 6.2. BREACH OF AGREEMENTS. In the event there is a material
breach in any of the representations and warranties or agreements of MSMA or
MOMED, which breach is not cured within thirty (30) days after notice to cure
such breach is given by the non-breaching party, then the non-breaching party,
regardless of whether stockholder approval of this Agreement and the
transactions contemplated hereby shall have been previously obtained, may
terminate and cancel this Agreement by providing written notice of such action
to the other party hereto.
SECTION 6.3. FAILURE OF CONDITIONS. In the event any of the conditions
to the obligations of either party are not satisfied or waived as specified in
Article Five hereof, and if any applicable cure period provided in Section 6.2
hereof has lapsed, then the party for whose benefit such conditions were imposed
may,
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regardless of whether stockholder approval of this Agreement and the
transactions contemplated hereby shall have been previously obtained, terminate
and cancel this Agreement by delivery of written notice of such action to the
other party on such date.
SECTION 6.4. AUTHORIZATION OF MOMED CLASS C COMMON STOCK. In the event
that the MOMED stockholders are unable to fail to take such action as may be
required to authorize the transactions herein provided, then MSMA may terminate
this Agreement by giving written notice to MOMED. The Board of Directors of
MOMED, by its approval of the execution and delivery hereof, agrees to use all
reasonable efforts to cause the stockholders of MOMED to vote in favor of the
transactions herein contemplated.
ARTICLE SEVEN
MISCELLANEOUS PROVISIONS
SECTION 7.1. NOTICES. Any notice or other communication shall be in
writing and shall be deemed to have been given or made on the date of delivery,
in the case of hand delivery, or three (3) business days after deposit in the
United States Registered Mail, postage prepaid, or upon receipt if transmitted
by facsimile telecopy or any other means, addressed (in any case) as follows:
(a) if to MOMED:
MOMED Holding Co.
0000 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: President and Chief Executive Officer
with a copy to:
Xxxxx, Xxxx & Fingersh
000 X. Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxxxx, Esq.
and
(b) if to MSMA:
Missouri State Medical Association
000 Xxxxxxx Xxxxxx
P.O. Box 1028
Xxxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: President
with copies to:
Xxxxx Xxxx
Xxx Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxx, Esq.
or to such other address as any party may from time to time designate by notice
to the others.
SECTION 7.2. LIABILITIES. In the event that this Agreement is terminated
pursuant to the provisions of Section 6.2 or Section 6.3 hereof on account of
a breach of any of the representations and warranties set forth herein or any
breach of any of the agreements set forth herein or any failure of conditions
precedent to the exchange herein contained, then the non-breaching party or the
party for whose benefit such conditions were imposed shall be entitled to
recover
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appropriate damages from the breaching party, provided, however, that
notwithstanding the foregoing, in the event this Agreement is terminated by
reason of a failure of a condition precedent set forth in Sections 5.1(c) or
(d), or Sections 5.2(c) or (d), no party hereto shall have any liability to any
other party for costs, expenses, damages or otherwise.
SECTION 7.3. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties and supercedes and cancels any and all prior
discussions, negotiations, undertakings and agreements between the parties
relating to the subject matter hereof.
SECTION 7.5. HEADINGS AND CAPTIONS. The captions of Articles and Sections
hereof are for convenience only and shall not control or affect the meaning or
construction of any of the provisions of this Agreement.
SECTION 7.6. WAIVER, AMENDMENT OR MODIFICATION. The conditions of this
Agreement which may be waived may only be waived by notice to the other party
waiving such condition. The failure of any party at any time or times to
require performance of any provision hereof shall in no manner affect the right
at a later time to enforce the same. This Agreement may not be amended or
modified except by a written document duly executed by the parties hereto.
SECTION 7.7. RULES OF CONSTRUCTION. Unless the context otherwise
requires: (a) a term has the meaning assigned to it; (b) an accounting term
not otherwise defined has the meaning assigned to it in accordance with
generally accepted accounting principles; (c) "or" is not exclusive; and (d)
words in the singular may include the plural and in the plural include the
singular.
SECTION 7.8. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which shall
be deemed one and the same instrument.
SECTION 7.9. SUCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
administrators, successors and assigns, inlcuding any successor by merger,
reorganization or acquisition of substantially all the assets of a party
hereto. There shall be no third party beneficiaries hereof.
SECTION 7.10. GOVERNING LAW; ASSIGNMENT. This Agreement shall be governed
by the laws of the State of Missouri. This Agreement may not be assigned by
either of the parties hereto.
SECTION 7.11. SEVERABILITY. Any provision of this Agreement which is
prohibited, unenforceable or not unauthorized in any jurisdiction is, as to such
jurisdiction, ineffective to the extent of any such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions hereof, or affecting the validity, enforceability or legality of
such provisions in any other jurisdiction, unless the ineffectiveness of such
provision would result in such a material change as to cause completion of the
transactions contemplated hereby to be unreasonable.
IN WITNESS WHEREOF, the undersigned have set their hand on the date first
above written.
MOMED HOLDING CO.
By:
--------------------------------------
Xxxxxxx X. Xxxxxxx, M.D., President and
Chief Executive Officer
MISSOURI STATE MEDICAL ASSOCIATION
By:
--------------------------------------
H. Xxxxx Xxxxxxx, M.D., President
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Maximum
Maximum Shares that
Time of Shares that May be
Exercise may be Put Called
-----------------------------------------------------------------------------------------------------------------------------------
Closing through day prior to 1st 4,031 0
anniversary of Closing
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1st anniversary of Closing through day prior 4,031 (up to 8,062 if no prior
to 2nd anniversary of Closing puts) 0
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2nd anniversary of Closing 8,062 (up to 16,124 if no prior) 24,185 (if no prior puts)
through day prior to 3rd anniversary of Closing
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3rd anniversary of Closing and 8,061 (up to 24,185 if no prior 24,185 (if no prior call or puts)
thereafter puts or call)
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