Exhibit 10.2
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SECURITIES PURCHASE AGREEMENT
among
CONCENTRA INC.
and
THE SEVERAL PURCHASERS
NAMED ON SCHEDULE I HERETO
Dated as of November 1, 2001
TABLE OF CONTENTS
Page
ARTICLE I
PURCHASE AND SALE OF THE
SECURITIES; CLOSING; USE OF PROCEEDS
SECTION 1.01 Purchase and Sale of the Securities..............................1
SECTION 1.02 Closing. .......................................................2
SECTION 1.03 Use of Proceeds. ...............................................2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 2.01 Organization, Corporate Power and Qualifications................2
SECTION 2.02 Subsidiaries....................................................3
SECTION 2.03 Authorization of Agreements, Etc. .............................3
SECTION 2.04 Validity........................................................3
SECTION 2.05 Capitalization..................................................4
SECTION 2.06 Financial Statements; Absence of Undisclosed Liabilities;
No Material Adverse Change......................................4
SECTION 2.07 Subsidiary SEC Filings..........................................5
SECTION 2.08 Governmental Approvals..........................................5
SECTION 2.09 Litigation, Etc.................................................5
SECTION 2.10 Compliance with Laws; Permits...................................6
SECTION 2.11 Title to Properties.............................................6
SECTION 2.12 Tax Matters.....................................................6
SECTION 2.13 Labor and Employment Matters....................................7
SECTION 2.14 Intellectual Property...........................................7
SECTION 2.15 Insurance.......................................................8
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
SECTION 3.01 Authorization...................................................8
SECTION 3.02 Validity........................................................8
SECTION 3.03 Investment Representations......................................8
ARTICLE IV
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CONDITIONS PRECEDENT
SECTION 4.01 Conditions Precedent to the Obligations of the Purchasers.......9
SECTION 4.02 Conditions Precedent to the Obligations of the Company.........11
ARTICLE V
MISCELLANEOUS
SECTION 5.01 Expenses, Etc..................................................12
SECTION 5.02 Survival of Agreements.........................................12
SECTION 5.03 Parties in Interest; Third Party Beneficiaries.................12
SECTION 5.04 Notices........................................................12
SECTION 5.05 Entire Agreement; Amendment; Assignment........................13
SECTION 5.06 Brokerage......................................................13
SECTION 5.07 Counterparts...................................................13
SECTION 5.08 Headings.......................................................14
SECTION 5.09 Severability...................................................14
SECTION 5.10 Governing Law..................................................14
SECTION 5.11 Jurisdiction and Venue.........................................14
SECTION 5.12 Joinders.......................................................14
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INDEX TO EXHIBITS AND SCHEDULES
Exhibit Description
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A Form of Registration Rights Agreement Amendment
B Form of Stockholders Agreement Amendment
C Form of Warrant Agreement Amendment
D Form of Warrant Agreement
E Form of Opinion of Reboul, MacMurray, Xxxxxx,
Xxxxxxx & Kristol
Schedule Description
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I Purchasers/Purchase Price
II Wire Transfer Instructions
2.05 Capitalization
2.06 Financial Statements
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SECURITIES PURCHASE AGREEMENT (this "Agreement") dated as of
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November 1, 2001 among CONCENTRA INC., a Delaware corporation (the "Company"),
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and the several persons named on Schedule I hereto (the "Purchasers").
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W I T N E S S E T H:
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WHEREAS, subject to the terms and conditions set forth herein, the
Company wishes to issue, sell and deliver to the Purchasers, and the Purchasers,
acting severally and not jointly, wish to purchase from the Company, at a
purchase price of $22.06 per share, (A) an aggregate 2,266,546 shares (the
"Shares") of Common Stock, $.01 par value, of the Company ("Common Stock") and
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(B) warrants to purchase an aggregate 771,277 shares of Common Stock (the
"Warrants" and, together with the Shares, the "Securities").
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NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE SECURITIES; CLOSING; USE OF PROCEEDS
SECTION 1.01 Purchase and Sale of the Securities . (a) Subject to
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the terms and conditions set forth herein, on the Closing Date (as hereinafter
defined), the Company shall issue, sell and deliver to each Purchaser, and each
Purchaser, acting severally and not jointly, shall purchase from the Company,
(A) the number of Shares set forth opposite the name of such Purchaser on
Schedule I hereto under the caption "Shares" and (B) a warrant to purchase the
number of shares of Common Stock set forth opposite the name of such Purchaser
on Schedule I hereto under the caption "Warrants".
(b) On the Closing Date, the Company shall issue to each Purchaser
(i) a certificate in definitive form (a "Stock Certificate"), registered in the
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name of such Purchaser, representing the number of Shares being purchased by
such Purchaser hereunder and (ii) a certificate in the form of Exhibit A to the
Warrant Agreement (as hereinafter defined) (a "Warrant Certificate"), registered
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in the name of such Purchaser, representing the number of Warrants being
purchased by such Purchaser hereunder.
(c) As payment in full for the Securities being purchased by such
Purchaser on the Closing Date, and against delivery thereof as aforesaid, on the
Closing Date, each Purchaser, acting severally and not jointly, shall transfer
to the account designated on Schedule II hereto immediately available funds in
the amount set forth opposite the name of such Purchaser on Schedule I hereto
under the caption "Purchase Price".
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SECTION 1.02 Closing. Subject to the terms and conditions set forth
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herein, the purchase and sale of the Securities contemplated by Section 1.01
above (the "Closing") shall take place at the offices of Reboul, MacMurray,
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Xxxxxx, Xxxxxxx & Kristol, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on
November 1, 2001 (the "Closing Date").
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SECTION 1.03 Use of Proceeds. All proceeds from the sale of the
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Securities hereunder shall be used by the Company and its Subsidiaries (as
hereinafter defined) to consummate the acquisitions of National Healthcare
Resources, Inc. and Health Network Systems, LLC and pay transaction expenses
incurred in connection with the consummation of such acquisitions and the sale
of the Securities.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to each Purchaser as follows:
SECTION 2.01 Organization, Corporate Power and Qualifications . (a)
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The Company (i) is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, (ii) has the corporate power
and authority necessary to own or lease and operate its properties and assets
and to carry on its business as now being conducted and (iii) is duly qualified,
in good standing as a foreign corporation and authorized to do business in all
jurisdictions in which the conduct of its business or the ownership or operation
of its properties makes such qualification or authorization necessary and in
which the failure to be so qualified or authorized would have a material adverse
effect on the business, properties, assets, liabilities, results of operations
or financial condition of the Company and its Subsidiaries taken as a whole (a
"Material Adverse Effect").
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(b) The Company has the corporate power and authority necessary to
(A) execute and deliver this Agreement, the Registration Rights Agreement
Amendment (as hereinafter defined), the Stockholders Agreement Amendment (as
hereinafter defined), the Warrant Agreement Amendment (as hereinafter defined),
the Warrant Agreement (as hereinafter defined), the Stock Certificates, the
Warrant Certificates and each other certificate, agreement or instrument to be
executed and delivered by it in connection with this Agreement and the
transactions contemplated hereby (the Registration Rights Agreement Amendment,
the Stockholders Agreement Amendment, the Warrant Agreement Amendment, the
Warrant Agreement, the Stock Certificates, the Warrant Certificates and such
other certificates, agreements and instruments, collectively, the "Ancillary
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Agreements") and (B) perform its obligations under this Agreement and the
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Ancillary Agreements, including, its obligation to issue and deliver the
Securities and the shares of Common Stock issuable upon exercise of the Warrants
(the "Warrant Shares").
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SECTION 2.02 Subsidiaries . (a) Each Subsidiary of the Company (i)
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is a corporation, partnership or limited liability company duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, (ii) has the corporate, partnership or
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limited liability company power and authority necessary to own or lease and
operate its properties and assets and to carry on its business as now being
conducted and (iii) is duly qualified, in good standing as a foreign
corporation, partnership or limited liability company and authorized to do
business in all jurisdictions in which the conduct of its business or the
ownership or operation of its properties makes such qualification or
authorization necessary and in which the failure to be so qualified or
authorized would have a Material Adverse Effect.
(b) All of the outstanding shares of capital stock or partnership or
membership interests, as the case may be, of each Subsidiary of the Company are
duly authorized, validly issued, fully paid and nonassessable and, except as set
forth in the Subsidiary SEC Filings (as hereinafter defined), are owned by the
Company or by a wholly-owned Subsidiary of the Company, free and clear of any
liens, claims, charges, restrictions, proxies, security interests or other
encumbrances ("Liens").
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(c) As used herein, the term "Subsidiary" shall mean any
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corporation, partnership, limited liability company or other business entity,
the majority of whose outstanding equity securities are at the time owned,
directly or indirectly, by the Company and/or one or more other Subsidiaries of
the Company.
SECTION 2.03 Authorization of Agreements, Etc. (a) The Company's
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execution, delivery and performance of this Agreement and the Ancillary
Agreements and its issuance and delivery of the Securities and the Warrant
Shares have been duly authorized by all requisite corporate action on the part
of the Company and will not violate (x) any provision of Law (as hereinafter
defined) or (y) the Restated Certificate of Incorporation or By-laws of the
Company.
(b) The Shares have been duly authorized by the Company and, when
sold and paid for in accordance with this Agreement, will be duly authorized,
validly issued and outstanding, fully paid and nonassessable shares of Common
Stock. The Warrant Shares have been duly reserved for issuance upon exercise of
the Warrants, and when sold and paid for in accordance with the provisions of
the Warrant Agreement and the Warrant Certificates, will be duly authorized,
validly issued and outstanding, fully paid and nonassessable shares of Common
Stock.
SECTION 2.04 Validity . This Agreement has been, and the Ancillary
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Agreements will be at Closing, duly executed and delivered by the Company. This
Agreement constitutes, and the Ancillary Agreements will constitute when
executed and delivered by the Company at Closing, the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, except to the extent that the enforceability thereof may
be limited by (i) bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and (ii)
general principles of equity (regardless of whether enforcement is brought in a
proceeding at law or in equity).
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SECTION 2.05 Capitalization . The authorized capital stock of the
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Company consists of (A) 5,000,000 shares of Class A Common Stock, $.01 par value
("Class A Common Stock"), of which 1,854,545 shares are issued and outstanding,
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(B) 100,000,000 shares of Common Stock, of which 24,128,651 shares are issued
and outstanding, and (C) 20,000,000 shares of Preferred Stock, $.01 par value,
of which no shares are issued and outstanding. All such issued and outstanding
shares of Class A Common Stock and Common Stock have been duly authorized and
validly issued and are fully paid and nonassessable. Except as set forth on
Schedule 2.05 hereto, there are no outstanding rights, options, warrants or
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other securities directly or indirectly exercisable or exchangeable for or
convertible into capital stock of the Company and there is not any commitment
(other than pursuant to this Agreement) of the Company to issue any shares of
its capital stock or any rights, options, warrants or other securities directly
or indirectly exercisable or exchangeable for or convertible into capital stock
of the Company or to distribute to holders of any class of the Company's capital
stock, any evidences of indebtedness or assets. None of the outstanding shares
of capital stock of the Company were issued in violation of any preemptive
rights of any stockholder of the Company or any right of first refusal or right
of first offer or similar right in favor of any person and, except as contained
in the Stockholders Agreement, no such rights exist. The Company has no
obligation (contingent or other) to purchase, redeem or otherwise acquire any
shares of its capital stock or any interest therein or to pay any dividend or
make any other distribution in respect thereof.
SECTION 2.06 Financial Statements; Absence of Undisclosed
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Liabilities; No Material Adverse Change . (a) Attached hereto as Schedule 2.06
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are true and complete copies of (x) the audited consolidated balance sheets of
the Company as of December 31, 2000 and December 31, 1999 and the related
statements of operations, changes in stockholders' equity and cash flows for the
fiscal year (or other shorter period) then ended, each certified by Xxxxxx
Xxxxxxxx LLP, the independent public accountants of the Company (the "Audited
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Financial Statements") and (y) the unaudited consolidated balance sheet (the
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"Most Recent Balance Sheet") of the Company as of June 30, 2001 (the "Balance
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Sheet Date") and the related statements of operations, changes in stockholders'
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equity and cash flows for the six months then ended (the "Unaudited Financial
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Statements" and, together with the Audited Financial Statements, the "Financial
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Statements"). The Financial Statements have been prepared in accordance with
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United States generally accepted accounting principles consistently applied and
consistent with prior periods ("GAAP"). The consolidated balance sheets of the
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Company included in the Financial Statements fairly present the financial
position of the Company and its Subsidiaries as of their respective dates, and
the related consolidated statements of operations, stockholders' equity and cash
flows included in the Financial Statements fairly present the results of
operations of the Company and its Subsidiaries for the respective periods then
ended, subject, in the case of the Unaudited Financial Statements, to year-end
adjustments (which consist of normal recurring accruals) and the absence of
certain footnote disclosures.
(b) Except (A) for liabilities reflected on reserved against on the
face of the Most Recent Balance Sheet, (B) for contingent liabilities identified
in the notes to the Audited Financial Statements, (C) liabilities incurred
subsequent to the Balance Sheet Date in the
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ordinary course of business and consistent with past practice and (D)
obligations otherwise incurred in the ordinary course of business and consistent
with past practice which are not required to be disclosed in accordance with
GAAP, none of the Company or any of its Subsidiaries has any known liabilities
or obligations (whether fixed, absolute, accrued, contingent, secured or
unsecured) that could reasonably be expected to have a Material Adverse Effect.
(c) No event has occurred since December 31, 2000 which could
reasonably be expected to have a Material Adverse Effect.
SECTION 2.07 Subsidiary SEC Filings . Each of Concentra Operating
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Corp. and each other Subsidiary of the Company required to file reports with the
SEC has filed all forms, reports and documents required to be filed by it with
the SEC since August 17, 1999 (the "Subsidiary SEC Filings"). The Subsidiary SEC
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Filings, including, without limitation, any financial statements or schedules
included therein, (i) were prepared in compliance with the requirements of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(the "Securities Act"), and/or the Securities Exchange Act of 1934, as amended,
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and the rules and regulations thereunder, as applicable, and (ii) did not at the
time of filing (or if amended, supplemented or superseded by a filing prior to
the date hereof, on the date of that subsequent filing) contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
SECTION 2.08 Governmental Approvals . Subject to the accuracy of the
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representations and warranties of the Purchasers set forth in Article III
hereof, no registration or filing with, or consent or approval of, or other
action by, any federal, state, foreign or other governmental agency or
instrumentality is or will be necessary for the valid execution and delivery of
this Agreement and/or the Ancillary Agreements or the performance of this
Agreement and/or the Ancillary Agreements or the issuance, sale and delivery of
the Securities or the issuance and delivery of the Warrant Shares upon exercise
of the Warrants.
SECTION 2.09 Litigation, Etc. There are no actions, suits,
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proceedings, orders, investigations or claims pending or, to the knowledge of
the Company, threatened against or affecting the Company or any of its
Subsidiaries, at law or in equity, or before or by any governmental department,
commission, board, bureau, agency or instrumentality which (i) if adversely
determined, could reasonably be expected to have a Material Adverse Effect or
(ii) which seek to enjoin, prevent or delay the consummation of the transactions
contemplated by this Agreement and the Ancillary Agreements.
SECTION 2.10 Compliance with Laws; Permits . Neither the Company nor
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any Subsidiary thereof is or has been in default under or in violation of any
foreign or domestic statute, law, ordinance, rule, regulation, order, writ,
judgment, decree, consent decree, injunction, award, settlement agreement,
stipulation, ruling or subpoena ("Law") to which the Company or any such
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Subsidiary or any of their material properties or assets is or was subject
except for such defaults and violations which could not reasonably be expected
to have a Material Adverse
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Effect. Except as could not reasonably be expected to have a Material Adverse
Effect, the Company and its Subsidiaries possess all permits, authorizations,
approvals, registrations, variances and licenses that are necessary for the
Company and its Subsidiaries to own, use and maintain the properties and assets
used in or required for the conduct of the business of the Company and its
Subsidiaries.
SECTION 2.11 Title to Properties . Except as disclosed in the
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Subsidiary SEC Filings, and except as could not reasonably be expected to have a
Material Adverse Effect, the Company and its Subsidiaries have good and valid
title to all their assets and properties, in each case free and clear of all
Liens.
SECTION 2.12 Tax Matters . (a) Except as could not reasonably be
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expected to have a Material Adverse Effect, the Company and its Subsidiaries
have (i) timely filed all federal, state, local and foreign returns,
declarations, reports, estimates, information returns and statements ("Returns")
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required to be filed by them in respect of any Taxes (as hereinafter defined),
all of which Returns were correct as filed (or as subsequently amended) and
correctly reflect the facts regarding the income, business, assets, operations,
activities and status of the Company and its Subsidiaries as well as any Taxes
required to be paid or collected by the Company and its Subsidiaries, (ii)
timely paid or withheld all Taxes that are due and payable with respect to the
Returns referred to in clause (i) (other than Taxes that are being contested in
good faith by appropriate proceedings), (iii) established reserves that are
adequate for the payment of all Taxes not yet due and payable with respect to
the results of operations of the Company and its Subsidiaries and (iv) complied
with all applicable Laws relating to the payment and withholding of Taxes and
timely withheld from employee wages and paid over to the proper Taxing
Authorities (as hereinafter defined) when due all amounts required to be so
withheld and paid over.
(b) For purposes of this Agreement, "Taxes" shall mean (i) any net
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income, alternative or add-on minimum tax, gross income, gross receipts, sales,
use, ad valorem, value added, transfer, franchise, profits, license, withholding
on amounts paid or received, payroll, employment, excise, severance, stamp,
occupation, premium, property, environmental or windfall profit taxes, custom
duties or other taxes, governmental fees or other like assessments or charges of
any kind whatsoever, together with any interest or any penalty, addition to tax
or additional amount imposed by any governmental authority responsible for the
imposition of any such taxes (domestic or foreign) ("Taxing Authorities"), (ii)
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liability for the payment of any amounts of the type described in (i) as a
result of being a member of an affiliated, consolidated, combined or unitary
group, or being a party to any agreement or arrangement whereby liability for
payments of such amounts was determined or taken into account with reference to
the liability of any other person for any period and (iii) liability with
respect to the payment of any amounts described in (i) as a result of any
express or implied obligation to indemnify any other person.
SECTION 2.13 Labor and Employment Matters . The Company has no
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knowledge of any actionable violation by it or any of its Subsidiaries of any
federal, state or local law relating to employment practices, discrimination in
the hiring, promotion or pay of
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employees or any applicable wage or hour laws, or of any provisions of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the
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rules and regulations promulgated thereunder that could reasonably be expected
to have, alone or in the aggregate, a Material Adverse Effect. There is (A) no
material unfair labor practice complaint pending against the Company or any of
its Subsidiaries or, to the knowledge of the Company, threatened against the
Company or any of its Subsidiaries, before the National Labor Relations Board or
any state or local labor relations board, and no significant grievance or
significant arbitration proceeding arising out of or under any collective
bargaining agreement is pending against the Company or any of its Subsidiaries
or, to the knowledge of the Company, threatened against the Company or any of
its Subsidiaries, (B) no labor strike, dispute, slowdown or stoppage ("Labor
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Dispute") in which the Company or any of its Subsidiaries is involved nor, to
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the knowledge of the Company, is any Labor Dispute imminent, other than routine
disciplinary and grievance matters, or (C) no union representation question
existing with respect to the employees of the Company or any of its Subsidiaries
except with respect to any matter specified in clause (A), (B) or (C) above as
could not reasonably be expected to have, alone or in the aggregate, a Material
Adverse Effect. Except as disclosed in the Subsidiary SEC Filings, there exist
no material employment, consulting, severance or termination agreements or
arrangements between the Company or any of its Subsidiaries, on the one hand,
and any current or former officer or director of the Company or any of its
Subsidiaries, on the other hand, and there are no collective bargaining or other
labor union agreements to which the Company or any of its Subsidiaries is a
party or by which any of them is bound.
SECTION 2.14 Intellectual Property . Except as could not reasonably
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be expected to have, alone or in the aggregate, a Material Adverse Effect: (i)
the Company and its Subsidiaries own or possess, free and clear of all Liens,
valid rights to all patents, patent rights, copyrights, computer databases and
software, logos, slogans, inventions, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names and all
licenses, applications and registrations related to the foregoing used in the
business of the Company and its Subsidiaries (collectively, the "Intellectual
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Property"); (ii) none of the Company and its Subsidiaries has received any
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notice of infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or has knowledge of any infringement of the
Intellectual Property by any person; and (iii) to the knowledge of the Company,
the use of the Intellectual Property in connection with the business and
operations of the Company and its Subsidiaries does not infringe on the rights
of any person.
SECTION 2.15 Insurance . The Company and each of its Subsidiaries
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are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; and neither the Company nor any of its
Subsidiaries (i) has received notice from any insurer or agent of such insurer
that substantial capital improvements or other material expenditures will have
to be made in order to continue such insurance or (ii) has any reason to believe
that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers at a
cost that would not reasonably be expected to have a Material Adverse Effect.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser, severally and not jointly, represents and warrants
to the Company as follows:
SECTION 3.01 Authorization . The execution, delivery and performance
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by such Purchaser of this Agreement and the Ancillary Agreements to which such
Purchaser is a party and the purchase and receipt of the Securities being
purchased by such Purchaser, have been duly authorized by all requisite action
on the part of such Purchaser, and will not violate any provision of Law
applicable to such Purchaser, the governing instrument of such Purchaser, if
any, or any provision of any material indenture, agreement or other instrument
by which such Purchaser or any of such Purchaser's properties or assets are
bound, or conflict with, give rise to a right of acceleration or termination
under, result in any payment or benefit thereunder becoming due or increasing,
result in a breach of or constitute (with due notice or lapse of time or both) a
default under any such material indenture, agreement or other instrument, or
result in the creation or imposition of any Lien upon any of the material
properties or assets of such Purchaser.
SECTION 3.02 Validity . This Agreement and the Ancillary Agreements
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to which such Purchaser is a party have been duly executed and delivered by such
Purchaser and this Agreement and such Ancillary Agreements constitute the legal,
valid and binding obligations of such Purchaser, enforceable against such
Purchaser, each in accordance with its terms, except that the enforceability
thereof may be limited by (i) bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforcement is brought in a proceeding at law or in equity).
SECTION 3.03 Investment Representations . (a) Such Purchaser is
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acquiring the Securities being purchased by such Purchaser hereunder for his,
her or its own account for the purpose of investment and not with a view to or
for sale in connection with any distribution thereof. Such Purchaser understands
that (i) such Securities have not been registered under the Securities Act or
any state securities laws, (ii) the Securities and the Warrant Shares must be
held indefinitely unless a subsequent disposition thereof is registered under
the Securities Act and all applicable state securities laws or is exempt from
such registration, (iii) the Securities and the Warrant Shares will bear a
legend to such effect and (iv) the Company will make a notation on the register
for the Securities and the Warrant Shares and its stock transfer books to such
effect. Such Purchaser further understands the exemption from registration
afforded by Rule 144 under the Securities Act depends on the satisfaction of
various conditions and that, if applicable, Rule 144 affords the basis of sales
of the Securities and Warrant Shares only in limited amounts under certain
conditions.
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(b) Such Purchaser further represents and warrants to the Company
that he, she or it has had full opportunity to have access to and to examine the
facilities, personnel and records of the Company, that such Purchaser is capable
of evaluating independently the prospects of the Company and has made such an
evaluation in connection with his, her or its investment in the Securities being
purchased by such Purchaser and has adequate financial means to bear the risk of
his, her or its investment in the Company. Such Purchaser further represents
that he, she or it is an "accredited investor" as such term is defined in Rule
501 of Regulation D under the Securities Act with respect to such Purchaser's
purchase of the Securities.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.01 Conditions Precedent to the Obligations of The
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Purchasers . The obligation of each Purchaser to consummate the sale and
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purchase of the Securities at Closing is, at such Purchaser's option, subject to
the satisfaction, on or before the Closing Date, of the following conditions:
(a) Representations and Warranties to Be True and Correct. The
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representations and warranties of the Company contained in this Agreement that
are qualified with reference to a Material Adverse Effect or materiality shall
be true and correct in all respects and all representations and warranties that
are not so qualified shall be true and correct in all material respects, in each
case, on and as of the Closing Date, and the Company shall have so certified in
writing each Purchaser.
(b) Performance. The Company shall have performed and complied in
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all material respects with all agreements and conditions contained herein
required to be performed or complied with by it prior to or on the Closing Date,
and the Company shall have so certified in writing to each Purchaser.
(c) All Proceedings to Be Satisfactory. All corporate and other
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proceedings to be taken by the Company in connection with this Agreement and the
Ancillary Agreements and the transactions contemplated hereby and thereby shall
have been taken by the Company and all documents incident thereto shall be
reasonably satisfactory in form and substance to the counsel for the Purchasers.
(d) Registration Rights Agreement Amendment. An Amendment No. 1 to
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the Registration Rights Agreement dated as of August 17, 1999 among the Company
and the "Purchasers" named therein (the "Registration Rights Agreement")
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substantially in the form of Exhibit A hereto (the "Registration Rights
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Agreement Amendment") shall have been executed and delivered by (i) the Company,
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(ii) holders of not less than a majority in interest of the Restricted Stock (as
therein defined) held by the "Schedule I Purchasers" named therein and (ii)
holders of not less than a majority in interest of the Restricted Stock (as
therein defined) held by the "FFT Purchasers" named therein.
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(e) Stockholders Agreement Amendment. An Amendment No. 1 to the
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Stockholders Agreement dated as of August 17, 1999 among the Company and the
"Stockholders" named therein (the "Stockholders Agreement") substantially in the
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form of Exhibit B hereto (the "Stockholders Agreement Amendment") shall have
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been executed and delivered by (i) the Company, (ii) holders of not less than a
majority in interest of the Company Capital Stock (as therein defined) held by
the "Schedule I Purchasers" named therein and (ii) holders of not less than a
majority in interest of the Company Capital Stock (as therein defined) held by
the "FFT Purchasers" named therein.
(f) Warrant Agreement Amendment. An Amendment No. 1 to the Warrant
---------------------------
Agreement dated as of August 17, 1999 among the Company and the "Holders" named
therein substantially in the form of Exhibit C hereto (the "Warrant Agreement
-----------------
Amendment") shall have been executed and delivered by (i) the Company and (ii)
---------
registered Holders (as therein defined) of not less than two thirds of the
outstanding Warrant Shares (as therein defined) issued or issuable upon exercise
of the Warrants (as therein defined).
(g) Warrant Agreement. The Company shall have executed and delivered
-----------------
a Warrant Agreement among the Company and the Purchasers substantially in the
form of Exhibit D hereto (the "Warrant Agreement").
--------- -----------------
(h) Legal Opinion. The Purchasers shall have received the opinion of
-------------
Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol, substantially in the form of
Exhibit E hereto and dated the Closing Date.
---------
(i) Fees and Expenses. The Company shall have paid (i) the WCAS
-----------------
Expenses (as hereinafter defined) as contemplated by Section 5.01(a) and (ii)
the Financing Fee (as hereinafter defined) as contemplated by Section 5.01(b).
(j) Supporting Documents. The Purchasers shall have received copies
--------------------
of the following supporting documents:
(A) (1) a copy of the Restated Certificate of Incorporation of the
Company and all amendments thereto, each certified as of a
recent date by the Secretary of State of the State of Delaware
and (2) a certificate of said Secretary dated as of a recent
date as to the due incorporation and good standing of the
Company and listing all documents of the Company on file with
said Secretary; and
(B) a certificate of the Secretary of the Company dated the
Closing Date and certifying: (1) that attached thereto is a
true and complete copy of the By-laws of the Company as in
effect on the date of such certification; (2) that attached
thereto are true and complete copies of all resolutions
adopted by the Board of Directors of the Company authorizing
the execution and delivery of this Agreement and each
Ancillary Agreement, the
10
performance of this Agreement and each Ancillary Agreement,
including the issuance of the Securities, and that all such
resolutions are still in full force and effect and are all the
resolutions adopted by the Board of Directors of the Company
in connection with the transactions contemplated by this
Agreement; (3) that the Restated Certificate of Incorporation
of the Company has not been amended since the date of the last
amendment referred to in the certificate delivered pursuant to
clause (A)(2) above; and (4) as to the incumbency and specimen
signature of each officer of the Company executing this
Agreement and any Ancillary Agreement.
SECTION 4.02 Conditions Precedent to the Obligations of the Company.
------------------------------------------------------
The obligation of the Company to consummate the sale and purchase of the
Securities at Closing is, at its option, subject to the satisfaction, on or
before the Closing Date, of the following conditions:
(a) Representations and Warranties to Be True and Correct. The
-----------------------------------------------------
representations and warranties of the Purchasers contained in this Agreement
shall be true and correct in all material respects on and as of the Closing
Date.
(b) Performance. Each Purchaser shall have performed and complied in
-----------
all material respects with all agreements and conditions contained herein
required to be performed or complied with by such Purchaser prior to or on the
Closing Date.
(c) Registration Rights Agreement Amendment. The Registration Rights
---------------------------------------
Agreement Amendment shall have been executed and delivered by each of the
Purchasers, including (i) holders of not less than a majority in interest of the
Restricted Stock (as therein defined) held by the "Schedule I Purchasers" named
therein and (ii) holders of not less than a majority in interest of the
Restricted Stock (as therein defined) held by the "FFT Purchasers" named
therein.
(d) Stockholders Agreement Amendment. The Stockholders Agreement
--------------------------------
Amendment shall have been executed and delivered by each of the Purchasers,
including (i) holders of not less than a majority in interest of the Company
Capital Stock (as therein defined) held by the "Schedule I Purchasers" named
therein and (ii) holders of not less than a majority in interest of the Company
Capital Stock (as therein defined) held by the "FFT Purchasers" named therein.
(e) Warrant Agreement. Each of the Purchasers shall have executed
-----------------
and delivered the Warrant Agreement.
11
ARTICLE V
MISCELLANEOUS
SECTION 5.01 Expenses, Etc. (a) The Company hereby agrees to pay all
-------------
of the reasonable out-of-pocket costs and expenses of Welsh, Carson, Xxxxxxxx &
Xxxxx in connection with the preparation, negotiation, execution and delivery of
this Agreement and Ancillary Agreements and the consummation of the transactions
contemplated hereby and thereby, including the fees and expenses of Reboul,
MacMurray, Xxxxxx, Xxxxxxx & Kristol ("WCAS Expenses").
-------------
(b) On the Closing Date the Company shall pay to WCAS Management
Corporation a financing fee of $500,000 (the "Financing Fee").
-------------
SECTION 5.02 Survival of Agreements. Notwithstanding any
----------------------
investigation made at any time by or on behalf of any party hereto, all
covenants, agreements, representations and warranties made herein shall survive
the execution and delivery of this Agreement and the issuance, sale and delivery
of the Securities pursuant hereto. Any statement contained in any certificate or
other instrument delivered by the Company at Closing shall be deemed to
constitute representations and warranties made by the Company hereunder.
SECTION 5.03 Parties in Interest; Third Party Beneficiaries. All the
----------------------------------------------
covenants and agreements in this Agreement contained by or on behalf of the
parties hereto shall bind their successors and permitted assigns, whether so
expressed or not. This Agreement is not intended to confer any rights or
remedies upon any person other than the parties hereto.
SECTION 5.04 Notices. Any notice or other communication required or
-------
permitted hereunder shall be deemed to be sufficient if contained in a written
instrument that is (w) delivered in person, (x) sent by first class certified
mail, postage prepaid, (y) sent by nationally recognized overnight courier, or
(z) sent by facsimile, in each case addressed to such party as follows:
(a) if to the Company, to:
Concentra, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx 000 Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
12
(b) if to any Purchaser, to the address set forth opposite the name
of such Purchaser on the signature pages hereto, with a copy to:
Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol
00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
or, in any case, at such other address or addresses as shall have been furnished
in writing by such party to the other parties hereto. All such notices,
requests, consents and other communications shall be deemed to have been
received (a) in the case of personal delivery, on the date of such delivery, (b)
in the case of mailing by first class certified mail, on the fifth business day
following the date of such mailing, (c) in the case of delivery by overnight
courier, on the business day following the date of delivery to such courier and
(d) in the case of facsimile, when received.
SECTION 5.05 Entire Agreement; Amendment; Assignment. This Agreement
---------------------------------------
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings among the
parties hereto with respect to the subject matter hereof. This Agreement may not
be amended or modified except in a writing signed by each of the parties hereto.
Any waiver of any provision of this Agreement must be in a writing signed by the
party against whom enforcement of such waiver is sought.
SECTION 5.06 Brokerage . Each of the parties hereto shall indemnify
---------
and hold harmless the other parties hereto against any claim for brokerage or
other commissions relative to this Agreement or to the transactions contemplated
hereby, based in any way on agreements, arrangements or understandings made or
claimed to have been made by such party with any third party.
SECTION 5.07 Counterparts. This Agreement may be executed in two or
------------
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 5.08 Headings. Headings and section reference numbers in
--------
this Agreement are for reference purposes only and shall not in any way affect
the meaning or interpretation of this Agreement.
SECTION 5.09 Severability. In the event that any one or more of the
------------
provisions set forth herein shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement.
13
SECTION 5.10 Governing Law . This Agreement and all disputes arising
-------------
out of or relating to this Agreement, its subject matter, the performance by the
parties of their respective obligations hereunder or the claimed breach hereof,
whether in tort, contract or otherwise, shall be governed by and construed in
accordance with the internal laws of the State of New York without giving effect
to its choice of law principles.
SECTION 5.11 Jurisdiction and Venue . Any suit, action or proceeding
----------------------
arising out of or relating to this Agreement, the subject matter hereof, the
performance by the parties of their obligations hereunder or the claimed breach
hereof, whether brought at law or in equity and whether based in tort, contract
or otherwise, may be brought in the federal or state courts located in the
County of New York, New York, and each of the parties to this Agreement hereby
submits with regard to any such suit, action or proceeding for itself and in
respect to its property, generally and unconditionally, to the non-exclusive
jurisdiction of the aforesaid courts and of the appropriate appellate courts
therefrom. Each of the parties hereto hereby irrevocably waives, and agrees not
to assert, by way of motion, as a defense, counterclaim or otherwise, in any
such suit, action or proceeding (a) any claim that it is not personally subject
to the jurisdiction of such courts for any reason other than the failure to
lawfully serve process, (b) that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise),
(c) that the suit, action or proceeding in any such court is brought in an
inconvenient forum, (d) that the venue of such suit, action or proceeding is
improper, (e) that this Agreement or the subject matter hereof may not be
enforced in or by such courts or (f) any right to a trial by jury which is
hereby waived. Each party hereto agrees that process in any such suit, action or
proceeding may be served on such party anywhere in the world, whether within or
without the jurisdiction of such courts and that service of process on such
party as provided in Section 5.04 above shall be deemed effective service of
process on such party.
SECTION 5.12 Joinders . By executing and delivering this Agreement,
--------
(i) each Purchaser (other than FFT Partners II, L.P.) that is not already a
party to the Stockholders Agreement hereby agrees to become a party to the
Stockholders Agreement as a "Schedule I Purchaser" and a "Stockholder"
thereunder, bound by the terms thereof as if such Purchaser were an original
party thereto, (ii) FFT Partners II, L.P. hereby agrees to become a party to the
Stockholders Agreement as an "FFT Purchaser" and a "Stockholder" thereunder,
bound by the terms thereof as if such Purchaser were an original party thereto,
(iii) each Purchaser (other than FFT Partners II, L.P.) that is not already a
party to the Registration Rights Agreement hereby agrees to become a party to
the Registration Rights Agreement as a "Schedule I Purchaser" and a "Purchaser"
thereunder, bound by the terms thereof as if such Purchaser were an original
party thereto, and (iv) FFT Partners II, L.P. hereby agrees to become a party to
the Registration Rights Agreement as an "FFT Purchaser" and a "Purchaser"
thereunder, bound by the terms thereof as if such Purchaser were an original
party thereto. Each such joinder shall be given effect immediately prior to the
effectiveness of each of the Stockholders Agreement Amendment and the
Registration Rights Agreement Amendment.
14
[signature pages follow]
15
IN WITNESS WHEREOF, the Company and the Purchasers have executed
this Securities Purchase Agreement as of the day and year first above written.
The Company:
------------
CONCENTRA INC.
By /s/ Xxxxxxx X. Xxxx XX
------------------------------------
Name: Xxxxxxx X. Xxxx XX
Title: Executive Vice President,
General Counsel and Secretary
16
Address for Notices: The Purchasers:
-------------------- ---------------
c/o Welsh, Carson, Xxxxxxxx & Xxxxx WELSH, CARSON, XXXXXXXX & XXXXX
000 Xxxx Xxxxxx XXXX, X.X.
Xxxxx 0000 By: WCAS VIII Associates, L.L.C.,
Xxx Xxxx, XX 00000 General Partner
Attention: Xxxxxxxx Rather
Facsimile: (000) 000-0000
By:______________________________________
Managing Member
WCAS HEALTHCARE PARTNERS, L.P.
By: WCAS HC Partners, General Partner
By:______________________________________
General Partner
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxx
Xxxxxx X. XxXxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. xxXxxxxx
Xxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxx
D. Xxxxx Xxxxxxx
Xxxxxxxxx X. Xxxxxx
Xxxxx X. XxxXxxxx
Xxxx X. Xxxxxxx
Xxxx Xxxxxxx, Xx.
Xxxxxxxx X. Rather
By:______________________________________
Xxxxxxxx X. Rather, Individually and
as Attorney-in-Fact
21
WCAS MANAGEMENT CORP.
By:_________________________________
Name:
Title:
c/o Leeway & Co. (AT&T) X.X. XXXXXX DIRECT CORPORATE FINANCE
X.X. Xxxxxx Investment Management INSTITUTIONAL INVESTORS LLC
000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx By:____________________________________
Facsimile: 000-000-0000 Name:
Title:
X.X. XXXXXX DIRECT CORPORATE FINANCE
PRIVATE INVESTORS LLC
By:____________________________________
Name:
Title:
000 XXXXX XXXXXX FUND, L.P.
By:____________________________________
Name:
Title:
000 "X" Xxxxxx, Xxxxx 0000 XXXXXXXXXX PUBLIC EMPLOYEES' RETIREMENT
Xxxxxxxxxx, XX 00000 SYSTEM
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
By:_____________________________________
Name:
Title:
c/o CMS Companies CMS XIV PEP CO-INVESTMENT SUBPARTNERSHIP
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000
By:_____________________________________
Xxxxxxx X. Xxxxxxxx
Authorized Representative
0, xxx Xxxxxxx Xxxxxx XXXXXXX
00000 Xxxxx, Xxxxxx
Attention: Fabrice de Goudemar
Facsimile: 33-1-42-678-825
By:_____________________________________
Name:
Title:
c/o DB Capital Partners DB CAPITAL INVESTORS, L.P.
000 Xxxxxxx Xxxxxx, MS:3405
Xxx Xxxx, XX 00000 By: DB Capital Partners, L.P.,
Attention: Xxxxxxxx XxXxxxx its General Partner
Facsimile: 000-000-0000
By: DB Capital Partners, Inc.,
its General Partner
By:_______________________________________
Name:
Title:
22
c/o Goldman, Sachs & Co. GS PRIVATE EQUITY PARTNERS II, L.P.
00 Xxx Xxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 By: GS PEP II Advisors, L.L.C., its
Attention: Xxxxxxx Xxxxxxx General Partner
Facsimile: (000) 000-0000
By: GSAM Gen-Par, L.L.C., its Managing Member
By:______________________________________________
Name:
Title:
GS PRIVATE EQUITY PARTNERS II OFFSHORE, L.P.
By: GS PEP II Offshore Advisors, Inc., its
General Partner
By:______________________________________________
Name:
Title:
GS PRIVATE EQUITY PARTNERS II - DIRECT
INVESTMENT FUND, L.P.
By: GS PEP II Direct Investment Advisors, L.L.C.,
its General Partner
By: GSAM Gen-Par, L.L.C., its Managing Member
By:______________________________________________
Name:
Title:
23
GS PRIVATE EQUITY PARTNERS III, L.P.
By: GS PEP III Advisors, L.L.C., its General
Partner
By: GSAM Gen-Par, L.L.C., its Managing Partner
By:___________________________________________
Name:
Title:
GS PRIVATE EQUITY PARTNERS III OFFSHORE, L.P.
By: GS PEP III Offshore Advisors, Inc., its
General Partner
By:___________________________________________
Name:
Title:
NBK/GS PRIVATE EQUITY PARTNERS, L.P.
By: GS PEP Offshore Advisors (NBK), Inc. General
Partner
By:___________________________________________
Name:
Title:
00
x/x Xxxxxxxx Xxxx XXXXXXXX XXXX PRIVATE EQUITY PARTNERS,
GSB Building L.P.
Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxx Xxxxxx, XX 00000 By: HLSP Investment Management, LLC,
Attention: Xxxxxxx Xxxxxx its General Partner
Facsimile: (000) 000-0000
By: ____________________________________
Xxxxx X. Xxxxxxxx
Managing Member
XXXXXXXX XXXX PRIVATE EQUITY FUND, PLC
By: ____________________________________
Xxxxx X. Xxxxxxxx, Director
By: ____________________________________
Xxxxxx Xxxx, Director
25
c/o Nassau Capital Funds, L.P. NASSAU CAPITAL PARTNERS IV L.P.
00 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx By:_____________________________________
Facsimile: (000) 000-0000 Name:
Title:
NAS PARTNERS LLC
By:_____________________________________
Name:
Title:
c/o Portfolio Advisors, LLC A.S.F. CO-INVESTMENT PARTNERS, L.P.
0 Xxx Xxxxx Xxxxxxx Xxxxx By: PAF 10/98, LLC
Xxxxxx, XX 00000 By: Old Kings I, LLC, as Managing Member
Attention: Xxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
By:_______________________________
Name:
Title:
00 Xxxxxxx Xxxxxx, Xxxxx 0000 XXX XXXX LIFE CAPITAL PARTNERS, L.P.
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx By: NYLCAP Manager LLC, its Investment Manager
Facsimile: (000) 000-0000
By:___________________________________________
Name:
Title:
x/x Xxxxxx Xxxxxxx Xxxxxxxx & Xx. XXXXXX XXXXXXX XXXXXXXX & CO., LLC
Xxx Xxxx
00 Xxxxxxxxx Xxxxxx on behalf of FFT PARTNERS II, L.P.
Xxxxxxxxx, XX 00000 and as its General Partner
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
By:_____________________________________
Name:
26
