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EXHIBIT 10.2
AMSURG CORP.
REGISTRATION AGREEMENT
This Registration Agreement (this "Agreement"), dated as of April 2, 1992
is between AmSurg Corp., a Tennessee corporation (the "Corporation"), and the
persons and entities identified on Schedule 1 hereto attached (the "Investors").
In consideration of the mutual covenants herein contained and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. DEFINITIONS. In addition to capitalized terms elsewhere defined herein,
as used in this Agreement:
"Commission" means the Securities and Exchange Commission.
"Common Shares" means the shares of Common Stock of the Corporation,
no par value.
"Demand Registration" shall have the meaning ascribed thereto in
Section 2(a) of this Agreement.
"Initial Public Offering" means an underwritten initial offering
pursuant to an effective registration statement under the Securities Act
resulting in a sale by the Corporation of Common Shares to the public at an
aggregate offering price for the shares sold for the account of the
Corporation of at least ten million dollars ($10,000,000).
"Person" means a natural person, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an
unincorporated organization or a governmental entity or any department,
agency or political subdivision thereof.
"Piggyback Registration" shall have the meaning ascribed thereto in
Section 3(a) of this Agreement.
"Primary Registration" means the offer and sale by the Corporation for
its own account of securities registered under the Securities Act.
"Registrable Shares" means at any time (i) any Common Shares
originally issued to the Investors; (ii) any Common Shares then outstanding
which were issued as, or were issued directly or indirectly upon the
conversion or exercise of other securities issued as, a dividend or other
distribution with respect to or in replacement of Registrable Shares; (iii)
shares of Common Stock issuable upon exercise of outstanding options; and
(iv) any Common Shares then issuable directly or indirectly upon the
conversion or exercise of other securities which were issued as a dividend
or other distribution with respect to or in replacement of Registrable
Shares; provided that Registrable Shares shall not include any shares which
have theretofore been registered and sold pursuant to the Securities Act or
which have been sold to the public pursuant to Rule 144 or any similar rule
promulgated by the Commission pursuant to the Securities Act. For purposes
of this Agreement, a Person will be deemed to be a holder of Registrable
Shares whenever such Person has the then existing right to acquire such
Registrable Shares (by conversion,purchase or otherwise), whether or not
such acquisition has actually been effected.
"Registration Expenses" shall have the meaning ascribed thereto in
Section 6 of this Agreement.
"Secondary Registration" shall mean the offer and sale of securities
to the public by or on behalf of one or more of the holders of the
Corporation's securities pursuant to a registration statement filed by the
Corporation with, and declared effective by, the Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Short-Form Registration" has the meaning set forth in Section 2(a).
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2. DEMAND REGISTRATION AND SHORT-FORM REGISTRATION. (a) At any time after
180 days after the effective date of the registration statement the Corporation
has filed under the Securities Act with respect to its Initial Public Offering,
the holder or holders of at least 66 2/3% of the Registrable Shares then
outstanding may, by written notice delivered to the Corporation, require
registration under the Securities Act of all or part of their Registrable Shares
on Form S-1 or any similar long form registration ("Demand Registration"). The
Corporation shall not be obligated to effect more than one Demand Registration.
A registration will not count as the permitted Demand Registration until it has
become effective and will not count as the permitted Demand Registration unless
the holders of Registrable Shares initially requesting such Demand Registration
are able to register and sell at least 66 2/3% of the Registrable Shares agreed
by such holders to be included in such Demand Registration; provided that in any
event the Corporation will pay all Registration Expenses in connection with any
registration initiated as a Demand Registration requested hereunder (unless the
holder or holders of Registrable Shares requesting such Demand Registration
request that the registration statement be withdrawn, in which case, such
holders of Registrable Shares shall pay such Registration Expenses). On or after
the date upon which the Corporation has become entitled as a registrant to use
Form S-3 or any similar short-form registration ("Short-Form Registration"), any
holder or holders of Registrable Shares may, at any time, require registration
under the Securities Act of all or any part of their Registrable Shares on a
Short-Form Registration; provided, however, that the aggregate offering value of
the Registrable Shares requested to be registered in any Short-Form Registration
must equal at least $1,000,000. The Corporation will pay all Registration
Expenses in connection with any Short-Form Registration requested hereunder
(unless the holder or holders of Registrable Shares requesting such Short-Form
Registration request that the registration statement be withdrawn, in which
case, such holders of Registrable Shares shall pay such Registration Expenses).
Within ten days after receipt of any request pursuant to this Section 2(a), the
Corporation will give written notice of such request to all other holders of
Registrable Shares and will use its best efforts to include in such registration
all Registrable Shares with respect to which the Corporation has received
written requests for inclusion therein within 15 days after the date the
Corporation's notice is received (or deemed received as provided in Section 19
hereof).
(b) The Corporation will have the right to preempt any Demand Registration
with a Primary Registration by delivering written notice of such intention to
the holders of Registrable Shares who have requested such Demand Registration
within 15 days after the Corporation has received a request for such
registration. In the ensuing Primary Registration, the holders of Registrable
Shares will have such piggyback registration rights as are set forth in Section
3 hereof. Upon the Corporation's preemption of a requested Demand Registration,
such requested registration will not count as the permitted Demand Registration.
(c) If a Demand Registration or a Short-Form Registration is an
underwritten public offering and the managing underwriters advise the
Corporation in writing that in their opinion the number of Registrable Shares
and other securities requested to be included exceeds the number of Registrable
Shares and other securities which can successfully be sold in such offering
without causing a diminution in the offering price or otherwise adversely
affecting the offering, the Corporation will include in such registration, prior
to the inclusion of any securities which are not Registrable Shares, the number
of Registrable Shares requested to be included which in the opinion of such
underwriters can successfully be sold without causing a diminution in the
offering price or otherwise adversely affecting the offering, such Registrable
Shares to be taken pro rata from the respective holders of such Registrable
Shares on the basis of the number of Registrable Shares owned by such holders,
with further successive pro rata allocation among the holders of Registrable
Shares if any such holder of Registrable Shares has requested the registration
of less than all such Registrable Shares it is entitled to register.
(d) The Corporation may postpone for up to three months the filing or the
effectiveness of a registration statement for a Demand Registration or a
Short-Form Registration if the Corporation reasonably determines that such
Demand Registration or Short-Form Registration would have any material adverse
effect upon the Corporation or any of its material assets or operations or any
material pending or proposed transaction, provided, however, that the
Corporation may not postpone any such filing or effectiveness of a registration
statement more than once in any consecutive 12 month period.
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3. PIGGYBACK REGISTRATIONS. (a) Whenever the Corporation proposes to
register any of its securities under the Securities Act (except on Form S-4 or
S-8 or any successor form), the Corporation will give prompt written notice (in
any event within three business days after its receipt of notice of any exercise
of Demand Registration or Short-Form Registration rights) to all holders of
Registrable Shares of its intention to effect such a registration and will use
its best efforts to include in such registration all Registrable Shares with
respect to which the Corporation has received written requests for inclusion
therein within 15 days after giving notice to the holders of Registrable Shares
(a "Piggyback Registration").
(b) 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 successfully be sold
in such offering without causing a diminution in the offering price or otherwise
adversely affecting the offering, the Corporation will include in such
registration, (i) first, the securities the Corporation proposes to sell, (ii)
second, the Registrable Shares requested to be included in such registration
which in the opinion of such underwriters can successfully be sold without
causing a diminution in the offering price or otherwise adversely affecting the
offering, such Registrable Shares to be taken pro rata from the holders of such
Registrable Shares on the basis of the number of Registrable Shares owned by
such holders, with further successive pro rata allocations among the holders of
Registrable Shares if any such holder of Registrable Shares has requested the
registration of less than all such Registrable Shares it is entitled to
register, and (iii) third, other securities requested to be included in such
registration.
(c) If a Piggyback Registration is an underwritten Secondary Registration
on behalf of holders of the Corporation's securities, 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 successfully be sold in such offering, the Corporation will include in
such registration, (i) first, the Registrable Shares requested to be included in
such registration which in the opinion of such underwriters can successfully be
sold, such Registrable Shares to be taken pro rata from the holders of such
Registrable Shares on the basis of the number of Registrable Shares owned or
deemed to be owned by such holders, with further successive pro rata allocations
among the holders of Registrable Shares if any such holder of Registrable Shares
has requested the registration of less than all such Registrable Shares it is
entitled to register, and (ii) second, other securities requested to be included
in such registration.
(d) If the Corporation has previously filed a registration statement with
respect to Registrable Shares pursuant to Section 2 or pursuant to this Section
3, and if such previous registration has not been withdrawn or abandoned, the
Corporation shall not be required to file or cause to be effected any other
registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Form S-4 or S-8 or any successor form), whether on its own behalf
or at the request of any holder or holders of such securities until a period of
180 days has elapsed from the effective date of such previous registration.
4. HOLDBACK AGREEMENTS. (a) Each holder of at least 5% of the Registrable
Shares agrees not to effect any public sale or distribution 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 beginning on the effective date of any underwritten Demand Registration
or Short-Form Registration (except as part of such underwritten registration),
unless the underwriters managing the registered public offering otherwise agree
or otherwise require. Each holder of Registrable Shares agrees not to effect any
public sale or distribution of equity securities of the Corporation, or any
securities convertible into or exchangeable or exercisable for such securities,
for such period beginning on the effective date of any underwritten Primary
Registration (except as part of such underwritten registration) as the holders
of Registrable Shares and the underwriters managing the registered public
offering shall mutually agree.
(b) The Corporation agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 120-day period beginning on the effective date of any
underwritten Demand Registration, Short-Form Registration or any underwritten
Piggyback Registration (except as part of such underwritten
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registration or pursuant to registrations on Form S-4 or S-8 or any successor
form), unless the underwriters managing the registered public offering otherwise
agree, and (ii) use its best efforts to cause each holder of at least 5% (on a
fully-diluted basis) of its equity securities, or any securities convertible
into or exchangeable or exercisable for such securities, purchased from the
Corporation at any time after the date of this Agreement (other than in a
registered public offering) to agree not to effect any public sale or
distribution of any such securities during such period (except as part of such
underwritten registration, if otherwise permitted), unless the underwriters
managing the registered public offering otherwise agree.
5. REGISTRATION PROCEDURES. Whenever the holders of Registrable Shares
have requested that any Registrable Shares be registered pursuant to this
Agreement, the Corporation will use its best efforts to effect the registration
and the sale of such Registrable Shares in accordance herewith and with the
intended method of disposition thereof, and pursuant thereto the Corporation
will as expeditiously as practicable:
(a) prepare and file with the Commission a registration statement with
respect to such Registrable Shares and use its best efforts to cause such
registration statement to become and remain effective for such period, not
to exceed three months, as may be reasonably necessary to effect the sale
of such securities;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period, which need not exceed three months, and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during
such period in accordance herewith and with the intended methods of
disposition by the sellers thereof set forth in such registration
statement;
(c) furnish to each seller of Registrable Shares and the underwriters
of the securities being registered such number of copies of such
registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller or
underwriters may reasonably request in order to facilitate the disposition
of the Registrable Shares owned by such seller or the sale of such
securities by such underwriters; and
(d) use its best efforts to register or qualify such Registrable
Shares under such other securities or blue sky laws of such jurisdiction as
any seller reasonably requests and do any and all other acts and things
which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable Shares
owned by such seller (provided, however, that the Corporation will 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;
(ii) consent to general service of process in any such jurisdiction; or
(iii) subject itself to taxation in any such jurisdiction);
(e) use its best efforts to cause all such Registrable Shares to be
listed on each securities exchange on which similar securities issued by
the Corporation are then listed;
(f) provide a transfer agent and registrar for all such Registrable
Shares not later than the effective date of such registration statement;
(g) enter into such customary agreements (including underwriting
agreements in customary form) as the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such
Registrable Shares (including, without limitation, effecting a stock split
or a combination of shares);
(h) make available for inspection by each seller of Registrable
Shares, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent
retained by any such seller or underwriter who agrees to hold in confidence
and keep secret and inviolate, all financial and other records, pertinent
corporate documents and properties of the Corporation, and cause the
Corporation's officers, directors, employees and independent accountants to
supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such
registration statement;
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(i) notify each seller of such Registrable Shares, promptly after it
shall receive notice thereof, of the time when such registration statement
has become effective or a supplement to any prospectus forming a part of
such registration statement has been filed;
(j) notify each seller of such Registrable Shares of any request by
the Commission for the amending or supplementing of such registration
statement or prospectus or for additional information;
(k) prepare and file with the Commission, promptly upon the request of
any seller of such Registrable Shares, any amendments or supplements to
such registration statement or prospectus which, in the reasonable written
opinion of counsel selected by the holders of a majority of the Registrable
Shares being registered and concurred in by the reasonable opinion of
counsel for the Corporation, is required under the Securities Act or the
rules and regulations thereunder in connection with the distribution of
Registrable Shares by such seller;
(l) prepare and promptly file with the Commission and promptly notify
each seller of such Registrable Shares of the filing of such amendment or
supplement to such registration statement or prospectus as may be necessary
to correct any statements or omissions if, at the time when a prospectus
relating to such securities is required to be delivered under the
Securities Act, any event shall have occurred as the result of which any
such prospectus or any other prospectus as then in effect would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
in which they were made, not misleading;
(m) advise each seller of such Registrable Shares, promptly after it
shall receive notice or obtain knowledge thereof, of the issuance of any
stop order by the Commission suspending the effectiveness of such
registration statement or the initiation or threatening of any proceeding
for such purpose and promptly use all reasonable efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such stop order
should be issued;
(n) at least forty-eight hours prior to the filing of any registration
statement or prospectus or twenty-four hours prior to the filing of any
amendment or supplement to such registration statement or prospectus,
furnish a copy thereof to each seller of such Registrable Shares and
refrain from filing any such registration statement, prospectus, amendment
or supplement to which counsel selected by the holders of a majority of the
Registrable Shares being registered shall have reasonably objected on the
grounds that such amendment or supplement does not comply in all material
respects with the requirements of the Securities Act or the rules and
regulations thereunder, unless, in the case of an amendment or supplement,
in the opinion of counsel for the Corporation the filing of such amendment
or supplement is reasonably necessary to protect the Corporation from any
liabilities under any applicable federal or state law and such filing will
not violate applicable laws; and
(o) at the request of counsel selected by the holders of a majority of
such Registrable Shares in connection with an underwritten offering, use
its best efforts to furnish on the date or dates provided for in the
underwriting agreement: (i) an opinion of counsel, addressed to the
underwriters and the sellers of Registrable Shares, covering such matters
as such underwriters and sellers may reasonably request, including, without
limiting the generality of the foregoing, opinions substantially to the
effect that (A) such registration statement has become effective under the
Securities Act; (B) to the best of such counsel's knowledge, 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; (C) the registration statement, the prospectus, and each
amendment or supplement thereto comply as to form in all material respects
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder (except that such counsel need
express no opinion as to financial statements or other financial or
statistical data or information regarding the underwriters or the selling
shareholders contained therein); (D) while such counsel has not verified
the accuracy, completeness, or fairness of the statements contained in any
registration statement or prospectus, as either may be amended or
supplemented, nothing has come to such counsel's attention that would cause
it to believe that the registration statement, the prospectus, or any
amendment or supplement thereto contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
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necessary to make the statements therein not misleading (except that such
counsel need express no opinion as to financial statements or other
financial or statistical data or information regarding the underwriters or
the selling shareholders contained therein); (E) the descriptions in the
registration statement, the prospectus, or any amendment or supplement
thereto of all legal and governmental proceedings and all contracts and
other legal documents or instruments are accurate in all material respects;
and (F) while such counsel has not verified the accuracy, completeness, or
fairness of the statements contained in any registration statement or
prospectus, as either may be amended or supplemented, such counsel does not
know of any legal or governmental proceedings, pending or threatened,
required to be described in the registration statement, the prospectus, or
any amendment or supplement thereto which are not described as required nor
of any contracts or documents or instruments of the character required to
be described in the registration statement, the prospectus, or any
amendment or supplement thereto or to be filed which are not described or
filed as required; and (ii) a letter or letters from the independent
certified public accountants of the Corporation addressed to the
underwriters, covering such matters as such underwriters may reasonably
request, in which letters such accountants shall state, without limiting
the generality of the foregoing, that they are independent certified public
accountants within the meaning of the Securities Act and that in the
opinion of such accountants the financial statements and other financial
data of the Corporation included in the registration statement, the
prospectus, or any amendment or supplement thereto comply in all material
respects with the applicable accounting requirements of the Securities Act.
6. REGISTRATION EXPENSES. All expenses incident to the Corporation's
performance of or compliance with this Agreement, including, without limitation,
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery expenses,
and fees and disbursements of the Corporation's independent certified public
accountants, legal counsel to the Corporation, underwriters (excluding discounts
and commissions attributable to the Registrable Shares included in such
registration) and other persons retained by the Corporation (all such expenses
being herein called "Registration Expenses"), will be borne by the Corporation.
In addition, the Corporation will pay all internal expenses (including without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit or quarterly
review, the expense of any liability insurance obtained by the Corporation and
the expenses and fees for listing the securities to be registered on each
securities exchange on which any shares of Common Stock are then listed.
7. INDEMNIFICATION. (a) The Corporation agrees to indemnify, to the extent
permitted by law, each seller of Registrable Shares, its officers and directors
and each Person who controls such seller (within the meaning of the Securities
Act or the Securities Exchange Act) against all losses, claims, damages,
liabilities and expenses (including, without limitation, reasonable attorneys'
fees except as limited by Section 7(e)) caused by any untrue or alleged untrue
statement of a material fact contained in any registration statement, 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, except insofar as the same (i) are caused
by or contained in any information furnished in writing to the Corporation by
such seller expressly for use therein or (ii) caused by such seller's failure to
deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto after the Corporation has furnished such seller with a
sufficient number of copies of same and both (A) such delivery is required by
law and (B) such registration statement or prospectus or any amendments or
supplements thereto does not contain any untrue or alleged untrue statement of a
material fact or omission or alleged omission of a material fact. In connection
with an underwritten offering the Corporation will indemnify such underwriters,
their officers and directors and each Person who controls such underwriters
(within the meaning of the Securities Act or the Securities Exchange Act) to the
same extent as provided above with respect to the indemnification of the sellers
of Registrable Shares. The reimbursements required by this Section 7(a) will be
made by periodic payments during the course of the investigation or defense, as
and when bills are required or expenses incurred.
(b) The Corporation agrees to indemnify, to the extent permitted by law,
each seller of Registrable Shares, its officers and directors and each Person
who controls such seller (within the meaning of the Securities Act or the
Securities Exchange Act) against all losses, claims, damages, liabilities and
expenses
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(including, without limitation, reasonable attorneys' fees except as limited by
Section 7(e)) caused by the breach by the Corporation of any covenant or
representation or warranty made by the Corporation in an underwriting agreement.
(c) In connection with any registration statement in which a seller of
Registrable Shares is participating, each such seller will furnish to the
Corporation in writing such information and affidavits as the Corporation
reasonably requests for use in connection with any such registration statement
or prospectus or any amendment thereof or supplement thereto and, to the extent
permitted by law, will indemnify the Corporation, its directors and officers and
each person who controls the Corporation (within the meaning of the Securities
Act or the Securities Exchange Act) against any losses, claims, damages,
liabilities and expenses (including, without limitation, attorneys' fees except
as limited by Section 7(e)) resulting from any untrue statement of a material
fact contained in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any 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 seller; provided that the obligation to indemnify will be several, not
joint and several, among such sellers of Registrable Shares, and the liability
of each such seller of Registrable Shares will be in proportion to, and provided
further that such liability will be limited to, the net amount received by such
seller from the sale of Registrable Shares pursuant to such registration
statement.
(d) Each seller of Registrable Shares agrees to indemnify, to the extent
permitted by law, the Corporation, its directors and officers and each person
who controls the Corporation (within the meaning of the Securities Act or the
Securities Exchange Act) against any losses, claims, damages, liabilities and
expenses (including without limitation, attorneys' fees except as limited by
Section 7(e)) caused by the breach by such seller of a covenant or
representation or warranty made by such seller in an underwriting agreement;
provided, however, that each seller's obligation to indemnify will be several,
not joint and several, among the sellers of Registrable Shares, and the
liability of each such seller of Registrable Shares in any event will be limited
to the net amount received by such Seller from the sale of Registrable Shares
pursuant to the registration agreement to which such underwriting agreement
pertains.
(e) Any Person entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification 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 will not
be subject to any liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will 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 indemnified parties with respect to such claim.
(f) The indemnification provided for under this Agreement will 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 will survive the transfer of securities. The Corporation
also agrees to make such provisions as are reasonably requested by any
indemnified party for contribution to such party in the event the corporation's
indemnification is unavailable for any reason.
8. COMPLIANCE WITH RULE 144. In the event that the Corporation (a)
registers a class of securities under Section 12 of the Securities Exchange Act,
(b) issues an offering circular meeting the requirements of Regulation A under
the Securities Act or (c) commences to file reports under Section 13 or 15(d) of
the Securities Exchange Act, then at the request of any holder of Registrable
Shares who proposes to sell securities in compliance with Rule 144 promulgated
by the Commission, the Corporation will use its best efforts to (i) forthwith
furnish to such holder a written statement as to compliance with the filing
requirements
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of the Commission as set forth in Rule 144 as such rule may be amended from time
to time and (ii) make available such information as will enable the holders of
Registrable Shares to make sales pursuant to Rule 144.
9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may participate
in any registration hereunder which is underwritten unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements. The
holders of a majority of the Registrable Shares requested to be registered will
have the right to select the managing underwriters of any offering of the
Corporation's securities in which the Corporation does not participate, subject
to the approval of the Board of Directors and the Corporation will have such
right in any offering in which it participates.
10. NO INCONSISTENT OR MORE FAVORABLE AGREEMENTS. The Corporation will not
hereafter enter into any agreements with respect to its securities which is
inconsistent with, or grants rights more favorable than, the rights granted to
the holders of Registrable Shares entitled to be registered in this Agreement.
The Corporation shall not issue to any shareholder any demand or piggyback
registration rights equal or superior to those of the holders of Registrable
Shares, without the written consent of the holders of a majority of the
Registrable Shares (demand or piggyback registration rights shall be deemed
equal or superior to those of the holders of Registrable Shares if they
adversely affect the rights of the holders of Registrable Shares hereunder);
provided, however, that except in connection with any financing transaction in
which the Corporation issues debt or equity securities in consideration of
$1,000,000 or more, the Corporation also will obtain the prior written consent
of any holder of Registrable Shares whose rights hereunder are or will be
adversely affected by such agreement.
11. ADJUSTMENTS AFFECTING REGISTRABLE SHARES. The Corporation will not
take any action affecting or otherwise cause or permit any change to occur in,
its authorized, issued and outstanding capital stock which would adversely
affect the ability of the holders of Registrable Shares to include such
Registrable Shares in a registration undertaken pursuant to this Agreement or
which would adversely affect the marketability of such Registrable Shares in any
such registration (including, without limitation, effecting a stock split or a
combination of shares).
12. REMEDIES. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law.
13. AMENDMENTS AND WAIVERS. Except as otherwise expressly provided herein,
the provisions of this Agreement may be amended or waived at any time only by
the written agreement of the Corporation and the holders of a majority of the
Registrable Shares; provided, however, that except in connection with any
financing transaction in which the Corporation issues debt or equity securities
in consideration of $1,000,000 or more, the Corporation also will obtain the
written agreement of any holder of Registrable Shares whose rights hereunder are
or will be adversely affected by such amendment or waiver.
14. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein,
all covenants and agreements contained in this Agreement by or on behalf of any
of the parties hereto will bind and inure to the benefit of the respective
successors and permitted assigns of the parties hereto, whether so expressed or
not. In addition, and whether or not any express assignment has been made, the
provisions of this Agreement which are for the benefit of purchasers or holders
of Registrable Shares are also for the benefit of, and enforceable by, any
subsequent holder of Registrable Shares who consents in writing to be bound by
this Agreement.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties covering the matters referred to herein, and supersedes all prior
agreements and understandings.
16. SEVERABILITY. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
8
9
17. TERM. This Agreement shall terminate five years after the effective
date of the Initial Public Offering.
18. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are
inserted for convenience of reference only and do not constitute a part of and
shall not be utilized in interpreting this Agreement.
19. NOTICES. Any notices required or permitted to be sent hereunder shall
be delivered personally or mailed, certified mail, return receipt requested, or
delivered by overnight courier service to the addresses set forth below, or to
such other address as any party hereto designates by written notice to the other
parties given in accordance herewith, and shall be deemed to have been received:
(i) upon delivery, when delivered personally; (ii) three business days after
mailing, if mailed; or (iii) one business day after timely delivery to the
courier, if delivered by overnight courier service.
If to the Corporation, to:
AmSurg Corp.
0000 00xx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Chief Executive Officer
with a copy to:
Bass, Xxxxx & Xxxx
First American Center
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, III
If to the Investors, to their respective addresses set forth on the
stock record books of the Corporation.
20. GOVERNING LAW. The validity, meaning and effect of this Agreement
shall be determined in accordance with the laws of the State of Tennessee
applicable to contracts made and to be performed within that state.
21. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute one
instrument.
9
10
The parties hereto have executed this Registration Agreement as of the date
first set forth above.
AMSURG CORP.
By: /s/ XXXXXX X. XXXX
------------------------------------
Title: President
-----------------------------------
AMERICAN HEALTHCORP, INC.
By: /s/ XXXXXX X. XXXXXXXX
------------------------------------
Title: Chairman
-----------------------------------
/s/ XXXXX X. XXXXX, III
--------------------------------------
Xxxxx X. Xxxxx, III
Bass, Xxxxx & Xxxx Profit Sharing
Trust for the benefit of Xxxxx X.
Xxxxx, III
By: /s/ XXXXX X. XXXXX, III
------------------------------------
Xxxxx X. Xxxxx, III
/s/ XXXXXX XXXXX
--------------------------------------
Xxxxxx Xxxxx, M.D.
/s/ XXXXXXX X. XXXXXX, III
--------------------------------------
Xxxxxxx X. Xxxxxx, III
/s/ XXXXXX X. XXXX
--------------------------------------
Xxxxxx X. Xxxx
/s/ XXXXX X. XXXXXXX
--------------------------------------
Xxxxx X. Xxxxxxx
10
11
SCHEDULE 1
American Healthcorp, Inc.
Xxxxx X. Xxxxx, III
Bass, Xxxxx & Xxxx Profit Sharing Trust
for the benefit of Xxxxx X. Xxxxx, III
Xxxxxx Xxxxx, M.D.
Xxxxxxx X. Xxxxxx, III
Xxxxxx X. Xxxx
Xxxxx X. Xxxxxxx
12
AMENDMENT NO. 1 TO AMSURG CORP.
REGISTRATION AGREEMENT
This is Amendment No. 1 to the AmSurg Corp. Registration Agreement dated as
of April 2, 1992.
WHEREAS, each of the undersigned is a party to the AmSurg Corp.
Registration Agreement dated as of April 2, 1992 (the "Agreement"); and
WHEREAS, the undersigned desire to amend the Agreement as provided for in
Section 13 of the Agreement.
NOW THEREFORE, the following amendment to the Agreement is approved:
All references in the Agreement to the term "Registrable Shares," other
than references in Section 2 of the Agreement, shall include any Common Shares
issued on November 30, 1992 to The Endoscopy Center, a Tennessee general
partnership ("TEC"), and issued on November 23, 1992 to the partners of TEC. It
is the purpose of this Amendment to provide TEC and its partners the same rights
to Piggyback Registrations as the Investors, but not provide TEC or its partners
any rights to a Demand Registration.
Capitalized terms used herein and not otherwise defined shall have the
meaning set forth in the Agreement.
IN WITNESS WHEREOF, this Amendment No. 1 has been executed as of the 30th
day of November, 1992.
AMSURG CORP.
By: /s/ XXXXXX X. XXXX
------------------------------------
Title: President
AMERICAN HEALTHCORP, INC.
By:
------------------------------------
Title:
/s/ XXXXX X. XXXXX, III
--------------------------------------
Xxxxx X. Xxxxx, III
Bass, Xxxxx & Xxxx Profit Sharing
Trust for the benefit of Xxxxx X.
Xxxxx, III
By: /s/ XXXXX X. XXXXX, III
------------------------------------
Xxxxx X. Xxxxx, III
/s/ XXXXXX XXXXX, M.D.
--------------------------------------
Xxxxxx Xxxxx, M.D.
/s/ XXXXXXX X. XXXXXX, III
--------------------------------------
Xxxxxxx X. Xxxxxx, III
/s/ XXXXXX X. XXXX
--------------------------------------
Xxxxxx X. Xxxx
/s/ XXXXX X. XXXXXXX
--------------------------------------
Xxxxx X. Xxxxxxx
13
The Endoscopy Center hereby executes this Amendment No. 1 to AmSurg Corp.
Registration Agreement for the purpose of agreeing to become a party to the
Registration Agreement as described in this Amendment No. 1.
THE ENDOSCOPY CENTER, a
Tennessee general partnership
By:
--------------------------------------
Title: Managing Partner
14
AMSURG CORP.
AMENDMENT TO REGISTRATION AGREEMENT
This Amendment No. 2 ("Amendment") to the Registration Agreement
("Agreement"), dated as of April 2, 1992, as amended by Amendment No. 1 dated as
of November 30, 1992, is executed this 20th day of November, 1996 between AmSurg
Corp., a Tennessee corporation (the "Corporation") and the persons and entities
identified on Schedule 1 attached hereto (the "Investors").
WITNESSETH:
WHEREAS, the Corporation and certain of the Investors executed the
Agreement as of April 2, 1992, which was amended by Amendment No. 1 executed on
November 30, 1992; and
WHEREAS, the Corporation and Electra Investment P.L.C., Capitol Health
Partners, L.P. and Xxxxxxx X. Xxxxxxxx ( the "Preferred Stock Purchasers") have
executed a Preferred Stock Purchase Agreement of even date herewith pursuant to
which the Preferred Stock Purchasers have purchased an aggregate of 1,500,000
shares of Series A Redeemable Preferred Stock and 1,250,000 shares of Series B
Convertible Preferred Stock (collectively, the "Preferred Stock"); and
WHEREAS, as a condition to the purchase of the Preferred Stock by the
Preferred Stock Purchasers, the Corporation agreed to grant certain registration
rights to the Preferred Stock Purchasers with respect to the shares of Common
Stock issuable upon conversion of the Preferred Stock; and
WHEREAS, the Investors are willing to execute this Amendment in order to
induce the Preferred Stock Purchasers to consummate the transactions
contemplated by the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
AGREEMENT
1. Section 1 of the Agreement is hereby amended as follows:
"Preferred Demand Registration" shall have the meaning in Section
2(b) hereof.
15
"Preferred Stock" means the shares of Series A Redeemable Stock,
no par value, and the shares of Series B Convertible Preferred Stock,
no par value, of the Corporation issued to the Preferred Stock
Purchasers.
"Registrable Shares" means that any time (i) any Common Shares
originally issued to the Investors; (ii) any Common Shares then
outstanding which were issued upon conversion of the Preferred Stock,
or which were issued as, or were issued directly or indirectly upon
the conversion or exercise of other securities issued as, a dividend
or other distribution with respect to or in replacement or exchange of
Registrable Shares; (iii) Common Shares issuable upon exercise of
outstanding options; (iv) any Common Shares then issuable directly or
indirectly upon the conversion or exercise of other securities which
were issued as a dividend or other distribution with respect to or in
replacement of Registrable Shares; provided that Registrable Shares
shall not include any shares which have theretofore been registered
and sold pursuant to the Securities Act or which have been sold to the
public pursuant to Rule 144 or any similar rule or exemptive order
promulgated or issued by the Commission pursuant to the Securities
Act. For purposes of this Agreement, a Person will be deemed to be a
holder of Registrable Shares whenever such Person has the then
existing right to acquire such Registrable Shares (by conversion,
purchase or otherwise), whether or not such acquisition has actually
been effected.
Notwithstanding the foregoing, all references in the Agreement to
the term "Registrable Shares" other than references in Section 2
thereof shall include any Common Shares issued on November 30, 1992 to
The Endoscopy Center, a Tennessee general partnership ("TEC"), and
issued on November 23, 1992 to the parties of TEC, so that TEC and its
partners shall have the same rights to Piggyback Registrations as the
other Investors, but shall not have any rights to a Demand
Registration.
2. Section 2 of the Agreement is hereby amended to read as follows:
2. DEMAND REGISTRATION AND SHORT-FORM REGISTRATION.
(a) At any time after 180 days after the effective date of the
registration statement the Corporation has filed under the Securities
Act with respect to its Initial Public Offering, the holder or holders
of at least 66 2/3% of the Registrable Shares then outstanding (other
than the Registrable Shares held by the Preferred Stock Purchasers)
may, by written notice delivered to the Corporation, require
registration under the Securities Act of all or part of their
Registrable Shares on Form S-1 or any similar long form registration
("Demand Registration"). The Corporation shall not be obligated to
effect more than one Demand Registration. A registration will not
count as the permitted Demand Registration until it has become
effective and will not count as the permitted Demand Registration
unless the holders of such Registrable Shares initially
2
16
requesting such Demand Registration are able to register at least
66 2/3% of the Registrable Shares agreed by such holders to be
included in such Demand Registration; provided that in any event the
Corporation will pay all Registration Expenses in connection with any
registration initiated as a Demand Registration requested hereunder
(unless the holder or holders of such Registrable Shares requesting
such Demand Registration request that the registration statement be
withdrawn, in which case, such holders of Registrable Shares shall pay
such Registration Expenses).
(b) At any time after the earlier of (i) 180 days after the
effective date of the Initial Public Offering, and (ii) the third
anniversary date of this Amendment, the holders of at least 66 2/3% of
the Preferred Stock may, by written notice delivered to the
Corporation, require registration under the Securities Act of all or
part of their Registrable Shares on Form S-1 or any similar long form
registration ("Preferred Demand Registration"). The Corporation shall
not be obligated to effect more than two Preferred Demand
Registrations. A registration will not count as a permitted Preferred
Demand Registration until it has become effective and will not count
as a permitted Preferred Demand Registration until the Preferred Stock
Purchasers are able to register at least 66 2/3% of the Registrable
Shares agreed by such holders to be included in such Preferred Demand
Registration; provided that in any event, the Corporation shall pay
all Registration Expenses in connection with any registration
initiated as a Preferred Demand Registration requested hereunder
(unless the Preferred Stock Purchaser(s) requesting such Preferred
Demand Registration request(s) that the registration statement be
withdrawn, in which case, the Preferred Stock Purchaser(s) shall pay
such Registration Expenses).
(c) On or after the date upon which the Corporation has become
entitled as a registrant to use Form S-3 or any similar short-form
registration ("Short-Form Registration"), any such holder or holders
of Registrable Shares may, at any time, require registration under the
Securities Act of all or any part of their Registrable Shares on a
Short-Form Registration; provided, however, that the aggregate
offering value of the Registrable Shares requested to be registered in
any Short-Form Registration must equal at least $1,000,000. The
Corporation will pay all Registration Expenses in connection with any
Short- Form Registration requested hereunder (unless the holder or
holders of Registrable Shares requesting such Short-Form Registration
request that the registration statement be withdrawn, in which case,
such holders of Registrable Shares shall pay such Registration
Expenses). Within ten days after receipt of any request pursuant to
this Section 2(a), the Corporation will give written notice of such
request to all other holders of Registrable Shares and will use its
best efforts to include in such registration all Registrable Shares
with respect to which the Corporation has received written requests
for inclusion therein within 15 days after the date the Corporation's
notice is received (or deemed received as provided in Section 19
hereof).
3
17
(d) The Corporation will have the right to preempt any Demand
Registration or Preferred Demand Registration with a Primary
Registration by delivering written notice of such intention to the
holders of Registrable Shares who have requested such Demand
Registration or Preferred Demand Registration within 15 days after the
Corporation has received a request for such registration. In the
ensuing Primary Registration, the holders of Registrable Shares will
have such piggyback registration rights as are set forth in Section 3
hereof. Upon the Corporation's preemption of a requested Demand
Registration or Preferred Demand Registration, such requested
registration will not count as the permitted Demand Registration or
Preferred Demand Registration.
(e) If a Demand Registration or Preferred Demand Registration or
a Short-Form Registration is an underwritten public offering and the
managing underwriters advise the Corporation in writing that in their
opinion the number of Registrable Shares and other securities
requested to be included exceeds the number of Registrable Shares and
other securities which can successfully be sold in such offering
without causing a diminution in the offering price or otherwise
adversely affecting the offering, the Corporation will include in such
registration, prior to the inclusion of any securities which are not
Registrable Shares, the number of Registrable Shares requested to be
included which in the opinion of such underwriters can successfully be
sold without causing a diminution in the offering price or otherwise
adversely affecting the offering, such Registrable Shares to be taken
pro rata from the respective holders of such Registrable Shares on the
basis of the number of Registrable Shares owned by such holders, with
further successive pro rata allocation among the holders of
Registrable Shares if any such holder of Registrable Shares has
requested the registration of less than all such Registrable Shares it
is entitled to register.
(f) The Corporation may postpone for up to three months the
filing or the effectiveness of a registration statement for a Demand
Registration or Preferred Demand Registration or a Short-Form
Registration if the Corporation reasonably determines that such Demand
Registration or Preferred Demand Registration or Short-Form
Registration would have any material adverse effect upon the
Corporation or any of its material assets or operations or any
material pending or proposed transaction, provided, however, that the
Corporation may not postpone any such filing or effectiveness of a
registration statement more than once in any consecutive 12 month
period.
3. Section 4(a) of the Agreement is hereby amended by the insertion of
the phrase "or Preferred Demand Registration" after the phrase "Demand
Registration" in the fifth line thereof.
4
18
4. Section 4(b) of the Agreement is hereby amended by the insertion of
the phrase "or Preferred Demand Registration" after the phrase "Demand
Registration" in the fourth line thereof.
5. The second sentence of Section 10 of the Agreement is hereby amended
by the insertion of the phrase "and the written consent of the holders of a
majority of the shares of Preferred Stock" after the phrase "Registrable Shares"
in the sixth line thereof.
6. Section 13 of the Agreement is hereby amended by the insertion of the
phrase "and the written consent of the holders of a majority of the shares of
Preferred Stock" after the phrase "Registrable Shares" in the third line
thereof.
7. Section 14 of the Agreement is hereby amended by adding the following
sentence as the third sentence thereof:
Notwithstanding the foregoing, in the event that American
Healthcorp, Inc. distributes all Registrable Shares held by it pro
rata among its shareholders in a tax-free distribution under Section
355 of the Internal Revenue Code of 1986, as amended, the provisions
of this Agreement shall no longer apply with respect to the subsequent
holders of such Registrable Shares, who shall not be entitled to
participate in any Demand Registration, Short-Form Registration or
Piggy-Back Registration.
8. The second paragraph of Section 19 of the Agreement is hereby amended
to read as follows:
If to the Corporation, to:
AmSurg Corp.
Xxx Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
with a copy to:
Bass, Xxxxx & Xxxx PLC
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
All other provisions of the Agreement, as amended, shall remain in full
force and effect as on the date hereof.
5
19
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
the Agreement as of the date first set forth above.
AMSURG CORP.
By:
------------------------------------
Title:
---------------------------------
AMERICAN HEALTHCORP, INC.
By:
------------------------------------
Title:
---------------------------------
---------------------------------------
Xxxxx X. Xxxxx, III
Bass, Xxxxx & Xxxx Profit Sharing Trust
for the Benefit of Xxxxx X. Xxxxx, III
By:
-----------------------------------
Xxxxx X. Xxxxx, III
---------------------------------------
Xxxxxx X. Xxxx
---------------------------------------
Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx, III
6
20
---------------------------------------
Xxxxxx Xxxxx, M.D.
Xxxxxxx X. Xxxxxx, III
Custodian for Xxxxx Xxxxxxx
Xxxxxx UTUGMA
By:
------------------------------------
Title:
---------------------------------
Xxxxxxx X. Xxxxxx, III
Custodian for Xxxxxxx X.
Xxxxxx XX UTUGMA
By:
------------------------------------
Title:
---------------------------------
Xxxxxxx X. Xxxxxx, III
Custodian for Xxxx Xxxxx Xxxxxx
UTUGMA
By:
------------------------------------
Title:
---------------------------------
The Xxxxxx X. Xxxxx
Grandchildren's Trust
By:
------------------------------------
Title:
---------------------------------
THE ENDOSCOPY CENTER, a
Tennessee general partnership
By:
------------------------------------
Title:
---------------------------------
7
21
---------------------------------------
Xxxxxxx X. Xxxxxxxx, M.D.
---------------------------------------
R. Xxxxxx Xxxxxxxx, M.D.
---------------------------------------
R. Xxxx Xxxxxx, M.D.
---------------------------------------
F. Xxxxxxx Xxxxxx, M.D.
---------------------------------------
Xxxxx X. Xxxxx, M.D.
---------------------------------------
Xxxxxxx X. X'Xxxxxx, Xx., M.D.
---------------------------------------
Xxxxxx X. Xxxxxxxxx, M.D.
ELECTRA INVESTMENT TRUST, PLC
BY:
------------------------------------
TITLE:
---------------------------------
8
22
CAPITOL HEALTH PARTNERS, L.P
By: CAPITOL HEALTH
ADVISORS L.P.
Its: General Partner
By: CAPITOL HEALTH, INC.
Its: General Partner
By:
----------------------
Xxxxxx X. Xxxxxxx
Title: President
---------------------------------------
Xxxxxxx X. Xxxxxxxx
Xxxx X. Xxxxx TUA 4/1/92 f/b/o
Xxxx X. Xxxxx
By:
------------------------------------
Title:
---------------------------------
Xxxx X. Xxxxx TUA 4/2/92 f/b/o
Xxxxxx Xxxxxx X. Xxxxxxxx
By:
------------------------------------
Title:
---------------------------------
9
23
SCHEDULE I
American Healthcorp, Inc.
Xxxxx X. Xxxxx, III
Bass, Xxxxx & Xxxx Profit Sharing Trust for the Benefit of Xxxxx X. Xxxxx, III
Xxxxxx X. Xxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx, III
Xxxxxx Xxxxx, M.D.
Xxxxxxx X. Xxxxxx, III, Custodian for Xxxxx Xxxxxxx Xxxxxx UTUGMA
Xxxxxxx X. Xxxxxx, III, Custodian for Xxxxxxx X. Xxxxxx XX UTUGMA
Xxxxxxx X. Xxxxxx, III, Custodian for Xxxx Xxxxx Xxxxxx UTUGMA
The Xxxxxx X. Xxxxx Grandchildren's Trust
Xxxx X. Xxxxx TUA 4/1/92 f/b/o Xxxx X. Xxxxx
Xxxx X. Xxxxx TUA 4/2/92 f/b/o Xxxxxx Xxxxxx X. Xxxxxxxx
The Endoscopy Center
Xxxxxxx X. Xxxxxxxx, M.D.
R. Xxxxxx Xxxxxxxx, M.D.
R. Xxxx Xxxxxx, M.D.
F. Xxxxxxx Xxxxxx, M.D.
Xxxxx X. Xxxxx, M.D.
Xxxxxxx X. X'Xxxxxx, Xx., M.D.
Xxxxxx X. Xxxxxxxxx, M.D.
10
24
SCHEDULE I (CONTINUED)
Electra Investment Trust, PLC
Capitol Health Partners, L.P.
Xxxxxxx X. Xxxxxxxx
11
