EXHIBIT 99.5
EXECUTION COPY
SERIES A CONVERTIBLE PREFERRED STOCK
REPURCHASE AGREEMENT
Between
OCCUPATIONAL HEALTH + REHABILITATION INC
and
THE SERIES A CONVERTIBLE PREFERRED STOCKHOLDERS
NAMED ON SCHEDULE I
Dated as of March 24, 2003
TABLE OF CONTENTS
1. Authorization; Purchase of Series A Preferred............................................................... 1
1.1 Authorization.......................................................................................... 1
1.2 Repurchase of Series A Preferred at the Closing........................................................ 1
2. Closing; Delivery........................................................................................... 1
2.1 The Closing............................................................................................ 1
2.2 Delivery............................................................................................... 2
3. Representations and Warranties of the Company............................................................... 2
3.1 Organization and Corporate Power; No Violations........................................................ 2
3.2 Authorization.......................................................................................... 3
3.3 Capitalization......................................................................................... 4
3.4 Contracts and Commitments.............................................................................. 5
3.5 Financial Statements................................................................................... 5
3.6 Events Subsequent to the Date of the Balance Sheet..................................................... 6
3.7 Litigation; Compliance with Law........................................................................ 6
3.8 Loans and Advances..................................................................................... 7
3.9 Assumptions, Guaranties, Etc. of Indebtedness of Other Persons......................................... 7
3.10 Significant Customers and Suppliers.................................................................... 7
3.11 Governmental Approvals................................................................................. 7
3.12 Certain Agreements of Officers......................................................................... 8
3.13 No Insolvency.......................................................................................... 8
3.14 ERISA.................................................................................................. 8
3.15 Transactions with Affiliates........................................................................... 9
3.16 Securities Act of 1933................................................................................. 9
3.17 Registration Rights.................................................................................... 9
3.18 Insurance........................................................................................... 9
3.19 Books and Records................................................................................... 9
3.20 Title to Assets........................................................................................10
3.21 Burdensome Restrictions................................................................................10
3.22 Computer Programs......................................................................................10
3.23 Intellectual Property Rights...........................................................................11
3.24 Taxes..................................................................................................11
3.25 Disclosure.............................................................................................11
3.26 Additional Information.................................................................................12
4. Covenants...................................................................................................12
5. Representations and Warranties of the Sellers...............................................................14
6. Conditions to the Obligations of the Sellers................................................................15
6.1 Accuracy of Representations and Warranties.............................................................15
6.2 Performance............................................................................................15
6.3 Documents; Corporate Approvals.........................................................................15
6.4 Payment of Costs.......................................................................................16
6.5 Board of Directors.....................................................................................16
6.6 Sellers' Participation.................................................................................16
6.7 Consents, Waivers, Etc.................................................................................16
i
7. Conditions to the Obligations of the Company................................................................17
7.1 Accuracy of Representations and Warranties.............................................................17
7.2 Performance............................................................................................17
7.3 Approvals..............................................................................................17
7.4 Stockholders' Agreement, Registration Rights Agreement and Subordination Agreement.....................17
7.5 Sellers' Participation.................................................................................17
8. Successors and Assigns......................................................................................17
9. Survival of Representations and Warranties..................................................................17
10. Costs, Expenses and Taxes................................................................................18
11. Notices..................................................................................................18
12. Brokers..................................................................................................19
13. Entire Agreement.........................................................................................19
14. Amendments and Waivers...................................................................................19
15. Counterparts.............................................................................................19
16. Captions.................................................................................................19
17. Severability.............................................................................................19
18. Waiver of Preemptive Rights..............................................................................19
19. Governing Law............................................................................................20
SCHEDULES:
Schedule I Schedule of Sellers
EXHIBITS:
Exhibit A Form of Promissory Note
Exhibit B Disclosure Schedule
Exhibit C Opinion of Xxxxxxx & Xxxxxxx LLP
Exhibit D Amended and Restated Stockholders' Agreement
Exhibit E Amended and Restated Registration Rights Agreement
Exhibit F Subordination Agreement
ii
SERIES A CONVERTIBLE PREFERRED
STOCK REPURCHASE AGREEMENT
This Series A Convertible Preferred Stock Repurchase Agreement (the
"Agreement") dated as of March 24, 2003 is between Occupational Health +
Rehabilitation Inc, a Delaware corporation (the "Company"), and the several
holders of Series A Convertible Preferred Stock, par value $.001 per share (the
"Series A Preferred") named in the attached Schedule I (each individually, a
"Seller" and collectively, the "Sellers").
In consideration of the mutual promises and covenants contained in this
Agreement, and intending to be legally bound by the terms and conditions of this
Agreement, the parties hereto hereby agree as follows:
1. Authorization; Purchase of Series A Preferred.
1.1 Authorization.
(a) Common Stock. The Company has duly authorized
the issuance of up to 1,608,247 shares of its previously authorized but
unissued shares of Common Stock, par value $.001 per share (the
"Repurchase Stock") to the Sellers.
(b) The Notes. The Company has duly authorized the
issuance of the Company's Promissory Notes in the original aggregate
principal amount of up to $2,699,740.35 (collectively, the "Notes" and
individually, a "Note") to the Sellers. Each Note will be substantially
in the form set forth in Exhibit A hereto.
1.2 Repurchase of Series A Preferred at the Closing. Upon
the terms and subject to the conditions hereof, at the Closing each Seller
agrees, severally but not jointly, to sell to the Company all of its shares of
Series A Preferred as set forth opposite such Seller's name on the attached
Schedule I under the heading "Series A Preferred Shares", and the Company agrees
to repurchase all such shares of Series A Preferred. The aggregate purchase
price of the Series A Preferred being repurchased by the Company from each
Seller at the Closing is set forth opposite such Seller's name on the attached
Schedule I and includes: (i) that number of shares of Repurchase Stock set forth
opposite such Seller's name on the attached Schedule I under the heading "Shares
of Repurchase Stock"; (ii) a Note in the principal amount set forth opposite
such Seller's name on the attached Schedule I under the heading "Notes"; and
(iii) the dollar amount set forth opposite such Seller's name on the attached
Schedule I under the heading "Cash".
2. Closing; Delivery.
2.1 The Closing. The closing of the repurchase of the Series
A Preferred pursuant to this Agreement shall take place by mail and/or facsimile
at the offices of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, 000 Xxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 on March 24, 2003, or at such other time, date, and place as
are mutually agreeable to the Company and the Sellers (the "Closing"). The date
of the Closing is hereinafter referred to as the "Closing Date."
2.2 Delivery. At the Closing, upon the terms and subject to
the conditions hereof, each Seller shall deliver to the Company the certificates
evidencing the shares of Series A Preferred to be sold by each Seller at the
Closing accompanied by executed stock powers and, in payment therefor, the
Company shall deliver to each Seller the certificates evidencing the number of
shares of Repurchase Stock to be issued to such Seller at the Closing or issue
on the Closing Date irrevocable instructions to the Company's transfer agent to
deliver such stock certificates as soon as practicable after the Closing, a Note
evidencing the aggregate principal amount set forth opposite the Seller's name
on Schedule I under the heading "Notes," and the dollar amounts to be paid to
such Seller at the Closing. The Company shall make payment of all dollar amounts
to be paid at the Closing to each Seller by wire transfer in immediately
available funds.
3. Representations and Warranties of the Company. For purposes of
this Section 3, unless otherwise specified, the term Company shall include the
Company and each of its Subsidiaries. Except as disclosed in the Disclosure
Schedule attached hereto as Exhibit B (the "Disclosure Schedule"), the Company
hereby represents and warrants to the Sellers as follows:
3.1 Organization and Corporate Power; No Violations.
(a) The Company is a corporation duly organized,
validly existing and in corporate good standing under the laws of the
State of Delaware and is qualified to do business as a foreign
corporation in each jurisdiction in which such qualification is
required, except where the failure to be so qualified would not have
either individually or in the aggregate, a material adverse effect on
the business, operations, affairs or condition (financial or otherwise),
assets, liabilities or contractual rights of the Company (a "Material
Adverse Effect"). The Company has all required corporate power and
authority to own its property, to carry on its business as presently
conducted or contemplated, to enter into and perform this Agreement, the
Amended and Restated Stockholders' Agreement (the "Stockholders'
Agreement"), the Amended and Restated Registration Rights Agreement (the
"Registration Rights Agreement"), the Subordination Agreement (the
"Subordination Agreement"), the Notes and the other agreements,
documents and instruments contemplated hereby or executed in connection
herewith (collectively with this Agreement, the "Transaction
Documents"), and generally to carry out the transactions contemplated
hereby or executed in connection herewith. The copies of the Restated
Certificate of Incorporation and Certificate of Designations
(collectively, the "Restated Charter") and By-laws of the Company, as
amended to date, which have been furnished to the Sellers by the
Company, are correct and complete at the date hereof.
(b) The Company is in compliance with the terms and
provisions of this Agreement and of its Restated Charter and Bylaws, and
with all mortgages, indentures, leases, agreements and other
instruments, if any, by which it is bound or to which it or any of its
respective properties or assets are subject. The Company is in
compliance with all judgments, decrees, governmental orders, statutes,
rules or regulations by which it is bound or to which any of its
properties or assets are subject. Neither the execution and delivery of
this Agreement or the other Transaction Documents, or the issuance of
the Repurchase Stock or Notes, nor the consummation of any transaction
contemplated by this Agreement or the Transaction Documents, has
2
constituted or resulted in or will constitute or result in a default or
violation of any term or provision of any of the foregoing documents,
instruments, judgments, agreements, decrees, orders, statutes, rules and
regulations.
(c) Section 3.1(c) of the Disclosure Schedule
contains a list of all subsidiaries of the Company and its equity
interest therein. Except for such subsidiaries, the Company does not (i)
own of record or beneficially, directly or indirectly, (A) any shares of
capital stock or securities convertible into capital stock of any other
corporation or (B) any participating interest in any partnership, joint
venture or other non-corporate business enterprise or (C) any assets
comprising the business or obligations of any other corporation,
partnership, joint venture or other non-corporate business enterprise,
or (ii) control, directly or indirectly, any other entity. Each of the
Company's corporate subsidiaries and limited liability company
subsidiaries is a corporation or limited liability company duly
incorporated or organized, as the case may be, validly existing and in
good standing under the laws of its respective jurisdiction of
incorporation or organization, as the case may be, and is duly licensed
or qualified to transact business as a foreign corporation or limited
liability company, as the case may be, and is in good standing in each
jurisdiction in which the nature of the business transacted by it or the
character of the properties owned or leased by it requires such
licensing or qualification, except where the failure to be so qualified
would not have a Material Adverse Effect. Each of the subsidiaries
referenced above has the corporate power or entity power, as the case
may be, and authority to own and hold its properties and to carry on its
business as now conducted and as proposed to be conducted. All of the
outstanding shares of capital stock or equity interests, as the case may
be, of each of the subsidiaries are owned beneficially and of record by
the Company, one of its other wholly-owned subsidiaries, or any
combination of the Company and/or one or more of its other wholly-owned
subsidiaries, in each case free and clear of any liens, charges,
restrictions, claims or encumbrances of any nature whatsoever; and there
are no outstanding subscriptions, warrants, options, convertible
securities, or other rights (contingent or other) pursuant to which any
of the subsidiaries is or may become obligated to issue any shares of
its capital stock or equity interests, as the case may be, to any person
other than the Company or one of the other subsidiaries.
3.2 Authorization. The Transaction Documents are valid and
binding obligations of the Company, enforceable in accordance with their
respective terms. The execution, delivery and performance of the Transaction
Documents have been duly authorized by all necessary corporate or other action
of the Company. The issuance and delivery of the Repurchase Stock, the Notes and
the cash in accordance with this Agreement has been duly authorized and reserved
for issuance, as the case may be, by all necessary corporate action on the part
of the Company. The Repurchase Stock, when issued and delivered against the
shares of Series A Preferred therefor in accordance with the provisions of this
Agreement, will be duly authorized and validly issued, fully paid and
non-assessable, is not subject to preemptive rights or other preferential rights
in any present or future stockholders of the Company, will not be subject to any
lien, and will not conflict with any provision of any agreement or instrument to
which the Company is a party or by which it or its property is bound. The Notes,
when issued
3
and delivered against the shares of Series A Preferred therefor in accordance
with the provisions of this Agreement, will be duly authorized and validly
issued, and will not conflict with any provision of any agreement or instrument
to which the Company is a party or by which it or its property is bound. No
consent, approval or authorization of, or designation, declaration or filing
with, any governmental authority or any other person or entity is required in
connection with the execution, delivery and performance of the Transaction
Documents, or the issuance and delivery of the Repurchase Stock and Notes in
accordance with the terms of this Agreement or the consummation of any other
transaction contemplated hereby or by the other Transaction Documents other than
(i) filings pursuant to federal and state securities laws (all of which filings
have been made by the Company, other than those which are required to be made
after the Closing and which will be duly made on a timely basis) in connection
with the issuance of the Repurchase Stock and (ii) with respect to the
Registration Rights Agreement, the registration of the shares covered thereby
with the Commission and filings pursuant to state securities laws.
3.3 Capitalization. The authorized capital stock of the
Company consists of (i) 5,000,000 shares of Preferred Stock, par value $.001 per
share (the "Preferred Stock"), of which 1,666,667 shares have been designated
Series A Preferred, and (ii) 10,000,000 shares of Common Stock. Immediately
prior to the Closing, 1,479,864 shares of Common Stock will be validly issued
and outstanding, fully paid and nonassessable with no personal liability
attaching to the ownership thereof and 1,416,667 shares of Series A Preferred
will be validly issued and outstanding, fully paid and nonassessable with no
personal liability attaching to the ownership thereof. All the outstanding
shares of capital stock of the Company have been duly authorized, and are
validly issued, fully paid and non-assessable. The designations, powers,
preferences, rights, qualifications, limitations and restrictions in respect of
each class and series of authorized capital stock of the Company are as set
forth in the Restated Charter and all such designations, powers, preferences,
rights, qualifications, limitations and restrictions are valid, binding and
enforceable and in accordance with all applicable laws. Except as set forth in
the attached Disclosure Schedule, (i) no subscription, warrant, option,
convertible security, or other right (contingent or other) to purchase or
otherwise acquire equity securities of the Company is authorized or outstanding
and (ii) there is no commitment by the Company to issue shares, subscriptions,
warrants, options, convertible securities, or other such rights or to distribute
to holders of any of its equity securities any evidence of indebtedness or
asset. Except as provided for in the Restated Charter or as set forth in the
attached Disclosure Schedule, the Company has no obligation (contingent or
other) to purchase, redeem or otherwise acquire any of its equity securities or
any interest therein or to pay any dividend or make any other distribution in
respect thereof. Except for the Stockholders' Agreement, there are no voting
trusts or agreements, stockholders' agreements, pledge agreements, buy-sell
agreements, rights of first refusal, preemptive rights or proxies relating to
any securities of the Company or any of its subsidiaries (whether or not the
Company or any of its subsidiaries is a party thereto). All of the outstanding
securities of the Company were issued in compliance with all applicable federal
and state securities laws and no stockholder has a right of rescission with
respect thereto.
3.4 Contracts and Commitments. Except as set forth on the
Disclosure Schedule or as filed as an exhibit to the Company's periodic reports
filed pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), the Company (i) is not a party to any oral or written contract,
obligation, instrument, corporate restriction or commitment
4
which involves a potential commitment in excess of $150,000 or which is
otherwise material and not entered into in the ordinary course of business, and
(ii) does not have any oral or written employment or consulting contracts; stock
redemption or purchase agreements; registration rights agreements;
non-competition agreements; financing agreements; licenses; contracts regarding
intellectual property; agreements with officers, directors, employees or
shareholders of the Company or persons or organizations related to or affiliated
with any such persons (except for agreements between the Company and the Series
A Preferred); leases; or agreements relating to product development.
The Company and, to the Company's knowledge, each other party
thereto have in all material respects performed all the actions required to be
performed by them to date, have received no notice of default and are not in
default under any lease, agreement or contract now in effect to which the
Company is a party or by which it or its property may be bound. The Company has
no present expectation or intention of not fully performing all its respective
material obligations under each such lease, contract or other agreement, and the
Company has no knowledge of any material breach or anticipated breach by the
other party to any contract or commitment to which the Company is a party.
3.5 Financial Statements. The Company has furnished to the
Sellers the unaudited consolidated balance sheet of the Company and its
subsidiaries as of September 30, 2002 (the "Balance Sheet") and the related
unaudited consolidated statements of income, stockholders' equity and cash flows
of the Company and its subsidiaries for the nine-months ended September 30,
2002, All such financial statements have been prepared in accordance with United
States generally accepted accounting principles consistently applied (except
that such unaudited financial statements do not contain all of the required
footnotes and interim statements do not contain year-end adjustments), or where
different from generally accepted accounting principles, SEC requirements, and
fairly present the consolidated financial position of the Company and its
subsidiaries as of September 30, 2002 and December 31, 2001, respectively, and
the consolidated results of operations, cash flows and stockholders' equity of
the Company and its subsidiaries for the nine months ended September 30, 2002
and the year ended December 31, 2001, respectively. Since the date of the
Balance Sheet, (i) there has been no change in the business, assets, liabilities
or condition (financial or otherwise) of the Company and its subsidiaries (on a
consolidated basis) from that reflected in the Balance Sheet except for changes
in the ordinary course of business which in the aggregate have not been
materially adverse and (ii) none of the business, prospects, financial
condition, operations, property or affairs of the Company and its subsidiaries
(on a consolidated basis) has been materially adversely affected by any
occurrence or development, individually or in the aggregate, whether or not
insured against. The Company does not have any material liability, contingent or
otherwise, not adequately reflected in or reserved against in the aforesaid
financial statements or in the notes thereto.
3.6 Events Subsequent to the Date of the Balance Sheet.
Since the date of the Balance Sheet, the Company has not (i) issued any stock,
bond or other corporate security, (ii) borrowed any amount or incurred or become
subject to any liability (absolute, accrued or contingent), except current
liabilities incurred and liabilities under contracts entered into in the
ordinary course of business, (iii) discharged or satisfied any lien or
encumbrance or incurred or paid any obligation or liability (absolute, accrued
or contingent) other than current liabilities
5
shown on the Balance Sheet and current liabilities incurred since the date of
the Balance Sheet in the ordinary course of business, (iv) declared or made any
payment or distribution to stockholders or purchased or redeemed any share of
its capital stock or other security, (v) mortgaged, pledged, encumbered or
subjected to lien any of its assets, tangible or intangible, other than liens of
current real property taxes not yet due and payable, (vi) sold, assigned or
transferred any of its tangible assets except in the ordinary course of
business, or cancelled any debt or claim, (vii) sold, assigned, transferred or
granted any exclusive license with respect to any patent, trademark, trade name,
service xxxx, copyright, trade secret or other intangible asset, (viii) suffered
any loss of property or waived any right of substantial value whether or not in
the ordinary course of business, (ix) made any change in officer compensation
except in the ordinary course of business and consistent with past practice, (x)
made any material change in the manner of business or operations of the Company,
(xi) entered into any transaction except in the ordinary course of business or
as otherwise contemplated hereby or (xii) entered into any commitment
(contingent or otherwise) to do any of the foregoing.
3.7 Litigation; Compliance with Law. There is no (i) action,
suit, claim, proceeding or investigation pending or, to the best of the
Company's knowledge, threatened against or affecting the Company, any of its
respective properties or assets, or against an officer, employee or holder of
more than 5% of the capital stock of the Company relating to the business of the
Company, at law or in equity, or before or by any federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign (including, without limitation, an action
which directly or indirectly challenges the validity of this Agreement, or any
action taken or to be taken pursuant hereto or pursuant to any Transaction
Document), (ii) arbitration proceeding relating to the Company pending under
collective bargaining agreements or otherwise or (iii) governmental inquiry
pending or, to the best of the Company's knowledge, threatened against or
affecting the Company (including without limitation any inquiry as to the
qualification of the Company to hold or receive any license or permit), in each
case, which would be required to be disclosed in the Company's periodic reports
under the Exchange Act and, to the best of the Company's knowledge, there is no
basis for any of the foregoing. The Company has not received any opinion or
memorandum or legal advice from legal counsel to the effect that it is exposed,
from a legal standpoint, to any liability or disadvantage which may be material
to its business, prospects, financial condition, operations, property or
affairs. The Company is not in default with respect to any order, writ,
injunction or decree of any court or of any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign. There is no action or suit by the Company pending, or
threatened or contemplated against others. The Company has complied in all
material respects with all laws, rules, regulations and orders applicable to its
business, operations, properties, assets, products and services, the Company has
all necessary permits, licenses and other authorizations required to conduct its
business as conducted and as proposed to be conducted, and the Company has been
operating its business pursuant to and in compliance with the terms of all such
permits, licenses and other authorizations. There is no existing law, rule,
regulation or order, and the Company after due inquiry is not aware of any
proposed law, rule, regulation or order, whether federal, state, county or
local, which would prohibit or restrict the Company from, or otherwise
materially adversely affect the Company in, conducting its business in any
jurisdiction in which it is now conducting
6
business or in which it proposes to conduct business. The foregoing includes,
without limitation, actions pending or, to the knowledge of the Company,
threatened (or any basis therefor) involving the prior employment of any of the
Company's officers or employees or their use in connection with the Company's
business of any information or techniques allegedly proprietary to any of their
former employers.
3.8 Loans and Advances. The Company does not have any
outstanding loans or advances to any person and is not obligated to make any
such loans or advances, except, in each case, for advances to employees of the
Company in respect of reimbursable business expenses anticipated to be incurred
by them in connection with their performance of services for the Company.
3.9 Assumptions, Guaranties, Etc. of Indebtedness of Other
Persons. The Company has not assumed, guaranteed, endorsed or otherwise become
directly or contingently liable on any indebtedness of any other person
(including, without limitation, liability by way of agreement, contingent or
otherwise, to purchase, to provide funds for payment, to supply funds to or
otherwise invest in the debtor, or otherwise to assure the creditor against
loss), except for guaranties by endorsement of negotiable instruments for
deposit or collection in the ordinary course of business.
3.10 Significant Customers and Suppliers. No customer or
supplier which was significant to the Company during the period covered by the
financial statements referred to in Section 3.5 or which has been significant to
the Company thereafter, has terminated, materially reduced or threatened to
terminate or materially reduce its purchases from or provision of products or
services to the Company, as the case may be.
3.11 Governmental Approvals. Subject to the accuracy of the
representations and warranties of the Sellers set forth in Section 4, no
registration or filing with, or consent or approval of or other action by, any
federal, state or other governmental agency or instrumentality is or will be
necessary for the valid execution, delivery and performance by the Company of
this Agreement and the other Transaction Documents, the issuance and delivery of
the Repurchase Stock, the issuance and delivery of the Notes, or for the
performance by the Company of its obligations hereunder and under the other
Transaction Documents other than (i) filings pursuant to federal and state
securities laws (all of which filings have been made by the Company, other than
those which are required to be made after the Closing and which will be duly
made on a timely basis) in connection with the issuance of the Repurchase Stock
and (ii) with respect to the Registration Rights Agreement, the registration of
the shares covered thereby with the Commission and filings pursuant to state
securities laws.
3.12 Certain Agreements of Officers.
(a) The Company is not a party to or obligated in
connection with its business with respect to (i) any contracts with
officers, agents, consultants or advisers or (ii) collective bargaining
agreements or contracts with any labor union or other
7
representative of employees or any employee benefits provided for by any
such agreement.
(b) To the knowledge of the Company, no officer of
the Company is in violation of any term of any employment contract,
patent disclosure agreement, proprietary information agreement,
noncompetition agreement, or any other contract or agreement or any
restrictive covenant relating to the right of any such officer to be
employed by the Company because of the nature of the business conducted
or to be conducted by the Company or relating to the use of trade
secrets or proprietary information of others, and the continued
employment of the Company's officers does not subject the Company or any
Seller to any liability to third parties.
(c) To the knowledge of the Company, no officer of
the Company has expressed any present intention of terminating his
employment with the Company.
3.13 No Insolvency. No insolvency proceeding of any
character, including, without limitation, bankruptcy, receivership,
reorganization, composition or arrangement with creditors, voluntary or
involuntary, affecting the Company or any of its assets or properties, is
pending or, to the knowledge of the Company, threatened. The Company has not
taken any action in contemplation of, or that would constitute the basis for,
the institution of any such insolvency proceedings.
3.14 ERISA. Each "Employee Benefit Plan" (within the meaning
of Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) and each benefit arrangement including any plan, contract,
arrangement or policy providing for severance benefits, insurance coverage,
workers' compensation, disability benefits, vacation benefits, retirement
benefits or for deferred compensation, profit-sharing, bonuses, stock options,
stock appreciation rights or other forms of incentive compensation or
post-retirement insurance, compensation or benefits has been maintained in
substantial compliance with its terms and with the applicable requirements
prescribed by any and all statutes, orders, rules and regulations, including but
not limited to ERISA and the Code. Each Employee Benefit Plan which is intended
to be qualified under Section 401(a) of the Code is so qualified and has been so
qualified during the period from its adoption to date. Neither the Company nor
any entity that would be considered to be under common control with the Company
under Section 414 of the Code maintains or has ever maintained or contributed to
any "multiemployer plan" as defined in Section 3(37) of ERISA or any Employee
Benefit Plan subject to Title IV of ERISA.
3.15 Transactions with Affiliates. Except as contemplated
hereby, there are no loans, leases, royalty agreements or other continuing
transactions between the Company and (a) any officer, employee or director of
the Company, or (b) any Person owning 5% or more of any class of capital stock
of the Company, or (c) any member of the immediate family of such officer,
employee, director or stockholder, or (d) any corporation or other entity
controlled by such officer, employee, director or stockholder or a member of the
immediate family of such officer, employee, director or stockholder.
8
3.16 Securities Act of 1933. The Company has complied and
will comply with all applicable federal and state securities laws in connection
with the offer, issuance and delivery of the Repurchase Stock and Notes. Neither
the Company nor anyone acting on its behalf has or will sell, offer to sell,
solicit offers to buy, issue or deliver the Repurchase Stock or Notes, or
solicit offers with respect thereto from, or enter into any preliminary
conversations or negotiations relating thereto with, any Person, so as to bring
the issuance and delivery of Repurchase Stock or Notes under the registration
provisions of the Securities Act and applicable state securities laws.
3.17 Registration Rights. Except for the rights granted to
the Sellers pursuant to the Registration Rights Agreement, no Person has demand
or other rights to cause the Company to file any registration statement under
the Securities Act relating to any securities of the Company or any right to
participate in any such registration statement.
3.18 Insurance. The Company has in full force and effect
fire, general casualty, and liability insurance covering its properties and
business, in such amounts, and against such losses and risks, as are generally
maintained for comparable businesses and properties.
3.19 Books and Records. The books of account, ledgers, order
books, records and documents of the Company accurately and completely reflect
all material information relating to the business of the Company, the location
and collection of its assets, and the nature of all transactions giving rise to
the obligations or accounts receivable of the Company.
3.20 Title to Assets. The Company has good and marketable
title in fee to such of its fixed assets, if any, as are real property, and good
and marketable title to all of its other assets and properties, free of any
mortgages, pledges, charges, liens, security interests or other encumbrances of
any kind. The Company enjoys peaceful and undisturbed possession under all
leases under which it is operating, and all said leases are valid and subsisting
and in full force and effect.
3.21 Burdensome Restrictions. The Company is not obligated
under any contract or agreement or subject to any charter or other corporate
restriction which materially and adversely affects or in the future may
reasonably be expected to materially adversely affect its financial condition,
results of operations, assets, liabilities or business.
3.22 Computer Programs.
(a) Set forth in the Disclosure Schedule is a list
and brief description of the computer programs (other than off-the-shelf
computer programs) owned, licensed or otherwise used by the Company that
are material in the continued operation of its business as currently
conducted or proposed to be conducted (such computer programs being
referred to herein as the "Company Software"), identifying with respect
to each such Computer Program whether it is owned, licensed or otherwise
used by the Company. The Disclosure Schedule identifies all material
agreements relating to the Company
9
Software (the "Software Contracts") and further classifies each such
Software Contract under one of the following categories: (A) license to
use third party software; (B) development contract, work-for-hire
agreement, or consulting agreement; (C) distributor, dealer or value
added reseller agreement; (D) license or sublicense to a third party
(including agreements with end-users); (E) maintenance, support or
enhancement agreement; or (F) other.
(b) The computer programs included in the Company
Software are (i) owned by the Company, (ii) currently in the public
domain or otherwise available to the Company without the approval or
consent of any third party, or (iii) licensed or otherwise used by the
Company pursuant to the terms of valid, binding written agreements.
(c) The Company Software owned, designed or
developed by the Company or any of its employees, consultants or agents
conforms in all material respects to the technical specifications for
the design, performance, operation, test, support and maintenance of the
Software, and all other documentation relating to such technical
specifications. No portion of the Company Software sold or licensed by
the Company directly or indirectly to end users contained, on the date
of shipment by the Company, no portion of the Company Software currently
for sale or license directly or indirectly to end users contains, and,
to the knowledge of the Company, no portion of any other Company
Software contains any software routines or hardware components designed
to permit unauthorized access; to disable or erase software, hardware or
data; or to perform any other such actions.
(d) All personnel, including employees, agents,
consultants, and contractors, who have contributed to or participated in
the conception and development of any of the Company Software either (i)
have been party to a "work-for-hire" arrangement or agreement with the
Company, whether in accordance with applicable federal and state law,
domestic or foreign, or otherwise, that has accorded the Company full,
effective, exclusive and original ownership of all tangible and
intangible property thereby arising, or (ii) have executed appropriate
instruments of assignment in favor of the Company as assignee that have
conveyed to the Company full, effective and exclusive ownership of all
tangible and intangible property thereby arising.
3.23 Intellectual Property Rights. The Company owns or
possesses or otherwise has the legally enforceable perpetual right to use, and
has the right to bring actions for infringement of, all intellectual property
rights necessary or required for the conduct of its business as currently
conducted or proposed to be conducted, including all intellectual property
rights pertaining to the Company Software.
3.24 Taxes. The Company has filed all tax returns, federal,
state, county and local, domestic and foreign, required to be filed by it, and
the Company has paid all taxes shown to be due by such returns as well as all
other taxes, assessments and governmental charges which have become due or
payable, including without limitation all taxes which the Company is
10
obligated to withhold from amounts owing to employees, creditors and third
parties. The Company has established adequate reserves for all taxes accrued but
not yet payable to the extent required by generally accepted accounting
principles. All material tax elections of any type which the Company has made as
of the date hereof are set forth in the audited financial statements referred to
in Section 3.5. No deficiency assessment with respect to the Company's federal,
state, county or local taxes, domestic and foreign, is pending or, to the
knowledge of the Company, threatened. No proposed adjustment of the Company's
federal, state, county, local taxes, domestic and foreign, is pending or, to the
knowledge of the Company, threatened. There is no tax lien (other than for
current taxes not yet due and payable), whether imposed by any federal, state,
county or local taxing authority, domestic or foreign, outstanding against the
assets, properties or business of the Company. Neither the Company nor any of
its present or former stockholders has ever filed an election pursuant to
Section 1362 of the Internal Revenue Code of 1986 (the "Code"), that the Company
be taxed as an S corporation.
3.25 Disclosure. Neither this Agreement (including any
Schedule or Exhibit to this Agreement) nor the Transaction Documents or any
other agreement, statement, document, certificate or other items prepared or
supplied by the Company with respect to the transactions contemplated hereby or
thereby contains an untrue statement of a material fact or omits a material fact
necessary to make the statements contained herein or therein not misleading.
There is no fact which the Company has not disclosed to the Sellers and their
counsel in writing and of which the Company is aware which could have a Material
Adverse Effect.
3.26 Additional Information. The Company has filed in a
timely manner all documents that the Company was required to file under the
Exchange Act during the 12 months preceding the date of this Agreement. The
following documents complied in all material respects with the requirements of
the Exchange Act as of their respective filing dates, and the information
contained therein was true and correct in all material respects as of the date
of such documents, and each of the following documents as of the date thereof
did not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading:
(a) The Company's Annual Report on Form 10-K for the
year ended December 31, 2001;
(b) The Company's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 2002, June 30, 2002 and September 30, 2002;
and
(c) all other documents, if any, filed by the
Company with the Securities and Exchange Commission (the "Commission")
since the filing of the Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 2002 pursuant to the reporting requirements
of the Exchange Act.
4. Covenants. The Company, together with its subsidiaries,
covenants and agrees with each of the Sellers that:
11
(a) The affirmative vote of both of the directors designated
by Xxxxxx, Xxxxxxx Strategic Partners Fund, L.P. and Strategic Associates L.P.
pursuant to the terms of the Stockholders' Agreement shall be required to (i)
amend or modify the terms of the Restated Charter; and (ii) issue any series of
preferred stock, or other securities of the Company, which has preference or
priority over the Common Stock as to the right to receive either dividends or
amounts distributable upon liquidation, dissolution, or winding up of the
Company.
(b) The membership of each committee of the Company's Board
of Directors shall include one of the directors designated by Xxxxxx, Xxxxxxx
Strategic Partners Fund, L.P. and Strategic Associates L.P.
(c) The next annual meeting of the stockholders of the
Company shall include a vote to approve an amendment to the Restated Charter to
eliminate the terms of the Series A Preferred.
(d) The Company shall maintain and cause each of its
subsidiaries (if any) to maintain, their respective corporate or legal
existence, rights and franchises in full force and effect.
(e) The Company shall maintain and cause each of its
subsidiaries (if any) to maintain as to their respective properties and
business, with financially sound and reputable insurers, insurance against such
casualties and contingencies and of such types and in such amounts as is
customary for companies similarly situated, which insurance shall be deemed by
the Company to be sufficient.
(f) Neither the Company nor any of its subsidiaries shall
become a party to any agreement which by its terms restricts the Company's
performance of this Agreement, the other Transaction Documents or the Restated
Charter.
(g) Except for transactions contemplated by this Agreement
or as otherwise approved by the Board of Directors, neither the Company nor any
of its subsidiaries shall enter into any transaction with any director, officer,
employee or holder of more than 5% of the outstanding capital stock of any class
or series of capital stock of the Company or any of its subsidiaries, member of
the family of any such person, or any corporation, partnership, trust or other
entity in which any such person, or member of the family of any such person, is
a director, officer, trustee, partner or holder of more than 5% of the
outstanding capital stock thereof, except for transactions on customary terms
related to such person's employment.
(h) The Company shall promptly reimburse in full all
directors of the Company who are not employees of the Company for all of his or
her reasonable out-of-pocket expenses incurred in attending each meeting of the
Board of Directors of the Company or any Committee thereof.
(i) The Company shall use its best efforts to ensure that
meetings of its Board of Directors are held at least four times each year and at
least once each quarter.
12
(j) The Company shall comply, and cause each subsidiary to
comply, with all applicable laws, rules, regulations and orders, noncompliance
with which could materially adversely affect its business or condition,
financial or otherwise.
(k) The Company shall keep, and cause each subsidiary to
keep, adequate records and books of account, in which complete entries will be
made in accordance with generally accepted accounting principles consistently
applied, reflecting all financial transactions of the Company and such
subsidiary, and in which, for each fiscal year, all proper reserves for
depreciation, depletion, obsolescence, amortization, taxes, bad debts and other
purposes in connection with its business shall be made.
(l) The transactions contemplated by this Agreement are
intended to qualify as a reorganization within the meaning of Section 368(a) of
the Code, and the Company shall not take any action inconsistent with such
treatment.
5. Representations and Warranties of the Sellers. Each Seller,
severally and not jointly, represents and warrants to the Company as follows:
(a) Each Seller has good title to such Seller's shares of
Series A Preferred, free and clear of all liens, security interests and adverse
interests in favor of any person or entity.
(b) (i) It will acquire the Repurchase Stock and the Note to
be acquired by it for its own account and that the Repurchase Stock and the Note
are being and will be acquired by it for the purpose of investment and not with
a view to distribution or resale thereof; (ii) it is an "accredited investor"
within the meaning of Rule 501 of Regulation D promulgated under the Securities
Act and was not organized for the specific purpose of acquiring the Repurchase
Stock or Note; (iii) it has taken no action which would give rise to any claim
by any other person for any brokerage commissions, finders' fees or the like
relating to this Agreement or the transactions contemplated hereby; (iv) it has
sufficient knowledge and experience in investing in companies similar to the
Company in terms of the Company's stage of development so as to be able to
evaluate the risks and merits of its investment in the Company and it is able
financially to bear the risks thereof; (v) without limiting the representations
or warranties of the Company in Section 3 hereof, it has had an opportunity to
discuss the Company's business, management and financial affairs with the
Company's management, and it has been furnished with copies of documents which
it has requested, and (vi) it is making the decision to acquire the Repurchase
Stock and the Note in the jurisdiction set forth in its address on Schedule I.
(c) (i) It has full right, power, authority and capacity to
enter into the Agreement and the other Transaction Documents and to consummate
the transactions contemplated hereby and thereby and has taken all necessary
action to authorize the execution, delivery and performance of the Agreement and
the other Transaction Documents, and (ii) upon the execution and delivery of the
Agreement and the other Transaction Documents, the Agreement and the other
Transaction Documents to which it is a party shall constitute a valid and
binding obligation of the Seller enforceable in accordance with their respective
terms, except as
13
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and except as the indemnification agreements
of the Seller herein may be legally unenforceable.
(d) It understands and agrees that, until registered under
the Securities Act or transferred pursuant to the provisions of Rule 144 as
promulgated by the SEC, all certificates evidencing any of the Repurchase Stock,
whether upon initial issuance or upon any transfer thereof, shall bear a legend,
prominently stamped or printed thereon, reading substantially as follows,
together with any legends that may be required under applicable state securities
laws:
"The securities represented by this certificate
have not been registered under the Securities Act of
1933 or applicable state securities laws. These
securities have been acquired for investment and not
with a view to distribution or resale, and may not be
sold, mortgaged, pledged, hypothecated or otherwise
transferred [for non U.S. persons add: in the United
States or to U.S. persons] without an effective
registration statement for such securities under the
Securities Act of 1933 and applicable state securities
laws, or the availability of an exemption from the
registration provisions of the Securities Act of 1933
and applicable state securities laws."
6. Conditions to the Obligations of the Sellers. The obligation of
each Seller under this Agreement is subject to the fulfillment to the Seller's
satisfaction, or the waiver by such Seller, of each of the conditions set forth
in this Section 6 on or before the Closing Date.
6.1 Accuracy of Representations and Warranties. Each of the
representations and warranties of the Company set forth in Section 3 hereof
shall be true and correct on the date of the Closing.
6.2 Performance. All covenants, agreements and conditions
contained in this Agreement to be performed or complied with by the Company at
or prior to the Closing shall have been performed or complied with by the
Company.
6.3 Documents; Corporate Approvals. The Sellers shall have
received prior to or at the Closing all of the following documents or
instruments, or evidence of completion thereof, each in form and substance
satisfactory to the Sellers and their counsel:
(a) A copy of the Restated Charter, certified by the
Secretary of State of the State of Delaware together with a certified
copy of the Certificate of Designations, a copy of the resolutions of
the Board of Directors evidencing the approval of this Agreement and the
other Transaction Documents, the issuance of the Repurchase Stock and
Notes and the other matters contemplated hereby and thereby, and a copy
of the By-laws of the Company, all of which shall have been certified by
the Secretary of the Company to be true, complete and correct in every
particular, and certified copies of all
14
documents evidencing other necessary corporate or other action and
governmental approvals, if any, with respect to this Agreement, the
Repurchase Stock and the Notes.
(b) An opinion of Xxxxxxx & Xxxxxxx LLP, counsel to
the Company, in the form set forth in Exhibit C.
(c) A certificate of the Secretary or an Assistant
Secretary of the Company which shall certify the names of the officers
of the Company authorized to sign the Transaction Documents, the
certificates for the Repurchase Stock, the Notes and the other
documents, instruments or certificates to be delivered pursuant to this
Agreement by the Company or any of its officers, together with the true
signatures of such officers. The Sellers may conclusively rely on such
certificate until they shall receive a further certificate of the
Secretary or an Assistant Secretary of the Company canceling or amending
the prior certificate and submitting the signatures of the officers
named in such further certificate.
(d) A certificate of the President of the Company
stating that the representations and warranties of the Company contained
in Section 3 hereof and otherwise made by the Company in writing in
connection with the transactions contemplated hereby are true and
correct and that all conditions required to be performed prior to or at
the Closing have been performed as of the Closing.
(e) The Stockholders' Agreement in the form set
forth in Exhibit D shall have been duly executed and delivered by the
parties named therein.
(f) The Registration Rights Agreement in the form
set forth in Exhibit E shall have been duly executed and delivered by
the parties named therein.
(g) Certificates of Good Standing for the Company
from the Secretaries of State of Delaware, Massachusetts, Rhode Island,
Vermont, Maine, New Jersey, New York, Pennsylvania and all other
jurisdictions in which the Company is qualified to do business as a
foreign corporation.
(h) The Sellers, the Company and DVI Business Credit
Corporation shall have duly executed and delivered a Subordination
Agreement in the form set forth in Exhibit F.
(i) The Company shall have duly executed and
delivered a Note to each Seller in the form set forth in Exhibit A.
6.4 Payment of Costs. The Company shall have paid for the
costs, expenses, taxes and filing fees as required in Section 10.
6.5 Board of Directors. The Board of Directors of the
Company following the Closing shall consist of seven (7) members, of which the
members shall be: Xxxx X. Xxxxxxxxx,
15
Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxx, Xxxxxx
X. Xxxxxx and Xxxxxx X. Xxxxxx. Each committee of the Board of Directors shall
include either Xxxxxx X. Xxxxxx or Xxxxxx X. Xxxxxx as one of its members.
6.6 Sellers' Participation. All Sellers specified on
Schedule I hereto shall participate in the transactions contemplated hereby.
6.7 Consents, Waivers, Etc. Prior to the Closing, the
Company shall have obtained all consents or waivers, if any, necessary to
execute and deliver this Agreement, issue the Repurchase Stock and the Notes and
to carry out the transactions contemplated hereby and thereby, and all such
consents and waivers shall be in full force and effect. All corporate and other
action and governmental filings necessary to effectuate the terms of this
Agreement, the Repurchase Stock and the Notes and other agreements and
instruments executed and delivered by the Company in connection herewith shall
have been made or taken, except for any post-sale filing that may be required
under federal or state securities laws. In addition to the documents set forth
above, the Company shall have provided to the Sellers any other information or
copies of documents that they may reasonably request.
7. Conditions to the Obligations of the Company. The obligation of
the Company under this Agreement is subject to the fulfillment to the Company's
satisfaction, or the waiver in writing by the Company, of each of the conditions
set forth in this Section 7 on or before each Closing Date.
7.1 Accuracy of Representations and Warranties. Each of the
representations and warranties of the Sellers set forth in Section 4 hereof
shall be true and correct on the date of the Closing.
7.2 Performance. All covenants, agreements and conditions
contained in this Agreement to be performed or complied with by the Sellers at
or prior to the Closing shall have been performed or complied with by the
Sellers.
7.3 Approvals. The Company shall have received prior to or
at Closing from each Seller a certificate of an authorized person of such Seller
stating that the representations and warranties of such Seller contained in
Section 4 hereof and otherwise made by such Seller in writing in connection with
the transactions contemplated hereby are true and correct and that all
conditions required to be performed prior to or at the Closing have been
performed as of the Closing.
7.4 Stockholders' Agreement, Registration Rights Agreement
and Subordination Agreement. The Stockholders' Agreement, Registration Rights
Agreement and Subordination Agreement shall have been duly executed and
delivered by the Sellers.
7.5 Sellers' Participation. All Sellers specified on
Schedule I hereto shall participate in the transactions contemplated hereby.
16
8. Successors and Assigns. The provisions of this Agreement shall
bind and inure to the benefit of the respective successors and permitted assigns
of the parties hereto.
9. Survival of Representations and Warranties. All representations
and warranties shall survive and remain in full force and effect after the
Closing with respect to the Company.
10. Costs, Expenses and Taxes. The Company agrees to pay in
connection with the preparation, execution and delivery of this Agreement and
the other Transaction Documents and the issuance of the Repurchase Stock and the
Notes, the reasonable fees and out-of-pocket expenses collectively of Xxxxx,
Xxxxxxx & Xxxxxxxxx, LLP, special counsel for the Sellers. In addition, the
Company shall pay any and all stamp and similar transfer taxes payable or
determined to be payable in connection with the execution and delivery of this
Agreement and the Transaction Documents, the issuance of the Repurchase Stock
and the Notes and the other instruments and documents to be delivered hereunder
or thereunder, and agrees to save the Sellers harmless from and against any and
all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes.
11. Notices. All notices, requests, consents and other
communications under this Agreement shall be in writing (including facsimile
communication) and shall be delivered by hand, by telecopier, by express
overnight courier service or mailed by first class mail, postage prepaid, and
shall be given,
if to Company, to:
000 Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxx, XX 00000
Attention: President Fax: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxx, Esq.
Xxxxxxx & Xxxxxxx LLP
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000 Fax: (000) 000-0000
if to any Seller, to:
To the applicable address and fax number
set forth in Schedule I.
17
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000 Fax: (000) 000-0000
or at such other address as to which such party may inform the other parties in
writing in compliance with the terms of this Section.
Notices provided in accordance with this Section 11 shall be deemed
delivered upon personal delivery, receipt by telecopy, or overnight mail, or 48
hours after deposit in the mail in accordance with the above.
12. Brokers. The Company and the Sellers (i) represent and warrant
to the other that they have retained no finder or broker in connection with the
transactions contemplated by this Agreement, and (ii) shall indemnify and hold
harmless the other from and against any and all claims, liabilities, or
obligations with respect to brokerage or finders' fees or commissions or
consulting fees in connection with the transactions contemplated by this
Agreement, asserted by any person on the basis of any statement or
representation alleged to have been made by such indemnifying party.
13. Entire Agreement. This Agreement, together with the instruments
and other documents hereby contemplated to be executed and delivered in
connection herewith, contains the entire agreement and understanding of the
parties hereto, and supersedes any prior agreements or understandings between or
among them, with respect to the subject matter hereof, including the Series A
Convertible Preferred Stock Purchase Agreement dated November 6, 1996, which
will be of no further force or effect.
14. Amendments and Waivers. Except as otherwise expressly set forth
in this Agreement, any term of this Agreement may be amended and the observance
of any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), with the written consent of
the Company and holders of at least a majority of the outstanding Repurchase
Stock. No waivers of or exceptions to any term, condition or provision of this
Agreement, in any one or more instances, shall be deemed to be, or construed as,
a further or continuing waiver of any such term, condition or provision.
15. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. A facsimile signature
shall constitute an original signature hereto.
16. Captions. The captions of the sections, subsections and
paragraphs of this Agreement have been added for convenience only and shall not
be deemed to be a part of this Agreement.
18
17. Severability. Each provision of this Agreement shall be
interpreted in such manner as to validate and give effect thereto to the fullest
lawful extent, but if any provision of this Agreement is determined by a court
of competent jurisdiction to be invalid or unenforceable under applicable law,
such provision shall be ineffective only to the extent so determined and such
invalidity or unenforceability shall not affect the remainder of such provision
or the remaining provisions of this Agreement.
18. Waiver of Preemptive Rights. The Sellers representing the
holders of at least a majority in interest of the Series A Preferred hereby by
waive any rights of first refusal pursuant to Article VI of the Series A
Convertible Preferred Stock Purchase Agreement dated as of November 6, 1996,
including any notice requirements related thereto, with respect to the issuance
and sale of the Repurchase Stock.
19. Governing Law. This Agreement shall be governed by and
interpreted and construed in accordance with the laws of the State of Delaware.
Each of the parties hereby irrevocably submits to the jurisdiction of any United
States federal court sitting in the State of Delaware (or, if such court shall
not accept such jurisdiction, any state court sitting in Delaware) in any
action, suit or proceeding brought against it by the other party under this
Agreement.
[Remainder of page intentionally left blank]
19
IN WITNESS WHEREOF, the Company and the Sellers have executed this
Agreement as of the day and year first above written.
OCCUPATIONAL HEALTH +
REHABILITATION INC
By: /s/ Xxxxx X. Xxxx
--------------------------------------------------
Name: Xxxxx X. Xxxx
Title: CFO
SELLERS:
XXXXXX, XXXXXXX STRATEGIC
PARTNERS FUND, L.P.
By: Xxxxxx, Xxxxxxx Strategic Partners, L.P.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------------
Title: General Partner
STRATEGIC ASSOCIATES, L.P.
By: Xxxxxx, Xxxxxxx Strategic Partners, L.P.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------------
Title: General Partner
AXA U.S. GROWTH FUND LLC
By: /s/ Xxxxxx X. XxXxxxxx
--------------------------------------------------
Title: Managing Member
PANTHEON GLOBAL PCC LIMITED
By: /s/ Xxxxxx Xxxx
--------------------------------------------------
Title: Alternate Director
DOUBLE BLACK DIAMOND II, LLC
By: /s/ Xxxxxx X. XxXxxxxx
--------------------------------------------------
Title: Managing Member
/s/ Xxxxxx X. XxXxxxxx
-----------------------------------------------------
Xxxxxxx Worms, signed by Xxxxxx X.
XxXxxxxx pursuant to a power of attorney
THE VENTURE CAPITAL FUND OF
NEW ENGLAND III, L.P.
By: FH & Co. III, L.P., its General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------------------
Title: General Partner
BANCBOSTON VENTURES, INC.
By: /s/ Xxxx XxXxxxxxx
--------------------------------------------------
Title: Vice President
VENROCK ASSOCIATES
VENROCK ASSOCIATES II, L.P.
By: /s/ Xxxxxxx X. Envin
--------------------------------------------------
Title: General Partner
ASSET MANAGEMENT ASSOCIATES,
1989, L.P.
By: AMC Partners 89, L.P., General Partner
By: /s/ Xxxxx Xxxxxx
--------------------------------------------------
Title: General Partner
Series A Shares of
Name and Preferred Repurchase
Address of Sellers Shares Cash Notes Stock
---------------------------------------- --------- -------------- -------------- ----------
Xxxxxx, Xxxxxxx Strategic Partners Fund, 679,042 $ 1,294,049.41 $ 1,294,049.41 770,871
L.P.
Xxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
with copy to:
Xxxxxx X. Xxxxxx
HLM Management
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Strategic Associates, L.P. 37,625 71,701.91 $ 71,701.91 42,713
Xxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
with copy to:
Xxxxxx X. Xxxxxx
HLM Management
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
AXA U.S. Growth Fund LLC 86,667 165,161.18 $ 165,161.18 98,387
c/o Partech International
00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. XxXxxxxx
Pantheon Global PCC Limited 173,334 330,322.37 $ 330,322.37 196,775
Pantheon Ventures, Inc.
Transamerica Center
000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxxxx
Double Black Diamond II, LLC 16,667 $ 31,762.28 $ 31,762.28 18,921
c/o Partech International
00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. XxXxxxxx
Series A Shares of
Name and Preferred Repurchase
Address of Sellers Shares Cash Notes Stock
---------------------------------------- --------- -------------- -------------- ----------
Xxxxxxx Worms 6,665 $ 12,701.48 $ 12,701.48 7,566
00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Asset Management Associates, 1989, L.P. 83,333 $ 158,807.58 $ 158,807.58 94,602
Alloy Ventures
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxx Xxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxx
Venrock Associates 66,667 $ 127,047.21 $ 127,047.21 75,683
Xxxx 0000
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx Xxxxx
Venrock Associates II, L.P. 100,000 $ 190,569.86 $ 190,569.86 113,523
Xxxx 0000
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx Xxxxx
The Venture Capital Fund of New England, 66,667 $ 127,047.21 $ 127,047.21 75,683
III, L.P.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000-0000
Attn: Xx. Xxxxx X. Xxxxxxxxx
BancBoston Ventures, Inc. 100,000 $ 190,569.86 $ 190,569.86 113,523
BancBoston Capital
Mail Stop: XX XX 00000X
000 Xxxxxxx Xxxxxx, Xxx. 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xx. Xxxx X. XxXxxxxxx
TOTAL 1,416,667 $ 2,699,740.35 $ 2,699,740.35 1,608,247
