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EXHIBIT 2
CONFORMED COPY
STOCKHOLDERS AGREEMENT
This AGREEMENT made as of the 26th day of February, 2001 is by and among
those entities identified on the signature page hereto as the Former Senior
Noteholders (collectively with any of their Affiliate Transferees, the "Former
Senior Noteholders" and singularly a "Former Senior Noteholder") and Xxxxxxxxxxx
Xxxxx and Xxxxxxxx Xxxxxx (collectively with any of their Affiliate Transferees,
"Executive Management") and Medical Resources, Inc., a Delaware corporation (the
"Corporation") and DVI Financial Services, Inc., a Delaware corporation
(collectively, with any of its Affiliate Transferees, "DVI"). Each of the Former
Senior Noteholders, Executive Management and any Transferee of a Former Senior
Noteholder or Executive Management is hereinafter sometimes collectively
referred to as the "Stockholders" or individually as a "Stockholder"). Pursuant
to the Plan (as defined below) the Former Senior Noteholders are to be issued
shares of Common Stock representing in the aggregate 83.96% of the issued and
outstanding Common Stock as of the effective date of the Plan, Executive
Management are to be issued shares of Common Stock representing 2% of the issued
and outstanding Common Stock as of the effective date of the Plan and DVI is to
be issued shares of Common Stock representing 5.86% of the issued and
outstanding Common Stock as of the effective date of the Plan. The Stockholders
desire to set forth certain agreements among themselves and the Corporation as
to the management of the Corporation and the ownership of their shares of Common
Stock. DVI is a party to this Agreement as a holder of Registrable Securities
solely for the purposes of accepting and agreeing to the provisions of ARTICLES
4 and 5 and the defined terms used therein.
NOW THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree as follows.
ARTICLE 1. DEFINITIONS.
1.1 All capitalized terms used herein and otherwise undefined shall
have the meaning ascribed to them in the Plan.
1.2 "Affiliate" means, as to any entity or person, any other entity or
person that such entity or person controls, or by which it is controlled, or
with which it is under common control and in the case of any natural person,
such person's spouse or issue or any trust for the benefit of such person and
such person's spouse or issue. As used in this definition the term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of an entry or person, whether
through the ownership of voting securities, by contract or otherwise.
1.3 "Affiliate Transferee" means any Affiliate of a Former Senior
Noteholder or Executive Management to which such Former Senior Noteholder or
Executive Management shall have transferred any of its Shares or any Affiliate
of DVI to which DVI shall have transferred any of its Registrable Securities.
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1.4 "Common Stock" means the Corporation's authorized common stock,
$.01 par value per share.
1.5 "Demand Registration" has the meaning given therefor in SECTION
4.1.
1.6 "Demand Request" has the meaning given therefor in SECTION 4.1.
1.7 "Exchange Act" means the United States Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
1.8 "indemnified party" has the meaning given therefor in SECTION 4.7.
1.9 "indemnifying party" has the meaning given therefor in SECTION
4.7.
1.10 "Initial Post-Effective Public Offering" means the Corporation's
first firm commitment underwritten public offering of any of its equity
securities registered under the Securities Act after the effective date of the
Plan.
1.11 "Piggyback Registration" has the meaning given therefor in SECTION
4.2.
1.12 "Plan" means the Third Amended Joint Plan of Reorganization dated
November 6, 2000 as filed by the Corporation in the United States Bankruptcy
Court of the Southern District of New York.
1.13 "Plan Value" means $10 per share of Common Stock as appropriately
adjusted from time to time to reflect any stock splits, combinations or similar
transactions in respect of the Common Stock or dividends paid on the Common
Stock after the effective date of the Plan.
1.14 "Register," registered," and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement.
1.15 "Registrable Securities" means all shares of Common Stock issued
to the Former Senior Noteholders, Executive Management or DVI pursuant to the
Plan and any other shares of capital stock of the Corporation which may be
issued in exchange for or in respect of such shares of Common Stock (whether by
way of stock split, stock dividend, combination, reclassification,
reorganization or any other means) provided any such shares of Common Stock (or
other capital stock) which have been sold after the date hereof pursuant to a
registration statement or to the public through a broker, dealer or market maker
or in compliance with Rule 144 or Rule 144A (or any similar rule then in force)
under the Securities Act or repurchased by the Corporation or any subsidiary of
the Corporation shall cease to be Registrable Securities.
1.16 "Registration Expense" has the meaning given therefor in SECTION
4.6.
1.17 "Requisite Former Senior Noteholders" means at the time in
question Former Senior Noteholders owning at least 50% of the Shares then owned
by all Former Senior Noteholders in the aggregate.
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1.18 "SEC" means the United States Securities and Exchange Commission.
1.19 "Securities Act" means the United States Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder.
1.20 "Selling Former Senior Noteholders" has the meaning given therefor
in SECTION 3.1.
1.21 "Shares" means and includes all shares of Common Stock registered
in the stock records books of the Corporation in the name of any Stockholder or
a nominee of such Stockholder and any other shares of capital stock of the
Corporation which may be issued in exchange for or in respect of such shares of
Common Stock (whether by way of stock split, stock dividend, combination,
reclassification, reorganization or any other means).
1.22 "Transferee" means any person to whom Shares are transferred or
assigned by a Stockholder and any heirs or successors in interest of any
Stockholder, whether by operation of law or otherwise and, in the case of DVI,
any person to whom any of DVI's Registrable Securities are transferred or
assigned by DVI and any successor in interest, whether by operation of law or
otherwise.
ARTICLE 2. VOTING AGREEMENTS
2.1 Board of Directors. Each Stockholder agrees to vote all of his
Shares in favor of, and otherwise take all actions as the holder of such Shares
required for:
(a) the election to the Board of Directors of the Corporation
of up to six nominees selected by the Requisite Former
Senior Noteholders; and
(b) the removal from the Board of Directors of any director
nominated by the Requisite Former Senior Noteholders, at
the request of the Requisite Former Senior Noteholders, and
the election to the Board of Directors of any substitute
therefor nominated by the Requisite Former Senior
Noteholders.
2.2 Modification of Charter Documents; Other Voting Agreement. Each
Stockholder covenants and agrees that he will:
(a) not vote any of his Shares, and to the extent he has the
power to do so and otherwise may lawfully exercise such
power, will not to permit any director elected by the
Stockholders pursuant to SECTION 2.1 to vote, in favor of:
(i) the adoption of any amendment to or waiver of any
provision of the Corporation's Certificate of
Incorporation or Bylaws as in effect as of the date
hereof pursuant to the Plan (other than in
connection with the Initial Post-Effective Public
Offering if such amendments have been recommended by
the underwriters in connection therewith);
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(ii) any alteration or change to the designation or the
powers, preferences or rights or the qualifications,
limitations or restrictions of the Common Stock
(other than in connection with the Initial
Post-Effective Public Offering if such amendments
have been recommended by the underwriters in
connection therewith);
(iii) any (A) authorization or creation of or amendment to
any class or series of stock ranking, either as to
payment of dividends, distribution of assets or
redemption, prior to the Common Stock, or (B)
authorization or creation of or amendment to any
shares of any class or series or any bonds,
debentures, notes or other obligations convertible
into or exchangeable for, or having optional rights
to purchase, any stock having any such ranking prior
to the Common Stock;
(iv) any increase in the authorized number of shares of
Common Stock (other than in connection with the
Initial Post-Effective Public Offering if such
amendments have been recommended by the underwriters
in connection therewith);
(v) the liquidation, dissolution, winding-up or similar
transaction of the Corporation or sale of all or
substantially all of the assets of the Corporation
or any subsidiary thereof;
(vi) the redemption or repurchase of any shares of Common
Stock (except for shares of Common Stock issued to
employees, officers, directors or consultants which
is redeemed in connection with the termination of
such person's employment with the Corporation);
(vii) the authorization of a dividend on any shares of
capital stock; or
(viii) any merger, consolidation, sale of stock or other
transaction in which the holders of Common Stock of
the Corporation, in the aggregate, immediately prior
to such transaction will hold, immediately after
such transaction, less than fifty percent (50%) of
the aggregate voting power of outstanding stock of
the surviving Corporation;
unless otherwise consented to by the Requisite Former
Senior Noteholders; and
(b) if requested by Former Senior Noteholders owning Shares
representing more than fifty (50%) percent of the then
issued and outstanding shares of Common Stock, vote all his
Shares and, to the extent he has the power to do so and
otherwise may lawfully exercise such power, will instruct
any director elected by the Stockholders pursuant to
SECTION 2.1 to vote,
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in favor (A) of any transaction identified in clauses
(a)(i) through (a)(vii) above; and (B) of any transaction
identified in clause (a)(viii) if the consideration to be
received by the holders of shares of Common Stock in such
transaction is not less than the then current Plan Value.
ARTICLE 3. RIGHTS OF CO-SALE; REQUIRED CO-SALE.
3.1 Tag-Along/Drag-Along. If one or more Former Senior Noteholders
("Selling Former Senior Noteholders") propose to sell, in a single transaction
or series of related transactions, Shares representing more than 40% of the
Common Stock at the time outstanding to a party who is not a Former Senior
Noteholder or who will not be an Affiliate Transferee of a Former Senior
Noteholder after such sale, the other Stockholders have the right to participate
in such sale to the extent provided in SECTION 3.2. Further, if such sale of
Shares by the Selling Former Noteholders represents more than 50% of the Common
Stock at the time outstanding and is at a price per share not less than the
current Plan Value, the other Stockholders shall, if requested by the Selling
Former Senior Noteholders, sell to the purchaser of such Selling Former Senior
Noteholders' Shares all of their Shares on the same terms and conditions as such
Selling Former Senior Noteholders; provided, the other Stockholders shall not be
obligated to sell their Shares pursuant to this sentence unless the Selling
Former Senior Noteholders propose to sell all of their Shares in such
transaction. Not less than thirty (30) days prior to any proposed sale of Shares
by Selling Former Senior Noteholders, the Selling Former Senior Noteholders
shall give the other Stockholders written notice of the proposed sale (a "Sale
Notice") which shall specify the terms and conditions of such sale and whether
or not the Selling Former Senior Noteholders are exercising their rights under
clause (b) of this SECTION 3.1 to require to other Stockholders to sell their
Shares on the same terms and conditions.
3.2 Participation Procedures. If the other Stockholders are not
required, but are entitled and wish, to participate in such sale (each a
"Participating Stockholder"), each Participating Stockholder shall give the
Selling Former Senior Noteholders written notice (a "Participation Notice") of
its election to participate not later than fifteen (15) days after the date of
the delivery of the Sale Notice and specifying the number of Shares which it
wishes to sell. If the Selling Former Senior Noteholders receive any
Participation Notices, they shall not sell any Shares in such transaction unless
the purchaser thereof at the same time purchases from each Participating
Stockholder on the same terms and conditions, that number of Shares at least
equal to the lesser of:
(a) the total number of Shares which such Participating
Stockholder specified in its Participation Notice that it
wished to sell; or
(b) the number of Shares derived by multiplying the total
number of Shares then owned by such Participating
Stockholder by a fraction, the numerator of which is equal
to the number of Shares that are to be purchased by the
proposed purchaser from the Selling Former Senior
Noteholders and the denominator of which is the aggregate
number of Shares owned by the Selling Former Senior
Noteholders prior to such sale;
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provided, the number of Shares to be included by each Participating Stockholder
and each Selling Former Senior Noteholders in such sale shall be reduced pro
rata based on the number of Shares proposed to be included by each in such sale
until the aggregate number of Shares to be sold is equal to the number of Shares
that the proposed purchaser desires to purchase.
ARTICLE 4. REGISTRATION RIGHTS
4.1 Demand Registration.
(a) Requests for Registration. At any time following the first
anniversary of the effective date of the Plan, Former
Senior Noteholders owning Registrable Securities
representing at least 15% of the then issued and
outstanding shares of Common Stock shall be entitled to
request registration (a "Demand Request") under the
Securities Act of all or any portion of their Registrable
Securities. A registration requested pursuant to this
SECTION 4.1(a) is referred to in this Agreement as a
"Demand Registration". The Demand Request shall specify the
approximate number of Registrable Securities requested to
be registered and the intended method of distribution
thereof. Within ten days after receipt of a Demand Request,
the Corporation shall give written notice of such requested
registration to each other holder of Registrable Securities
and shall include in such registration all Registrable
Securities with respect to which the Corporation has
received written requests for inclusion therein, including
without limitation, but subject to SECTION 4.1(c), all
Registrable Securities requested for inclusion pursuant to
SECTION 4.2, and the intended method of distribution
thereof within 30 days after the receipt of the
Corporation's notice.
(b) Number of Demand Registrations. The Former Senior
Noteholders as a group shall be entitled to request two
Demand Registrations. The Corporation shall pay all
Registration Expenses in connection with the Demand
Registration and shall pay all Registration Expenses in
connection with a registration initiated as a Demand
Registration whether or not it becomes effective or is not
otherwise counted as a Demand Registration. A registration
shall not count as a Demand Registration until it has
become effective under the Securities Act and any blue sky
laws of any applicable state and remains so effective until
the earlier of the date all Registrable Securities included
therein have been sold pursuant thereto or the time periods
for which such registration statement is required to be
maintained as effective under SECTION 4.4(a) have expired
(unless such registration statement is withdrawn at the
request of the holders of not less than a majority of the
Registrable Securities included therein (other than a
withdrawal in the case described in the next following
sentence or in the case described in SECTION 4.1(d)). If so
requested in the Demand Request and if the market value of
the Registrable Securities to be included in such
registration shall have current market value of not less
than $5,000,000, the Corporation shall
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use its best efforts to effect such Demand Registration as
an underwritten offering on a firm commitment basis,
provided if the Corporation is unable to effect the
registration as an underwritten offering on a firm
commitment basis, the Corporation will continue to effect
such registration if requested to do so by holders of not
less than a majority of the Registrable Securities to be
included therein in accordance with the method of
distribution as is specified by such holders and in such
case the registration statement shall count as a Demand
Registration; otherwise such Demand Request shall be deemed
not to have been made and shall not count as a Demand
Registration.
(c) Priority on Demand Registration. All Registrable Securities
requested to be included in the Demand Registration shall
be included unless the offering is to be underwritten and
the managing underwriters advise the Corporation in writing
that all of the Registrable Securities requested to be
included may not be sold without adversely affecting the
marketability of the offering. In such case, the number of
such Registrable Securities included in the offering, if
any, shall be allocated first, pro rata among the Former
Senior Noteholders on the basis of the total number of
Registrable Securities requested by each such holder to be
included and second, pro rata among the other holders of
Registrable Securities requested to be included pursuant to
SECTION 4.2 on the basis of the total number of Registrable
Securities requested to be included pursuant to SECTION
4.2. If all Registrable Securities requested to be included
in the Demand Registration are so included, the Corporation
may include in the Demand Registration other securities to
be sold by the Corporation for its own account or to be
sold by other Persons, unless the managing underwriters
advise the Corporation in writing that in their opinion the
inclusion of such other securities will cause the number of
Registrable Securities and other securities requested to be
included in the offering to exceed the number which may be
sold without adversely affecting the marketability of the
offering.
(d) Restrictions on Demand Registration. The Corporation shall
not be obligated to effect a Demand Registration within 120
days after the effective date of a previous registration of
securities by the Corporation under the Securities Act if
the holders of Registrable Securities were given piggyback
rights in such previous registration pursuant to SECTION
4.2 and all Registrable Securities requested to be included
in such registration pursuant to SECTION 4.2 were included
therein. The Corporation shall be entitled to postpone, for
up to 90 days (or for up to 120 days if the Demand Request
relating to the registration statement is received during
the month of December or the first quarter of any calendar
year) the filing of any registration statement otherwise
required to be prepared and filed by it pursuant hereto if,
at the time it receives a Demand Request, the Corporation
would be required to prepare for inclusion or incorporation
into the registration statement any financial
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statements other than those that it customarily prepares or
the Corporation determines in its reasonable business
judgment that such registration and offering would
materially interfere with any financing, refinancing,
acquisition, disposition, corporate reorganization or other
material corporate transactions or development involving
the Corporation or any of its subsidiaries and promptly
gives the holders of the Registrable Securities making the
Demand Request written notice of such determination;
provided, that if the Corporation shall so postpone the
filing of a registration statement, the holders of a
majority of the Registrable Securities making the Demand
Request shall have the right to withdraw the Demand Request
by giving written notice to the Corporation within 30 days
after the receipt of notice of postponement and, in the
event of such withdrawal, the withdrawn Demand Request
shall be deemed not to have been made and shall not count
as a Demand Registration.
(e) Selection of Underwriters. The Corporation shall have the
right to select the investment banker(s) and manager(s) to
administer the Demand Registration, subject to the approval
of the holders of a majority of the Registrable Securities
to be included therein, which approval shall not be
unreasonably withheld.
(f) Grant of Other Demand Registration Rights. From and after
the date hereof, the Corporation shall not grant to any
Persons the right to request the Corporation to register
any equity securities of the Corporation without the prior
written consent of Former Senior Noteholders owning
Registrable Securities representing a majority of
Registrable Securities owned by all Former Senior
Noteholders at the time provided, that the Corporation may
without the consent of such Former Senior Noteholders,
grant rights to other Persons to (i) participate in
Piggyback Registrations so long as such rights are
subordinate to the rights of the holders of Registrable
Securities with respect to such registrations; and (ii)
request registrations so long as the holders of Registrable
Securities are entitled to participate in any such
registrations pari passu with such Persons.
4.2 Piggyback Registrations.
(a) Right to Piggyback. Whenever the Corporation proposes to
register any of its equity securities under the Securities
Act (including, without limitation, in a Demand
Registration) and the registration form to be used may be
used for the registration of Registrable Securities, the
Corporation shall give prompt written notice to each holder
of Registrable Securities of its intention to effect such a
registration and shall include in such registration (a
"Piggyback Registration") all Registrable Securities with
respect to which the Corporation has received written
requests for inclusion therein (which request shall state
the
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intended method of distribution thereof) within 30 days
after the receipt of the Corporation's notice on the same
terms and conditions as the other securities included
therein.
(b) Piggyback Expenses. The Registration Expenses of the
holders of Registrable Securities shall be paid by the
Corporation in all Piggyback Registrations.
(c) Priority on Primary Registrations. If a Piggyback
Registration is an underwritten primary registration on
behalf of the Corporation, and the managing underwriters
advise the Corporation in writing that in their opinion the
number of securities requested to be included in such
registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of
the offering, the Corporation shall include in such
registration first, the securities the Corporation proposes
to sell and second, the Registrable Securities requested to
be included therein and then (and only then) any other
securities requested to be included in such registration.
If less than all the Registrable Securities requested to be
included in the Piggyback Registration may be so included,
the number of Registrable Securities included in the
Piggyback Registration shall be allocated pro rata among
the holders of Registrable Securities on the basis of the
number of Registrable Securities requested by each such
holder to be included therein.
(d) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on
behalf of other holders of the Corporation's securities
other than a Demand Registration, and the managing
underwriters advise the Corporation in writing that in
their opinion the number of securities requested to be
included in such registration exceeds the number which can
be sold in such offering without adversely affecting the
marketability of the offering, the Corporation shall
include in such registration the Registrable Securities and
the other securities on whose behalf the registration was
initially being made pro rata among the holders of the
Registrable Securities and the holders of such other
securities on the basis of the number of Registrable
Securities and other securities requested by each such
holder to be included therein. If the Piggyback
Registration is a Demand Registration and the managing
underwriters advise the Corporation in writing that in
their opinion the number of securities requested to be
included in such registration exceeds the number which can
be sold in such offering without adversely affecting the
marketability of the offering, the provisions of SECTION
4.1(c) shall govern.
(e) Continued Obligation for Demand Registration. No
registration of Registrable Securities effected under this
SECTION 4.2 shall relieve the Corporation of its obligation
to effect registration of the Registrable
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Securities upon any Demand Request made pursuant to the
provisions of SECTION 4.1.
(f) Withdrawal or Delay. If at any time after giving written
notice of its intention to register any securities and
prior to the effective date of the registration statement
filed in connection with such registration, the Corporation
shall determine for any reason not to register or to delay
registration of such securities, the Corporation may, at
its election, give written notice of such determination to
each holder of Registrable Securities requested to be
included in such offering and (i) in the case of a
determination not to register, shall be relieved of its
obligation to register any Registrable Securities in
connection with such registration (but not from any
obligation of the Corporation to pay the Registration
Expenses in connection therewith), without prejudice,
however, to the rights of any holder of Registrable
Securities to include Registrable Securities in any future
registrations pursuant to this SECTION 4.2 or to cause a
registration to be effected as a Demand Registration under
SECTION 4.1, and (ii) in the case of a determination to
delay registering, shall be permitted to delay registering
any Registrable Securities, for the same period as the
delay in registering such other securities.
4.3 Holdback Agreements.
(a) No holder of Registrable Securities shall effect any public
sale or distribution (which shall not include any sales
pursuant to Rule 144 or 144A) of equity securities of the
Corporation, or any securities convertible into or
exchangeable or exercisable for such securities, during the
seven days prior to and the 120-day period following the
effective date of the registration statement for a Demand
Registration or any underwritten Piggyback Registration in
which Registrable Securities are or may be included (except
as part of the offering covered by such registration
statement) unless the underwriters managing the registered
public offering otherwise agree.
(b) The Corporation shall not effect any public sale or
distribution of shares of Common Stock or any other equity
securities of the Corporation, during the seven days prior
to and during the 90-day period following the effective
date of any underwritten Demand Registration or any
underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on
Form S-8 or any successor form or pursuant to any shelf
registration statement then in effect for the benefit of
any holders of the Corporation's securities), unless the
underwriters managing the registered public offering
otherwise agree.
4.4 Registration Procedures. Whenever any Registrable Securities are
required to be registered pursuant to this Agreement, the Corporation shall use
its reasonable best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the
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intended method of disposition thereof and pursuant thereto the Corporation
shall as expeditiously as possible:
(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities on Form S-1 or such
other form of general applicability satisfactory to the
managing underwriter (or if the offering is not
underwritten, the holders of a majority of Registrable
Securities included therein) and use its reasonable best
efforts to cause such registration statement to become
effective (provided that the Corporation may delay or
discontinue any registration statement effected under
SECTION 4.1 in accordance with SECTION 4.1(d) or SECTION
4.2 in accordance with SECTION 4.2(f)) and prepare and file
with the SEC such amendments and post-effective amendments
to such registration statement and supplements to the
prospectus used in connection therewith as may be necessary
to keep such registration statement effective under the
Securities Act and the blue sky laws of any applicable
state for a period of not less than 90 days in the case of
an underwritten offering, and in any other offering, until
the disposition of all Registrable Securities covered by
such registration statement, but not longer than a period
of six months, unless at the expiration of such six month
period, less than 75% of the Registrable Securities covered
by such Registration Statement have been sold, then such
period shall automatically be extended for six additional
months; provided that at any time after the registration
statement has been continuously effective for six
consecutive months, if the Corporation determines in its
reasonable business judgment that having such registration
statement remain in effect would materially interfere with
any financing, refinancing, acquisition, disposition,
corporate reorganization or other material corporate
transaction or development involving the Corporation or any
of its Subsidiaries or at any time after such registration
statement has been declared effective if the Corporation
becomes the subject of an unsolicited tender offer for at
least a majority of its equity securities, the Corporation
may, upon prior written notice to each holder of
Registrable Securities included therein, suspend such
registration statement for a period of not more than ninety
(90) days, and in no event shall the Corporation be
entitled to exercise such right more than once in any
12-month period;
(b) before filing a registration statement or prospectus or any
amendments or supplements thereto or incorporating any
document by reference therein, the Corporation shall
furnish to the holders of Registrable Securities included
in such registration statement copies of all such documents
proposed to be filed or incorporated therein, which
documents shall be subject to the review and comment of
such holders and one counsel selected by such holders;
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(c) notify in writing each holder of Registrable Securities
included in such registration statement of (i) the filing
and effectiveness of such registration statement or any
amendment or post-effective amendments thereto and the
prospectus and any supplement thereto, (ii) any request by
the SEC for amendments or post-effective amendments to the
registration statement or supplements to the prospectus or
for additional information, (iii) the issuance by the SEC
of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening of
any proceedings for that purpose, and (iv) the receipt by
the Corporation of any notification with respect to the
suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose;
(d) comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by
such registration statement during the period of, and in
accordance with the intended methods of, disposition by the
sellers thereof as set forth in such registration
statement;
(e) furnish, without charge, to each holder of Registrable
Securities included in a registration statement such number
of copies of such registration statement, the prospectus
included in such registration statement (including each
preliminary prospectus), each amendment and supplement
thereto, and such other documents as such holder may
reasonably request in order to facilitate the disposition
of the Registrable Securities included therein owned by
such holder and the Corporation hereby consents to the use
of each prospectus or any supplement thereto by each such
holder and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by
such registration statement or any amendment thereto;
(f) use its reasonable best efforts to register or qualify all
Registrable Securities included in a registration statement
under such other securities or blue sky laws of such
jurisdictions as any holder of such Registrable Securities
reasonably requests and do any and all other acts and
things which may be reasonably necessary or advisable to
enable such holder to consummate the disposition in such
jurisdictions of such Registrable Securities (provided that
the Corporation shall not be required to (i) qualify
generally to do business in any jurisdiction where it would
not otherwise be required to qualify but for this
SUBPARAGRAPH (f), (ii) subject itself to taxation in any
such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
(g) immediately notify each holder of Registrable Securities
included in a registration statement, at any time when a
prospectus relating thereto is required to be delivered
under the Securities Act, of the happening of any event as
a result of which the prospectus included in such
- 12 -
13
registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the
statements therein not misleading, and shall prepare a
supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading;
(h) cause all Registrable Securities included in a registration
statement to be listed on each securities exchange on which
similar securities issued by the Corporation are then
listed and, if not so listed, but similar securities are
then listed on the NASD automated quotation system, to be
listed on the NASD automated quotation system and, if
listed on the NASD automated quotation system, use its
reasonable best efforts to secure designation of all such
Registrable Securities as a NASDAQ national market system
security within the meaning of Rule 11Aa2-1 of the SEC or
failing that, at such time as the Corporation becomes
eligible for such authorization, to secure NASDAQ
authorization for such Registrable Securities if available
and, without limiting the generality of the foregoing, to
arrange for at least two market makers to register as such
with respect to such Registrable Securities with the NASD;
(i) if the offering is underwritten, use its reasonable best
efforts to furnish on the date that Registrable Securities
are delivered to the underwriters for sale pursuant to such
registration statement, and to the extent required by any
underwriting agreement or from time to time upon request by
any holder of Registrable Securities in connection with its
disposition of its Registrable Securities under such
registration statement: (i) an opinion dated such date of
counsel representing the Corporation for the purposes of
such registration, addressed to the underwriters and to
each such holder, stating that such registration statement
has become effective under the Securities Act and that (A)
to the best knowledge of such counsel, no stop order
suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are
pending or contemplated under the Securities Act, (B) the
registration statement, the related prospectus and each
amendment or supplement thereof appear on their face to be
appropriately responsive in all material respects with the
requirements of the Securities Act (except that such
counsel need not express any opinion as to financial
statements or financial data contained therein) and (C) to
such other effect as may be reasonably requested by counsel
for the underwriters or by such holder or its counsel if
such offering is not underwritten and (ii) to the extent
accounting standards then permit, a letter dated such date
from the independent public accountants retained by the
Corporation, addressed to the underwriters and to each such
holder, stating that they are independent public
accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial
statements of
- 13 -
14
the Corporation included in the registration statement or
the prospectus, or any amendment or supplement thereof,
comply as to form in all material respects with the
applicable accounting requirements of the Securities Act,
and such letter shall additionally cover such other
financial matters (including information as to the period
ending no more than five Business Days prior to the date of
such letter) with respect to such registration as such
underwriters, or such holder if such offering is not
underwritten, may reasonably request;
(j) provide a transfer agent and registrar for all Registrable
Securities included in a registration statement not later
than the effective date of such registration statement, and
a CUSIP number for all such Registrable Securities and
provide the applicable transfer agent with printed
certificates or instruments for such Registrable Securities
which are in a form eligible for deposit with Depositary
Trust Corporation and otherwise meeting the requirements of
any securities exchange on which such Registrable
Securities are then listed;
(k) cooperate with the holders of Registrable Securities
included in a registration statement and the underwriters,
if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be
sold not bearing any restrictive legends; and to enable
such Registrable Securities to be in such denominations and
registered in such names as the underwriters may request at
least two Business Days prior to any sale of such
Registrable Securities to the underwriters;
(l) enter into such customary agreements (including
underwriting agreements in customary form) as the
underwriters of any registration statement pursuant to an
underwritten offering, reasonably request in order to
expedite or facilitate the disposition of such Registrable
Securities (including effecting a stock split or a
combination of shares);
(m) make available for inspection by any holder of Registrable
Securities included in a registration statement, any
underwriter participating in any disposition pursuant to
such registration statement and any attorney, accountant or
other agent retained by any such holder or underwriter, all
financial and other records, pertinent corporate documents
and properties of the Corporation as they deem necessary to
conduct their due diligence review, and cause the
Corporation's officers, directors, employees and
independent accountants to supply all information
reasonably requested by any such holder, underwriter,
attorney, accountant or agent in connection with such
registration statement;
(n) otherwise comply with the Securities Act, the Exchange Act,
all applicable rules and regulations of the SEC and all
applicable state blue sky and other securities laws, rules
and regulations, and make generally available to its
security holders, earnings statements satisfying the
- 14 -
15
provisions of Section 11(a) of the Securities Act, no later
than 30 days after the end of any 12 month period (or 90
days if the end of such 12 month period coincides with the
end of a fiscal quarter or fiscal year, respectively) of
the Corporation (A) commencing at the end of any month in
which Registrable Securities are sold to underwriters in an
underwritten offering, or, (B) if not sold to underwriters
in such an offering, beginning within the first three
months commencing after the effective date of the
registration statement, which statements shall cover said
12 month periods;
(o) permit any holder of Registrable Securities which, in such
holder's sole and exclusive judgment, might be deemed to be
an underwriter or a controlling person of the Corporation,
to participate in the preparation of such registration or
comparable statement and to require the insertion therein
of material, furnished to the Corporation in writing, which
in the reasonable judgment of such holder and its counsel
should be included; and
(p) if the offering is underwritten, promptly upon notification
to the Corporation from the managing underwriter of the
price at which the securities are to be sold under such
registration statement, and, in any event, prior to the
effective date of the registration statement filed in
connection with such registration, the Corporation shall
advise each holder requesting inclusion of Registrable
Securities in such registration statement of such price. If
such price is below the price which is acceptable to a
holder of Registrable Securities requested to be included
in such offering, then such holder shall have the right, by
written notice to the Corporation given prior to the
effectiveness of such registration statement, to withdraw
its request to have its Registrable Securities included in
such registration statement.
4.5 Conditions to Registration. Each holder's right to have its
Registrable Securities included in any registration statement filed by the
Corporation in accordance with the provisions of this Agreement shall be subject
to the following conditions:
(a) The holders of Registrable Securities to be included in
such registration statement shall furnish the Corporation
in a timely manner with all information requested by the
Corporation in writing and required by the applicable rules
and regulations of the SEC or otherwise reasonably required
by the Corporation or its counsel in order to enable them
properly to prepare and file such registration statement in
accordance with applicable provisions of the Securities Act
and if the offering is underwritten such holder shall (i)
agree to sell its Registrable Securities on any reasonable
and customary basis provided in any underwriting
arrangements approved by (A) the holders of not less than a
majority of the Registrable Securities included therein in
the case of a Demand Registration, or (B) the Corporation
or such other holders of securities on
- 15 -
16
whose account the registration is initially being made in
the case of a Piggyback Registration and (ii) complete and
execute all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting
arrangements on a timely basis; provided that in no case
shall a holder of Registrable Securities included in any
registration be required to make any representations or
warranties to the Corporation or the underwriters other
than representations and warranties regarding such holder,
the Registrable Securities held by such holder and such
holder's intended method of distribution;
(b) If any such holder desires to sell and distribute
Registrable Securities over a period of time, or from time
to time, at then prevailing market prices, then any such
holder shall execute and deliver to the Corporation such
written undertakings as the Corporation and its counsel may
reasonably request in order to assure full compliance with
applicable provisions of the Securities Act and the
Exchange Act;
(c) Such holder shall agree that as of the date that a final
prospectus is made available to it for distribution to
prospective purchasers of Registrable Securities it shall
cease to distribute copies of any preliminary prospectus
prepared in connection with the offer and sale of such
Registrable Securities and will deliver or cause to be
delivered a copy of such final prospectus to each Person
who received a copy of any preliminary prospectus prior to
sale of any of the Registrable Securities to such Persons;
and
(d) Upon receipt of any notice from the Corporation of the
existence of any event of the nature described in SECTION
4.4(g), such holder will forthwith discontinue disposition
of Registrable Securities until such holder receives copies
of the supplemented or amended prospectus contemplated by
SECTION 4.4(g) or until it is advised in writing by the
Corporation that the use of the prospectus may be resumed,
and has received copies of any additional or supplemental
filings which are incorporated by reference in the
prospectus, and, if so directed by the Corporation, such
holder will deliver to the Corporation (at the
Corporation's expense) all copies, other than permanent
file copies then in such holder's possession, of the
prospectus covering such Registrable Securities current at
the time of receipt of such notice.
4.6 Registration and Selling Expenses.
(a) All expenses incident to the Corporation's performance of
or compliance with this Agreement and the preparation,
filing, amendment or supplement of any registration
statement in which Registrable Securities are to be
included, including without limitation all registration and
filing fees, fees and expenses (including the Corporation's
counsel fees) of
- 16 -
17
compliance with securities or blue sky laws, printing and
copying expenses, messenger and delivery expenses, fees and
disbursements of custodians, and fees and disbursements of
counsel for the Corporation and all independent certified
public accountants, underwriters (excluding discounts and
commissions and fees in lieu of discounts and commissions)
and other Persons retained by the Corporation, the expenses
and fees for listing the securities to be registered on
each securities exchange on which similar securities issued
by the Corporation are then listed or on the NASD automated
quotation system, transfer taxes, fees of transfer agents
and registrars and cost of insurance (all such expenses
being called "Registration Expenses") shall be borne by the
Corporation, whether or not any such registration statement
becomes effective.
(b) In connection with each registration effected pursuant to
SECTION 4.1 or 4.2, the Corporation shall reimburse the
holders of Registrable Securities included in such
registration for the reasonable fees and disbursements of
one counsel chosen by the holders of a majority of the
Registrable Securities included in such registration. (c)
All underwriting discounts and selling commissions
applicable to the sale of Registrable Securities and all
fees and disbursements of counsel for the holders of
Registrable Securities, other than fees and expenses
referred to in SECTION 4.6(b), shall be paid by the holders
of Registrable Securities.
4.7 Indemnification.
(a) The Corporation agrees to indemnify, hold harmless and
reimburse, to the extent not prohibited by law, each holder
of Registrable Securities included in a registration
statement, its directors, officers, employees and each
Person who controls such holder (within the meaning of the
Securities Act) against all losses, claims, damages,
liabilities and expenses, whether joint or several
(including legal expenses and any expenses incurred in
investigating any claims) caused by any untrue or alleged
untrue statement of material fact contained in such
registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto
or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the
statements therein not misleading or any other violation or
breach of the Securities Act, the Exchange Act or any state
securities or blue sky law or any other law by the
Corporation or its officers or directors or any other
Person acting or purporting to act on the Corporation's
behalf, except insofar as the same are caused by or
contained in any information furnished in writing to the
Corporation by such holder specifically stating that it is
to be used in the preparation thereof or by such holder's
failure to deliver a copy of the registration statement or
prospectus or any
- 17 -
18
amendments or supplements thereto after the Corporation has
furnished such holder with a sufficient number of copies of
the same. In connection with an underwritten offering, the
Corporation shall indemnify such underwriters, their
officers and directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to
the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each
such holder shall indemnify the Corporation, its managers,
officers and employees and each Person who controls the
Corporation (within the meaning of the Securities Act)
against any losses, claims, damages, liabilities and
expenses (including legal expenses and any expenses
incurred in investigating any claims) resulting from any
untrue or alleged untrue statement of material fact
contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to
make the statements therein not misleading, but only to the
extent that such untrue statement or omission is contained
in any information or affidavit so furnished in writing by
such holder specifically stating that it is to be used in
the preparation thereof; provided that the obligation to
indemnify shall be individual to each holder and in no
event shall the aggregate liability of a holder for
indemnities pursuant to this SECTION 4.7 exceed the net
amount of proceeds received by such holder from the sale of
its Registrable Securities pursuant to such registration
statement.
(c) Any Person entitled to indemnification hereunder (an
"indemnified party") shall (i) give prompt written notice
to any Person obligated to make such indemnification (an
"indemnifying party") of any claim with respect to which it
seeks indemnification (provided that the failure to give
prompt notice shall not impair any Person's right to
indemnification hereunder to the extent such failure has
not prejudiced the indemnifying party) and (ii) unless in
such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties
may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party.
If such defense is assumed, the indemnifying party shall
not be subject to any liability for any settlement made by
the indemnified party without its consent (but such consent
shall not be unreasonably withheld). An indemnifying party
who is not entitled to, or elects not to, assume the
defense of a claim shall not be obligated to pay the fees
and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such
claim, unless in the reasonable judgment of any indemnified
party a conflict of interest may exist between such
indemnified party and any other of such
- 18 -
19
indemnified parties with respect to such claim or that
there may be reasonable defenses available to it which are
different from or additional to those available to the
indemnifying party or if the interests of the indemnified
party reasonably may be deemed to conflict with the
interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel and to
assume such legal defenses and otherwise to participate in
the defense of such action, with the expenses and fees of
such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as
incurred.
(d) In order to provide for just and equitable contribution to
joint liability in any case in which either (i) the
indemnity provided for in this SECTION 4.7 is unavailable
to a party that would otherwise have been an indemnified
party, or (ii) contribution under the Securities Act or any
other applicable law may be required on the part of any
such holder of Registrable Securities or any controlling
Person of such a holder in circumstances for which
indemnification is provided under this SECTION 4.7; then,
and in each such case, the indemnifying and indemnified
party will contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after
contribution from others) in such proportion as is
appropriate to reflect the relative fault of the
indemnifying party on the one hand and such indemnified
party on the other in connection with the statement or
omission or circumstance which resulted in such loss,
claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative fault
shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state
a material fact relates to information supplied by the
indemnifying party or such indemnified party and the
parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or
omission; provided, however, that, in any such case, (A) no
such holder will be ------- required to contribute any
amount in excess of the amounts received by it from the
sale of its Registrable Securities pursuant to such
registration statement; and (B) no Person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to
contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(e) The indemnification provided for under this Agreement shall
remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party
or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of any
Registrable Securities and any termination of this
Agreement.
- 19 -
20
ARTICLE 5. MISCELLANEOUS.
5.1 Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their Transferees; provided:
(a) in no event shall Executive Management be permitted to
sell, gift, pledge, assign or otherwise transfer any of
their Shares except to an Affiliate Transferee;
(b) no Transferee shall be entitled to any benefits under this
Agreement unless such Transferee shall have executed and
delivered to the Corporation its written agreement to be
bound by the terms of this Agreement to the same extent as
its transferor in form and substance satisfactory to the
Requisite Former Senior Noteholders; and
(c) no Transferee shall be entitled to any benefits under
Article 4 unless (x) such Transferee is already a
Stockholder, DVI or an Affiliate Transferee or (y) the
transfer to such Transferee is of Registrable Securities
constituting at least 5% of the then issued and outstanding
Common Stock or (z) the transfer to such Transferee is of
the original number of shares of Common Stock issued to
such Transferee's transferor under the Plan (as such number
may be adjusted to reflect any subsequent stock split,
combination or reclassification of Common Stock).
5.2 Term and Termination. The rights and obligations of the parties:
(a) under ARTICLES 2 and 3 hereunder shall terminate upon the
earlier of (i) the mutual written agreement of all of the
Stockholders, (ii) 18 months following the effective date
of the Plan, (iii) the effective date of the Corporation's
Initial Post-Effective Public Offering or (iv) such time as
the number of Shares owned by the Former Senior Noteholders
is less than forty percent (40%) of the then issued and
outstanding shares of Common Stock;
(b) under ARTICLE 4 shall terminate upon the earlier of (i) the
time there are no more Registrable Securities or (ii) the
consummation of any merger, consolidation, sale of stock or
other transaction in which the holders of Common Stock of
the Corporation, in the aggregate, immediately prior to
such transaction will hold, immediately after such
transaction, less than fifty percent (50%) of the aggregate
voting power of outstanding stock of the surviving
Corporation provided such transaction has been consented to
by Former Senior Noteholders owning at least two-thirds of
Shares then owned by Former Senior Noteholders or (iii)
upon mutual written agreement of all parties hereto.
5.3 Amendments. This Agreement may be amended or modified in whole or
in part only by an instrument in writing signed by all Stockholders and the
Corporation; provided, no amendment which amends any provision of ARTICLE 4,
this ARTICLE 5 or the defined terms as
- 20 -
21
used herein or therein shall be effective without the consent of DVI or any
Transferee thereof entitled to the benefits of ARTICLE 4 for so long as DVI or
such Transferee owns any Registrable Securities.
5.4 Entire Agreement. This Agreement constitutes the entire agreement
between the parties, and all premises, representations, understandings,
warranties and agreements with reference to the subject matter hereof have been
expressed herein or in the documents incorporated herein by reference.
5.5 Applicable Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware.
5.6 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
5.7 Effect of Headings. Any title of an article or section heading
herein contained is for convenience or reference only and shall not affect the
meaning or construction of any of the provisions hereof.
5.8 Injunctive Relief. It is acknowledged that it will be impossible
to measure the damages that would be suffered by a party if any other party
fails to comply with the provisions of this Agreement and that in the event of
any such failure, the non-defaulting parties will not have an adequate remedy at
law. The non-defaulting parties shall, therefore, be entitled to obtain specific
performance of the defaulting party's obligations hereunder and to obtain
immediate injunctive relief. The defaulting party shall not argue, as a defense
to any proceeding for such specific performance or injunctive relief, that the
non-defaulting parties have an adequate remedy at law.
5.9 Severability. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
5.10 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance of any other party under this Agreement shall impair
any such right, power or remedy, nor shall it be construed to be a waiver of or
in any such breach, default or noncompliance, or any acquiescence therein, or of
or in any similar breach, default or noncompliance thereafter occurring. It is
further agreed that any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach, default or noncompliance under
the Agreement or any waiver on the part of any party of any provisions or
conditions of this Agreement must be in writing and shall be effective only to
the extent specifically set forth in such writing.
5.11 Notices and Consents; Notices. All notices and other written
communications provided for hereunder shall be given in writing and sent by
overnight delivery service (with charges prepaid) or by facsimile transmission
with the original of such transmission being sent by overnight delivery service
(with charges prepaid) by the next succeeding Business Day and (i) if to a
Stockholder or DVI addressed to such Stockholder or DVI at such address or fax
- 21 -
22
number as is specified for such Stockholder or DVI after its signature to this
Agreement; and (ii) if to the Corporation, addressed to it at 000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: General Counsel, Fax No. (000) 000-0000
or at such other address or fax number as such Stockholder, DVI or the
Corporation shall have specified to other party hereto in writing given in
accordance with this SECTION 5.11. Notice given in accordance with this SECTION
5.11 shall be effective upon the earlier of the date of delivery or the second
Business Day at the place of delivery after dispatch.
5.12 Pronouns. All pronouns contained herein, and any variations
thereof, shall be deemed to refer to the masculine, feminine or neutral,
singular or plural, as to the identity of the parties hereto may require.
5.13 Legend. Each certificate evidencing any of the Shares shall bear a
legend substantially as follows:
"The shares represented by this certificate are subject to
certain restrictions on transfer and voting agreements and may
be entitled to certain benefits in accordance with and subject
to all the terms and conditions of a certain Stockholders
Agreement dated as of February 26, 2001, a copy of which the
Corporation will furnish to the holder of this certificate upon
request and without charge."
- 22 -
23
IN WITNESS WHEREOF, this Agreement has been executed under seal as of the
date and year first written above.
COMPANY: MEDICAL RESOURCES, INC.
By: /s/ Xxxxxxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Co-Chief Executive Officer
EXECUTIVE MANAGEMENT: /s/ Xxxxxxxxxxx Xxxxx
--------------------------------------------
Xxxxxxxxxxx Xxxxx
Address for Notices:
c/o Medical Resources, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
/s/ Xxxxxxxx Xxxxxx
--------------------------------------
Xxxxxxxx Xxxxxx
Address for Notices:
c/o Medical Resources, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Signature Page to Stockholders Agreement
24
FORMER SENIOR
NOTEHOLDERS: XXXX XXXXXXX LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
Address for Notices:
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Bond & Corporate Finance
Group, T-57
Signature Page to Stockholders Agreement
25
XXXX XXXXXXX VARIABLE LIFE INSURANCE
COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
Address for Notices:
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Bond & Corporate Finance
Group, T-57
Signature Page to Stockholders Agreement
26
INVESTORS PARTNER LIFE INSURANCE
COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
Address for Notices:
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Bond & Corporate Finance
Group, T-57
Signature Page to Stockholders Agreement
27
MELLON BANK, N.A., solely in its capacity
as Trustee for The Long Term Investment
Trust, (as directed by Xxxx Xxxxxxx Financial
Services, Inc.), and not in its individual
capacity
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
Address for Notices:
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Bond & Corporate Finance
Group, T-57
The decision to participate in the investment, any
representations made herein by the participant, and any
actions taken hereunder by the participant has/have been
made solely at the direction of the investment fiduciary
who has sole investment discretion with respect to this
investment.
Signature Page to Stockholders Agreement
28
THE NORTHERN TRUST COMPANY, AS TRUSTEE
OF THE LUCENT TECHNOLOGIES INC. MASTER
PENSION TRUST
By: XXXX XXXXXXX LIFE INSURANCE
COMPANY, as Investment Manager
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
Address for Notices:
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Bond & Corporate Finance
Group, T-57
Signature Page to Stockholders Agreement
29
AUSA LIFE INSURANCE COMPANY, INC.
By: /s/ Xxxx X. Xxxx
-----------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
Address for Notices:
AEGON USA Investment Management
0000 Xxxxxxxx Xxxx, X.X.
Xxxxx Xxxxxx, XX 00000
Attention: Xxxx Xxxx
Signature Page to Stockholders Agreement
30
LIFE INVESTORS INSURANCE COMPANY OF
AMERICA
By: /s/ Xxxx X. Xxxx
-----------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
Address for Notices:
AEGON USA Investment Management
0000 Xxxxxxxx Xxxx, X.X.
Xxxxx Xxxxxx, XX 00000
Attention: Xxxx Xxxx
Signature Page to Stockholders Agreement
31
GREAT AMERICAN LIFE INSURANCE
COMPANY
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President
Address for Notices:
American Financial Group
0 Xxxx 0xx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Signature Page to Stockholders Agreement
32
XXXXXXX & CO., (as nominee of General Electric
Capital Assurance Company (f/k/a Great Northern
Insured Annuity Corporation)
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Reorganization Administrator
Address for Notices:
GE Capital Assurance Co.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Signature Page to Stockholders Agreement
33
COVA FINANCIAL SERVICES LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxxxxxx X. Xxxxxxx
Title: Authorized Signatory
Address for Notices:
MetLife
000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Signature Page to Stockholders Agreement
34
HARE & CO (as nominee of Lincoln National Life
Insurance Company)
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Officer
Address for Notices:
Liberty Capital
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxx
Signature Page to Stockholders Agreement
35
AMERICAN BANKERS INSURANCE
COMPANY OF FLORIDA
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Address for Notices:
Fortis Corporation
1 Chase Xxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Signature Page to Stockholders Agreement
36
OCCIDENTAL LIFE INSURANCE COMPANY
OF NORTH CAROLINA
By: /s/ J. Xxxxxx Xxxxxxx
-----------------------------------------
Name: J. Xxxxxx Xxxxxxx
Title: Executive Vice President
Address for Notices:
Xxxx Investment Advisors, Inc.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attn: J. Xxxxxx Xxxxxxx
Signature Page to Stockholders Agreement
37
PENINSULAR LIFE INSURANCE COMPANY CO.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Address for Notices:
Conning Asset Management
000 Xxxxxx Xxxxxx
City Place II
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Signature Page to Stockholders Agreement
38
EXECUTIVE RISK INDEMNITY INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
Address for Notices:
Chubb Financial Group
00 Xxxxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Signature Page to Stockholders Agreement
39
DVI: DVI FINANCIAL SERVICES, INC.
By: /s/ Xxxx Xxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxx Xxxxxx
Title: Deputy General Counsel
Address for Notices:
DVI Financial Services, Inc.
0000 Xxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, President
Signature Page to Stockholders Agreement
