EXHIBIT 10.9
FIRST AMENDMENT TO RESTRICTED STOCK AGREEMENT
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THIS FIRST AMENDMENT TO RESTRICTED STOCK AGREEMENT (this "Amendment") is
made and entered into as of November 30, 1997 by and among EVEREST HEALTHCARE
SERVICES CORPORATION, a Delaware corporation (the "Company"), EVEREST HEALTHCARE
II, INC., a Delaware corporation ("Holding"), and the persons or entities listed
on the attached Schedule A (each, a "Stockholder" and collectively, the
"Stockholders").
W I T N E S S E T H:
WHEREAS, the Stockholders and the Company are parties to that certain
Restricted Stock Agreement (the "Agreement") dated as of October 1, 1995,
entered into in connection with the establishment of the Company in 1995;
WHEREAS, Holding is being organized as a successor to Peak Healthcare,
L.L.C. and the Company, in connection with the formation of Holding, will become
a wholly-owned subsidiary of Holding; and
WHEREAS, the Company and the Stockholders desire to amend the Agreement to
substitute Holding for the Company and facilitate transfers of shares for estate
planning purposes.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Formation and Substitution of Holding. The restrictions of the
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Agreement shall apply to the securities of Holding issued to the Stockholders to
the same extent as they applied to the Company's securities. In connection with
the organization of Holding, such transaction shall constitute an "Approved
Sale" with respect to the Company. Upon completion of the organization of
Holding all references herein to the Company shall be deemed to be references to
Holding. Notwithstanding anything in the Agreement to the contrary, the
Agreement shall not terminate as the result of Holding acquiring the stock of or
becoming the sole stockholder of the Company.
2. Permitted Transferees. The definition of "Permitted Transferee"
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contained in Section 1(F) of the Agreement shall be deleted and replaced with
the following:
"(F) "Permitted Transferee" means, with respect to a
Stockholder who is a natural person and an original
signatory to this Agreement, (i) such Stockholder's
spouse, descendant or parent, or (ii) a trust or
family partnership solely for the benefit of such
Stockholder or such person(s) in item (i), or (iii) a
Revocable Trust, or (iv) such Stockholder's personal
representative for purposes of
administration of such Stockholder's estate or upon
such Stockholder's incompetency for the purpose of the
protection or management of such Stockholder's assets;
provided, however, that if any proposed Permitted
Transferee is less than 21 years of age at the time of
a proposed Transfer to such person, then such Transfer
may only be made to a trustee of a valid trust for the
benefit of such person, which trust shall not
terminate prior to the beneficiary (or beneficiaries)
thereof attaining the age of 21.
For purposes of this Agreement, the term "Revocable
Trust" means a trust created by the Stockholder during
his lifetime, (i) which is amendable and revocable
solely by such Stockholder, and (ii) in which such
Stockholder is the sole trustee and sole beneficiary."
3. No Board Approval. Section 2(B) of the Agreement shall be amended to
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provide that no approval of the Board of Directors of the Company is necessary
for Transfers to any Permitted Transferee, and as such shall be deleted and
replaced with the following:
"(B) A Transfer will be permitted under this Agreement (a
"Permitted Transfer") if (i) made to a Permitted
Transferee and the Company is provided written notice
of such Transfer or (ii) subject to Section 2(E), made
to an Outsider and the Board gives its prior written
consent to such Transfer and waiver to the provisions
of Section 3 to such Transfer (which consent may be
granted or withheld in the Board's discretion);
provided, however, in the event of such Transfer, the
Transferee takes such shares subject to the terms and
provisions of this Agreement, as amended from time to
time, whether or not such Transferee executes a
counterpart hereof."
4. Approved Sale. The definition of "Approved Sale" contained in Section
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1(A) of the Agreement shall be amended to provide for reorganization of the
Company, and the restriction on sale of the Company to an affiliate shall be
deleted, and as such, the definition of "Approved Sale" shall be deleted and
replaced with the following:
"(A) "Approved Sale" means the sale of the Company, in a
single transaction or a series of related
transactions, to a third party pursuant to which (a)
such third party proposes to acquire (i) a majority of
the outstanding Shares (whether by merger,
consolidation, recapitalization, reorganization,
purchase of the outstanding Shares or otherwise) or
(ii) all or substantially all of the Company's assets,
(b) holders of a majority of the Shares then
outstanding have approved the sale, (c) all holders of
Shares receive the same form and amount of
consideration per Share or, if any holders are given
an option as to the form and amount of consideration
to be received, all holders are given the same option,
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and (d) the sale is designated an Approved Sale by the
Board of Directors of the Company."
5. Terms; Effect of Amendment. All capitalized terms used in this
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Amendment but not otherwise defined herein shall have the meanings given to them
in the Agreement. All other terms and provisions of the Agreement not modified
by this Amendment shall remain in full force and effect.
6. Strict Construction. The language used in this Amendment will be
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deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any party
hereto.
7. Counterparts. This Amendment may be executed in any number of
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counterparts, each of which shall be deemed an original and all of which, when
taken together, shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties to this Amendment have caused this
Amendment to be duly executed and delivered as of the day and year first above
written.
EVEREST HEALTHCARE SERVICES CORPORATION
By:/s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
Chairman and Chief Executive Officer
/s/ XXXXXX XXXXXXXX, M.D.
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Xxxxxx Xxxxxxxx, M.D.
/s/ XXXXXX XXXXXXX, M.D.
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Xxxxxx Xxxxxxx, M.D.
/s/ XXXXXX X. XXXXXX, M.D.
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Xxxxxx X. Xxxxxx, M.D.
/s/ XXXXXXX XXXXXXXX, M.D.
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Xxxxxxx Xxxxxxxx, M.D.
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/s/ XXXXXX XXXX, M.D.
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Xxxxxx Xxxx, M.D.
/s/ OLIVE OH, M.D.
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Olive Oh, M.D.
/s/ XXXXXX XXXXX, M.D.
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Xxxxxx Xxxxx, M.D.
/s/ XXXXXX SUGAR, M.D.
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Xxxxxx Sugar, M.D.
/s/ XXX XXX, M.D.
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Xxx Xxx, M.D.
/s/ XXXXX XXXXXXXX, M.D.
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Xxxxx Xxxxxxxx, M.D.
/s/ XXXX XXXXXXXXXX, M.D.
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Xxxx Xxxxxxxxxx, M.D.
/s/ XXXXXX X. MUEHRCEK
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Xxxxxx X. Xxxxxxxx, as Trustee of the Xxxxxx X. Xxxxxxxx
Revocable Trust U/A/D 12/8/81
/s/ XXXX XXXXXXXX M.D.
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Xxxx Xxxxxxxx, M.D.
/s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
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