1
EXHIBIT D
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
2
shall have transferred any of its Shares or any Affiliate of DVI to which DVI
shall have transferred any of its Registrable Securities.
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.
-2-
3
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.
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
-3-
4
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);
(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
-4-
5
(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, 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
-5-
6
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;
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
-6-
7
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 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
-7-
8
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 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
-8-
9
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
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
-9-
10
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
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
-10-
11
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 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
-11-
12
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;
(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);
-12-
13
(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 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
-13-
14
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 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;
-14-
15
(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 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
-15-
16
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 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.
-16-
17
(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 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
-17-
18
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 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
-18-
19
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 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
-19-
20
such indemnified party and shall survive the transfer
of any Registrable Securities and any termination of
this Agreement.
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.
-20-
21
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 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
-21-
22
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 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
