AMENDED AND RESTATED RESTRICTED
STOCK AGREEMENT dated as of September 9,
1997, among BONE, MUSCLE AND JOINT, INC.,
a Delaware corporation (the "Company"),
LEHIGH VALLEY BONE, MUSCLE AND JOINT GROUP,
L.L.C., a Pennsylvania limited liability
company (the "Medical Group") and the
individuals identified on the signature
page hereto (each, a "Stockholder" and
collectively, the "Stockholders").
In connection with the original affiliation transaction
between the Company and the Medical Group, the Company, the Medical Group and
the Stockholders entered into a restricted stock agreement dated as of July 1,
1996 (the "Original Restricted Stock Agreement"), pursuant to which the Company
issued to the Stockholders shares (the "Original Shares") of the common stock,
$.001 par value (the "Common Stock"), of the Company, which shares are subject
to the terms and conditions set forth in such agreement. The parties hereto
desire to amend the terms of the Original Restricted Stock Agreement as it
pertains to the repurchase and transferability of the Original Shares, and
further deem it appropriate to restate the Original Restricted Stock Agreement,
as so amended, in its entirety.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto hereby agree that the Original Restricted Stock
Agreement be amended and restated, to read in its entirety as follows:
"RESTRICTED STOCK AGREEMENT
AGREEMENT made as of this 1st day of July, 1996, between
BONE, MUSCLE AND JOINT, INC., a Delaware corporation (the "Company"), LEHIGH
VALLEY BONE, MUSCLE AND JOINT GROUP, L.L.C., a Pennsylvania limited liability
company (the "Medical Group"), and the individuals identified on the signature
page hereto (each, a "Stockholder" and collectively, the "Stockholders".
This Agreement is the Restricted Stock Agreement referred to
in Schedule IV of the Management Services Agreement dated as of the date hereof
(the "Management Services Agreement"), among the Company, the Medical Group and
the Stockholder.
In consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Purchase and Sale of Restricted Shares; Representations
and Warranties of Stockholder.
(a) Upon execution of this Agreement, the Company shall,
pursuant to Schedule IV of the Management Services Agreement, issue to each
Stockholder that number of shares (such shares are referred to herein as the
"Restricted Shares") of common stock, $.001 par value (the "Common Stock"),
of the Company set forth opposite such Stockholder's name on Schedule A
attached hereto. The aggregate shares of Common Stock issued to the
Stockholders are referred to collectively herein as "Restricted Stock."
Simultaneously with the execution and delivery hereof, the Company is
delivering to each Stockholder the certificate(s) representing the Restricted
Shares.
(b) In connection with the issuance of the Restricted
Shares hereunder, each Stockholder represents and warrants to the Company that:
(i) the Restricted Shares to be issued to such
Stockholder pursuant to this Agreement shall be acquired for such
Stockholder's own account, for investment only and not with a view to, or
intention of, distribution thereof in violation of the 1933 Act, or any
applicable state securities laws, and the Restricted Shares will not be
disposed of in contravention of the 1933 Act or any applicable state
securities laws;
(ii) such Stockholder has generally such knowledge
and experience in business and financial matters and with respect to
investments in securities of privately held companies so as to enable such
Stockholder to understand and evaluate the risks and benefits of his or
her investment in the Restricted Shares;
(iii) such Stockholder has no need for liquidity in
his or her investment in the Restricted Shares and is able to bear the
economic risk of his or her investment in the Restricted Shares for an
indefinite period of time and understands that the Restricted Shares have
not been registered or qualified under the 1933 Act or any applicable
state securities laws, by reason of the issuance of the Restricted Shares
in a transaction exempt from the registration and qualification
requirements of the 1933 Act or such state securities laws and, therefore,
cannot be sold unless subsequently registered or qualified under the 1933
Act or such state securities laws or an exemption from such registration
or qualification is available;
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(iv) such Stockholder understands that the exemption
from registration afforded by Rule 144 (the provisions of which are known
to such Stockholder) promulgated under the 1933 Act, depends on
satisfaction of various conditions and that, if applicable, Rule 144 may
only afford the basis for sales under certain circumstances and only in
limited amounts;
(v) such Stockholder is an individual (A) whose
individual net worth, or joint net worth with his or her spouse, presently
exceeds $1,000,000 or (B) who had an income in excess of $200,000 in each
of the two most recent years, or joint income with his or her spouse in
excess of $300,000 in each of those years (in each case including foreign
income, tax exempt income and the full amount of capital gains and losses
but excluding any income of other family members and any unrealized
capital appreciation) and has a reasonable expectation of reaching the
same income level in the current year; or such Stockholder otherwise
meets the requirements to be considered an accredited investor, as
defined under the 1933 Act; and
(vi) such Stockholder has had an opportunity to ask
questions and receive answers concerning the terms and conditions of the
offering of the Restricted Shares and has had full access to or been
provided with such other information concerning the Company as he or she
has requested.
(c) This Agreement constitutes the legal, valid and binding
obligation of each Stockholder, enforceable in accordance with its terms, and
the execution, delivery and performance of this Agreement by each such
Stockholder does not and will not conflict with, violate or cause a breach of
any agreement, contract or instrument to which such Stockholder is a party or
any judgment, order or decree to which such Stockholder is subject.
(d) As an inducement to the Company to issue the Restricted
Shares to each Stockholder and as a condition thereto, each Stockholder
acknowledges and agrees that:
(i) neither the issuance of the Restricted Shares to
such Stockholder nor any provision contained herein shall affect the right
of the Company to terminate the Management Services Agreement in
accordance with its terms; and
(ii) the Company shall only be obligated to provide
to such Stockholder substantially the same information regarding the
Company that the Company regularly discloses to its other shareholders.
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2. Vesting of the Restricted Shares.
(a) Except as otherwise provided in Section 2(b) below,
the Restricted Shares held by each Stockholder shall become vested in
accordance with the following schedule, if, as of each such date, (i) the
Management Services Agreement has not been terminated, (ii) there has not
been a Cessation of Active Practice by such Stockholder (as defined in Section
2(c) below), (iii) such Stockholder has not become permanently disabled (as
described in Section 3(a)(iii) below), and (iv) such Stockholder has not died:
Anniversary Date Percentage of
of this Agreement Restricted Shares Vested
----------------- ------------------------
First 25%
Second 25%
Third 25%
Fourth 25%
For purposes of this Agreement, "Anniversary Date of this Agreement" means July
1 of each year after 1996. Restricted Shares which have become vested are
referred to herein as "Vested Shares" and all other Restricted Shares are
referred to herein as "Unvested Shares."
(b) Notwithstanding the foregoing, in the event of the
death of such Stockholder, in addition to any shares that have vested in
accordance with Section 2(a) above, the number of Unvested Shares, if any, that
would have become Vested Shares during the 12-month period immediately
following the date of death had such death not occurred shall be deemed Vested
Shares as of the date of death.
(c) For purposes of this Agreement, "Cessation of Active
Practice" means a physician Stockholder's resignation from or termination of
employment with the Medical Group (other than by reason of death or permanent
disability).
3. Forfeiture and Repurchase of Restricted Shares.
(a) Forfeiture. In the event of the Cessation of Active
Practice by or the death or permanent disability of the Stockholder (the
"Forfeiture Event"), the following provisions shall apply.
(i) Such Stockholder or the estate (in the case of
death) of such Stockholder shall transfer to the Medical Group, all of the
Unvested Shares held by such Stockholder. Such Unvested Shares shall be
transferred for no consideration and the stock certificate(s) representing
those shares shall be delivered to the Company, no later
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than thirty (30) days after the Forfeiture Event, duly endorsed for
transfer in accordance with this Section 3(a). The Company shall, within
thirty (30) days after its receipt of a joinder to this Agreement executed
by the Medical Group, issue and deliver to the Medical Group a certificate
representing the Unvested Shares. The Unvested Shares distributed
according to this Section 3(a) shall remain subject to the terms of this
Agreement, including, without limitation, the vesting schedule set forth
in Section 2(a) above.
(ii) The Medical Group shall not Sell (as hereinafter
defined) any Unvested Shares to any Person, other than to one or more
physician employees or equity owners of the Medical Group, who prior to
the receipt of such shares from the Medical Group had not acquired any
shares of the Company's Common Stock through the affiliation transaction
between the Company and the Medical Group. As a condition to any such
Sale, the transferee shall execute and deliver to the Company a Restricted
Stock Agreement in substantially the form of this Agreement, effective as
of the date of transfer of such shares. Any Unvested Shares distributed
according to this Section 3(a) shall be subject to the vesting schedule
set forth in Section 2(a) hereof.
(iii) For purposes of this Agreement, if such
Stockholder is insured under a disability insurance policy, the
determination under such policy as to whether such Stockholder's
condition constitutes a permanent disability shall be binding on the
parties hereto. If such Stockholder is not insured under a policy of
disability insurance, such determination shall be made by an independent
qualified physician proposed by the Medical Group, subject to the
approval of the Company, which approval shall not be unreasonably withheld.
(b) Repurchase. In the event that the Management Services
Agreement is terminated for any reason prior to the fourth anniversary of the
Commencement Date (as defined therein) (the "Repurchase Event"), the Company
shall have the right (but not the obligation) (the "Repurchase Option"), to be
exercised in its sole discretion, to repurchase all or any portion of the
Restricted Shares (whether vested or unvested and whether held by the
Stockholders or one or more of any Stockholder's Permitted Transferees)
pursuant to the terms and conditions set forth in this Section 3(b).
(i) The Company may elect to exercise the Repurchase
Option and repurchase all or any portion of the Restricted Shares by
delivering written notice (the "Repurchase Notice") to each Stockholder
within ninety (90) days after the Repurchase Event; provided, however,
that, if the Company elects to repurchase less than all of the
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Restricted Shares, the Company shall first repurchase Unvested Shares and
then repurchase that number of Vested Shares, if any, as the Company may,
in its sole discretion, elect. The Repurchase Notice shall set forth the
number of Unvested Shares and Vested Shares to be repurchased, the
aggregate consideration to be paid for such shares, and the time and place
for the closing of the transaction. The purchase price payable for each
Unvested Share shall equal the Original Value of such Share and the
purchase price payable for each Vested Share shall equal the Fair Market
Value of such share. If the Company decides to repurchase Restricted
Shares from any Stockholder pursuant to this Section 3(b), then the
Company must purchase that number of Restricted Shares which it has
elected to repurchase from all of theStockholders pro rata according to
the number of shares of Restricted Stock held by all of the Stockholders
at the time of delivery of such Repurchase Notice (determined as nearly as
practicable to the nearest whole share).
(ii) The closing of the repurchase of Restricted
Shares pursuant to the Repurchase Option shall take place on the date
designated by the Company in the Repurchase Notice, which date shall not
be more than sixty (60) days nor less than five (5) days after the
delivery of the Repurchase Notice. The Company shall pay for Restricted
Shares to be purchased pursuant to the Repurchase Option by delivery of
(A) a check or wire transfer of funds, (B) subordinated note or notes
payable in up to five equal annual installments beginning on the first
anniversary of the closing of such purchase and bearing interest (payable
quarterly) at a rate per annum equal to the greater of either the prime
rate announced from time to time by The Chase Manhattan Bank (National
Association) plus 1/2% or the "applicable Federal rate" (as defined in
Section 1274(d) of the Internal Revenue Code) in effect from time to time,
or (C) a combination of both (A) and (B), in the aggregate amount of the
repurchase price for such shares. Any notes issued by the Company pursuant
to this paragraph 3(b)(ii) shall be subject to the restrictive covenants,
if any, to which the Company is subject at the time of such repurchase.
The Company shall be entitled to require the signature of such Stockholder
to be guaranteed and to receive representations and warranties from such
Stockholder regarding (x) such Stockholder's power, authority and legal
capacity to enter into such sale and to transfer valid right, title and
interest in such Restricted Shares, (y) such Stockholder's ownership of
such Restricted Shares and the absence of any liens, pledges, and other
encumbrances on such Restricted Shares and (z) the absence of any
violation, default, or acceleration of any agreement or instrument
pursuant to which such Stockholder or such Stockholder's assets are
bound resulting from such sale.
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(iii) Notwithstanding anything to the contrary
contained in this Agreement, all repurchases of Restricted Shares by the
Company under this Section 3(b) shall be subject to applicable
restrictions, if any, contained in its certificate of incorporation, any
financing agreement to which the Company is a party, Federal law or the
Delaware General Corporation Law. If any such restrictions prohibit or
otherwise delay the repurchase of Restricted Shares hereunder which the
Company is otherwise entitled or required to make, the Company may make
such repurchases as soon as it is permitted to do so.
(iv) In the event that any Restricted Shares are
repurchased pursuant to this Section 3(b), such Stockholder and his or her
successors and assigns shall, at the Company's expense, take all
reasonable steps to obtain all required third-party, governmental and
regulatory consents and approvals and take all other reasonable actions
necessary to facilitate consummation of such repurchase in a timely manner.
4. Transfer Restriction; Legend.
Except as otherwise expressly provided in Section 3 and
except for Permitted Transfers, no Stockholder may sell or transfer or agree to
sell or transfer ("Sale" or "Sell") any Restricted Shares unless such Sale
shall be in accordance with the procedures set forth in this Section 4;
provided, however, that with respect to this Section 4, Restricted Shares, at
any point in time, shall be limited to Vested Shares and at no time shall any
Stockholder have the right to Sell Unvested Shares (other than pursuant to
Section 3 above):
(a) In the event that a Stockholder receives a bona fide
offer from a third party (the "Prospective Stockholder") to purchase all or any
part of the Restricted Shares owned by such Stockholder, such Stockholder
shall deliver to the Company a written notice (the "Offer Notice"), which shall
be irrevocable for a period of fifteen (15) business days after delivery
thereof (the "Offer Period"), offering (the "Offer") all of the Restricted
Shares proposed to be Sold by such Stockholder to the Prospective Stockholder
at the purchase price and on the terms of the proposed Sale to the Prospective
Stockholder (such Offer Notice shall include the foregoing information, a copy
of the Prospective Stockholder's bona fide offer and all other relevant terms
of the proposed Sale, including the identification of the Prospective
Stockholder). The Company shall have the right and option, for a period of
fifteen (15) business days after delivery of the Offer Notice, to repurchase
all or any part of the Restricted Shares so offered at the purchase price and
on the terms stated in the Offer Notice. Such acceptance shall be
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made by delivering a written notice to such Stockholder within said fifteen
(15) business-day period.
(b) Sales of Restricted Shares under the terms of Section
4(a) above shall be made on a mutually satisfactory business day within
fifteen (15) business days after the expiration of the Offer Period. Delivery
of certificates or other instruments evidencing such Restricted Shares duly
endorsed for transfer shall be made on such date against payment of the
purchase price therefor.
(c) If the Company fails to purchase all of the Restricted
Shares offered for Sale pursuant to the Offer Notice, then at any time within
sixty (60) business days after the expiration of the Offer Period such
Stockholder may Sell all or any part of the remaining Restricted Shares so
offered for Sale on terms no more favorable to the Prospective Stockholder
than the terms stated in the Offer Notice; provided, however, that such
Stockholder shall not, under any circumstances, Sell any Restricted Shares to
the Prospective Stockholder if the Board of Directors of the Company, in its
sole discretion, determines in good faith that the Prospective Stockholder is
a competitor, or an Affiliate of a competitor, of the Company or that such
Prospective Stockholder's ownership of such Restricted Shares would be contrary
to the best interests of the Company. In the event that all of such Restricted
Shares are not Sold by such Stockholder to the Prospective Stockholder during
such period, the right of such Stockholder to Sell such Restricted Shares to
the Prospective Stockholder shall expire and the obligations of such
Stockholder pursuant to this Section 4 shall be reinstated.
(d) Any Permitted Transferee (other than the Company)
shall, as a condition to such transfer, (i) agree to be bound by all of the
provisions of this Agreement applicable to such Stockholder and shall evidence
such agreement by executing and delivering to the Company a joinder to this
Agreement in form and substance satisfactory to the Company, and (ii) if such
transferee is a partner in or an equity owner or employee of the Medical Group,
execute a noncompetition agreement in form and substance satisfactory to the
Company (if such transferee is not, as of the date of such transfer, a party
to such an agreement with the Company).
(e) The certificate(s) representing the Restricted Shares
will bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES OR "BLUE-SKY" LAWS. THESE SECURITIES MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SAID ACT OR LAWS.
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ADDITIONALLY, THE SECURITIES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO CERTAIN REPURCHASE OPTIONS, TRANSFER
RESTRICTIONS AND CERTAIN OTHER AGREEMENTS SET FORTH IN A
RESTRICTED STOCK AGREEMENT DATED AS OF JULY 1, 1996, AMONG THE
STOCKHOLDER, LEHIGH VALLEY BONE, MUSCLE AND JOINT GROUP,
L.L.C. AND BONE, MUSCLE AND JOINT, INC. A COPY OF SUCH
AGREEMENT MAY BE OBTAINED BY THE HOLDER HEREOF AT THE
COMPANY'S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE."
(f) The restrictions on transfers of Vested Shares set
forth in this Section 4 shall expire, and shall be of no further force or
effect, upon the consummation of the initial public offering of the Company's
Common Stock pursuant to the 0000 Xxx.
5. Definitions.
(a) "Affiliate" means, with respect to any Person, (a) any
director, officer, 10% stockholder or partner of such Person and (b) any other
Person that, directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with, such Person.
The term "control" includes, without limitation, the possession, directly or
indirectly, of the power to direct the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
(b) "Fair Market Value" of each share of Restricted Stock
means the average of the closing prices of the sales of the Common Stock on all
securities exchanges on which the Common Stock may at the time be listed, or,
if there have been no sales on any such exchange on any given day, the average
of the last bid and asked prices on all such exchanges at the end of such day,
or, if on any given day the Common Stock is not so listed, the average of the
representative bid and asked prices quoted in the Nasdaq Stock Market National
Market System ("Nasdaq") as of 4:00 P.M., New York time, or, if on any given
day the Common Stock is not quoted in Nasdaq, the average of the bid and asked
prices on such day in the domestic over-the-counter market as reported by the
National Quotation Bureau Incorporated, or any similar successor organization,
in each such case averaged over a period of 21 days consisting of the day as of
which the Fair Market Value is being determined and the 20 consecutive trading
days prior to such day. If at any time the Common Stock is not listed on any
securities exchange or quoted in Nasdaq or the over-the-counter market, the
Fair Market Value shall be that value jointly determined by the Stockholder and
the Company, provided that if they cannot so agree, such value shall be
determined by a mutually acceptable investment banking or other qualified firm
of national or regional reputation, retained jointly by the Company and the
Medical Group, and all fees,
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expenses and other charges of such firm incurred in connection with such
determination of Fair Market Value shall be borne and shared equally by the
Company and the Medical Group. In the event that the parties are unable to agree
upon such an investment banking or other qualified firm within ten (10) days
after the date on which either party may initially propose such a firm, a
qualified firm shall be selected in the following manner:
First, the Stockholder shall send a list of four such
firms, arranged in order of the Stockholder's preference, by written
notice to the Company within seven (7) days after the expiration of
the above referenced 10-day period. If the Stockholder does not
furnish such list to the Company within the required time period,
the Company may, within seven (7) days following expiration of the
initial seven-day period, submit a list of four such firms to the
Stockholder.
Second, the Company (or the Stockholder, as
applicable) shall select, within seven (7) days after receipt of the
above-referenced list, one of the firms identified on such list and
shall give written notice thereof to the other party. If the recipient
of such list does not make any such selection, the firm identified as
the first choice on such list shall be deemed acceptable and agreeable
to each of the parties.
(c) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as the same may be amended or supplemented from time to time, or any
successor statute, and the rules and regulations thereunder, as the same are
from time to time in effect.
(d) "Original Value" of each share of Restricted Stock
purchased hereunder will be equal to $0.05 (as proportionately adjusted for
all subsequent stock splits, stock dividends and other recapitalizations).
(e) "Person" shall be construed broadly and shall include,
without limitation, an individual, a partnership, an investment fund, a limited
liability corporation or partnership, a corporation, an association, a joint
stock company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision thereof.
(f) "Permitted Transferee" means, as to the Stockholder,
any transferee who acquires the Restricted Shares pursuant to a Permitted
Transfer or any other transfer made in accordance with the provisions of this
Agreement.
(g) "Permitted Transfer" means, as to any Stockholder, any
sale or transfer of Vested Shares to (A) the
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spouse or lineal descendants of such Stockholder or (B) a trust for the benefit
of any of the foregoing.
(h) "Public Sale" means any sale of Restricted Stock to the
public pursuant to an offering registered under the 1933 Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule 144
adopted under the 1933 Act.
(i) "Restricted Shares" has the meaning set forth in
Section 1(a). The Restricted Shares will continue to be Restricted Shares
in the hands of any holder (other than the Company and any transferees in
a Public Sale), and except as otherwise provided herein, each such other
holder of the Restricted Shares will succeed to all rights and obligations
attributable to a Stockholder as the holder of the Restricted Shares
hereunder. The Restricted Shares will also include shares of the Company's
capital stock issued with respect to the Restricted Stock by way of a
stock split, stock dividend or other recapitalization.
(j) "1933 Act" means the Securities Act of 1933, as the
same may be amended or supplemented from time to time, or any successor
statute, and the rules and regulations thereunder, as the same are from
time to time in effect.
6. Indemnification.
(a) The Company shall indemnify, defend and hold harmless
each Stockholder against all liability, loss or damage sustained by such
Stockholder, together with all reasonable costs and expenses related thereto
(including reasonable legal fees and expenses), relating to or arising from
the untruth, inaccuracy or breach of any of the representations, warranties or
agreements of the Company contained in this Agreement.
(b) Each Stockholder shall indemnify and hold harmless the
Company against all liability, loss or damage, together with all reasonable
costs and expenses related thereto (including reasonable legal fees and
expenses), relating to or arising from the untruth, inaccuracy or breach of any
of the representations, warranties or agreements of such Stockholder contained
in this Agreement.
7. General Provisions.
(a) Transfers in Violation of Agreement. Any sale,
transfer, assignment or other disposition (whether with or without
consideration and whether voluntarily or involuntarily or by operation of law)
(each, a "Transfer") or attempted Transfer of any Restricted Shares in
violation of any provision of this Agreement shall be void, and the Company
shall not record such Transfer on its books or treat any purported
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transferee of such Restricted Shares as the owner of such stock for any
purpose.
(b) Severability. It is the desire and intent of the
parties hereto that the provisions of this Agreement be enforced to the
fullest extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, if any particular
provision of this Agreement shall be adjudicated by a court of competent
jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating
the remaining provisions of this Agreement or affecting the validity or
enforceability of this Agreement or affecting the validity or enforceability
of such provision in any other jurisdiction. Notwithstanding the foregoing, if
such provision could be more narrowly drawn so as not to be invalid, prohibited
or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be
so narrowly drawn, without invalidating the remaining provisions of this
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction.
(c) Entire Agreement. This Agreement, those documents
expressly referred to herein and other documents of even date herewith embody
the complete agreement and understanding among the parties hereto with respect
to the subject matter hereof and supersede and preempt any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
(d) Relationship Among Stockholders. No Stockholder shall
have any responsibility for any breach of this Agreement by any other
Stockholder or for any representations, warranties, acts or omissions of any
other Stockholder. Each Stockholder is entering into this Agreement for and on
behalf of such Stockholder only, and no partnership, joint venture,
unincorporated association or any other legal entity is intended to be formed
by or among the Stockholders as a result of or in connection with this
Agreement. The parties have chosen to execute a single instrument for
convenience only, and this Agreement shall be construed as separate and
several agreements among the Medical Group, the Company and each of the
respective Stockholders for all purposes. This Agreement may be executed in
separate counterparts.
(e) Counterparts. This Agreement may be executed in
separate counterparts, each of which is deemed to be an original and all of
which taken together constitute one and the same agreement.
(f) Successors and Assigns. Except as otherwise provided
herein, this Agreement shall bind and inure to the
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benefit of and be enforceable by each Stockholder, the Company and their
respective successors, permitted assigns, heirs, representatives and estate, as
the case may be (including subsequent holders of Restricted Stock); provided,
however, that the rights and obligations of any Stockholder under this
Agreement shall not be assignable except in connection with a Permitted
Transfer of Restricted Shares hereunder.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Pennsylvania, without
giving effect to any choice of law or conflicting provision or rule (whether
of the State of Pennsylvania or any other jurisdiction), that would cause the
laws of any jurisdiction other than the State of Pennsylvania to be applied.
In furtherance of the foregoing, the internal law of the State of Pennsylvania
will control the interpretation and construction of this agreement, even if
under such jurisdiction's choice of law or conflict of law analysis, the
substantive law of some other jurisdiction would ordinarily apply.
(h) Jurisdiction, Etc.
(i) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself or himself and its or his property,
to the jurisdiction of any Pennsylvania Commonwealth court or Federal
court of the United States of America sitting in the Commonwealth of
Pennsylvania, and any appellate court thereof, in any action or proceeding
arising out of or relating to this Agreement or for recognition or
enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such
Pennsylvania Commonwealth court or, to the extent permitted by law, in
such Federal court.
(ii) Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right
that any party may otherwise have to bring any action or proceeding
relating to this Agreement in the courts of any other jurisdiction. Each
of the parties hereto irrevocably and unconditionally waives, to the
fullest extent it or he may legally and effectively do so, any objection
that it or he may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any
Pennsylvania Commonwealth or Federal court. Each of the parties hereto
irrevocably waives, to the fullest extent permitted by law, the defense of
an
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inconvenient forum to the maintenance of such action or proceeding in any
such court.
(i) Remedies. Each of the parties to this Agreement shall
be entitled to enforce its rights under this Agreement specifically to recover
damages and costs (including reasonable attorneys' fees) for any breach of any
provision of this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that money damages may not be
an adequate remedy for any breach of the provisions of this Agreement and that
any party may, in its sole discretion, apply to any court of law or equity of
competent jurisdiction for specific performance and/or other injunctive relief
(without posting any bond or deposit) in order to enforce or prevent any
violations of the provisions of this Agreement.
(j) Amendment and Waiver. The provisions of this Agreement
may be amended and waived only with the prior written consent of the Company
and the Stockholders and no course of conduct or failure or delay in enforcing
the provisions of this Agreement shall be construed as a waiver of such
provisions or affect the validity, binding effect or enforceability of this
Agreement or any provision hereof; provided, however, that the Company may,
without any Stockholder's consent, amend Schedule A hereto upon consummation
of a Permitted Transfer of Restricted Shares hereunder by any Stockholder to
reflect the then current ownership of the Restricted Stock.
(k) Notices. Any notice provided for in this Agreement
must be in writing and must be either personally delivered, transmitted via
telecopier, mailed by first class mail (postage prepaid and return receipt
requested) or sent by nationally-recognized overnight courier service (charges
prepaid) to the recipient at the address below indicated or at such other
address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party. Notices will be deemed
to have been given hereunder and received when delivered personally, when
received if transmitted via telecopier, three business days after deposit in
the U.S. mail and one business day after deposit with a nationally-recognized
overnight courier service.
(i) If to the Company, to:
Bone, Muscle and Joint, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx, M.D., President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000;
14
with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Held, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000; and
(ii) If to any Stockholder, to his or her address set
forth on the signature page hereto beneath his or her name;
with a copy to:
Lehigh Valley Bone, Muscle and Joint Group, L.L.C.
0000 Xxxxxxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, M.D.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000; and
Xxxxxxxx Xxxxxxxxx & Funt, P.C.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000.
(l) Business Days. If any time period for giving notice or
taking action hereunder expires on a day which is a Saturday, Sunday or
holiday in the State of Pennsylvania, the time period for giving notice or
taking action shall be automatically extended to the business day immediately
following such Saturday, Sunday or holiday.
(m) Attorneys' Fees. In the event of any dispute or
controversy arising out of or relating to this Agreement, the prevailing party
shall be entitled to recover from the other party all costs and expenses,
including attorneys' fees and accountants' fees, incurred in connection with
such dispute or controversy.
(n) Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
(o) Construction. Where specific language is used to
clarify by example a general statement contained herein, such specific language
shall not be deemed to modify, limit or restrict in any manner the construction
of the general statement to which it relates. The language used in this
Agreement shall be deemed to be the language chosen by the parties to express
15
their mutual intent, and no rule of strict construction shall be applied
against any party.
(p) Nouns and Pronouns. Whenever the context may require,
any pronouns used herein shall include the corresponding masculine, feminine
or neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice-versa."
* * * *
IN WITNESS WHEREOF, the parties hereto have executed this
Amended and Restated Restricted Stock Agreement as of the date first written
above.
COMPANY
BONE, MUSCLE AND JOINT, INC.
By:__________________________
Name:
Title:
MEDICAL GROUP
LEHIGH VALLEY BONE, MUSCLE AND JOINT GROUP,
L.L.C.
By:__________________________
Name:
Title:
STOCKHOLDERS
-----------------------------
Signature
-----------------------------
Printed Name
Address for notices:
-----------------------------
-----------------------------
SCHEDULE A
Stockholders
Number of
Name Restricted Shares
---- -----------------
Xxxxxx X. Xxxxx, M.D. [ ]
Xxxxxx Xxxxxxx, M.D. [ ]
Xxxxxx X. Xxxxxxxxx, M.D. [ ]
Xxxx X. Xxxxxxxx, M.D. [ ]
Xxxxx X. Xxxxxxx, M.D. [ ]
