SHAREHOLDERS' AGREEMENT, dated August 30, 1991, among
PHYSICIAN SUPPORT SYSTEMS, INC. (formerly PSS Services
Corporation), a Delaware corporation (the "Corporation"), the
shareholders of the Corporation named on Schedule I and any
subsequent holder of capital stock of the Corporation who shall
become a signatory to this Agreement (together, the
Shareholders).
The Corporation is a corporation duly organized and
existing under the laws of the State of Delaware with an
authorized capitalization of (i) 5,000 shares of Common Stock,
$.01 par value (the "Common Stock") and (ii) 10,000 shares of
preferred stock, $.01 par value (the "Preferred Stock", and
together with the Common Stock, the "Stock"). The Corporation
and the Shareholders deem it in their best interest to enter into
this Agreement.
In consideration of the premises and of the mutual
covenants and obligations hereinafter set forth, the parties
agree as follows:
1. Voting Matters. (a) At each annual meeting of
the shareholders of the Corporation, at each special meeting of
the shareholders of the Corporation called for the purpose of
electing directors of the Corporation and at any time at which
shareholders of the Corporation shall have the right to, or
shall, vote for directors of the Corporation, the Shareholders
shall vote all shares of Common Stock owned by them for the
election of a Board of Directors consisting of five directors,
(i) four of whom shall be Xxxxxxxx Xxxxxxxxx III, Xxxxx X.
Xxxxxx, Xxxxxxxx X. Xxxxxx III, Xxxx X. Xxxxx III or,
respectively, persons designated by the holders of the Common
Stock in such person's group (as defined below), and (ii) one of
whom shall be elected by Shareholders holding a majority of the
Common Stock and entitled to vote for the election of directors.
In the event any of Messrs. Berkowitz, Gilson, Potter or Xxxxx,
in each case including his group, sells or otherwise transfers
more than 50% of the shares of Common Stock held by him or his
group on the date of this Agreement, the Shareholders shall no
longer be obligated to vote in favor of such person or his
designee and the director seat shall be elected by Shareholders
holding a majority of the Common Stock.
(b) A person's group shall mean (i) such
Shareholder, (ii) the spouse, immediate family and lineal
descendants of such Shareholder, (iii) a trust for the benefit of
any of the foregoing and (iv) any corporation (other than the
Corporation) or partnership controlled by such Shareholder,
members of such Shareholders immediate family and lineal
descendants or trusts for the benefit of any of the foregoing.
(c) All other matters for which a vote of
shareholders is necessary or appropriate shall be approved in the
manner set-forth in the Corporation's Certificate of
Incorporation and Bylaws.
(d) The Bylaws of the Corporation shall include
provisions to effect the following:
(i) The Board of Directors shall by majority
vote determine appropriate compensation for Messrs.
Xxxxxxxxx, Xxxxxx and Potter, xxxxx.xx all cases shall be
reasonable and related to the officer's or employee's
contribution to the Corporation.
(ii) Without the unanimous consent of the
Board of Directors, the Corporation will not (A) pay
aggregate annual compensation to Messrs. Xxxxxxxxx, Xxxxxx
and Potter and to members of such persons' group in excess
of $2,000,000 for the twelve month period between September
1, 1999 and August 31, 2000 and such amount as adjusted for
any increase thereafter in the United States Consumer Price
Index for each subsequent twelve month period, or (B) issue
or sell Stock or any stock equivalent to employees or
directors, or to members of such persons' group, unless at
the same time the Corporation offers, exercisable for 10
days, to each existing Shareholder a right to purchase such
Stock or stock equivalent on the same terms in order to
maintain such Shareholder's percentage interest in the
Corporation, or (C) redeem or otherwise repurchase any
shares of Common Stock.
(iii) The Board of Directors may not form an
executive committee without the unanimous consent of the
Board of Directors, which consent shall specify the members
of the proposed executive committee and limitations, if any,
over the authority of the executive committee.
2. Stock Transfer Provisions. Each Shareholder shall
not at any time during the term of this Agreement sell, pledge or
otherwise transfer any Common Stock except:
(a) by sale in accordance with Section 3, 4, 5, 7
or 10;
(b) by pledge either (i) to Meridian Bank or
another senior lending institution to which all Shareholders
pledge their Common Stock in connection with indebtedness
incurred with respect to the acquisition of assets by the
Corporation on the date of this Agreement or any refinancing
thereof, or (ii) which creates a security interest in the Common
Stock; provided, that the pledge has been authorized by a
resolution of the Corporation's Board of Directors and (A) the
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pledgee agrees not to foreclose on the pledge unless the pledgee
agrees in writing to be bound by and comply with all provisions
of this Agreement to the same extent as if it were the
Shareholder making such pledge or (B) the pledgee thereof shall
agree in writing in advance with the parties hereto to be bound
by and comply with all provisions of this Agreement to the same
extent as if it were the Shareholder making such pledge; or
(c) by transfer to another member of the
Shareholder's group; provided, that the transferee of such Common
Stock shall have agreed in writing with the parties hereto to be
bound by and to comply with all provisions of this Agreement.
3. Procedures on Sale of Stock to Third Parties.
Except as otherwise expressly provided herein, each Shareholder
shall not sell, pledge or otherwise transfer any Common Stock
except in accordance with the following procedures:
(a) In the event any Shareholder desires to sell,
pledge or otherwise transfer any Stock, the following procedures
apply:
(i) The selling Shareholder shall deliver to
the non-selling Shareholders and the Corporation a written
notice, which shall be irrevocable for a period of 45 days
after delivery, offering all or any portion of the Common
Stock owned by the selling Shareholder at the purchase price
and on the terms specified in the written notice. The non-
selling Shareholders shall have the first right and option,
for a period of 30 days after delivery of such written
notice, to purchase on a pro rata basis with all other
Shareholders so electing, any or all of the shares of Common
Stock so offered at the purchase price and on the terms
specified in the notice. Such acceptance shall be made by
delivering a written notice to the selling Shareholder
within such 30-day period.
(ii) In the event the other Shareholders
shall fail to accept in whole or part the offer, then upon
the earlier of the expiration of such 30-day period or upon
the receipt of a written rejection of such offer from all
nonselling Shareholders, the Corporation shall have the
second right and option, until 15 days after the expiration
of the 30-day period, to purchase any shares of Common Stock
offered but not purchased by the non-selling Shareholders at
the purchase price and on the terms specified in the notice.
Such acceptance shall be made by delivering a written notice
to the selling Shareholder within the 15-day period.
(iii) If the non-selling Shareholders and
the Corporation do not elect to purchase in the aggregate
all of the offered Common Stock, then the selling
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Shareholder may sell all or any part of the remaining Common
Stock so offered for sale at a price not less than the
price, and on terms not more favorable to the purchaser than
the terms, stated in the original written notice of
intention to sell, at any time within 120 days after the
expiration of the period in which the Corporation could
elect to purchase such Common Stock. In the event the
remaining Common Stock is not sold by the selling
Shareholder during such 120-day period, the right of the
selling Shareholder to sell such remaining Common Stock
shall expire and the obligations of this Section 3 shall be
reinstated.
(b) Any proposed sale of Common Stock by a
selling Shareholder shall be void unless (i) any purchaser of
Stock who is not a Shareholder shall agree in writing to be bound
by and comply with the provisions of this Agreement and (ii) the
Board of Directors has concluded in good faith that any purchaser
of Common Stock pursuant to this Section 3 is not a competitor of
the Corporation and that such purchaser's holding Common Stock
would not have a material adverse effect on the Corporation's
operations or business or its ability to sell its Common Stock in
a public offering.
4. Forced Sales. If the Board of Directors of the
Corporation and Shareholders holding a majority of the Common
Stock approve the sale of all of the outstanding shares of Common
Stock to an unaffiliated third party for cash or other
consideration, the Corporation shall give each Shareholder notice
of the proposed sale containing all of the material terms and
conditions of such sale. Each Shareholder shall sell all of such
Shareholder's shares of Common Stock pursuant to such sale at the
same price and on the same terms and conditions described in the
notice. The Board of Directors of the Corporation shall not
approve any offer to purchase the Common Stock unless such offer
entitles all of the Shareholders to receive the same form and
amount of consideration per share for all shares of Common Stock.
5. Right of Co-Sale. In the event any Shareholder
receives an offer from any person other than a person in such
Shareholder's group to purchase Common Stock owned by such
Shareholder, for a specified price payable in cash or otherwise
and on specified terms and conditions, such Shareholder shall
promptly forward a copy of the offer to the other Shareholders.
Such Shareholder shall not sell any Common Stock to the offeror
unless the terms of the offer are extended to the other
Shareholders on a pro rata basis.
6. Prohibition on Certain Sales. (a) Each of
Messrs. Xxxxxxxxx, Xxxxxx and Xxxxxx agree not to sell shares of
Common Stock if such sale would result in a default under the
Corporation's 9% and 13% Subordinated Notes issued in connection
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with the acquisition by the Corporation on the date of this
Agreement and any attempted sale in violation of this provision
shall be void. If any of such persons attempts to violate this
provision, the Corporation shall have the right to require the
person creating the default to purchase the defaulted notes at
their face value from the Corporation or the holders of such
notes.
(b) Each of the Shareholders agrees not to sell
shares of Common Stock if such sale would cause the Corporation
to become required to redeem the Corporation's 10% Preferred
Stock, Series A or Series B, prior to its scheduled redemption
date. If any Shareholder attempts to violate this provision, the
corporation shall have the right to require the person creating
the early mandatory redemption condition to purchase the 10%
Preferred Stock at its stated value from the Corporation or the
holders thereof and to waive any right to redemption prior to the
stated redemption date.
7. Pledge. Each Shareholder agrees to pledge such
Shareholder's shares of Stock pursuant to the pledge agreement,
of even date herewith, in favor of Meridian Bank, a Pennsylvania
banking corporation, or at the request of the Corporation, to any
other person to which all Shareholders pledge their shares in
connection with the refinancing of any senior indebtedness in the
form attached as Annex A to this Agreement.
8. Purchase Limitations. Each Shareholder agrees
that, without the unanimous consent of the Board of Directors of
the Corporation, such Shareholder, together with members of such
Shareholder's group, shall not purchase or otherwise acquire
shares of Common Stock in an amount that, together with the
shares of Common Stock owned by such Shareholder and such
Shareholder's group, would exceed 45% of the Common Stock
outstanding at the time of purchase. For the purpose of this
Section only, a Shareholder's group shall have the following
meaning:
(i) in the case of any Shareholder who is an
individual, (A) such Shareholder, (B) the spouse, immediate
family and lineal descendants of such Shareholder, (C) a
trust for the benefit of any of the foregoing and (D) any
corporation (other than the Corporation) or partnership
controlled by such Shareholder, members of such
Shareholder's immediate family and lineal descendants or
trusts for the benefit of any of the foregoing;
(ii) in the case of any Shareholder which is a
partnership, (A) such partnership and any of its limited or
general partners (and any retired partners and the estate of
any partner or retired partner), (B) any corporation or
other business organization to which such partnership shall
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sell all or substantially all of its assets or with which it
shall be merged and (C) any affiliate (as defined below) of
such partnership;
(iii) in the case of any Shareholder which is a
corporation, (A) such corporation, (B) any corporation
(other than the Corporation) or other business organization
to which such corporation shall sell all or substantially
all of its assets or with which it shall be merged and (C)
any affiliate of such corporation; and
(iv) in the case of any Shareholder which is a
trust, (A) such trust, (B) the settlor and beneficiaries of
such trust and (C) the spouse, immediate family and lineal
descendants of such settlor and any such beneficiary.
An "affiliate" of a person shall mean a person that directly, or
indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such first
person.
9. Confidentiality. Each Shareholder shall not
disclose any Confidential Information (as defined below) to
anyone, other than those of its employees, agents or consultants
(i) who needed to know the Confidential Information in order to
assist the Shareholder in evaluating whether to purchase Stock
and (ii) who agreed not to disclose the Confidential Information
to anyone and not to make use of the Confidential Information for
any purpose other than to assist the Shareholder in its
evaluation, except to the extent (x) such information has become
publicly available or the disclosure is required by law or
judicial decree or (y) in the case of Shareholders who are
directors, officers or employees of the Corporation, in the
discharge of their duties on behalf of the Corporation or as
approved by the Board of Directors of the Corporation. Each
Shareholder shall not make use of the Confidential Information
for any purpose other than to evaluate and monitor its holdings
of Stock. Each Shareholder and each of its employees, agents and
consultants, shall promptly return to the Corporation all copies
of all documents containing the Confidential Information upon the
earlier of (i) the Shareholder's ceasing to hold Stock or (ii)
the request of the Corporation that the Shareholder return the
Confidential Information. "Confidential Information" means, as
the following items relate to the Corporation and its businesses
or proposed businesses, trade secrets, research and development
activities, books and records, actual or projected financial
condition, nature and location of businesses, customer lists,
vendor lists, pricing information, private processes, agreements,
data, licenses, permits, approvals, offering memoranda, business
plans and any other confidential or proprietary technical or
business information.
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10. Registration Rights. (a) At any time during the
term of this Agreement if and whenever the Corporation proposes
to register any shares of its capital stock, or the capital stock
held by any Shareholder hereunder, under the Securities Act of
1933 for sale to the public (other than a registration statement
on Form S-4 or S-8, or any substitute form therefor, or filed in
connection with an exchange offer or offering of securities
solely to the Corporation's existing shareholders), the
Corporation shall give written notice to the Shareholders of its
intention to do so as soon as practicable, and in any event at
least 30 days prior to the anticipated filing date. Upon written
request of any Shareholder, given within 15 days after the
Corporation gives such notice, to register all or a portion of
its shares of Common Stock in such offering, the Corporation will
use all reasonable efforts to cause such shares of Common Stock
to be included in the proposed registration statement on the same
terms and conditions as any similar securities of the Corporation
included therein. The number of shares to be included in the
proposed offering may be reduced pro rata among all requesting
Shareholders and any other securityholders of the Corporation
included in such offering if and to the extent that the managing
underwriter of such offering is of the opinion that such
inclusion could reasonably be expected to adversely affect the
marketing of the shares to be sold by the Corporation. Any
Shareholder may exercise its option under this provision on five
occasions.
(b) In connection with any registration statement
described in clause (a) above, the Corporation shall pay the
following expenses incurred in connection with such registration:
(i) all registration and filing fees, (ii) fees and expenses of
compliance with securities or blue sky laws (including reasonable
fees and disbursements of counsel in connection with blue sky
qualifications of the securities to be included in such
registration statement), (iii) printing expenses, (iv) internal
expenses (including, without limitation, all salaries and related
expenses of the Corporation's officers and employees performing
legal and accounting duties), (v) fees and expenses incurred in
connection with the listing of any securities to be included in
such registration statement, (vi) reasonable fees and
disbursements of counsel for the Corporation and customary fees
and expenses for independent certified public accountants
retained by the Corporation and (vii) reasonable fees and
expenses of any special experts retained by the Corporation in
connection with such registration. The Corporation shall have no
obligation to pay any underwriting fees, discounts or commissions
attributable to the sale of any securities, or any out-of-pocket
expenses, of any of the Shareholders or their agents.
(c) No Shareholder may participate in any
underwritten registration described in clause (a) unless such
Shareholder (i) agrees to sell such Shareholder's Common Stock on
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the basis provided in any underwriting arrangements approved by
the Corporation and such other persons entitled to approve such
arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such
underwriting arrangements.
(d) Each Shareholder shall enter into any lock-up
or similar agreement (to the extent not inconsistent with
applicable law) restricting such party's ability to transfer any
shares of Stock not included in a registration statement of the
Corporation, or any similar security of the Corporation or any
securities convertible into or exchangeable for such securities
(including a sale pursuant to Rule 144 under the Securities Act
of 1933), for the periods prior to, during and after the
effective date of such registration statement as requested by the
managing underwriter or underwriters of such public offering;
provided, that, such periods shall not exceed 12 months in the
aggregate.
11. Put Rights. (a) On each of the 15th through 19th
anniversaries of the date of this Agreement, any Shareholder
owning Common Stock may, by 90 days' prior written notice to the
Corporation, require the Corporation to repurchase up to 5% of
the shares of Common Stock outstanding at such time for a price
per share equal to four times the Adjusted Income Per Share (on a
fully diluted basis). "Adjusted Income Per Share" shall mean the
operating income of the Corporation before cash compensation to
any person who is a Shareholder on August 30, 1991 for the twelve
months ending on the relevant anniversary date divided by the
number of shares of Common Stock outstanding at such date.
(b) On each of the 25th through 29th anniver-
saries of the date of this Agreement, any Shareholder may, by 90
days' prior written notice to the Corporation, require the
Corporation to repurchase up to 5% of the shares of Common Stock
outstanding at such time for a price per share determined by
mutual agreement among the Corporation and all Shareholders
electing to require the Corporation to repurchase their shares on
such date. If within 30 days prior to the relevant anniversary
date, no price has been determined, then each of the Corporation
and the electing Shareholders (as a group) will determine a price
per share and submit it to an investment banking firm of national
standing engaged jointly by the Corporation and the electing
Shareholders. The investment banking firm will be instructed to
choose the one of the two prices it believes most closely
reflects the fair price per share of the Common Stock.
(c) In the event a Shareholder notifies the
Corporation of its intention to exercise its right under clause
(a) or (b), the Corporation shall notify all Shareholders and all
such Shareholders notifying the Corporation within 30 days after
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receipt of notice from the Corporation may also require the
Corporation to repurchase a portion of such Shareholder's Common
Stock on a pro rata basis with all other Shareholders so electing
up to the 5% amount described in clauses (a) and (b) above.
12. Additional Shares of Stock. (a) In the event
additional shares of Stock are issued by the Corporation to a
Shareholder at any time during the term of this Agreement, either
directly or upon the exercise or exchange of securities of the
Corporation exercisable for or exchangeable into shares of Stock,
such additional shares of Stock shall, as a condition to such
issuance, become subject to the terms and provisions of this
Agreement.
(b) The Corporation shall not issue any shares of
capital stock (including shares of Stock) to any person unless
the person to whom such shares of capital stock (including shares
of Stock) are issued agrees in writing simultaneously therewith
to become a party hereto and to be bound by and to comply with
all applicable terms and provisions of this Agreement.
13. Legend on Stock Certificates. Each certificate
representing shares of Stock shall bear the following legend,
until such time as the shares represented thereby are no longer
subject to the provisions hereof:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY
STATE SECURITIES LAWS. THE SECURITIES REPRESENTED BY
THIS CERTIFICATE MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM
UNDER SAID ACT. ADDITIONALLY, THE SALE, TRANSFER,
ASSIGNMENT, PLEDGE, OR ENCUMBRANCE OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE AND THE RIGHTS OF THE
HOLDER OF SUCH SECURITIES IN RESPECT OF THE ELECTION OF
DIRECTORS ARE SUBJECT TO THE TERMS AND CONDITIONS OF A
SHAREHOLDERS' AGREEMENT, DATED AUGUST 30, 1991, AMONG
THE ISSUER AND THE OTHER SIGNATORIES THERETO, AND NO
TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IN CONTRAVENTION OF SUCH AGREEMENT SHALL BE
VALID OR EFFECTIVE. COPIES OF SUCH AGREEMENT MAY BE
OBTAINED BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE
ISSUER."
14. Securities Act Restrictions on Transfer. (a) The
Stock, and any shares of capital stock received in respect
thereof, whether by reason of a stock split or share reclas-
sification thereof, a stock dividend thereon or otherwise
(collectively, the "Restricted Securities"), shall not be
transferable except upon the conditions specified in this Section
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14, which conditions are intended to ensure compliance with the
provisions of the Securities Act of 1933 in respect of the
transfer of the Restricted Securities.
(b) The holder of any Restricted Securities, by
acceptance thereof agrees, prior to any transfer of any
Restricted Securities, to give written notice to the Corporation
of such holder's intention to effect such transfer and to comply
in all other respects with the provisions of this Section 14(b).
Each such notice shall describe the manner and circumstances of
the proposed transfer and shall be accompanied by the written
opinion, addressed to the Corporation, of counsel for the holder
of such Restricted Securities, as to whether in the opinion of
such counsel (which written opinion and counsel shall be
reasonably satisfactory to counsel to the Corporation) such
proposed transfer involves a transaction requiring registration
of such Restricted Securities under the Securities Act of 1933.
Except as otherwise provided in this Agreement, if in the opinion
of such counsel the proposed transfer of Restricted Securities
may be effected without registration under the Securities Act of
1933, the holder of Restricted Securities shall thereupon be
entitled to transfer Restricted Securities in accordance with the
terms of the notice delivered by it to the Corporation. Each
certificate or other instrument evidencing the securities issued
upon the transfer of any Restricted Securities (and each
certificate or other instrument evidencing any untransferred
balance of such securities) shall bear the legend set forth in
Section 14 unless in the opinion of such counsel registration of
future transfer is not required by the applicable provisions of
the Securities Act. For the purposes of this Section 14, the
term "transfer" shall include any assignment, pledge, sale or
other disposition of securities which would constitute a sale
under the Securities Act of 1933.
15. Term and Termination. This Agreement shall
terminate (a) with respect to all of the Shareholders, on the
earlier of (i) the thirtieth anniversary hereof, except that the
voting provisions shall terminate on the tenth anniversary
hereof, in each case unless otherwise extended in accordance with
applicable law, (ii) the sale of all or substantially all of the
assets of the Corporation and the distribution of the net
proceeds thereof to its shareholders, (iii) the sale at any time
by the Corporation or the Shareholders of 20% or more of the then
outstanding Stock of the Corporation pursuant to a firm
underwritten public offering registered under the Securities Act
of 1933 or (iv) the merger of the Corporation with another entity
in which the Corporation is not the surviving entity or the
Shareholders do not own at least a majority of the common stock
of the surviving entity and (b) with respect to any Shareholder,
at the time such party ceases to own beneficially or of record
any Stock (other than by reason of a breach of this Agreement).
Upon termination pursuant to clause (a) hereof, no party hereto
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shall have any right or obligation hereunder in respect of any
other party hereto, except for breaches prior to such
termination. Upon termination pursuant to clause (b) hereof, no
party who shall remain as a Shareholder shall have any obligation
to a party who ceases to hold any Stock with respect to the
subject matter of this Agreement or the transactions contemplated
hereby. Notwithstanding the foregoing, in the event this
Agreement is terminated because of the event described in clause
(a)(iii), the provisions of Sections 9 and 10 shall survive the
termination of this Agreement for a period of ten years.
16. Miscellaneous.
(a) Severability. If any provision of this
Agreement shall be determined to be illegal and unenforceable by
any court of law, the remaining provisions shall be severable and
enforceable in accordance with their terms.
(b) Headings. Descriptive headings are for
convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement.
(c) Notices. All notices or other communications
which are required or permitted hereunder shall be in writing and
sufficient if delivered personally or sent by registered or
certified mail, postage prepaid, return receipt requested,
addressed to a Shareholder, to such Shareholder's address set
forth on Schedule 1 hereto; and if to the Corporation, to the
Corporation at Xxxxx 000 xxx Xxx-Xxxxxxx Xxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxx 00000, Attention: President, or to such other
address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith.
If mailed as aforesaid, any such communication shall be deemed to
have been given on the third business day following that on which
the piece of mail containing such communication is posted.
(d) Counterparts. This Agreement may be executed
in any number of counterparts, and each such counterpart hereof
shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
(e) Assignment. This Agreement shall not be
assignable by either party without the consent of the other
party.
(f) Modification. Except as otherwise provided
herein, neither this Agreement nor any provision hereof may be
modified, changed, discharged or terminated except by an
instrument in writing signed by Shareholders holding 90% or more
of the outstanding Common Stock; provided, that no modification
or amendment shall discriminate against any holder or holders.
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(g) Additional Actions. Each Shareholder agrees
that the Corporation's Board of Directors and officers may take
any additional corporate action necessary to make effective the
provisions hereof, including (without limitation) filing any
amendments to the Corporation's charter and other constitutive
documents, and hereby appoints the Corporation's Secretary its
attorney-in-fact for the execution of all such documents,
consents and approvals and (ii) that it will vote its shares to
approve any such action.
(h) Remedies. In the event of a breach or
threatened breach by a Shareholder of the provisions of Sections
1, 2, 3, 4, 6, 8 or 9, the Corporation or any holders of a
majority of the outstanding Stock shall be entitled to an
injunction restraining such Shareholder from such breach or
compelling compliance with such provision. Nothing contained
herein shall be construed as prohibiting the Corporation or any
Shareholder from pursuing any other remedies available at law or
equity for such breach or threatened breach of this Agreement.
(i) CHOICE OF LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK EXCEPT TO THE EXTENT CORPORATE MATTERS ARE
REQUIRED TO BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the date first above written.
PHYSICIAN SUPPORT SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Xxxxx X. Xxxxxx
President
SHAREHOLDERS:
/s/ Xxxxx X. Xxxxxx
--------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxxxx X. Xxxxxx III
--------------------------
Xxxxxxxx X. Xxxxxx III
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HILLSIDE INDUSTRIES INCORPORATED
By: /s/ Xxxx X. Xxxxx III
--------------------------------
Title: Managing Director
/s/ Xxxx X. Xxxxx III
--------------------------------
Xxxx X. Xxxxx III
/s/ Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx
TRUST, DATED JANUARY 30, 1987, FOR
THE BENEFIT OF ONE OR MORE OF THE
CHILDREN OF XXXX X. XXXXX III
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx, Co-Trustee
UNITED STATES TRUST COMPANY OF
NEW YORK, Co-Trustee
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Title: Vice President
/s/ Xxxxxxxx X. Xxxxxx, Xx.
--------------------------------
Xxxxxxxx X. Xxxxxx, Xx.
/s/ Xxxxxxxx Xxxxxxxxx III
--------------------------------
Xxxxxxxx Xxxxxxxxx III
/s/ Xxxxxx Xxxxxxxxx XX
--------------------------------
Xxxxxx Xxxxxxxxx XX
/s/ Xxxx Xxxxxx
--------------------------------
Xxxx Xxxxxx
/s/ Xxxxxxx Xxxxxx
--------------------------------
Xxxxxxx Xxxxxx
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