EXHIBIT 24
SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT (the "Agreement") is made as of April 2, 2009
(the "Effective Date") by and among Xx. Xxxx X. Xxxxxxxxx ("Xx. Xxxxxxxxx"), Xx.
Xxxx X. Xxxx ("Xx. Xxxx"), Orange County Physicians Investment Network, LLC
("OC-PIN"), and the members of OC-PIN who are signatories hereto (the "OC-PIN
Members").
RECITALS
WHEREAS, each of the parties hereto are also party to (a) that certain
Settlement Agreement, General Release and Covenant Not to Xxx of even date
herewith (the "Settlement Agreement") by and among Integrated Healthcare
Holdings, Inc. (the "Company"), Xx. Xxxx, OC-PIN, Xxxxx Xxxxx, Pacific Coast
Holdings Investment, LLC, West Coast Holdings, LLC, Xx. Xxxxxxxxx, Ganesha
Realty, LLC, Xxxxxxx X. Xxxxxx ("Xxxxxx"), and Medical Capital Corporation, on
behalf of itself and three of its wholly owned subsidiaries, Medical Provider
Financial Corporation I, Medical Provider Financial Corporation II and Medical
Provider Financial Corporation III (collectively "MedCap"), and (b) that certain
Settlement Agreement No. 2 of even date herewith (the "Second Settlement
Agreement") by and among Xx. Xxxx, OC-PIN, the members of OC-PIN, Pacific Coast
Holdings Investment, LLC, West Coast Holdings, LLC, the members of WCH, Xx.
Xxxxxxxxx and Ganesha Realty, LLC.
WHEREAS, in connection execution of the Settlement Agreement and the
Second Settlement Agreement, the parties desire to enter into this Agreement as
set forth herein.
AGREEMENT
The parties hereby agree as follows:
1. DIRECTOR NOMINATION AND VOTING.
(a) NOMINATION AND VOTING. Xx. Xxxxxxxxx, OC-PIN and Xx. Xxxx agree
that, at each annual meeting of the stockholders of the Company, or at any other
meeting of the stockholders of the Company at which members of the Board of
Directors of the Company (the "Board") are to be elected, or whenever members of
the Board are to be elected by written consent of the stockholders, Xx.
Xxxxxxxxx and OC-PIN shall nominate, in accordance with the Bylaws of the
Company, and Xx. Xxxxxxxxx, OC-PIN and Xx. Xxxx shall vote in favor of or in a
manner to ensure election of, the following individuals as directors of the
Company, which votes shall be cast in the minimum number of votes (up to all
shares which are beneficially owned by such party now or which may be owned by
such party from time to time in the future), and taking into account the votes
cast by other shareholders, that are necessary at any meeting or action by
written consent to elect the groups of directors in the order of priority set
forth below:
(i) First, up to four (4) individuals designated by Xx. Xxxxxxxxx,
PROVIDED, HOWEVER, that during such time as the Company is required by one or
more agreements with MedCap to maintain a Board with a majority of Independent
Directors (as such term defined in the credit agreements between the Company and
MedCap), at least three of the four individuals designated under this paragraph
shall be Independent Directors; and
1
(ii) Secondly, up to two (2) individuals designated by OC-PIN,
PROVIDED, HOWEVER, that during such time as the Company is required by one or
more agreements with MedCap to maintain a Board with a majority of Independent
Directors (as such term defined in the credit agreements between the Company and
MedCap), at least one of the two individuals designated under this paragraph
shall be Independent Directors; and
(iii) Lastly, one individual, who shall at all times be the
then-current Chief Executive Officer of the Company.
(b) REMOVAL. Following the Company's 2009 Annual Meeting of Stockholders
and for the term of this Section 1, each of Xx. Xxxxxxxxx and OC-PIN shall have
the right to request the removal of any director which is designated by them
respectively under Sections 1(a)(i) or (ii) to the extent permitted under
applicable law and the Articles and Bylaws of the Company. In such event, the
director shall immediately be subject to removal by a vote of the stockholders
of the Company, subject to applicable law and the Articles and Bylaws of the
Company, and each of Xx. Xxxxxxxxx, OC-PIN and Xx. Xxxx shall vote their shares
and take such other actions so as to ensure the removal of such director,
including calling a special meeting or taking action by written extent to the
extent permitted.
(c) VACANCIES. In the event there are one or more vacancies on the
Board, each of Xx. Xxxxxxxxx and OC-PIN shall call a special meeting of
stockholders (to the extent permitted) as soon as practicable, and take such
other actions as are permitted by applicable law and the Company's Articles of
Incorporation and Bylaws, for the purpose of nominating and electing person(s)
to fill such vacancy(s) in order to ensure that up to four (4) nominees selected
by Xx. Xxxxxxxxx and up to two (2) nominees selected by OC-PIN shall at all
times be seated as directors of the Company, consistent with the provisions of
Section 1(a)(i) and (ii). If at any time less than all seven (7) director seats
are up for election, nominations in accordance with the bylaws of the Company
and voting shall be done to ensure that up to four (4) nominees selected by Xx.
Xxxxxxxxx and up to two (2) nominees selected by OC-PIN and the Chief Executive
Officer shall at all times be seated as directors of the Company, consistent
with the provisions of Section 1(a).
(d) NON-INDEPENDENT DIRECTORS. In the event the Company is no longer
under a covenant or other obligation to maintain a board of directors consisting
of specified number or percentage of Independent Directors, Xx. Xxxxxxxxx and
OC-PIN will be free to nominate, in accordance with the bylaws of the Company,
and Xx. Xxxxxxxxx, OC-PIN and Xx. Xxxx shall be free to vote in favor of,
individuals who are not Independent Directors, subject to compliance with
applicable law and the rules and regulations of the Securities and Exchange
Commission and any exchange or quotation system on which the Company's shares
are then listed. However, each of Xx. Xxxxxxxxx and OC-PIN must continue to
nominate and, each of Xx. Xxxxxxxxx, OC-PIN and Dr. Shall must continue to vote,
their respective shares to ensure that up to four nominees designated by Xx.
Xxxxxxxxx and up to two nominees designated by OC-PIN shall at all times be
seated as directors of the Company, consistent with the provisions of Section
1(a)(i) and (ii).
2
(e) NO VOTING OR CONFLICTING AGREEMENTS. Neither Xx. Xxxxxxxxx, OC-PIN
nor Xx. Xxxx shall vote for any resolution (including any amendment or change to
the Articles of Incorporation or Bylaws of the Company) providing for the
election of more or less than seven (7) directors, or take any other action
inconsistent with this Agreement or having the effect of blocking or frustrating
any of the purposes or intents of any provisions of this Agreement. Neither Xx.
Xxxxxxxxx, OC-PIN nor Xx. Xxxx shall xxxxx any proxy, or enter into or agree to
be bound by any voting trust with respect to the shares held by such party, nor
shall any such party enter into any stockholder agreements or arrangements of
any kind with any person with respect to their shares, in each case which are
inconsistent with the provisions of this Agreement (whether or not such
agreements and arrangements are with other stockholders of the Company that are
not parties to this Agreement). Neither Xx. Xxxxxxxxx, OC-PIN nor Xx. Xxxx shall
act, for any reason, as a member of a group or in concert with any other persons
in connection with the acquisition, disposition or voting of shares of the
Company's capital stock in any manner which is inconsistent with the provisions
of this Agreement.
(f) NON-CUMULATIVE VOTING. Xx. Xxxxxxxxx, OC-PIN and Xx. Xxxx shall make
such elections and vote their shares to ensure that non-cumulative voting is
used in the election of directors of the Company, to the extent permitted by
law.
(g) TRANSFERS OF SHARES.
(i) In the event that OC-PIN dissolves or makes a complete
liquidating distribution of Company stock to its members (an "OC-PIN
Dissolution"), then OC-PIN's right to designate up to two individuals for
election to the Board under Section 1(a)(ii) (the "Designation Right") is hereby
automatically assigned to Xx. Xxxx, and Xx. Xxxx assumes and agrees to be bound
by the obligation to vote the shares which he beneficially owns now or may
beneficially own from time to time in the future in accordance with this Section
1 with respect to the four individuals designated by Xx. Xxxxxxxxx, the two
OC-PIN designees and the Chief Executive Officer as provided in Section 1(a)
(the "Voting Obligation"). In the event of an OC-PIN Dissolution, Xx. Xxxx
agrees to accept the Designation Right and continue to be bound and vote in
accordance with the Voting Obligation with respect to shares that he
beneficially owns now or may beneficially own from time to time in the future.
(ii) In the event that Xx. Xxxxxxxxx, OC-PIN or Xx. Xxxx sells,
distributes or otherwise transfers any shares of the Company, except for shares
sold on the open market through a broker (E.G., through the OTC Bulletin Board),
then their respective obligations under this Section 1 shall continue to apply
to all shares that are so transferred, and each of them shall first obtain the
written consent of each transferee of his shares to be bound by this Section 1
prior to transferring any such shares. If either Xx. Xxxxxxxxx, OC-PIN or Xx.
Xxxx transfers or distributes shares of Company stock without complying with the
requirements of this paragraph, then the other party's obligations to vote his
or its shares under this Section 1 shall be forever released and forgiven, but
his or its rights under this Section 1 shall not be released or forgiven.
(h) NO EFFECT ON COMPANY. The parties recognize that this Agreement is a
contract between shareholders to which the Company is not a party. Nothing
herein is intended to limit or otherwise affect the rights, obligations and
duties of the Company's Board of Directors or its Nominations and Governance
Committee under applicable law with regards to the matters covered by this
Section 1.
3
(i) XX. XXXX. Notwithstanding anything to the contrary contained herein
or in any other agreement, Xx. Xxxx Xxxx covenants and agrees that, during the
term the MedCap credit facilities are in place at IHHI, he will not serve or
accept any nomination or appointment as director, officer or employee of the
Company or any of its subsidiaries. In the event that a party proposes to
nominate a director whose election would cause a default in any then existing
IHHI loan agreement, the obligation to vote in accordance with Section 1 of the
Shareholder Agreement would be suspended for that election only and each party
shall be entitled to nominate and vote for directors independent of the
Shareholder Agreement.
(j) FAILURE TO VOTE; PROXY GRANT. In the event that Xx. Xxxxxxxxx,
OC-PIN or Xx. Xxxx, shall fail to vote his or its shares in the manner set forth
in this Section 1 (a "Voting Breach"), the breaching party shall be deemed
immediately upon the existence of such breach to have granted to the Chief
Executive Officer of the Company, as the proxy of the party with respect to the
matters set forth herein, and hereby authorizes him to represent and vote such
party's shares to ensure that such shares will be voted as set forth in this
Section 1. If the Chief Executive Officer of the Company does not agree to serve
as proxy, then Xx. Xxxxxxxxx will act as proxy for OC-PIN's and Xx. Xxxx'x
shares solely to vote such shares in a manner consistent with this Section 1,
and Xx. Xxxx will act as proxy for Xx. Xxxxxxxxx'x shares solely to vote such
shares in a manner consistent with this Section 1. Each of Xx. Xxxxxxxxx, OC-PIN
and Xx. Xxxx acknowledge that each proxy granted hereby, including any
successive proxy if need be, is given to secure the performance of a duty, is
coupled with an interest, and shall be irrevocable until the duty is performed.
Each party hereto hereby revokes any and all previous proxies with respect to
the shares of the Company's capital stock. In addition, in the event of a Voting
Breach, the non-breaching party shall be relieved of any future obligations
under this Section 1.
(k) NO LIABILITY FOR ELECTION OF RECOMMENDED DIRECTORS. Neither Xx.
Xxxxxxxxx, OC-PIN nor Xx. Xxxx makes any representation or warranty to the other
as to the fitness or competence to serve of any individuals nominated or elected
by them pursuant to this Agreement.
(l) BENEFICIAL OWNERSHIP. For purposes of this Agreement, the term
"beneficial ownership" of shares or similar terms shall be determined in
accordance with the provisions of Rule 13d-3(a) through (c) under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(i) Xx. Xxxxxxxxx represents and warrants to each of the other
parties hereto that, as of the Effective Date (and not including shares issuable
to him under his Stock Purchase Agreement referenced in the Settlement
Agreement), he beneficially owns 98,001,334 shares of common stock of the
Company (the "Common Stock").
(ii) Xx. Xxxx represents and warrants to each of the other parties
hereto that, as of the Effective Date (and not including shares issuable to him
under his Stock Purchase Agreement referenced in the Settlement Agreement), he
beneficially owns 5,112,000 shares of Common Stock, and he has a 45-48% economic
interest in OC-PIN.
4
(iii) OC-PIN represents and warrants to each of the other parties
hereto that, as of the Effective Date (and not including shares issuable to it
under its Stock Purchase Agreement referenced in the Settlement Agreement), it
beneficially owns 59,098,430 shares of Common Stock of the Company.
(m) TERMINATION. Subject to possible earlier termination under Section
3, all of the parties' respective rights and obligations under this Section 1
shall terminate immediately following the 2011 Annual Meeting of Stockholders of
the Company, except that:
(i) Xx. Xxxxxxxxx'x right to designate director nominees hereunder
and the other parties' obligations to nominate and vote in favor of such
nominees shall terminate earlier in the event that Xx. Xxxxxxxxx no longer
beneficially owns a number of shares of Common Stock equal to the sum of at
least 50% of the number of shares of Common Stock that he beneficially owns as
of the Effective Date plus the number of shares of Common Stock purchased by him
pursuant to his Stock Purchase Agreement referenced in the Settlement Agreement;
(ii) OC-PIN's right to designate director nominees hereunder and
the other parties' obligations to nominate and vote in favor of such nominees
shall terminate earlier in the event that OC-PIN no longer beneficially owns a
number of shares of Common Stock equal to the sum of at least 50% of the number
of shares of Common Stock that it beneficially owns as of the Effective Date
plus the number of shares of Common Stock purchased by it pursuant to its Stock
Purchase Agreement referenced in the Settlement Agreement; and
(iii) Xx. Xxxx'x right to designate director nominees hereunder
after the OC-PIN Dissolution and the other parties' obligations to nominate and
vote in favor of such nominees shall terminate earlier in the event that Xx.
Xxxx ceases to beneficially own, after the OC-PIN Dissolution, at least 50% of
the aggregate number of (A) shares of Common Stock that he beneficially owns as
of the Effective Date, (B) shares of Common Stock purchased by him pursuant to
his Stock Purchase Agreement referenced in the Settlement Agreement, plus (C)
shares of Common Stock that are beneficially received by him or beneficially
distributed to him from OC-PIN, whether in the OC-PIN Dissolution, by purchase
or otherwise.
(n) RESTRICTIVE LEGEND. Each of Xx. Xxxxxxxxx, OC-PIN and Xx. Xxxx agree
that all certificates evidencing shares of Company stock beneficially owned by
them or acquired after the date hereof (including shares purchased pursuant to
the Stock Purchase Agreements Settlement Agreement) will be submitted to the
Company at the Closing (or such later time as the shares are acquired) in order
to be modified to bear a legend reading substantially as follows, which legend
shall remain until the termination of their respective obligations under this
Section 1, at which point they may submit the share certificates to be reissued
without legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF A SHAREHOLDERS AGREEMENT WHICH PLACES CERTAIN RESTRICTIONS
ON THE VOTING OF THE SHARES REPRESENTED HEREBY. ANY PERSON ACCEPTING ANY
INTEREST IN SUCH SHARES SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND
BY ALL THE PROVISIONS OF SUCH AGREEMENT. A COPY OF SUCH SHAREHOLDERS
AGREEMENT WILL BE FURNISHED TO THE RECORD HOLDER OF THIS CERTIFICATE
WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE
OF BUSINESS."
5
2. TAG ALONG RIGHTS.
(a) TAG ALONG RIGHTS. Subject to other provisions hereof, in the event
that Xx. Xxxxxxxxx, on the one hand, or OC-PIN or any OC-PIN Member (including,
but not limited to, Xx. Xxxx), on the other hand, or any of their respective
Affiliates (each, a "Purchasing Shareholder"), proposes to buy or otherwise
acquire from the Company or any other person or entity beneficial ownership of
any additional shares of capital stock of the Company (the "Tag Shares"), then
the Purchasing Shareholder shall first offer for sale to the other party
(determined in the manner set forth in paragraph (c) below) (the "Tagging
Shareholder") the right to buy (or in the discretion of the Purchasing
Shareholder, the Purchasing Shareholder may arrange for the Tagging Shareholder
to enter into a direct purchase agreement with the seller of the Tag Shares)
such portion of the Tag Shares available after ensuring that Xx. Xxxxxxxxx owns
at least 51% of the issued and outstanding voting shares of the Company (the
"Tag Along Right"). Such 51% target shall be calculated (i) after giving effect
to the issuance of the Tag Shares which are the subject of a Tag Notice, and
(ii) without giving effect to any other shares which were previously the subject
of a Tag Notice and were not acquired by the Tagging Shareholder.
(b) AFFILIATE STATUS. For purposes of this Section 2, the term
"Affiliate" shall have the meaning specified in Rule 12b-2 under the Exchange
Act of 1934. The Parties agree that Xxxxxxx X. Xxxxxx shall not be deemed to be
an Affiliate of Xx. Xxxxxxxxx.
(c) HOLDERS OF TAG ALONG RIGHTS. In case Xx. Xxxxxxxxx or any of his
Affiliates is the Purchasing Shareholder, the Tag Along Right shall belong to
the OC-PIN Members (and not OC-PIN) on a pro-rata basis based upon their
respective percentage ownership of OC-PIN and the IHHI stock holdings of OC-PIN
at the time of the Tag Notice; PROVIDED, HOWEVER, that if any OC-PIN Member who
is a member of West Coast Holdings, LLC ("WCH") does not execute the Second
Settlement Agreement or opposes a proposed liquidating distribution or
dissolution of WCH, such OC-PIN Member shall not have any Tag Along Rights in
respect of shares acquired by Xx. Xxxxxxxxx nor shall Xx. Xxxxxxxxx have any
obligation to provide Tag Along Rights to such OC-PIN Member or with respect to
such member's interest in OC-PIN. In case OC-PIN or any of the OC-PIN Members is
the Purchasing Shareholder, the Tag Along Right shall belong to Xx. Xxxxxxxxx.
OC-PIN and the OC-PIN Members do not have Tag Along Rights with respect to each
other's shares.
(d) EXCEPTIONS. The Tag Along Right shall not apply to: (i) shares
purchased pursuant to the Stock Purchase Agreements referenced in the Settlement
Agreement, or (ii) transfers by a party to any Affiliate of such party for no
value which are made pursuant to the laws of descent or distribution or
primarily for estate planning purposes, provided that the transferee agrees to
be bound in writing by the obligations of the transferor under this Agreement.
6
(e) PROCEDURE FOR EXERCISE. The procedure for exercise of the Tag Along
Right is as follows: the Purchasing Shareholder shall give written notice to the
Tagging Shareholder of the Purchasing Shareholder's intention to acquire the Tag
Shares and the price for such shares (the "Tag Notice"). The Tagging Shareholder
shall have thirty (30) calendar days from the date the Tag Notice is given to
notify the Purchasing Shareholder in writing of such Tagging Shareholder's
irrevocable election to buy the Tag Shares (the "Tag Acceptance"). The failure
of a Tagging Shareholder to provide a Tag Acceptance within such timeframe shall
be deemed an irrevocable commitment not to exercise such party's Tag Along
Right, but only as to those Tag Shares for which the Tagging Shareholder failed
to provide a timely Tag Acceptance.
(f) ACCEPTANCE OF SHARES. Within five (5) business days after sending
the Tag Acceptance, each Tagging Shareholder exercising the Tag Along Right
shall (i) deposit into an escrow account designated by the Purchasing
Shareholder all funds necessary to pay for the shares specified in the Tag
Acceptance, (ii) provide a written representation to the Purchasing Shareholder
(if the transaction is a private transaction) that such party is an accredited
investor (as defined in Regulation D under the Securities Act of 1933, as
amended) and (iii) provide to the Purchasing Shareholder written confirmation of
such party's percentage ownership interest in the Company (and also such party's
interest in OC-PIN in the case of the OC-PIN Members).
(g) RE-OFFER OF TAG ALONG RIGHTS. In the event that Xx. Xxxxxxxxx is the
Purchasing Shareholder and any eligible OC-PIN Member does not timely advise Xx.
Xxxxxxxxx in writing of his or her election to buy the shares or fails to timely
deposit the necessary funds or provide the written representations within the
timeframes set forth in paragraph (c) above, then such OC-PIN Member's Tag Along
Right shall be re-offered pro-rata to the other OC-PIN Members who have timely
given irrevocable notice of an intention to purchase and have timely deposited
the necessary funds and representations (based on their respective pro-rata
interests in OC-PIN). If there are any unsubscribed shares during this second
offering, those unsubscribed shares will continue to be re-offered up to two
more times (within the five (5) business days described below) or until there
are no further buyers or all of the shares offered are purchased. The
reofferings shall all occur within five (5) business days from the conclusion of
the initial thirty (30) calendar day notice, and the purchasing shareholders
shall make an additional deposit of funds for the purchase of such reoffered
shares into escrow within such five (5) business day period.
(h) CLOSINGS. The closing of the purchase of subscribed and reoffered
shares shall occur at the time and on the conditions set forth in the notice and
purchase documents, not to exceed ten (10) days following the expiration of the
thirty (30) day notice and five (5) business day reoffering period.
(i) RELIANCE ON OC-PIN LIST OF MEMBERS. The names and signatures of the
OC-PIN Members are set forth in the signature pages hereto. Xx. Xxxxxxxxx is
entitled to rely on this list as accurate unless such list is supplemented by a
writing signed by OC-PIN and the affected OC-PIN Member. OC-PIN shall require
any new members to become signatories and be bound by the terms of this
Agreement concurrent with their becoming members of OC-PIN and shall provide Xx.
Xxxxxxxxx with an updated list and signature pages joining the new members to
this Agreement as soon as possible (and in any event no later than seven (7)
days thereafter). Upon Xx. Xxxxxxxxx'x notice to OC-PIN and the OC-PIN Members
of the opportunity to purchase shares pursuant to the Tag Along Right, OC-PIN
shall provide to Xx. Xxxxxxxxx a verified list of the then-existing members of
OC-PIN and each of their percentage ownership in OC-PIN as of the date of Xx.
Xxxxxxxxx'x notice.
7
(j) NO ASSIGNMENT. The Tag Along Right is not assignable or transferable
to any other person or entity, except that the rights of a party as a Tagging
Shareholder and the obligations of a party as a Purchasing Shareholder under
this Section 2 may be transferred together (and in no event separately) to any
transferee of Company stock who is a family member of the transferor and who
receives such stock by will, trust or under the laws of descent and distribution
and who agrees in writing to be bound by the provisions of this Agreement.
(k) SECTION 16(B) COMPLIANCE. Notwithstanding the foregoing, upon the
request of any party which is subject to Section 16(b) of the Exchange Act, if
any proposed transaction under this Section 2 would result in liability of a
party under Section 16(b) of the Exchange Act, the parties shall reasonably
cooperate with each other to structure the proposed transaction in a manner to
eliminate such liability while complying in all respects with applicable law.
(l) TERMINATION. Subject to possible early termination under Section 3,
the rights and obligations of the parties under this Section 2 shall terminate
three (3) years following the Effective Date, PROVIDED, HOWEVER, that this
Section 2 shall continue to apply after three (3) years following the Effective
Date (but subject to possible early termination under Section 3) to acquisitions
of Company stock by Xx. Xxxxxxxxx or any of his Affiliates upon exercise of
warrants acquired from Affiliates or subsidiaries of Medical Capital Corporation
under that certain Option and Standstill Agreement, dated as of July 18, 2008,
as amended on January 30, 2009 (the "MedCap Warrants"). In no event shall this
Section 2 apply to any acquisitions of stock or exercise of any options or
warrants by either party, other than the MedCap Warrants, after three (3) years
following the Effective Date.
3. TERMINATION. Unless earlier terminated under Sections 1(m) or 2(l), this
Agreement shall terminate in its entirety upon the earlier of (a) the sale of
the Company (through a merger, consolidation or sale of all or substantially all
of its assets, other than a merger, consolidation or sale of assets to an entity
that is majority owned or controlled by the Company), or (b) the acquisition by
a single purchaser of all of the issued and outstanding shares of capital stock
of the Company.
4. MISCELLANEOUS.
(a) MODIFICATIONS. No provision of this Agreement may be amended, waived
or modified other than by in writing signed by each party hereto. No waiver of
any of the provisions of this Agreement shall constitute a waiver of any other
provision (whether or not similar) nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided in writing. No delay on the part of
any party in exercising any right, power or privilege hereunder shall operate as
a waiver thereof.
8
(b) SEVERABILITY. This Agreement may be executed in one or more
counterparts, all of which taken together shall be deemed one original.
(c) COOPERATION. Each of the parties shall exercise commercially
reasonable efforts and cooperation as may be required to complete the
transactions contemplated by this Agreement, and each party shall execute and
deliver such further documents or instruments required by the other party as may
be reasonably necessary or desirable to give effect to this Agreement and carry
out its provisions.
(d) EXPENSES. Each party to this Agreement will bear all of its own
costs and expenses incurred by it in negotiating this Agreement and in closing
and carrying out the transactions contemplated by this Agreement.
(e) GOVERNING LAW; VENUE. This Agreement shall be construed in
accordance with and governed by the laws of the State of Nevada without
reference to conflicts of law principles. Each of the parties hereto hereby
irrevocably and unconditionally consents to submit to the exclusive jurisdiction
of the courts of the State of California and of the United States of America, in
each case located in the County of Orange, for any lawsuit, action or proceeding
arising out of or relating to this Agreement and the transactions contemplated
hereby (and agrees not to commence any lawsuit, action or proceeding relating
thereto except in such courts). Each of the parties hereto hereby irrevocably
and unconditionally waives any objection to the laying of venue of any lawsuit,
action or proceeding arising out of this Agreement or the transactions
contemplated hereby in the courts of the State of California or the United
States of America, in each case located in the County of Orange, and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such lawsuit, action or proceeding brought in any
such court has been brought in an inconvenient forum.
(f) SUCCESSORS AND ASSIGNS. Except as otherwise set forth in this
Agreement, this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties.
(g) COUNTERPARTS; DELIVERY BY FACSIMILE. This Agreement may be executed
in one or more counterparts, each of which shall for all purposes be deemed to
be an original and all of which taken together shall constitute one and the same
instrument. This Agreement and any signed agreement or instrument entered into
in connection with this Agreement, and any amendments hereto or thereto, to the
extent signed and delivered by means of a facsimile machine or PDF attachment to
electronic mail, shall be treated in all manner and respects as an original
agreement or instrument and shall be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in person. At
the request of any party hereto or to any such agreement or instrument, each
other party hereto or thereto shall re-execute original forms thereof and
deliver them to all other parties. No party hereto or to any such agreement or
instrument shall raise the use of a facsimile machine or electronic mail to
deliver a signature or the fact that any signature or agreement or instrument
was transmitted or communicated through the use of a facsimile machine or
electronic mail as a defense to the formation of a contract and each such party
forever waives any such defense, except to the extent such defense related to
lack of authenticity.
9
(h) SEVERABILITY. If any provision of this Agreement, or the application
of any such provision to any person or circumstances, shall be held invalid by a
court of competent jurisdiction, the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those as to
which it is held invalid, shall not be affected thereby, and such invalid
provisions shall be given the maximum effect permitted by applicable law.
(i) THIRD PARTIES. No provision of this Agreement is intended to benefit
any third party.
(j) HEADINGS, INTERPRETATION, GENDER. Words used herein, regardless of
the number and gender specifically used, shall be deemed and construed to
include any other number, singular or plural, and any other gender, masculine,
feminine, or neuter, as the context requires. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed
followed by the words "without limitation. Neither this Agreement nor any
uncertainty or ambiguity herein shall be construed or resolved against party,
whether under any rule of construction or otherwise. No party to this Agreement
shall be considered the draftsman. On the contrary, this Agreement has been
reviewed, negotiated and accepted by all parties and their attorneys and shall
be construed and interpreted according to the ordinary meaning of the words so
as fairly to accomplish the purposes and intentions of all the parties.
(k) REMEDIES. In the event of a breach by any party of its respective
obligations under this Agreement, other party, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. Each party
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of any of the provisions of this Agreement
and hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
(l) NOTICES. All notices, demands and other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given (i) when personally delivered or
sent by telecopy (with hard copy to follow), (ii) one business day following the
day when deposited with a reputable and established overnight express courier
(charges prepaid), or (iii) five days following mailing by certified mail,
postage prepaid and return receipt requested. Unless another address is
specified in writing, notices, demands and communications to the parties shall
be sent to the addresses indicated for each party on the signature pages hereto.
(m) FILING DATE AND DAY FOR TAKING ACTION. When the day, or the last
day, for taking any action hereunder falls on Saturday, Sunday or a holiday, the
action may be taken on the next succeeding business day.
[Signature pages follow]
10
IN WITNESS WHEREOF, this Agreement is executed as of the date first above
written.
XX. XXXX X. XXXXXXXXX ADDRESS:
c/o Strategic Global Management, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
/s/ Xxxx X. Xxxxxxxxx Xxxxxxxxx, XX 00000
---------------------------------------- Fax: (000) 000-0000
WITH COPY TO:
Xxxxx X. Xxxx, Esq.
Law Office of Xxxxx X. Xxxx
00000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
ORANGE COUNTY PHYSICIANS ADDRESS:
INVESTMENT NETWORK, LLC 0000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000
Fax: (000) 000-0000
By: /s/ Xxxx X. Xxxxxxxxxxx
------------------------------------- WITH COPY TO:
Name: Xxxx X. Xxxxxxxxxxx, M.D. Xxxxxxxx & Xxxxxx
----------------------------------- 0 Xxxxxx Xxxxxx Xxxxx, Xxxxx Xxxxx
Xxxxx Xxx, XX 00000
Its: Co-Manager (000) 000-0000 (facsimile)
----------------------------------- Attn: Xxxxxx X. Xxxxxxxx
By: /s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx M.D.
-----------------------------------
Its: Co-Manager
------------------------------------
XX. XXXX X. XXXX ADDRESS:
0000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000
/s/ Xxxx Xxxx Fax: (000) 000-0000
----------------------------------------
WITH COPY TO:
Xxxxxxxx & Xxxxxx
0 Xxxxxx Xxxxxx Xxxxx, Xxxxx Xxxxx
Xxxxx Xxx, XX 00000
(000) 000-0000 (facsimile)
Attn: Xxxxxx X. Xxxxxxxx
11
Orange County Physicians Investment Network Members:
NAME ADDRESS
Xxxxx Xxxx 0000 Xxxxxxxx Xxx
--------------------------------------
/s/ Xxxxx Xxxx Xxxxx Xxxx, XX 00000
---------------------------------------- --------------------------------------
Facsimile: 000-000-0000
----------------------------
Xxxxx Xxxxx 0000 Xxxxx xx xxx Xxxxxxxx
--------------------------------------
/s/ Xxxxx Xxxxx Xxxxxxxx, XX 00000
---------------------------------------- --------------------------------------
Facsimile: (000) 000-0000
----------------------------
Xxxxxx Xxxxxxx 00000 Xxxxxxxxx Xx.
--------------------------------------
/s/ S Xxxxxx Xxxxxxx Xxxxxxxx, XX 00000
---------------------------------------- --------------------------------------
Facsimile: 000-000-0000
----------------------------
Xxxxxxxx Xxxx --------------------------------------
/s/ Xxxxxxxx Xxxx
---------------------------------------- --------------------------------------
Facsimile: 714-751-1005
----------------------------
Fairwind Investments, LP
By /s/ Xxxx X. Xxxxxxxxxxx Xxxx X. Xxxxxxxxxxx, M.D.
-------------------------------------- --------------------------------------
Its General Partner
-------------------------------------
Title M.D.
----------------------------------- --------------------------------------
Facsimile: 000-000-0000
----------------------------
Ahmad Hajj 0000 Xxxxxxx Xxx #000
--------------------------------------
/s/ Ahmad Hajj Santa Ana, CA
---------------------------------------- --------------------------------------
Facsimile: (000) 000-0000
----------------------------
12
Xxxxxxxx Xxxxxx
--------------------------------------
/s/ Xxxxxxxx Xxxxxx
---------------------------------------- --------------------------------------
Facsimile:
----------------------------
Xxxxxx Xxxxxxx 000 X. Xxxxxxxx Xxxxxx
--------------------------------------
/s/ Xxxxxx Xxxxxxx Xxxxxxx, XX 00000
---------------------------------------- --------------------------------------
Facsimile: 000-000-0000
----------------------------
Xxxxx Xxxxxxx 0000 X. Xxxxx Xx
---------------------------------------- --------------------------------------
/s/ Xxxxx Xxxxxxx Xxxxxx, XX 00000
---------------------------------------- --------------------------------------
Facsimile: 000-000-0000
----------------------------
Xxxxxx Xxxx
--------------------------------------
---------------------------------------- --------------------------------------
Facsimile:
----------------------------
Xxxxxxxxxx Xxxxxxx
--------------------------------------
/s/ Xxxxxxxxxx Xxxxxxx
---------------------------------------- --------------------------------------
Facsimile: Xxxxxxxxxx Xxxxxxx MD Inc.
----------------------------
Xxxxxxx Xxx
--------------------------------------
---------------------------------------- --------------------------------------
Facsimile:
----------------------------
Xxxx Xxxxxx
--------------------------------------
Xxxx Xxxxxx
---------------------------------------- --------------------------------------
3-26-09
Facsimile: xxxxxxxx@xxxxx.xxx
----------------------------
13
NAME ADDRESS
Xxxxx Xxxxxx
--------------------------------------
/s/ Xxxxx Xxxxxx
---------------------------------------- --------------------------------------
Facsimile: 000-000-0000
----------------------------
Xxxxxx Xxxxx 000 X. Xxxxxx Xxx.
--------------------------------------
/s/ Xxxxxx Xxxxx Xxx Xxxxxxx, XX 00000
---------------------------------------- --------------------------------------
Facsimile: 000-000-0000
----------------------------
Xxxxx Xxxxx 7 Xxxxxxx
--------------------------------------
/s/ Xxxxx Xxxxx Xxxxxx, XX 00000
---------------------------------------- --------------------------------------
Facsimile: (000) 000-0000
----------------------------
Xxxx Xxxx
--------------------------------------
/s/ Xxxx Xxxx
---------------------------------------- --------------------------------------
Facsimile:
----------------------------
Xxxxxx Xxxxxxxx 0000 Xxxxxxx Xxx #000
--------------------------------------
/s/ Xxxxxx Xxxxxxxx Xxx Xxxxxxxx, XX 00000
---------------------------------------- --------------------------------------
562-594-8149
Facsimile: 000-000-0000
----------------------------
Xxxxxxx Xxxx 0000 Xxxxxxxxx Xx.
--------------------------------------
/s/ Xxxxxxx Xxxx Xx Xxxxxx, XX 00000
---------------------------------------- --------------------------------------
Facsimile: 000-000-0000
----------------------------
Xxxx Xxxxx 25 Topiary
--------------------------------------
/s/ Xxxx Xxxxx Xxxxxx, XX 00000
---------------------------------------- --------------------------------------
Facsimile: 949-548-3412
----------------------------
14
NAME ADDRESS
OC Healthcare, LLC
By /s/ Xxxx Xxxxx 0000 X. Xxxxx Xxxxxxx Xxxx., Xxxxx 0-X
-------------------------------------- --------------------------------------
Its Xxxx Xxxxx
------------------------------------- Xxxxxxx, XX 00000
Title Member --------------------------------------
-----------------------------------
Facsimile: 000-000-0000
----------------------------
By /s/ Xxxx Xxxxxxxxx
--------------------------------------
Its Xxxx Xxxxxxxxx
-------------------------------------
Title Member
-----------------------------------
Israel Rottermann
--------------------------------------
/s/ Israel Rottermann
---------------------------------------- --------------------------------------
Facsimile: (000) 000-0000
----------------------------
Xxxxx Xxxxx X.X. Xxx 00000
--------------------------------------
/s/ Ahmed Salam Xxxxxx, XX 00000
---------------------------------------- --------------------------------------
Cell # 000-000-0000
Facsimile: 000-000-0000
----------------------------
Xxxxxx Xxxxx
--------------------------------------
/s/ Xxxxxx Xxxxx
---------------------------------------- --------------------------------------
Facsimile:
----------------------------
Xxxxxx Xxxxxx P.O. Box 9126
---------------------------------------- --------------------------------------
/s/ Xxxxxx Xxxxxx Xxxxxxx Xxxxx, XX 00000
---------------------------------------- --------------------------------------
Facsimile: 714-979-7284
----------------------------
R. Sankaram DR. R. (Xxx) Sankaram, M.D., Inc.
--------------------------------------
00000 Xxxxxx Xxx., Xxxxx 000
/s/ R. Sankaram Xxxxxxxx Xxxxxx, XX 00000
---------------------------------------- --------------------------------------
(000) 000-0000
Facsimile: (000) 000-0000
----------------------------
15
NAME ADDRESS
Xxxxxx Xxxxxx 000 X. Xxxxxx Xxx #000
--------------------------------------
/s/ Xxxxxx Xxxxxx Xxxxx Xxx, XX 00000
---------------------------------------- --------------------------------------
Facsimile:
----------------------------
Xxxxx Xxxx
--------------------------------------
/s/ Xxxxx X. Xxxx
---------------------------------------- --------------------------------------
Facsimile:
----------------------------
Xxxx Xxxx 5020 Copa de Oro
---------------------------------------- --------------------------------------
/s/ Xxxx Xxxx Xxxxxxx, XX 00000
---------------------------------------- --------------------------------------
Facsimile: 000-000-0000
----------------------------
Xxxxx Xxxxxxx 0000 Xxxxxx Xxx #000
---------------------------------------- --------------------------------------
/s/ Xxxxx Xxxxxxx Xxxxxxx Xxxxx, XX 00000
---------------------------------------- --------------------------------------
Facsimile: (000) 000-0000
----------------------------
Xxxxxxx Xxxxx
--------------------------------------
/s/ X. Xxxxx M.D.
---------------------------------------- --------------------------------------
Facsimile:
----------------------------
Xxxxx Xxxxx
--------------------------------------
/s/ Xxxxx Xxxxx
---------------------------------------- --------------------------------------
Facsimile:
----------------------------
Xxxx Xxxxx
--------------------------------------
/s/ Xxxx Xxxxx
---------------------------------------- --------------------------------------
Facsimile: (000) 000-0000
----------------------------
16
