Exhibit 10.26
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AMENDMENT NO. 1 TO
STOCKHOLDERS AGREEMENT
AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT (this "Amendment") dated
as of November 1, 2001 by and among Concentra Inc., a Delaware corporation
formerly known as Concentra Managed Care, Inc. (the "Company"), the several
persons signatory hereto and named on Schedule I hereto under the heading
"Schedule I Purchasers" and the several persons signatory hereto and named on
Schedule II hereto under the heading "FFT Purchasers". Capitalized terms used in
this Amendment which are not otherwise defined herein shall have the meanings
ascribed to them in the Stockholders Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the several persons named on Schedule I hereto
under the heading "Schedule I Purchasers" (the "Schedule I Purchasers") and the
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several persons named on Schedule II hereto under the heading "FFT Purchasers"
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(the "FFT Purchasers" and, together with the Schedule I Purchasers,
collectively, the "Stockholders") are parties to a Stockholders Agreement dated
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as of August 17, 1999 (the "Stockholders Agreement");
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WHEREAS, the Company proposes to issue (1) an aggregate 2,266,546
shares of Company Common Stock (the "New Common Shares") and (2) warrants to
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acquire an aggregate 771,277 shares of Company Common Stock (the "New Warrants"
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and, together with the New Common Shares, the "New Securities") pursuant to the
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terms and conditions of a Securities Purchase Agreement (the "Securities
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Purchase Agreement") dated as of the date hereof among the Company and the
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purchasers named therein (the "Purchasing Stockholders") in order to, among
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other things, finance its acquisition of National Health Resources, Inc.
("NHR");
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WHEREAS, upon the issuance of the New Securities, each Stockholder
will own the number of shares of Company Common Stock, Company Class A Common
Stock and/or New Warrants, as the case may be, appearing opposite the name of
such Stockholder on Schedule I or Schedule II hereto, as the case may be;
WHEREAS, it is a condition to the respective obligations of the
Company and the Purchasing Stockholders under the Securities Purchase Agreement
that this Amendment be executed and delivered by the Company and each of the
Purchasing Stockholders, including (i) holders of a majority in interest of the
Company Capital Stock currently held by the Schedule I Purchasers and (ii)
holders of a majority in interest of the Company Capital Stock currently held by
the FFT Purchasers;
WHEREAS, the parties hereto desire to execute and deliver this
Amendment in order to fulfill such condition and to provide for certain matters
relating to the New Common Shares and the shares of Company Common Stock
issuable upon exercise of the New Warrants;
WHEREAS, in connection with the Company's acquisition of NHR, the
Company proposes to issue shares of Company Common Stock to the stockholders of
NHR and the parties hereto desire that (1) such issuance be expressly excluded
from the preemptive rights provisions of the Stockholders Agreement and (2) that
a modification be made to the tag-along provisions of the Stockholders Agreement
in order to allow such stockholders of NHR to receive tag-along rights that are
comparable to those currently contained in the Stockholders Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto hereby agree as
follows:
SECTION 1. Amendments to Stockholders Agreement. The Stockholders
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Agreement is amended as follows:
(a) The fifth WHEREAS clause of the Stockholders Agreement is
amended by deleting the text "("Warrants")" appearing therein and
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inserting the text "("Debenture Warrants")" in lieu thereof.
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(b) Section I (1) of the Stockholders Agreement is amended by adding
the following new definitions in the appropriate alphabetical order:
" 'Company Common Stock' shall have the meaning provided for such
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term in the second WHEREAS clause of this Agreement (it being
understood that Company Common Stock includes the New Common Shares
and the shares of Company Common Stock issuable upon exercise of the
New Warrants)."
" 'Company Capital Stock' shall have the meaning provided for such
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term in the second WHEREAS clause of this Agreement (it being
understood that Company Capital Stock includes the New Common Shares
and the shares of Company Common Stock issuable upon exercise of the
New Warrants)."
" 'New Common Shares' shall have the meaning provided in Amendment
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No. 1 to this Agreement dated as of November 1, 2001."
" 'New Warrants' shall have the meaning provided in Amendment No. 1
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to this Agreement dated as of November 1, 2001."
" 'NHR' shall mean National Health Resources, Inc., a Delaware
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corporation."
" 'NHR Acquisition' shall mean the acquisition of NHR by the Company
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or a wholly-owned subsidiary of the Company."
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" 'NHR Stockholders' shall mean the stockholders of NHR immediately
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prior to the NHR Acquisition other than those stockholders of NHR
that are also Schedule I Purchasers hereunder."
" 'Warrants' shall mean and refer to both the Debenture Warrants and
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the New Warrants."
(c) Section II (1) of the Stockholders Agreement is amended by
deleting the second reference therein to "Warrant" and the reference
therein to "Warrants" and inserting references to "Debenture Warrant" and
"Debenture Warrants", respectively, in lieu thereof.
(d) Section II (4) of the Stockholders Agreement is amended by
deleting the text "shares of Company Capital Stock or, on or after the
Debenture Sale, Warrants" appearing therein and inserting the text "shares
of Company Capital Stock or Warrants (other than Debtenture Warrants) or,
on or after the Debenture Sale, Debenture Warrants" in lieu thereof.
(e) Section III(1) of the Stockholders Agreement is amended by
deleting the text "(B) the aggregate number of shares of Company Capital
Stock and Warrants owned by WCAS and its Designated Affiliates and the
Tagging Stockholders" appearing therein and inserting the text "(B) the
sum of (x) the aggregate number of shares of Company Capital Stock and
Warrants owned by WCAS and its Designated Affiliates and the Tagging
Stockholders and (y) the aggregate number of shares of Company Common
Stock owned by NHR Stockholders having a right to participate on a pro
rata basis with the Tagging Stockholders in such Proposed Sale" in lieu
thereof.
(f) Section VI(1) of the Stockholders Agreement is amended by
inserting the following new clause (vi) therein:
"(vi)of 3,045,600 shares of Company Common Stock to the NHR
stockholders in connection with the NHR Acquisition."
(g) Section VIII (1) of the Stockholders Agreement is amended by
deleting the text "held by such Stockholder as of the Effective Date"
appearing in the introductory clause thereof and inserting the text "held
by such Stockholder as of November 1, 2001 (the "First Amendment Effective
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Date")" in lieu thereof.
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(h) Section VIII (1) of the Stockholders Agreement is amended by
deleting the text "held by such Stockholder on the date hereof" appearing
in the proviso at the end of said Section and inserting the text "held by
such Stockholder on the First Amendment Effective Date" in lieu thereof.
(i) Section IX of the Stockholders Agreement is amended by deleting
the text "held by the Schedule I Purchasers on the Effective Date"
appearing therein and inserting
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the text "held by the Schedule I Purchasers on the First Amendment
Effective Date" in lieu thereof.
SECTION 2. Miscellaneous.
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(a) This Amendment shall be governed by and construed in accordance
with the laws of the State of New York.
(b) This Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(c) Headings and section reference numbers in this Amendment are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Amendment.
(d) This Amendment is limited precisely as written and shall not be
deemed to be a modification, acceptance or waiver of any other term,
condition or provision of the Stockholders Agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Amendment No. 1 to Stockholders Agreement, all as of the day and year first
above written.
CONCENTRA INC.
By_____________________________
Name: Xxxxxxx X. Xxxx XX
Title: Executive Vice President,
General Counsel and Secretary
__________________________________
Name:
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WELSH, CARSON, XXXXXXXX & XXXXX
VIII, L.P.
By: WCAS VIII Associates, L.L.C.,
General Partner
By:_________________________________________
Managing Member
WCAS HEALTHCARE PARTNERS, L.P.
By: WCAS HC Partners, General Partner
By:_________________________________________
General Partner
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxx
Xxxxxx X. XxXxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. xxXxxxxx
Xxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxx
D. Xxxxx Xxxxxxx
Xxxxxxxxx X. Xxxxxx
Xxxxx X. XxxXxxxx
Xxxx X. Xxxxxxx
Xxxx Xxxxxxx, Xx.
Xxxxxxxx X. Rather
By:_________________________________________
Xxxxxxxx X. Rather, Individually and
as Attorney-in-Fact
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WCAS MANAGEMENT CORP.
By:__________________________________
Name:
Title:
X.X. XXXXXX DIRECT CORPORATE FINANCE
INSTITUTIONAL INVESTORS LLC
By:_____________________________________
Name:
Title:
X.X. XXXXXX DIRECT CORPORATE FINANCE
PRIVATE INVESTORS LLC
By:_____________________________________
Name:
Title:
000 XXXXX XXXXXX FUND, L.P.
By:_____________________________________
Name:
Title:
CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT
SYSTEM
By:_________________________________________
Name:
Title:
CALIFORNIA STATE TEACHERS' RETIREMENT SYSTEM
By:_________________________________________
Name:
Title:
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CMS CO-INVESTMENT SUBPARTNERSHIP II
By: CMS CO-INVESTMENT SUBPARTNERSHIP,
a Delaware general partnership
By: CMS Co-Investment Partners, L.P.,
a Delaware limited partnership
By: CMS/Co-Investment Associates, L.P.,
a Delaware limited partnership
By: MSPS/Co-Investment, Inc.,
a Delaware corporation
By:______________________
Its:
By: CMS 1997 Investment Partners, L.P.,
a Delaware limited partnership
By: CMS 1997, Inc., a Delaware corporation
By:______________________
Its:
By: CMS Co-Investment Partners I-Q, L.P.,
a Delaware limited partnership
By: CMS/Co-Investment Associates, L.P.,
a Delaware limited partnership
By: MSPS/Co-Investment, Inc.
a Delaware corporation
By:_____________________
Its:
By: CMS 1997 Investment Partners, L.P.,
a Delaware limited partnership
By: CMS 1997, Inc., a Delaware corporation
By:______________________
Its:
By:___________________________________________
Xxx Xxxxx
By:___________________________________________
Xxxxx Xxxxxxx
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CMS DIVERSIFIED PARTNERS, L.P.
By: CMS/DP Associates, L.P, a general partner
By: MSPS/DP, Inc., its general partner
By:_______________________
(Vice) President
By: CMS 1995 Investment Partners, L.P, a
general partner
By: CMS 1995, Inc., its general partner
By:____________________________
(Vice) President
CMS PEP XIV CO-INVESTMENT SUBPARTNERSHIP
By:_____________________________________
Xxxxxxx Xxxxxxxx
Authorized Representative
EURAZEO
By:_____________________________________
Name:
Title:
DB CAPITAL INVESTORS, L.P.
By: DB Capital Partners, L.P.,
its General Partner
By: DB Capital Partners, Inc.,
its General Partner
By:_______________________________
Name:
Title:
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GS PRIVATE EQUITY PARTNERS II, L.P.
By: GS PEP II Advisors, L.L.C., its General Partner
By: GSAM Gen-Par, L.L.C., its Managing Member
By:_______________________________
Name:
Title:
GS PRIVATE EQUITY PARTNERS II OFFSHORE, L.P.
By: GS PEP II Offshore Advisors, Inc., its General
Partner
By:_______________________________
Name:
Title:
GS PRIVATE EQUITY PARTNERS II - DIRECT
INVESTMENT FUND, L.P.
By: GS PEP II Direct Investment Advisors, L.L.C.,
its General Partner
By: GSAM Gen-Par, L.L.C., its Managing Member
By:_______________________________
Name:
Title:
10
GS PRIVATE EQUITY PARTNERS III, L.P.
By: GS PEP III Advisors, L.L.C., its General Partner
By: GSAM Gen-Par, L.L.C., its Managing Partner
By:_______________________________
Name:
Title:
GS PRIVATE EQUITY PARTNERS III OFFSHORE, L.P.
By: GS PEP III Offshore Advisors, Inc., its General \
Partner
By:_______________________________
Name:
Title:
NBK/GS PRIVATE EQUITY PARTNERS, L.P.
By: GS PEP Offshore Advisors (NBK), Inc. General
Partner
By:_______________________________
Name:
Title:
00
XXXXXXXX XXXX PRIVATE EQUITY PARTNERS,
L.P.
By: HLSP Investment Management, LLC,
its General Partner
By: _____________________________________
Xxxxx X. Xxxxxxxx
Managing Member
XXXXXXXX XXXX PRIVATE EQUITY FUND, PLC
By: _____________________________________
Xxxxx X. Xxxxxxxx, Director
By: _____________________________________
Xxxxxx Xxxx, Director
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NASSAU CAPITAL PARTNERS III L.P.
By:_______________________________
Name:
Title:
NASSAU CAPITAL PARTNERS IV L.P.
By:_______________________________
Name:
Title:
NAS PARTNERS LLC
By:_______________________________
Name:
Title:
A.S.F. CO-INVESTMENT PARTNERS, L.P.
By: PAF 10/98, LLC
By: Old Kings I, LLC, as Managing Member
By:__________________________________________
Name:
Title:
NEW YORK LIFE CAPITAL PARTNERS, L.P.
By: NYLCAP Manager LLC, its Investment Manager
By:___________________________________________
Name:
Title:
XXXXXX XXXXXXX XXXXXXXX & CO., LLC
on behalf of FFT PARTNERS I, L.P.
and as its General Partner
By:_____________________________________
Name:
Title:
and
on behalf of FFT EXECUTIVE PARTNERS I,
L.P. and as its General Partner
By:__________________________________________
Name:
Title:
and
on behalf of FFT PARTNERS II, L.P.
and as its General Partner
By:_____________________________________
Name:
Title:
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SCHEDULE I
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Schedule I Purchasers
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See attached.
Address for Schedule I Purchasers:
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c/o Welsh, Carson, Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Telecopy: (000) 000-0000
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SCHEDULE II
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FFT Purchasers
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See attached.
Address for FFT Purchasers:
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c/o Ferrer Xxxxxxx Xxxxxxxx & Co.
The Mill
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telecopy: (000) 000-0000
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