Exhibit 10.15
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THIS AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this "Agreement"),
is made as of August 23, 1996 by and among (i) American Medserve Corporation, a
Delaware corporation (the "Company"), (ii) Golder, Thoma, Xxxxxxx, Xxxxxx Fund
IV, L.P., a Delaware limited partnership (the "Investor"), (iii) Xxxxxxx X.
Xxxxxxxx ("Xxxxxxxx"), Xxxxxxx X. Xxxxxxxx ("Xxxxxxxx"), Xxxxxxx X. Xxxxxxx
("Xxxxxxx"), J. Xxxxxxx Xxxxxxx ("Xxxxxxx"), Xxxxxx X. Xxxxxx ("Xxxxxx") and
Xxxxxx X. Xxxx ("Xxxx") (each, an "Executive" and, collectively, the
"Executives"), (iv) Xxxxx X.X. Xxxxxx ("Xxxxxx"), Xxxxxxx X. Xxxxxxx ("Xxxxxxx")
and Xxxx X. Xxxxxxx ("Xxxxxxx") and (v) each of the other individuals identified
on the signature page hereof (the "Subsidiary Investors"). The Investor, the
Executives, Xxxxxx, Xxxxxxx and Xxxxxxx and the Subsidiary Investors are
collectively referred to herein as the "Stockholders" and individually as a
"Stockholder." This Agreement amends, restates and supersedes that certain
Stockholders Agreement dated as of December 3, 1993 by and among the Company,
the Investor and Xxxxxxxx and that certain Stockholders Agreement dated as of
April 30, 1996 by and among the Company, the Investor and Xxxxxxxx. Capitalized
terms used but not otherwise defined herein are defined in Section 9 hereof.
Xxxxxxxx and the Investor each hereby acknowledge that their limited
preemptive rights pursuant to Section 6 of the Senior Management Agreement dated
as of December 3, 1993 by and between the Company and Xxxxxxxx (the "Xxxxxxxx
Agreement") and Section 3G of the Equity Purchase Agreement dated as of December
3, 1993 by and between the Company and the Investor (the "Equity Purchase
Agreement"), respectively, will not be exercisable in connection with any future
issuance of common stock of the Company (a) to The Evangelical Lutheran Good
Samaritan Foundation (the "Foundation") or any of its affiliates pursuant to the
Conversion Option, the Put or the Call (each as defined in and) pursuant to the
Shareholders Agreement among the Foundation, the Company and Good Samaritan
Supply Services, Inc., ("GSSS") dated as of April 30, 1996 (the "GSSS
Shareholders Agreement") or (b) in exchange for the stock of any direct or
indirect subsidiary of the Company pursuant to the provisions of any
stockholders agreement to which such subsidiary and either the Company or AMC
Regional Holdings, Inc. is a party.
The Investor has purchased shares of the Company's Class A Common
Stock, par value $.01 per share (the "Class A Common"), pursuant to the Equity
Purchase Agreement. Xxxxxxxx has purchased shares of the Company's Class B
Common Stock, par value $.01 per share (the "Class B Common"), pursuant to the
Xxxxxxxx Agreement and will purchase additional shares of Class B Common
pursuant to an Amended and Restated Senior Management Agreement (the "Amended
and Restated Agreement"). Xxxxxxxx will purchase shares of the Company's Class
B Common, pursuant to a Senior Management Agreement by and between the Company
and Xxxxxxxx (the "Xxxxxxxx Agreement"). Xxxxxxx will purchase shares of the
Company's Class B Common, pursuant to a Senior Management Agreement by and
between the Company and Xxxxxxx (the "Xxxxxxx Agreement"). Xxxxxxx will
purchase shares of the Company's Class B Common, pursuant to a Senior Management
Agreement by and between the Company and Xxxxxxx (the "Xxxxxxx Agreement").
Xxxxxx will purchase shares of the Company's Class B Common, pursuant to a
Senior Management Agreement by and between the Company and Xxxxxx (the "Xxxxxx
Agreement"). Pepe will purchase shares of the Company's Class B Common,
pursuant to a Senior Management Agreement by and between the Company and Pepe
(the "Pepe Agreement"). Xxxxxx will purchase shares of the Company's Class B
Common, pursuant to a Director Stock Agreement by and between the Company and
Xxxxxx (the "Xxxxxx Agreement"). Xxxxxxx will purchase shares of the Company's
Class B Common, pursuant to a Director Stock Agreement by and between the
Company and Xxxxxxx (the "Xxxxxxx Agreement"). Jerstad will purchase
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shares of the Company's Class B Common, pursuant to a Director Stock Agreement
by and between the Company and Jerstad (the "Jerstad Agreement"). Each of the
Subsidiary Investors will receive shares of the Company's Class B Common upon
exchange of each Subsidiary Investor's equity interest in certain subsidiaries
of the Company, pursuant to the terms of various stockholders agreements between
such Subsidiary Investors and such subsidiaries (the "Subsidiary Stockholder
Agreements").
The execution and delivery of this Agreement is a condition to the
Company's issuance of shares of Class B Common to Freedman, Wallace, Gephart,
Loftus, Pepe, Cooper, Xxxxxxx and Xxxxxxx and each of the Subsidiary Investors
pursuant to the Xxxxxxxx Agreement, Xxxxxxx Agreement, Xxxxxxx Agreement, Xxxxxx
Agreement, Pepe Agreement, Xxxxxx Agreement, Xxxxxxx Agreement, Jerstad
Agreement and the respective Subsidiary Stockholder Agreements, respectively.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. BOARD OF DIRECTORS.
(a) From and after the date of this Agreement and until the
provisions of this Section 1 cease to be effective, each Stockholder shall vote
all of his Stockholder Shares and any other voting securities of the Company
over which such Stockholder has voting control and shall take all other
necessary or desirable actions within his control (whether in his capacity as a
stockholder, director, member of a board committee or officer of the Company or
otherwise, and including, without limitation, attendance at meetings in person
or by proxy for the purposes of obtaining a quorum and execution of written
consents in lieu of meetings), and the Company shall take all necessary and
desirable actions within its control (including, without limitation, calling
special board and stockholder meetings), so that:
(i) the authorized number of directors on the Company's board of
directors (the "Board") shall be established at six directors;
(ii) the following persons shall be elected to the Board:
(A) two representatives designated by the Investor (the
"Investor Directors");
(B) the Company's Chief Executive Officer; and
(C) three representatives chosen jointly by the Investor and
Xxxxxxxx (the "Outside Directors"); provided that such representative
shall not be a member of the Company's management or an employee or
officer of the Company or its subsidiaries; provided further that if
the Investor and Xxxxxxxx are unable to agree on the Outside Directors
within 10 days after the date hereof and, in the future, within 10
days after the date for electing the Outside Directors, the Investor,
in its sole discretion, shall designate the Outside Directors;
(iii) the authorized number of directors on the Board may be set at
any number greater than six directors as determined by a resolution of the
Board and as agreed to in writing by Xxxxxxxx and the Investor, and each
additional director shall be elected to (and may be removed from) the Board
in the same manner that the Outside Directors are elected to (and removed
from) the Board;
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(iv) the removal from the Board (with or without cause) of the
Investor Directors or the Outside Directors shall be only upon the written
request of Investor;
(v) the Company's Chief Executive Officer, upon his ceasing to be an
employee of the Company or its Subsidiaries, shall promptly be removed as a
director;
(vi) in the event that any representative designated hereunder for any
reason ceases to serve as a member of the Board during his term of office,
the resulting vacancy on the Board shall be filled by a representative
designated by the person or persons originally entitled to designate such
director pursuant to Section 1(a)(ii) above; and
(vii) one of the Investor Directors shall be named Chairman of the
Board, as designated by the Investor and who shall initially be Xxxxx X.
Xxxxxxx.
(b) There shall be at least four meetings of the Board during every
fiscal year, at least one of which shall be held in each 120-day period during
the Company's fiscal year. The Company shall pay all out-of-pocket expenses
incurred by each director in connection with attending regular and special
meetings of the Board and any committee thereof.
(c) The rights of Xxxxxxxx under this Section 1 shall terminate at
such time as Xxxxxxxx is no longer employed by the Company and its subsidiaries.
(d) The provisions of this Section 1 shall terminate automatically
and be of no further force and effect upon the vote of the holder(s) of a
majority of the Stockholder Shares to terminate this Section 1.
(e) If any party fails to designate a representative to fill a
directorship pursuant to the terms of this Section 1, the election of a person
to such directorship shall be accomplished in accordance with the Company's
bylaws and applicable law.
(f) Notwithstanding the foregoing, nothing herein shall be deemed to
require any member of the Board, in his capacity as a director, to take any
action in respect of these provisions to the extent such action or such
commitment to take such action would be prohibited under the Delaware General
Corporation Law.
2. IRREVOCABLE PROXY; CONFLICTING AGREEMENTS.
(a) In order to secure Cooper's, Halberg's, Jerstad's, each
Executive's and each Subsidiary Investor's obligations to vote his Stockholder
Shares and other voting securities of the Company in accordance with the
provisions of Section 1 hereof, Cooper, Halberg, Jerstad, each Executive and
each Subsidiary Investor hereby appoints Xxxxx X. Xxxxxxx as his true and lawful
proxy and attorney-in-fact, with full power of substitution, to vote all of his
Stockholder Shares and other voting securities of the Company for the election
and/or removal of directors and all such other matters as expressly provided for
in Section 1. With respect to Cooper, Halberg, Jerstad, each Executive and each
Subsidiary Investor, Xxxxx X. Xxxxxxx may exercise the irrevocable proxy granted
to him hereunder at any time such person fails to comply with the provisions of
this Agreement. The proxies and powers granted by Cooper, Halberg, Jerstad,
each Executive and each Subsidiary Investor pursuant to this Section 2 are
coupled with an interest and are given to secure the performance of Cooper's,
Halberg's, Jerstad's, each Executive's and each Subsidiary Investor's
obligations to the Investor under this Agreement. Such proxies and powers will
be irrevocable for the term set forth in Section 1(e) of this
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Agreement and will survive the death, incompetency and disability of Cooper,
Halberg, Jerstad, each Executive and each Subsidiary Investor and the holders of
their Stockholder Shares.
(b) Each Stockholder represents that he has not granted and is not a
party to any proxy, voting trust or other agreement which is inconsistent with
or conflicts with the provisions of this Agreement, and no holder of Stockholder
Shares shall grant any proxy or become party to any voting trust or other
agreement which is inconsistent with or conflicts with the provisions of this
Agreement.
3. LEGEND. Each certificate evidencing Stockholder Shares and each
certificate issued in exchange for or upon the transfer of any Stockholder
Shares (if such shares remain Stockholder Shares as defined herein after such
transfer) shall be stamped or otherwise imprinted with a legend in substantially
the following form:
"The securities represented by this certificate are subject to an
Amended and Restated Stockholders Agreement dated as of August __,
1996, among the issuer of such securities (the "Company") and certain
of the Company's stockholders. A copy of such Amended and Restated
Stockholders Agreement will be furnished without charge by the Company
to the holder hereof upon written request."
The Company shall imprint such legend on certificates evidencing Stockholder
Shares outstanding prior to the date hereof. The legend set forth above shall
be removed from the certificates evidencing any shares which cease to be
Stockholder Shares in accordance with Section 9 hereof.
4. RESTRICTIONS ON TRANSFER OF SUBSIDIARY INVESTOR STOCK.
(a) TRANSFER OF SUBSIDIARY INVESTOR STOCK. A Subsidiary Investor
shall not sell, transfer, assign, pledge or otherwise dispose of (whether with
or without consideration and whether voluntarily, involuntarily or by operation
of law) any interest in any shares of Subsidiary Investor Stock (a "TRANSFER"),
except pursuant to (i) a Public Sale or a Sale of the Company ("EXEMPT
TRANSFERS") or (ii) the approval of the Company and the Investor and, pursuant
to the provisions of this Section 4; provided that in no event shall any
Transfer of Common Stock pursuant to this Section be made for any consideration
other than cash payable upon consummation of such Transfer or in installments
over time. Prior to making any Transfer other than an Exempt Transfer, a
Subsidiary Investor will give written notice (the "SALE NOTICE") to the Company
and the Investor. The Sale Notice will disclose in reasonable detail the
identity of the prospective transferee or transferees, the number of shares to
be transferred and the terms and conditions of the proposed transfer. A
Subsidiary Investor will not consummate any Transfer until 90 days after the
Sale Notice has been given to the Company and the other Stockholders, unless the
parties to the Transfer have been finally determined pursuant to this Section 4
prior to the expiration of such 90-day period. The date of the first to occur
of such events is referred to herein as the "AUTHORIZATION DATE."
(b) FIRST REFUSAL RIGHTS. The Company may elect to purchase all (but
not less than all) of the shares of Subsidiary Investor Stock to be transferred
upon the same terms and conditions as those set forth in the Sale Notice by
delivering a written notice of such election to such Subsidiary Investor and the
Investor within sixty (60) days after the Sale Notice has been given to the
Company. If the Company has not elected to purchase all of the Common Stock to
be transferred, the Investor may elect to purchase all (but not less than all)
of the Subsidiary Investor Stock to be transferred upon the same terms and
conditions as those set forth in the Sale Notice by giving written notice of
such election to such Subsidiary Investor within ninety (90) days after the Sale
Notice has been given to the Investor. If neither the Company nor the Investor
elects to purchase all of the shares of Subsidiary Investor Stock specified in
the Sale Notice, such Subsidiary Investor may transfer the shares of Subsidiary
Investor Stock
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specified in the Sale Notice at a price and on terms no more favorable to the
transferee(s) thereof than specified in the Sale Notice during the 90-day period
immediately following the Authorization Date. Any shares of Subsidiary Investor
Stock not transferred within such 90-day period will be subject to the
provisions of this Section 4(b) upon subsequent transfer.
(c) CERTAIN PERMITTED TRANSFERS. The restrictions contained in this
Section 4 will not apply with respect to (i) transfers of shares of Subsidiary
Investor Stock pursuant to applicable laws of descent and distribution or (ii)
transfers of shares of Subsidiary Investor Stock among a Subsidiary Investor's
Family Group; provided that such restrictions will continue to be applicable to
Subsidiary Investor Stock after any such transfer and the transferees of such
Subsidiary Investor Stock will have agreed in writing to be bound by the
provisions of this Agreement.
5. REPURCHASE OPTION.
(a) Subject to Section 5(f) below, in the event a Subsidiary Investor
ceases to be employed by the Company or its Subsidiaries for any reason (the
"TERMINATION"), such Subsidiary Investor's Subsidiary Investor Stock (whether
held by such Subsidiary Investor or one or more of such Subsidiary Investor's
transferees) will be subject to repurchase by the Company and the Investor
pursuant to the terms and conditions set forth in this Section 5 (the
"REPURCHASE OPTION").
(b) The purchase price for each share of Subsidiary Investor Stock
will be the "FAIR MARKET VALUE" for such share. "FAIR MARKET VALUE" shall equal
the fair market value for each share of Subsidiary Investor Stock as of the date
of Termination, as mutually agreed upon by the Board and such Subsidiary
Investor; PROVIDED that if an agreement cannot be reached within thirty (30)
days of the Company's receipt of notice of exercise, the fair market value shall
be determined by an independent investment banking firm of regional reputation
mutually selected by the Board and such Subsidiary Investor, based upon what a
willing buyer would pay for 100% of the outstanding Common Stock on a fully-
diluted basis, in an orderly private transaction with no discount in respect of
the Subsidiary Investor Stock as a result of such Subsidiary Investor Stock
representing a minority interest or as a result of the liquidity restrictions
contained herein; FURTHER PROVIDED, if the parties cannot agree on such an
investment banking firm within 30 days, a firm shall be selected by lot based
upon two such firms nominated by each of the Board and such Subsidiary Investor,
after each of them has had the opportunity to eliminate one of the other party's
nominees (this reducing the total number of firms from six to four).
(c) The Board may elect to purchase all or any portion of the
Subsidiary Investor Stock at Fair Market Value as determined pursuant to Section
5(b) by delivering written notice (the "REPURCHASE NOTICE") to the holder of the
Subsidiary Investor Stock within 90 days after the Termination. The Repurchase
Notice will set forth the number of shares of Subsidiary Investor Stock to be
acquired from such holder, the aggregate consideration to be paid for such
shares and the time and place for the closing of the transaction.
(d) If for any reason the Company does not elect to purchase all of
such Subsidiary Investor's Subsidiary Investor Stock pursuant to the Repurchase
Option, the Investor shall be entitled to exercise the Repurchase Option for the
shares of Subsidiary Investor Stock the Company has not elected to purchase (the
"AVAILABLE SHARES") at Fair Market Value as determined pursuant to Section 5(b).
As soon as practicable after the Company has determined that there will be
Available Shares, but in any event within 60 days after the Termination, the
Company shall give written notice (the "OPTION NOTICE") to the Investor setting
forth the number of Available Shares and the purchase price for the Available
Shares. The Investor may elect to purchase any or all of the Available Shares
by giving written notice to the Company within 30 days after the Option Notice
has been given by the Company. As soon as practicable, and in any event within
10 days after the expiration of the 30 day period set forth above, the
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Company shall notify such holder of Subsidiary Investor Stock as to the number
of shares being purchased from such holder by the Investor (the "SUPPLEMENTAL
REPURCHASE NOTICE"). At the time the Company delivers the Supplemental
Repurchase Notice to such holder of Subsidiary Investor Stock, the Company shall
also deliver written notice to the Investor setting forth the number of shares
the Investor is entitled to purchase, the aggregate purchase price and the time
and place of the closing of the transaction.
(e) The closing of the purchase of the Subsidiary Investor Stock
pursuant to the Repurchase Option shall take place on the date designated by the
Company in the Repurchase Notice or Supplemental Repurchase Notice, which date
shall not be more than 30 days nor less than 5 days after the delivery of the
later of either such notice to be delivered. The Company and/or the Investor
will pay for the Subsidiary Investor Stock to be purchased pursuant to the
Repurchase Option by delivery of a check or a wire transfer of funds in form and
substance determined by the board in good faith in the aggregate amount of the
purchase price for such shares. The Company and the Investor will be entitled
to receive customary representations and warranties from the sellers regarding
such sale and to require all seller's signatures be guaranteed.
(f) Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of Subsidiary Investor Stock by the Company shall be
subject to applicable restrictions contained in the Delaware General Corporation
Law and in the Company's and any Subsidiary's debt and equity financing
agreements. If any such restrictions prohibit the repurchase of Subsidiary
Investor Stock hereunder which the Company is otherwise entitled (or required)
to make, the Company may (or shall) make such repurchases as soon as it is
permitted to do so under such restrictions.
6. SUBSIDIARY INVESTOR PUT OPTION.
(a) SUBSIDIARY INVESTOR PUT OPTION. If a Subsidiary Investor is an
employee of the Company, at any time upon or within ten (10) days after the date
on which a Subsidiary Investor's employment with the Company is terminated by
the Company other than for Cause (the date of such occurrence being referred to
herein as the "PUT TERMINATION DATE", and the period beginning on the Put
Termination Date and ending on the thirtieth (30th) day following such date
being referred to herein as the "PUT EXERCISE PERIOD"), such Subsidiary Investor
shall have the right, in accordance with the terms and conditions set forth in
this Section 6, to require the Company to repurchase all, but not less than all,
of the Subsidiary Investor Stock held by such Subsidiary Investor and/or such
Subsidiary Investor's Family Group (the "PUT") at the Put Price (as defined
below) by delivering written notice to the Company (the "PUT NOTICE") during the
Put Exercise Period. A Subsidiary Investor shall NOT be entitled to exercise
the Put pursuant to this Section 6 if such Subsidiary Investor is terminated by
the Company for Cause.
(b) PUT PRICE. Subject to the provisions set forth in Section 6(a)
above, the "PUT PRICE" for each share of Subsidiary Investor Stock purchased by
the Company pursuant to the Put will be equal to the Fair Market Value for each
such share determined as of the Put Termination Date in accordance with the
valuation method set forth in Section 5(b) hereof.
(c) PURCHASE CLOSING. Subject to the provisions hereof, the closing
of the purchase transaction pursuant to the Put (the "PUT CLOSING") will take
place at a mutually agreeable time and place on or within 30 days after the
later of (i) the date the Put Notice is delivered or (ii) the date of
determination of the Put Price. The Company will pay the aggregate purchase
price for the Subsidiary Investor Stock to be purchased pursuant to this
Section 6 (the "PUT PURCHASE PRICE") by cashier's check, certified check or wire
transfer of immediately available funds on the date of consummation of such
purchase, PROVIDED, that if the Board determines in its sole discretion that
either (i) such payment would have a materially adverse effect on the Company,
or (ii) such payment would constitute an event of default under the terms of any
agreement for indebtedness to which the Company is a party as of the Put
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Termination Date, such payment will be made by delivery of a promissory note(s)
issued by the Company to the holder(s) of such Subsidiary Investor Stock with an
aggregate principal amount equal to Put Purchase Price bearing interest at a
rate equal to the Prime Rate as announced by The First National Bank of Chicago
on the Put Termination Date PLUS one percent (1%) payable annually, and with
principal and interest payments made in three equal annual installments
commencing on the first anniversary of the date of the Put Closing (a "NOTE").
Within ten (10) days of a decision by the Board to pay the Put Purchase Price by
delivery of a Note, the Board will deliver written notice of such decision to
Executive. Within ten (10) days of receipt of such a notice, such Subsidiary
Investor may withdraw his notice to exercise the Put, at which time all of such
Subsidiary Investor's rights under the Put shall terminate. The Company may
also elect to pay all or any portion of such purchase price by offsetting
amounts outstanding under any bona fide debts owed by such Subsidiary Investor
to the Company. The Company will be entitled to receive customary
representations and warranties from each seller of Subsidiary Investor Stock
regarding the sale of the Subsidiary Investor Stock.
7. PUBLIC OFFERING. In the event that the Board and the holders of
a majority of the shares of Common Stock (voting as a single class) then
outstanding approve an initial public offering and sale of Common Stock (a
"Public Offering") pursuant to an effective registration statement under the
Securities Act of 1933, the Stockholders shall take all necessary or desirable
actions in connection with the consummation of the Public Offering. In the
event that such Public Offering is an underwritten offering and the managing
underwriters advise the Company in writing that in their opinion the capital
stock structure shall adversely affect the marketability of the offering, each
Stockholder shall consent to and vote for a recapitalization, reorganization
and/or exchange of the Common Stock into securities that the managing
underwriters, the Board and holders of a majority of the shares of Common Stock
then outstanding (voting as a single class) find acceptable and shall take all
necessary or desirable actions in connection with the consummation of the
recapitalization, reorganization and/or exchange; provided that the resulting
securities reflect and are consistent with the rights and preferences set forth
in the Company's Certificate of Incorporation as in effect immediately prior to
such Public Offering.
8. SALE OF THE COMPANY.
(a) If the Board and the holders of a majority of the shares of
Common Stock (voting as a single class) then outstanding approve a Sale of the
Company (an "Approved Sale"), each Stockholder shall vote for, consent to and
raise no objections against such Approved Sale. If the Approved Sale is
structured as (i) a merger or consolidation, each Stockholder shall waive any
dissenters' rights, appraisal rights or similar rights in connection with such
merger or consolidation, (ii) a sale of stock, each Stockholder shall agree to
sell all of his shares and rights to acquire shares on the terms and conditions
approved by the Board and the holders of a majority of the shares (voting as a
single class) then outstanding. Each Stockholder shall take all necessary or
desirable actions in connection with the consummation of the Approved Sale as
requested by the Company or (iii) a sale of assets, each Stockholder shall vote
in favor of the sale and any subsequent liquidation of the Company, and raise no
objection thereto.
(b) The obligations of the Stockholders with respect to the Approved
Sale of the Company are subject to the satisfaction of the following conditions:
(i) upon the consummation of the Approved Sale, each Stockholder shall receive
the same form of consideration and the same amount of consideration as set forth
in paragraph (c) below; (ii) if any holders of a class of stock are given an
option as to the form and amount of consideration to be received, each holder of
such class of stock shall be given the same option; and (iii) each holder of
then currently exercisable rights to acquire shares of a class of stock shall be
given an opportunity to either (A) exercise such rights prior to the
consummation of the Approved Sale and participate in such sale as holders of
such class of stock or (B) upon the consummation of the Approved Sale, receive
in exchange for such rights consideration equal to the
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amount determined by multiplying (1) the same amount of consideration per share
of a class of stock received by holders of such class of stock in connection
with the Approved Sale less the exercise price per share of such class of stock
of such rights to acquire such class of stock by (2) the number of shares of
such class of stock represented by such rights.
(c) In the event of a sale or exchange by the Stockholders of all or
substantially all of the Common Stock held by the Stockholders (whether by sale,
merger, recapitalization, reorganization, consolidation, combination or
otherwise), each Stockholder shall receive in exchange for the shares of Common
Stock held by such Stockholder the same portion of the aggregate consideration
from such sale or exchange that such Stockholder would have received if such
aggregate consideration had been distributed by the Company in complete
liquidation pursuant to the rights and preferences set forth in the Company's
Certificate of Incorporation as in effect immediately prior to such sale or
exchange. Each holder of Common Stock shall take all necessary or desirable
actions in connection with the distribution of the aggregate consideration from
such sale or exchange as requested by the Company.
9. DEFINITIONS.
"AFFILIATE" of the Investor means any other person, entity or
investment fund controlling, controlled by or under common control with the
Investor and any partner of the Investor.
"BOARD" shall have the meaning set forth in Section 1 hereof.
"CAUSE" shall mean (i) commission of a felony or the commission of any
other act which is materially injurious to the Company or any Subsidiary
involving dishonesty, disloyalty or fraud with respect to the Company or any
Subsidiary or (ii) gross negligence or willful misconduct with respect to the
Company or any Subsidiary which is materially injurious to the Company or any
Subsidiary.
"COMMON STOCK" means the Class A Common and the Class B Common, and
shares of any single class of Common Stock into or for which shares of Class A
Common and Class B Common may hereafter be converted, reclassified or exchanged.
"PERMITTED TRANSFEREE" means (i) with respect to each Subsidiary
Investor, each Executive, Xxxxxx, Xxxxxxx and Xxxxxxx, their spouse and/or
descendants (whether natural or adopted), and any trust solely for any
Executive's, Xxxxxx'x, Xxxxxxx'x or Xxxxxxx'x benefit and/or their spouse and/or
descendants, and (ii) in the case of the Investor, its Affiliates.
"PUBLIC OFFERING" means a public offering of the Company's common
equity securities registered under the Securities Act.
"PUBLIC SALE" means any sale of Stockholder Shares to the public
pursuant to an offering registered under the Securities Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule 144
adopted under the Securities Act.
"SALE OF THE COMPANY" means any transaction or series of transactions
pursuant to which any person or entity acquires (i) capital stock of the Company
possessing the voting power under normal circumstances to elect a majority of
the Board (whether by merger, consolidation, reorganization, combination, sale
or transfer of the Company's capital stock or otherwise) or (ii) all or
substantially all of the Company's assets determined on a consolidated basis.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time.
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"STOCKHOLDER SHARES" means (i) any Common Stock purchased or otherwise
acquired by any Stockholder, (ii) any equity securities issued or issuable
directly or indirectly with respect to the Common Stock referred to in
clause (i) above by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular shares constituting Stockholder Shares,
such shares will cease to be Stockholder Shares when they have been
(x) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them or (y) sold to the
public through a broker, dealer or market maker pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act.
"SUBSIDIARY" shall mean any corporation of which the Company owns
securities having a majority of the ordinary voting power in electing the board
of directors directly or indirectly through one or more subsidiaries.
"SUBSIDIARY INVESTOR'S FAMILY GROUP" means a Subsidiary Investor's
spouse and descendants (whether natural or adopted) and any trust established
solely for the benefit of such Subsidiary Investor and/or such Subsidiary
Investor's spouse and/or descendants.
"SUBSIDIARY INVESTOR STOCK" means (i) any Common Stock acquired by any
Subsidiary Investor pursuant to the terms of a Subsidiary Stockholder Agreement,
(ii) any equity securities issued or issuable directly or indirectly with
respect to the Common Stock referred to in clause (i) above by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular shares constituting Subsidiary Investor Stock, such shares will cease
to be Subsidiary Investor Stock when they have been (x) effectively registered
under the Securities Act and disposed of in accordance with the registration
statement covering them or (y) sold to the public through a broker, dealer or
market maker pursuant to Rule 144 (or any similar provision then in force) under
the Securities Act.
10. ADDITIONAL EQUITY.
(a) After the Company has received $10 million of paid-in capital,
except as provided below, any additional equity shall be issued by the Company
at a price per share equal to or greater than the Share Value. The "Share
Value" at the time of determination shall equal (i) the fair market value of
each share to be issued by the Company, as mutually agreed upon by the Investor
and each holder of at least 7.5% of the Company's fully diluted Common Stock, or
(ii) in the event the Investor and such holders are unable to agree on the fair
market value of a share, the fair market value as determined by an appraiser
which is not affiliated with the Company, the Investor or Xxxxxxxx and which
appraiser is jointly selected by the Investor and Xxxxxxxx. The determination
of such appraiser shall be final and binding upon the parties, and the fees and
expenses of such appraiser shall be paid by the Company. Additional equity may
be issued at a price per share lower than the Share Value only in the event that
(x) the Company is unable to issue the desired number of shares within 90 days
at the Share Value, (y) the Board determines that the Company will be unable to
issue the desired number of shares within a reasonable time at the Share Value
and (z) the Company issues such shares (or a greater or lesser number) to an
unaffiliated third party in an arm's length transaction. Notwithstanding
anything to the contrary set forth in this Section 10, the Company may sell
additional equity in the manner and at any price approved by the Board at any
time that the Company has failed to achieve at least 90% of "Projected EBITDA"
(as defined and described in the Amended and Restated Agreement) in respect of
any fiscal year through the Company's 1999 fiscal year, or, following the
Company's 1999 fiscal year, if the Company has failed to achieve 90% of budgeted
EBITDA (as defined in the Amended and Restated Agreement) in respect of any
fiscal year as established by the Board from time to time; in which event the
restrictions on the sale of additional equity contained in this Section 10 shall
immediately cease and be of no further force or effect.
-9-
(b) Any common stock of the Company issued to the Foundation or any
of its affiliates pursuant to the Conversion Option, the Put or the Call (each
as defined in and) pursuant to the GSSS Shareholders Agreement, shall for
purposes of Section 10 of this Agreement be deemed to be issued at a price per
share greater than the Share Value.
11. TRANSFERS; TRANSFERS IN VIOLATION OF AGREEMENT. Prior to
transferring any Stockholder Shares to any person or entity, the transferring
Stockholder shall cause the prospective transferee to execute and deliver to the
Company and the other Stockholders a counterpart of this Agreement. Any
transfer or attempted transfer of any Stockholder Shares in violation of any
provision of this Agreement shall be void, and the Company shall not record such
transfer on its books or treat any purported transferee of such Stockholder
Shares as the owner of such shares for any purpose.
12. AMENDMENT AND WAIVER. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Stockholders unless such modification,
amendment or waiver is approved in writing by the Company, the Investor and
Xxxxxxxx; provided that any modification, amendment or waiver which materially
and adversely affects the rights of Cooper, Jerstad, Xxxxxxx or any other
Executive must be approved by Cooper, Jerstad, Xxxxxxx and such Executive. The
failure of any party to enforce any of the provisions of this Agreement shall in
no way be construed as a waiver of such provisions and shall not affect the
right of such party thereafter to enforce each and every provision of this
Agreement in accordance with its terms.
13. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
14. ENTIRE AGREEMENT. Except as otherwise expressly set forth
herein, this document embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
15. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Stockholders and any subsequent
holders of Stockholder Shares and the respective successors and assigns of each
of them, so long as they hold Stockholder Shares.
16. COUNTERPARTS. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
17. REMEDIES. The Company, the Investor, each of the Executives,
Xxxxxx, Xxxxxxx and Xxxxxxx and each of the Subsidiary Investors shall be
entitled to enforce their rights under this Agreement specifically to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights existing in their favor. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that the Company, the Investor, each of the
Executives, Xxxxxx, Xxxxxxx and Xxxxxxx and each of the Subsidiary Investors may
in its sole discretion apply to any court of law or equity of competent
-10-
jurisdiction for specific performance and/or injunctive relief (without posting
a bond or other security) in order to enforce or prevent any violation of the
provisions of this Agreement.
18. NOTICES. Any notice shall be in writing and shall be personally
delivered, mailed first class mail (postage prepaid) or sent by reputable
overnight courier service (charges prepaid) to the Company and any other
recipient at the addresses set forth below and to any subsequent holder of
Common Stock subject to this Agreement at such address as indicated by the
Company's records, or at such address or to the attention of such other person
as the recipient party has specified by prior written notice to the sending
party. Notices will be deemed to have been given hereunder when delivered
personally, three days after deposit in the U.S. mail and one day after deposit
with a reputable overnight courier service.
IF TO THE COMPANY:
American Medserve Corporation
Park Lake Center
000 Xxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: CEO
IF TO THE INVESTOR:
Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
WITH A COPY TO:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
IF TO ANY EXECUTIVE:
Xxxxxxx X. Xxxxxxxx
0000 Xxxx 0000 Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxxxxx
393 Prairie
Xxxxxxxx, Xxxxxxxx 00000
-11-
J. Xxxxxxx Xxxxxxx
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
Xxxxxx X. Xxxxxx
0000 X. Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxx
0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
IF TO XXXXXX, XXXXXXX AND/OR JERSTAD:
Xxxxx X.X. Xxxxxx
c/o Equitable Securities Corporation
000 Xxxxxxxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Xxxxxxx X. Xxxxxxx
c/o Good Samaritan Supply Services, Inc.
0000 Xxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Xxxx X. Xxxxxxx
c/o The Evangelical Lutheran Good Samaritan Foundation
0000 Xxxx 00xx Xxxxxx
Xxxxx Xxxxx, Xxxxx Xxxxxx 00000
IF TO ANY SUBSIDIARY INVESTOR:
To the address designated
on EXHIBIT A hereto
19. GOVERNING LAW. All questions concerning the construction,
validity and interpretation of this Agreement shall be governed by and construed
in accordance with the internal laws of the State of Delaware, without giving
effect to any choice of law or other conflict of law provision or rule (whether
of the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Delaware.
20. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
21. NO STRICT CONSTRUCTION. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
-12-
22. CO-SALE RIGHTS AND OBLIGATIONS.
(a) If at any time the Investor proposes to transfer shares of Common
Stock to any Person (an "Acquirer") other than to a Permitted Transferee or
pursuant to a Public Sale (a "Disposition"), the Investor shall, at least 30
days prior to the consummation of the Disposition, give notice (a "Disposition
Notice") to each of the other Stockholders (the "Other Stockholders"),
describing the terms and conditions of the Disposition in reasonable detail,
including the proposed price per share of Common Stock, the method of payment,
the anticipated closing date and the identity of the Acquirer, and stating that
each of the Other Stockholders may elect to participate in such Disposition in
accordance with this Section 22.
(b) The election by the Other Stockholders pursuant to subsection (a)
shall be exercised by notice to the Investor given within the time period
specified in the Disposition Notice, which time period shall not be less than 10
business days after such Disposition Notice is given. If an Other Stockholder
gives notice of its election to sell (an "Electing Stockholder"), such Electing
Stockholder shall be obligated to sell the shares of Common Stock specified in
its notice upon the terms and subject to the conditions specified in subsection
(a) to the Acquirer, conditional upon the closing of the Disposition and the
possible reduction in the number of shares to be purchased by the Acquirer
pursuant to paragraph (c) below.
(c) If the Acquirer pursuant to the Disposition has a specified
limited number of shares of Common Stock which it is willing to purchase in the
aggregate (the "Maximum Number"), each of the Electing Stockholders (together
with the Investor, the "Disposing Stockholders") shall have the right to sell to
the Acquirer that number of shares of Common Stock owned by such Electing
Stockholders which equals the product of (a) the Maximum Number times (b) a
fraction, the numerator of which is the number of shares of Common Stock then
held by such Electing Stockholder as of the date of the Disposition Notice and
the denominator of which is the sum of the total number of shares of Common
Stock then held by all Disposing Stockholders, including such Electing
Stockholder, all as of such date, and the Investor shall have the right to sell
the balance.
(d) The sale or transfer of the shares of Common Stock to the
Acquirer by the Investor and by the Electing Stockholders pursuant to this
Section 22 shall occur simultaneously. The Investor shall use reasonable
efforts to obtain the agreement of the Acquirer to the participation of the
Electing Stockholders in any contemplated Disposition, and the Investor shall
not transfer any of its shares of Common Stock if the Acquirer declines to allow
the participation of the Electing Stockholders as herein provided.
(e) In the event that at the time of such sale by the Investor, the
Investor still holds Class A Common and the Other Stockholders still hold Class
B Common, then in such event, in determining the purchase price to be paid for
the Class B Common in connection with such transaction, such price shall be that
price which equals the value which would have been distributed to the holder
thereof had the Company's assets been sold for a price which would result in the
Investor receiving, upon distribution of the proceeds therefrom, an amount for
its shares of Class A Common equal to the purchase price being paid therefor by
the Acquirer in connection with the transaction giving rise to such
determination, ignoring, for purposes hereof, any Company-level tax on such
deemed sale of assets.
23. TERMINATION. Sections 1 - 8 hereof, inclusive, and Section 10
hereof shall terminate upon the earlier of (i) a Sale of the Company or (ii) a
Public Offering, and shall thereupon be of no further force or effect.
* * * * *
-13-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
AMERICAN MEDSERVE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Its: Vice President - Business
Development
GOLDER, THOMA, XXXXXXX, XXXXXX
FUND IV
By: GTCR IV, L.P.
Its General Partner
By: Golder, Thoma, Cressey, Rauner,
Inc.
Its General Partner
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Its: Principal
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
XXXXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
XXXXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
XXXXXXX X. XXXXXXX
/s/ J. Xxxxxxx Xxxxxxx
---------------------------------------
J. XXXXXXX XXXXXXX
/s/ Xxxxx Xxxxxx
---------------------------------------
XXXXX X.X. XXXXXX
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
XXXXXXX X. XXXXXXX
/s/ Xxxx X. Xxxxxxx
---------------------------------------
XXXX X. XXXXXXX
-14-
/s/ Xxxxxxx X. Xxxxx
---------------------------------------
XXXXXXX X. XXXXX
/s/ Xxxx Xxxx Xxxxx
---------------------------------------
XXXX XXXX XXXXX
STERLING ACQUISITION PARTNERS, INC.
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Its: President
PHARMED, INC.
By: /s/ Xxxxx Xxxxxxxxxxxx
---------------------------------------
Its: President
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
XXXXXX X. XXXXXXXXX
/s/ Xxxxx Xxxxxxx
---------------------------------------
XXXXX XXXXXXX
/s/ Xxxxx Xxxxxxxxxx
---------------------------------------
XXXXX XXXXXXXXXX
/s/ Xxx X. Xxxxxxxxx
---------------------------------------
XXX X. XXXXXXXXX
/s/ Xxxxx X. Xxxxxxx
---------------------------------------
XXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxx
---------------------------------------
XXXXXX X. XXXXX
/s/ Xxxxx Xxxxxxxx
---------------------------------------
XXXXX XXXXXXXX
PHARMED OF BATON ROUGE, INC.
By: /s/ Xxxxx Xxxxxxxxxxxx
---------------------------------------
Its: President
-15-
---------------------------------------
XXXXXX X. XXXXXXXXXXX
-16-
/s/ Xxxxxx X. Xxxxxx
---------------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxx
---------------------------------------
XXXXXX X. XXXX
-17-
EXHIBIT A
SUBSIDIARY INVESTORS
ADDRESSES FOR NOTICES
SUBSIDIARY INVESTORS ADDRESS FOR NOTICES
Xxxxxxx X. and Xxxx Xxxx Xxxxx c/x Xxxxx LTC Services, Inc.
000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Pharmed, Inc. 0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
ATTENTION: Xx. Xxxxx Xxxxxxxxxxxx
Xxxxx Xxxxxxxx c/x Xxxxx Pharmacy, Inc.
000 X. Xxxxxx Xxxxxx
Xxxxx, XX 00000
Xxxxxx X. Xxxxx c/x Xxxxx Pharmacy, Inc.
000 X. Xxxxxx Xxxxxx
Xxxxx, XX 00000
Xxx X. Xxxxxxxxx c/o Nihan & Xxxxxx, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxx X. Xxxxxxx c/o Nihan & Xxxxxx, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Sterling Acquisition Partners, Inc. c/o Sterling Healthcare Services, Inc.
0000 Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
ATTENTION: Xx. Xxxxxxx X. Xxxxx
Xxxxx Xxxxxxxxxx c/x Xxxxxxxxxx Drug Company
0000 X. Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Xxxxx Xxxxxxx c/x Xxxxxxxxxx Drug Company
0000 X. Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxxx c/x Xxxxxxxxxx Drug Company
0000 X. Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
A-1
Pharmed of Baton Ridge, Inc. 0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
ATTENTION: Xx. Xxxxx Xxxxxxxxxxxx
Xxxxxx X. Xxxxxxxxxxx c/o Xxxxxx X. Xxxxxxxxxxx, Inc.
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
A-2
