RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (the "Agreement") is entered into as of
October 3, 1997, between BMJ MEDICAL MANAGEMENT, INC., a Delaware corporation
(the "Company"), and the individuals identified on the signature page hereto
(each, a "Stockholder" and collectively, the "Stockholders"). Certain
capitalized terms used herein are defined in Section 5 below.
This Agreement is entered into in connection with and concurrently with
that certain Stock Purchase Agreement dated as of the date hereof (the "Stock
Purchase Agreement") among the Company, the Subsidiary and the Stockholders,
pursuant to which the Company acquired all of the issued and outstanding capital
stock of the Subsidiary from the Stockholders in exchange for shares of common
stock, $.001 par value (the "Common Stock"), of the Company. The issuance of
such shares of the Company's Common Stock to each Stockholder is subject to,
among other things, the execution and delivery by such Stockholder of this
Restricted Stock Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and in the Stock Purchase Agreement and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to
be legally bound hereby, the Company and each Stockholder (for himself or
herself only) hereby agree as follows:
1. Purchase and Sale of Restricted Shares; Representations and Warranties
of Stockholder.
(a) Upon execution of this Agreement, the Company shall, pursuant to
Section 1.2 of the Stock Purchase Agreement, issue to each Stockholder that
number of shares (such shares are referred to herein as the "Restricted
Shares") of Common Stock set forth opposite such Stockholder's name on
Schedule A attached hereto. The aggregate shares of Common Stock issued to
the Stockholders are referred to collectively herein as "Restricted Stock."
Simultaneously with the execution and delivery hereof, the Company is
delivering to each Stockholder the certificate(s) representing the
Restricted Shares.
(b) In connection with the issuance of the Restricted Shares
hereunder, each Stockholder represents and warrants to the Company that:
(i) the Restricted Shares to be issued to such Stockholder
pursuant to this Agreement shall be acquired for such Stockholder's
own account, for investment only and not with a view to, or intention
of, distribution thereof in violation of the 1933 Act, or any
applicable state securities laws, and the Restricted Shares will not
be
disposed of in contravention of the 1933 Act or any applicable state
securities laws;
(ii) such Stockholder has generally such knowledge and experience
in business and financial matters and with respect to investments in
securities of privately held companies so as to enable such
Stockholder to understand and evaluate the risks and benefits of his
or her investment in the Restricted Shares;
(iii) such Stockholder has no need for liquidity in his or her
investment in the Restricted Shares and is able to bear the economic
risk of his or her investment in the Restricted Shares for an
indefinite period of time and understands that the Restricted Shares
have not been registered or qualified under the 1933 Act or any
applicable state securities laws, by reason of the issuance of the
Restricted Shares in a transaction exempt from the registration and
qualification requirements of the 1933 Act or such state securities
laws and, therefore, cannot be sold unless subsequently registered or
qualified under the 1933 Act or such state securities laws or an
exemption from such registration or qualification is available;
(iv) such Stockholder understands that the exemption from
registration afforded by Rule 144 (the provisions of which are known
to such Stockholder) promulgated under the 1933 Act, depends on
satisfaction of various conditions and that, if applicable, Rule 144
may only afford the basis for sales under certain circumstances and
only in limited amounts;
(v) such Stockholder is an individual (A) whose individual net
worth, or joint net worth with his or her spouse, presently exceeds
$1,000,000 or (B) who had an income in excess of $200,000 in each of
the two most recent years, or joint income with his or her spouse in
excess of $300,000 in each of those years (in each case including
foreign income, tax exempt income and the full amount of capital gains
and losses but excluding any income of other family members and any
unrealized capital appreciation) and has a reasonable expectation of
reaching the same income level in the current year; or such
Stockholder otherwise meets the requirements to be considered an
accredited investor, as defined under the 1933 Act; and
(vi) such Stockholder has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of
the Restricted Shares and has had full access to or been provided with
such other information concerning the Company as he or she has
requested.
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(c) This Agreement constitutes the legal, valid and binding obligation
of each Stockholder, enforceable in accordance with its terms, and the
execution, delivery and performance of this Agreement by each such
Stockholder does not and will not conflict with, violate or cause a breach
of any agreement, contract or instrument to which such Stockholder is a
party or any judgment, order or decree to which such Stockholder is
subject.
(d) As an inducement to the Company to issue the Restricted Shares to
each Stockholder and as a condition thereto, each Stockholder acknowledges
and agrees that:
(i) neither the issuance of the Restricted Shares to such
Stockholder nor any provision contained herein shall affect the right
of the Subsidiary to terminate the Management Services Agreement in
accordance with its terms; and
(ii) the Company shall only be obligated to provide to such
Stockholder substantially the same information regarding the Company
that the Company regularly discloses to its other shareholders.
2. Vesting of the Restricted Shares.
(a) Except as otherwise provided in Section 2(b) below, the Restricted
Shares held by each Stockholder shall become vested in accordance with the
following schedule, if, as of each such date, (i) the Management Services
Agreement has not been terminated, (ii) there has not been a Cessation of
Active Practice by such Stockholder (as defined in Section 2(c) below),
(iii) such Stockholder has not become permanently disabled (as described in
Section 3(a)(iii) below), and (iv) such Stockholder has not died:
Anniversary Date Percentage of
of this Agreement Restricted Shares Vested
----------------- ------------------------
First 25%
Second 25%
Third 25%
Fourth 25%
For purposes of this Agreement, "Anniversary Date of this Agreement" means
September 1 of each year after 1997. Restricted Shares which have become
vested are referred to herein as "Vested Shares" and all other Restricted
Shares are referred to herein as "Unvested Shares."
(b) Notwithstanding the foregoing, in the event of the death of such
Stockholder, in addition to any shares that
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have vested in accordance with Section 2(a) above, the number of Unvested
Shares, if any, that would have become Vested Shares during the 12-month
period immediately following the date of death had such death not occurred
shall be deemed Vested Shares as of the date of death.
(c) For purposes of this Agreement, "Cessation of Active Practice"
means a physician Stockholder's resignation from or termination of
employment with the Medical Group (other than by reason of death or
permanent disability).
3. Forfeiture and Repurchase of Restricted Shares.
(a) Forfeiture. In the event of the Cessation of Active Practice by or
the death or permanent disability of a Stockholder (the "Forfeiture
Event"), the following provisions shall apply.
(i) Such Stockholder or the estate (in the case of death) of such
Stockholder shall transfer to the Medical Group, all of the Unvested
Shares held by such Stockholder. Such Unvested Shares shall be
transferred for no consideration and the stock certificate(s)
representing those shares shall be delivered to the Company, no later
than thirty (30) days after the Forfeiture Event, duly endorsed for
transfer in accordance with this Section 3(a). The Company shall,
within thirty (30) days after its receipt of a joinder to this
Agreement executed by the Medical Group, issue and deliver to the
Medical Group a certificate representing the Unvested Shares. Such
Unvested Shares shall continue to vest according to the vesting
schedule set forth in Section 2(a) above.
(ii) The Medical Group shall not Sell (as hereinafter defined)
any Unvested Shares to any Person, other than to one or more physician
employees or equity owners of the Medical Group, who prior to the
receipt of such shares from the Medical Group had not acquired any
shares of the Company's Common Stock pursuant to the Stock Purchase
Agreement. As a condition to any such Sale, the transferee shall
execute and deliver to the Company a Restricted Stock Agreement in
substantially the form of this Agreement, effective as of the date of
transfer of such shares. The Unvested Shares distributed according to
this Section 3(a) shall be subject to a vesting schedule identical to
the schedule set forth in Section 2(a) hereof.
(iii) For purposes of this Agreement, if such Stockholder is
insured under a disability insurance policy, the determination under
such policy as to whether such Stockholder's condition constitutes a
permanent disability shall be binding on the parties hereto. If such
Stockholder is not insured under a policy of disability insurance,
such
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determination shall be made by an independent qualified physician
proposed by the Medical Group, subject to the approval of the Company,
which approval shall not be unreasonably withheld.
(iv) Notwithstanding anything to the contrary contained in
Section 2(a) or this Section 3(a), if such Stockholder has (A)
attained 55 years of age, (B) elected to retire from the practice of
medicine on or after September 1, 2000, and (C) given the Company at
least one year's written notice of such retirement, then such
Stockholder's retirement shall not be deemed a Cessation of Active
Practice and such Stockholder's Restricted Shares shall continue to
vest according to the vesting schedule in Section 2(a) and such
Stockholder shall not be required to transfer any of the Unvested
Shares to the Medical Group.
(b) Repurchase. In the event that the Management Services Agreement is
terminated for any reason prior to the fourth anniversary of the
Commencement Date (as defined therein) (the "Repurchase Event"), the
Company shall have the right (but not the obligation) (the "Repurchase
Option"), to be exercised in its sole discretion, to repurchase all or any
portion of the Restricted Shares (whether vested or unvested and whether
held by the Stockholders or one or more of any Stockholder's Permitted
Transferees) pursuant to the terms and conditions set forth in this Section
3(b).
(i) The Company may elect to exercise the Repurchase Option and
repurchase all or any portion of the Restricted Shares by delivering
written notice (the "Repurchase Notice") to each Stockholder within
ninety (90) days after the Repurchase Event; provided, however, that,
if the Company elects to repurchase less than all of the Restricted
Shares, the Company shall first repurchase Unvested Shares and then
repurchase that number of Vested Shares, if any, as the Company may,
in its sole discretion, elect. The Repurchase Notice shall set forth
the number of Unvested Shares and Vested Shares to be repurchased, the
aggregate consideration to be paid for such shares, and the time and
place for the closing of the transaction. The purchase price payable
for each Unvested Share shall equal $.01 and the purchase price
payable for each Vested Share shall equal the Original Value of such
share. If the Company decides to repurchase Restricted Shares from any
Stockholder pursuant to this Section 3(b), then the Company must
purchase that number of Restricted Shares which it has elected to
repurchase from all of the Stockholders pro rata according to the
number of shares of Restricted Stock held by all of the Stockholders
at the time of delivery of such Repurchase Notice (determined as
nearly as practicable to the nearest whole share).
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(ii) The closing of the repurchase of Restricted Shares pursuant
to the Repurchase Option shall take place on the date designated by
the Company in the Repurchase Notice, which date shall not be more
than sixty (60) days nor less than five (5) days after the delivery of
the Repurchase Notice. The Company shall pay for Restricted Shares to
be purchased pursuant to the Repurchase Option by delivery of (A) a
check or wire transfer of funds, (B) subordinated note or notes
payable in up to five equal annual installments beginning on the first
anniversary of the closing of such purchase and bearing interest
(payable quarterly) at a rate per annum equal to the greater of either
the prime rate announced from time to time by The Chase Manhattan Bank
(National Association) plus 1/2% or the "applicable Federal rate" (as
defined in Section 1274(d) of the Internal Revenue Code) in effect
from time to time, or (C) a combination of both (A) and (B), in the
aggregate amount of the repurchase price for such shares; provided,
however, that in the event the Medical Group is obligated to pay to
the Subsidiary any sums in connection with the repurchase of assets by
the Medical Group pursuant to Section 13.5 of the Management Services
Agreement, the total amount of such sums may be offset by the Company
against any amounts owed by the Company to the Stockholders pursuant
to this Agreement (if any such Stockholder is, at such time, an equity
owner of or partner in the Medical Group), such offset amount to be
allocated pro rata among all of the Stockholders who at such time hold
equity of or are partners in the Medical Group. Any notes issued by
the Company pursuant to this paragraph 3(b)(ii) shall be subject to
the restrictive covenants, if any, to which the Company is subject at
the time of such repurchase. The Company shall be entitled to require
the signature of such Stockholder to be guaranteed and to receive
representations and warranties from such Stockholder regarding (x)
such Stockholder's power, authority and legal capacity to enter into
such sale and to transfer valid right, title and interest in such
Restricted Shares, (y) such Stockholder's ownership of such Restricted
Shares and the absence of any liens, pledges, and other encumbrances
on such Restricted Shares and (z) the absence of any violation,
default, or acceleration of any agreement or instrument pursuant to
which such Stockholder or such Stockholder's assets are bound
resulting from such sale.
(iii) Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of Restricted Shares by the Company under
this Section 3(b) shall be subject to applicable restrictions, if any,
contained in its certificate of incorporation, any financing agreement
to which the Company is a party, Federal law or the Delaware General
Corporation Law. If any such restrictions prohibit or otherwise delay
the repurchase of Restricted Shares
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hereunder which the Company is otherwise entitled or required to make,
the Company may make such repurchases as soon as it is permitted to do
so.
(iv) In the event that any Restricted Shares are repurchased
pursuant to this Section 3(b), such Stockholder and his or her
successors and assigns shall, at the Company's expense, take all
reasonable steps to obtain all required third-party, governmental and
regulatory consents and approvals and take all other reasonable
actions necessary to facilitate consummation of such repurchase in a
timely manner.
4. Transfer Restriction; Legend.
Except as otherwise expressly provided in Section 3 and except for
Permitted Transfers, no Stockholder may sell or transfer or agree to sell or
transfer ("Sale" or "Sell") any Restricted Shares unless such Sale shall be in
accordance with the procedures set forth in this Section 4; provided, however,
that with respect to this Section 4, Restricted Shares, at any point in time,
shall be limited to Vested Shares and at no time shall any Stockholder have the
right to Sell Unvested Shares (other than pursuant to Section 3 above):
(a) In the event that a Stockholder receives a bona fide offer from a
third party (the "Prospective Stockholder") to purchase all or any part of
the Restricted Shares owned by such Stockholder, such Stockholder shall
deliver to the Company a written notice (the "Offer Notice"), which shall
be irrevocable for a period of fifteen (15) business days after delivery
thereof (the "Offer Period"), offering (the "Offer") all of the Restricted
Shares proposed to be Sold by such Stockholder to the Prospective
Stockholder at the purchase price and on the terms of the proposed Sale to
the Prospective Stockholder (such Offer Notice shall include the foregoing
information, a copy of the Prospective Stockholder's bona fide offer and
all other relevant terms of the proposed Sale, including the identification
of the Prospective Stockholder). The Company shall have the right and
option, for a period of fifteen (15) business days after delivery of the
Offer Notice, to repurchase all or any part of the Restricted Shares so
offered at the purchase price and on the terms stated in the Offer Notice.
Such acceptance shall be made by delivering a written notice to such
Stockholder within said fifteen (15) business-day period.
(b) Sales of Restricted Shares under the terms of Section 4(a) above
shall be made on a mutually satisfactory business day within fifteen (15)
business days after the expiration of the Offer Period. Delivery of
certificates or other instruments evidencing such Restricted Shares duly
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endorsed for transfer shall be made on such date against payment of the
purchase price therefor.
(c) If the Company fails to purchase all of the Restricted Shares
offered for Sale pursuant to the Offer Notice, then at any time within
sixty (60) business days after the expiration of the Offer Period such
Stockholder may Sell all or any part of the remaining Restricted Shares so
offered for Sale on terms no more favorable to the Prospective Stockholder
than the terms stated in the Offer Notice; provided, however, that such
Stockholder shall not, under any circumstances, Sell any Restricted Shares
to the Prospective Stockholder if the Board of Directors of the Company, in
its sole discretion, determines in good faith that the Prospective
Stockholder is a competitor, or an Affiliate of a competitor, of the
Company or that such Prospective Stockholder's ownership of such Restricted
Shares would be contrary to the best interests of the Company. In the event
that all of such Restricted Shares are not Sold by such Stockholder to the
Prospective Stockholder during such period, the right of such Stockholder
to Sell such Restricted Shares to the Prospective Stockholder shall expire
and the obligations of such Stockholder pursuant to this Section 4 shall be
reinstated.
(d) Any Permitted Transferee (other than the Company) shall, as a
condition to such transfer, (i) agree to be bound by all of the provisions
of this Agreement applicable to such Stockholder and shall evidence such
agreement by executing and delivering to the Company a joinder to this
Agreement in form and substance satisfactory to the Company, and (ii) if
such transferee is a partner in or an equity owner or employee of the
Medical Group, execute a noncompetition agreement in form and substance
satisfactory to the Company (if such transferee is not, as of the date of
such transfer, a party to such an agreement with the Company).
(e) The certificate(s) representing the Restricted Shares will bear
the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES OR "BLUE-SKY" LAWS. THESE SECURITIES MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SAID ACT OR LAWS. ADDITIONALLY, THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN REPURCHASE OPTIONS, TRANSFER RESTRICTIONS AND CERTAIN
OTHER AGREEMENTS SET FORTH IN A RESTRICTED STOCK AGREEMENT
DATED AS OF OCTOBER 3, 1997, BETWEEN THE STOCKHOLDER AND BMJ
MEDICAL MANAGEMENT, INC. A COPY OF SUCH AGREEMENT MAY BE
OBTAINED BY THE
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HOLDER HEREOF AT THE COMPANY'S PRINCIPAL PLACE OF BUSINESS
WITHOUT CHARGE."
(f) The restrictions on transfers of Vested Shares set forth in this
Section 4 shall expire, and shall be of no further force or effect, upon
the consummation of the initial public offering of the Company's Common
Stock pursuant to the 0000 Xxx.
5. Definitions.
(a) "Affiliate" means, with respect to any Person, (a) any director,
officer, 10% stockholder or partner of such Person and (b) any other Person
that, directly or indirectly, through one or more intermediaries, controls,
or is controlled by, or is under common control with, such Person. The term
"control" includes, without limitation, the possession, directly or
indirectly, of the power to direct the management and policies of a Person,
whether through the ownership of voting securities, by contract or
otherwise.
(b) "Internal Revenue Code" means the Internal Revenue Code of 1986,
as the same may be amended or supplemented from time to time, or any
successor statute, and the rules and regulations thereunder, as the same
are from time to time in effect.
(c) "Management Services Agreement" means the Management Services
Agreement effective as of September 1, 1997, between the Subsidiary and the
Medical Group.
(d) "Medical Group" means Valley Sports & Arthritis Surgeons, P.C.
(e) "Original Value" of each share of Restricted Stock purchased
hereunder will be equal to $2.25 (as proportionately adjusted for all
subsequent stock splits, stock dividends and other recapitalizations).
(f) "Person" shall be construed broadly and shall include, without
limitation, an individual, a partnership, an investment fund, a limited
liability corporation or partnership, a corporation, an association, a
joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or
political subdivision thereof.
(g) "Permitted Transferee" means, as to the Stockholder, any
transferee who acquires the Restricted Shares pursuant to a Permitted
Transfer or any other transfer made in accordance with the provisions of
this Agreement.
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(h) "Permitted Transfer" means, as to any Stockholder, any sale or
transfer of Vested Shares to (A) the spouse or lineal descendants of such
Stockholder or (B) a trust for the benefit of any of the foregoing.
(i) "Public Sale" means any sale of Restricted Stock to the public
pursuant to an offering registered under the 1933 Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule
144 adopted under the 1933 Act.
(j) "Restricted Shares" has the meaning set forth in Section 1(a). The
Restricted Shares will continue to be Restricted Shares in the hands of any
holder (other than the Company and any transferees in a Public Sale), and
except as otherwise provided herein, each such other holder of the
Restricted Shares will succeed to all rights and obligations attributable
to a Stockholder as the holder of the Restricted Shares hereunder. The
Restricted Shares will also include shares of the Company's capital stock
issued with respect to the Restricted Stock by way of a stock split, stock
dividend or other recapitalization.
(k) "Subsidiary" means Valley Sports Surgeons, Inc., a Pennsylvania
business corporation which, upon consummation of the transactions
contemplated by the Stock Purchase Agreement, became a wholly owned
subsidiary of the Company.
(l) "1933 Act" means the Securities Act of 1933, as the same may be
amended or supplemented from time to time, or any successor statute, and
the rules and regulations thereunder, as the same are from time to time in
effect.
6. Indemnification.
(a) The Company shall indemnify, defend and hold harmless each
Stockholder against all liability, loss or damage sustained by such
Stockholder, together with all reasonable costs and expenses related
thereto (including reasonable legal fees and expenses), relating to or
arising from the untruth, inaccuracy or breach of any of the
representations, warranties or agreements of the Company contained in this
Agreement.
(b) Each Stockholder shall indemnify and hold harmless the Company
against all liability, loss or damage, together with all reasonable costs
and expenses related thereto (including reasonable legal fees and
expenses), relating to or arising from the untruth, inaccuracy or breach of
any of the representations, warranties or agreements of such Stockholder
contained in this Agreement.
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7. General Provisions.
(a) Transfers in Violation of Agreement. Any sale, transfer,
assignment or other disposition (whether with or without consideration and
whether voluntarily or involuntarily or by operation of law) (each, a
"Transfer") or attempted Transfer of any Restricted 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
Restricted Shares as the owner of such stock for any purpose.
(b) Severability. It is the desire and intent of the parties hereto
that the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction
in which enforcement is sought. Accordingly, if any particular provision of
this Agreement shall be adjudicated by a court of competent jurisdiction to
be invalid, prohibited or unenforceable for any reason, such provision, as
to such jurisdiction, shall be ineffective, without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding
the foregoing, if such provision could be more narrowly drawn so as not to
be invalid, prohibited or unenforceable in such jurisdiction, it shall, as
to such jurisdiction, be so narrowly drawn, without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
(c) Entire Agreement. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the
complete agreement and understanding among the parties hereto with respect
to the subject matter hereof and supersede and preempt 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.
(d) Relationship Among Stockholders. No Stockholder shall have any
responsibility for any breach of this Agreement by any other Stockholder or
for any representations, warranties, acts or omissions of any other
Stockholder. Each Stockholder is entering into this Agreement for and on
behalf of such Stockholder only, and no partnership, joint venture,
unincorporated association or any other legal entity is intended to be
formed by or among the Stockholders as a result of or in connection with
this Agreement. The parties have chosen to execute a single instrument for
convenience only, and this Agreement shall be construed as separate and
several agreements among the Medical Group, the Company and each of the
respective
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Stockholders for all purposes. This Agreement may be executed in separate
counterparts.
(e) Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which
taken together constitute one and the same agreement.
(f) Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by each
Stockholder, the Company and their respective successors, permitted
assigns, heirs, representatives and estate, as the case may be (including
subsequent holders of Restricted Stock); provided, however, that the rights
and obligations of any Stockholder under this Agreement shall not be
assignable except in connection with a Permitted Transfer of Restricted
Shares hereunder.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without giving effect
to any choice of law or conflicting provision or rule (whether of the State
of Delaware or any other jurisdiction), that would cause the laws of any
jurisdiction other than the State of Delaware to be applied. In furtherance
of the foregoing, the internal law of the State of Delaware will control
the interpretation and construction of this agreement, even if under such
jurisdiction's choice of law or conflict of law analysis, the substantive
law of some other jurisdiction would ordinarily apply.
(h) Remedies. Each of the parties to this Agreement shall be entitled
to enforce its rights under this Agreement specifically to recover damages
and costs (including reasonable attorneys' fees) for any breach of any
provision of this Agreement and to exercise all other rights existing in
its favor. The parties hereto agree and acknowledge that money damages may
not be an adequate remedy for the Company in the event of a breach of the
provisions of this Agreement by any Stockholder and that the Company may,
in its sole discretion, apply to any court of law or equity of competent
jurisdiction for specific performance and/or other injunctive relief
(without posting any bond or deposit) in order to enforce or prevent any
violations of the provisions of this Agreement.
(i) Amendment and Waiver. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company and
the Stockholders and no course of conduct or failure or delay in enforcing
the provisions of this Agreement shall be construed as a waiver of such
provisions or affect the validity, binding effect or enforceability of this
Agreement or any provision hereof; provided, however, that the Company may,
without any Stockholder's consent, amend Schedule A hereto upon
consummation of a Permitted Transfer of Restricted
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Shares hereunder by any Shareholder to reflect the then current ownership
of the Restricted Stock.
(j) Notices. Any notice provided for in this Agreement must be in
writing and must be either personally delivered, transmitted via
telecopier, mailed by first class mail (postage prepaid and return receipt
requested) or sent by nationally-recognized overnight courier service
(charges prepaid) to the recipient at the address below indicated or at
such other 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 and received when
delivered personally, when received if transmitted via telecopier, three
business days after deposit in the U.S. mail and one business day after
deposit with a nationally-recognized overnight courier service.
(i) If to the Company, to:
BMJ Medical Management, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx, M.D., President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000;
with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Held, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000; and
(ii) If to any Stockholder, to his or her address set forth on the
signature page hereto beneath his or her name;
with a copy to:
Valley Sports & Arthritis Surgeons, P.C.
0000 Xxxxx Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxx, M.D.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000.
(k) Business Days. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or holiday in
the State of Florida, the time period for giving notice or taking action
shall be automatically
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extended to the business day immediately following such Saturday, Sunday or
holiday.
(l) Attorneys' Fees. In the event of any dispute or controversy
arising out of or relating to this Agreement, the prevailing party shall be
entitled to recover from the other party all costs and expenses, including
attorneys' fees and accountants' fees, incurred in connection with such
dispute or controversy.
(m) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(n) Construction. Where specific language is used to clarify by
example a general statement contained herein, such specific language shall
not be deemed to modify, limit or restrict in any manner the construction
of the general statement to which it relates. The language used in this
Agreement shall be deemed to be the language chosen by the parties to
express their mutual intent, and no rule of strict construction shall be
applied against any party.
(o) Nouns and Pronouns. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural
and vice-versa.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Restricted Stock
Agreement as of the date first written above.
COMPANY
BMJ MEDICAL MANAGEMENT, INC.
By: /s/ Xxxxxx Xxxxxx, M.D.
-------------------------------
Xxxxxx Xxxxxx, M.D.
President and Chief Executive
Officer
STOCKHOLDERS
/s/ Xxxxxx Xxxxxxx, M.D.
-----------------------------
Xxxxxx Xxxxxxx, M.D.
Address for notices:
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
/s/ Xxxxxx XxXxxxxxxxx, M.D.
-----------------------------
Xxxxxx XxXxxxxxxxx, M.D.
Address for notices:
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
/s/ Xxxx Xxxxxxxxx, M.D.
-----------------------------
Xxxx Xxxxxxxxx, M.D.
Address for notices:
0000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
/s/ Xxxxx Xxxxxxx, M.D.
-----------------------------
Xxxxx Xxxxxxx, M.D.
Address for notices:
000 X. 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
/s/ Xxxxxxxxx Xxxxxxxxx, M.D.
-----------------------------
Xxxxxxxxx Xxxxxxxxx, M.D.
Address for notices:
0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
MEDICAL GROUP
ACCEPTED AND AGREED AS TO PARAGRAPH 3
VALLEY SPORTS & ARTHRITIS
SURGEONS, P.C.
By:________________________________
Name:
Title:
SCHEDULE A
Stockholders
Number of
Name Restricted Shares
---- -----------------
Xxxxxx Xxxxxxx, M.D. 100,650
Xxxxxx XxXxxxxxxxx, M.D. 100,650
Xxxx Xxxxxxxxx, M.D. 100,650
Xxxxx Xxxxxxx, M.D. 100,650
Xxxxxxxxx Xxxxxxxxx, M.D. 100,650
-15-
