EXHIBIT 10.29
MANAGEMENT STOCKHOLDERS' AGREEMENT
MANAGEMENT STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as of
________, 200__, between IASIS Healthcare Corporation (the "Company"),
[________] (the "Majority Stockholder") and ___________________ (the "Management
Stockholder").
WHEREAS, the Management Stockholder is an employee or service provider
of the Company or an affiliate of the Company and in such capacity was granted
an option (the "Option") to purchase shares of common stock of the Company,
$0.01 par value per share ("Common Stock"), pursuant to the IASIS Healthcare
Corporation 2004 Stock Option Plan (the "Plan");
WHEREAS, as a condition to the issuance of shares of Common Stock
pursuant to the exercise of any portion of the Option, the Management
Stockholder is required under the Plan to execute this Agreement;
WHEREAS, the Management Stockholder desires to exercise the Option to
purchase shares of Common Stock; and
WHEREAS, the Management Stockholder, the Majority Stockholder and the
Company desire to enter into this Agreement and to have this Agreement apply to
the shares to be purchased pursuant to the Plan and to any shares of Common
Stock acquired after the date hereof by the Management Stockholder from whatever
source, subject to any future agreement between the Company and the Management
Stockholder to the contrary (in the aggregate, the "Shares").
NOW THEREFORE, in consideration of the premises hereinafter set forth,
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows.
1. Investment. The Management Stockholder represents that the
Shares are being acquired for investment and not with a view toward the
distribution thereof.
2. Issuance of Shares. The Management Stockholder acknowledges
and agrees that the certificate for the Shares shall bear the following legends
(except that the second paragraph of this legend shall not be required after the
Shares have been registered and except that the first paragraph of this legend
shall not be required after the termination of this Agreement):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF A MANAGEMENT STOCKHOLDERS' AGREEMENT DATED AS OF
______________, 2004 AND MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED,
ASSIGNED OR ENCUMBERED, EXCEPT AS MAY BE PERMITTED BY THE AFORESAID
AGREEMENT. A COPY OF THE MANAGEMENT STOCKHOLDERS' AGREEMENT MAY BE
OBTAINED FROM THE SECRETARY OF THE COMPANY.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. THE SHARES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER
THE SECURITIES ACT OF 1933 OR AN OPINION OF COUNSEL FOR THE COMPANY
THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
Upon the termination of this Agreement, or upon registration of the
Shares under the Securities Act of 1933 (the "Securities Act"), the Management
Stockholder shall have the right to exchange any Shares containing the above
legend (i) in the case of the registration of the Shares, for Shares legended
only with the first paragraph described above and (ii) in the case of the
termination of this Agreement, for Shares legended only with the second
paragraph described above.
3. Transfer of Shares; Call Rights.
(a) The Management Stockholder agrees that he will not cause or
permit the Shares or his interest in the Shares to be sold, transferred,
hypothecated, assigned or encumbered except as expressly permitted by this
Section 3; provided, however, that the Shares or any such interest may be
Transferred (i) on the Management Stockholder's death by bequest or inheritance
to the Management Stockholder's executors, administrators, testamentary
trustees, legatees or beneficiaries and (ii) in accordance with Section 4 of
this Agreement, subject in any such case to the agreement by each transferee
(other than the Company or as otherwise permitted by the Company) in writing to
be bound by the terms of this Agreement as if such transferee had been an
original signatory hereto and provided in any such case that no such transfer
that would cause the Company to be required to register the Common Stock or
Preferred Stock under Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), shall be permitted.
(b) The Company (or its designated assignee) shall have the right,
during the ninety-day period following the later of (x) the date of termination
of the Management Stockholder's employment for any reason or (y) the 181st day
after the Management Stockholder acquires Shares (provided that there may be
multiple 90-day periods if Management Stockholder has multiple acquisitions of
Shares), to purchase from the Management Stockholder, and upon the exercise of
such right the Management Stockholder shall sell to the Company (or its
designated assignee), all or any portion of the Shares held by the Management
Stockholder as of the date as of which such right is exercised at a per Share
price equal to the Fair Market Value (as defined in the Plan) of a share of
Common Stock determined as of the date as of which such right is exercised. The
Company (or its designated assignee) shall exercise such right by delivering to
the Management Stockholder a written notice specifying its intent to purchase
Shares held by the Management Stockholder, the date as of which such right is to
be exercised and the number of Shares to be purchased. Such purchase and sale
shall occur on such date as the Company (or its designated assignee) shall
specify which date shall not be later than ninety (90) days after the fiscal
quarter-end immediately following the date as of which the Company's right is
exercised; provided that the Company may delay any such payment in the event
such payment will result in the violation of the terms or provisions of, or
result in a default or event of
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default under, any guarantee, financing or security agreement or document
entered into by the Company or any of its Affiliates and in effect on such date
(hereinafter a "Financing Agreement"). In the event the payment of the purchase
price is delayed as a result of a restriction imposed by a Financing Agreement
as provided above, such payment shall be made without the application of further
conditions or impediments as soon as practicable after the payment of such
purchase price would no longer result in the violation of the terms or
provisions of, or result in a default or event of default under, any Financing
Agreement, and such payment shall equal the amount that would have been paid to
the Management Stockholder if no delay had occurred plus interest for the period
from the date on which the purchase price would have been paid but for the delay
in payment provided herein to the date on which such payment is made (the "Delay
Period"), calculated at an annual rate equal to the average annual prime rate
charged during the Delay Period by a nationally recognized bank designated by
the Board.
4. Certain Rights.
(a) Drag Along Rights. If the Majority Stockholder desires to sell
all or substantially all of its shares of Common Stock to a good faith
independent purchaser (a "Purchaser") (other than any other investment
partnership, limited liability company or other entity established for
investment purposes and controlled by one or more of the members or the
principals of the Majority Stockholder or any of its affiliates and other than
any employees of the Majority Stockholder hereinafter referred to as a
"Permitted Transferee") and said Purchaser desires to acquire all or
substantially all of the issued and outstanding shares of Common Stock (or all
or substantially all of the assets of the Company) upon such terms and
conditions as agreed to with the Majority Stockholder, the Management
Stockholder agrees to sell all of his Shares to said Purchaser (or to vote all
of his Shares in favor of any merger or other transaction which would effect a
sale of such shares of Common Stock or assets of the Company) at the same price
per share of Common Stock and pursuant to the same terms and conditions with
respect to payment for the shares of Common Stock as agreed to by the Majority
Stockholder. In such case, the Majority Stockholder shall give written notice of
such sale to the Management Stockholder at least fifteen (15) days prior to the
consummation of such sale, setting forth (i) the consideration to be received by
the holders of shares of Common Stock, (ii) the identity of the Purchaser, (iii)
any other material items and conditions of the proposed transfer and (iv) the
date of the proposed transfer. The Majority Stockholder and the Management
Stockholder who exercises similar drag-along rights shall be responsible for
their proportionate share of the costs of the proposed Transfer to the extent
not paid or reimbursed by the proposed Purchaser or the Company.
(b) Tag Along Rights. (i) Subject to paragraph (iv) of this
Section 4(b), if the Majority Stockholder or its Permitted Transferee proposes
to transfer any of its shares of Common Stock to a Purchaser (other than a
Permitted Transferee), then the Majority Stockholder or his Permitted Transferee
(hereinafter referred to as a "Selling Stockholder") shall give written notice
of such proposed transfer to the Management Stockholder (the "Selling
Stockholder's Notice") at least fifteen (15) days prior to the consummation of
such proposed transfer, and shall provide notice to all other stockholders of
the Company to whom the Majority Stockholder has granted similar "tag-along"
rights (such stockholders together with the Management Stockholder, referred to
herein as the "Other Stockholders") setting forth (A) the number of shares of
Common Stock offered, (B) the consideration to be received by such Selling
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Stockholder, (C) the identity of the Purchaser, (D) any other material items and
conditions of the proposed transfer and (E) the date of the proposed transfer.
(ii) Upon delivery of the Selling Stockholder's Notice, the
Management Stockholder shall have the right to require the
Selling Stockholders to cause the proposed Purchaser to
purchase up to the number of such Management Stockholder's
Shares equal to the product of (x) the number of Shares of the
Management Stockholder multiplied by (y) a fraction, the
numerator of which is the number of shares of Common Stock
proposed to be transferred by the Selling Stockholder to the
proposed Purchaser and the denominator which is the total
number of shares of Common Stock of the Selling Stockholder.
In the event that the Selling Stockholder is unable to cause
the proposed Purchaser to purchase the number of shares of
Common Stock equal to the sum of the number of shares of
Common Stock proposed to be transferred by the Selling
Stockholder and the number of the Management Stockholder's
Shares calculated pursuant to the preceding sentence, then the
Management Stockholder shall be entitled to sell up to its pro
rata portion of the Shares actually purchased by the proposed
Purchaser, based on the relative number of shares of Common
Stock held by the Selling Stockholder and all Other
Stockholders exercising similar tag-along rights. If the
Management Stockholder exercises his right under this Section,
the Selling Stockholder shall deliver or cause to be delivered
to the Management Stockholder copies of all transaction
documents related to the proposed Transfer as the same become
available.
(iii) Any Transfer of Shares by the Management Stockholder shall be
at the same price per share of Common Stock and pursuant to
the same terms and conditions with respect to payment for the
shares of Common Stock as agreed to by the Selling
Stockholder, by sending written notice to the Selling
Stockholder within fifteen (15) days after the date of the
Selling Stockholder's Notice, indicating its desire to
exercise its rights and specifying the number of Shares it
desires to transfer; provided that such number of Shares does
not exceed the number of Shares determined pursuant to Section
4(b)(ii) and, provided, further, that in order to be entitled
to exercise its tag-along rights pursuant to this Section
4(b), the Management Stockholder must agree to make to the
proposed Purchaser, representations, warranties, covenants,
indemnities and agreements comparable to those made by the
Selling Stockholder in connection with the proposed transfer
and agree to the same conditions to the proposed transfer as
the
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Selling Stockholder agrees, it being understood that all such
representation, warranties, covenants, indemnities and
agreements shall be made by the Selling Stockholder, the
Management Stockholder and any Other Stockholder exercising
similar tag-along rights severally and not jointly. The
Selling Stockholder, the Management Stockholder and any Other
Stockholder who exercises similar tag-along rights shall be
responsible for their proportionate share of the costs of the
proposed Transfer to the extent not paid or reimbursed by the
proposed Purchaser or the Company.
(iv) Notwithstanding anything to the contrary contained herein, the
provisions of this Section 4(b) shall not apply to any sale or transfer by the
Majority Stockholder of shares of Common Stock unless and until the Majority
Stockholder, after giving effect to the proposed sale or transfer, shall have
sold or transferred in the aggregate (other than to Permitted Transferees)
shares of Common Stock, representing 5.0% of shares of Common Stock owned by the
Majority Stockholder on the date hereof.
5. Termination. This Agreement shall terminate with respect to
the Common Stock immediately following the existence of a Public Market for the
Common Stock except that (i) the requirements contained in Section 2 hereof
shall survive the termination of this Agreement and (ii) the provisions
contained in Section 3 hereof shall continue with respect to each Share during
such period of time, if any, as the Management Stockholder is precluded from
selling such Shares pursuant to Rule 144 of the Securities Act. For this
purpose, a "Public Market" for the Common Stock shall be deemed to exist if at
least 20% of the total outstanding Common Stock is registered under Section
12(b) or 12(g) of the Exchange Act and trading regularly occurs in such Common
Stock in, on or through the facilities of securities exchanges and/or
inter-dealer quotation systems in the United States (within the meaning of
Section 902(n) of the Securities Act) or any designated offshore securities
market (within the meaning of Rule 902(a) of the Securities Act).
6. Distributions With Respect To Shares. As used herein, the term
"Shares" includes securities of any kind whatsoever distributed with respect to
the Common Stock acquired by the Management Stockholder pursuant to the Plan or
any such securities resulting from a stock split or consolidation involving such
Common Stock.
7. Amendment; Assignment. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by authorized representatives of the parties
or, in the case of a waiver, by an authorized representative of the party
waiving compliance. No such written instrument shall be effective unless it
expressly recites that it is intended to amend, supersede, cancel, renew or
extend this Agreement or to waive compliance with one or more of the terms
hereof, as the case may be. Except for the Management Stockholder's right to
assign his or her rights under Section 3(a) or the Company's right to assign its
rights under Section 3(b), no party to this Agreement may assign any of its
rights or obligations under this Agreement without the prior written consent of
the other parties hereto.
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8. Notices. Each notice and other communication hereunder shall
be in writing and shall be given and shall be deemed to have been duly given on
the date it is delivered in person, on the next business day if delivered by
overnight mail or other reputable overnight courier, or the third business day
if sent by registered mail, return receipt requested, to the parties as follows:
If to the Management Stockholder, to his most recent address shown on
records of the Company or its Affiliate;
If to the Company:
IASIS Healthcare Corporation
Dover Centre
000 Xxxxxxxx Xxxx, Xxxxx X000
Xxxxxxxx, XX 00000
Attention: Board of Directors and Secretary
If to the Majority Stockholder, to its most recent address shown on
records of the Company or its Affiliate;
or to such other address as any party may have furnished to the others
in writing in accordance herewith, except that notices of change of address
shall only be effective upon receipt.
9. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but each of which
together shall constitute one and the same document.
10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without
reference to its principles of conflicts of law.
11. Binding Effect. This Agreement shall be binding upon, inure to
the benefit of, and be enforceable by the heirs, personal representatives,
successors and permitted assigns of the parties hereto. Nothing expressed or
referred to in this Agreement is intended or shall be construed to give any
person other than the parties to this Agreement, or their respective heirs,
personal representatives, successors or assigns, any legal or equitable rights,
remedy or claim under or in respect of this Agreement or any provision contained
herein.
12. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof.
13. Severability. If any term, provision, covenant or restriction
of this Agreement, is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
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14. Miscellaneous. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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* * * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
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[Management Stockholder]
IASIS Healthcare Corporation
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By:
Title:
[------------------------]
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By:
Title:
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