Exhibit 10.16
REGISTRATION AGREEMENT
THIS AGREEMENT is made as of August 23, 1996, by and among American
Medserve Corporation, a Delaware corporation (the "COMPANY"), Golder, Thoma,
Xxxxxxx, Xxxxxx Fund IV, L.P., a Delaware limited partnership ("GTCR"), and each
of the other investors in the Company listed on the signature pages hereof (the
"INVESTORS"). Unless otherwise provided in this Agreement, capitalized terms
used herein shall have the meanings set forth in paragraph 8 hereof.
The parties hereto agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time after 90 days following
the date on which the Company has completed an initial public offering of its
Common Stock under the Securities Act, the holders of a majority of the GTCR
Registrable Securities may request registration under the Securities Act of all
or any portion of their GTCR Registrable Securities on Form S-1 or any similar
long-form registration ("LONG-FORM REGISTRATIONS") or on Form S-2 or S-3 or any
similar short-form registration ("SHORT-FORM REGISTRATIONS") if available. All
registrations requested pursuant to this paragraph 1(a) are referred to herein
as "DEMAND REGISTRATIONS." Each request for a Demand Registration shall specify
the approximate number of GTCR Registrable Securities requested to be registered
and the anticipated per share price range for such offering. Within ten days
after receipt of any such request, the Company shall give written notice of such
requested registration to all other holders of GTCR Registrable Securities and
shall include in such registration all GTCR Registrable Securities with respect
to which the Company has received written requests for inclusion therein within
15 days after the receipt of the Company's notice.
(b) LONG-FORM REGISTRATIONS. The holders of a majority of the GTCR
Registrable Securities shall be entitled to request three Long-Form
Registrations in which the Company shall pay all Registration Expenses. A
registration shall not count as one of the permitted Long-Form Registrations
until it has become effective (unless such Long-Form Registration has not become
effective due solely to the fault of the holders requesting such registration),
and no Long-Form Registration shall count as one of the permitted Long-Form
Registrations unless the holders of GTCR Registrable Securities are able to
register and sell at least 90% of the GTCR Registrable Securities requested to
be included in such registration; provided that in any event the Company shall
pay all Registration Expenses in connection with any registration initiated as a
Long-Form Registration whether or not it has become effective and whether or not
such registration has counted as one of the permitted Long-Form Registrations.
All Long-Form Registrations shall be underwritten registrations.
(c) SHORT-FORM REGISTRATIONS. In addition to the Long-Form
Registrations provided pursuant to paragraph 1(b), the holders of a majority of
the GTCR Registrable Securities shall be entitled to request five Short-Form
Registrations in which the Company shall pay all Registration Expenses. Demand
Registrations shall be Short-Form Registrations whenever the Company is
permitted to use any applicable short form. After the Company has become
subject to the reporting requirements of the Securities Exchange Act, the
Company shall use its reasonable best efforts to make Short-Form Registrations
on Form S-3 available for the sale of GTCR Registrable Securities.
(d) PRIORITY ON DEMAND REGISTRATIONS. If a Demand Registration is an
underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of GTCR Registrable Securities and, if
permitted hereunder, other securities requested to be included in
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such offering exceeds the number of GTCR Registrable Securities and other
securities, if any, which can be sold therein without adversely affecting the
marketability of the offering, the Company shall include in such registration
prior to the inclusion of any securities which are not GTCR Registrable
Securities the number of GTCR Registrable Securities requested to be included
which in the opinion of such underwriters can be sold without adversely
affecting the marketability of the offering, pro rata among the respective
holders thereof on the basis of the amount of GTCR Registrable Securities owned
by each such holder.
(e) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company shall not be
obligated to effect any Demand Registration within 180 days after the effective
date of a previous Demand Registration or a previous registration in which the
holders of GTCR Registrable Securities were given piggyback rights pursuant to
paragraph 2 and in which there was no reduction in the number of GTCR
Registrable Securities requested to be included. The Company may postpone for
up to 180 days the filing or the effectiveness of a registration statement for a
Demand Registration if the Company's board of directors determines in its
reasonable good faith judgment that such Demand Registration would reasonably be
expected to have a material adverse effect on any proposal or plan by the
Company or any of its Subsidiaries to engage in any acquisition of assets (other
than in the ordinary course of business) or any merger, consolidation, tender
offer, reorganization or similar transaction; provided that in such event, the
holders of GTCR Registrable Securities initially requesting such Demand
Registration shall be entitled to withdraw such request and, if such request is
withdrawn, such Demand Registration shall not count as one of the permitted
Demand Registrations hereunder, and the Company shall pay all Registration
Expenses in connection with such registration. The Company may delay a Demand
Registration hereunder only once in any twelve-month period.
(f) OTHER REGISTRATION RIGHTS. Except as provided in this Agreement,
the Company shall not hereafter grant to any Persons the right to request the
Company to register any equity securities of the Company, or any securities
convertible or exchangeable into or exercisable for such securities, without the
prior written consent of GTCR; provided that the Company may grant rights (i) to
other Persons (including without limitation to optionees) to participate in
Piggyback Registrations so long as such rights are subordinate to the rights of
the holders of GTCR Registrable Securities with respect to such Piggyback
Registrations (except that such rights may be PARI PASSU with the rights of
holders of GTCR Registrable Securities in the case of such rights issued to
members of management of the Company and its subsidiaries) and (ii) pursuant to
the Shareholders Agreement, dated as of April 30, 1996, by and among Good
Samaritan Supply Services, Inc., a South Dakota corporation, The Evangelical
Lutheran Good Samaritan Foundation, a Minnesota non-profit corporation, and the
Company, as such agreement is in effect as of the date hereof.
(g) CONTEMPORANEOUS DEMANDS. If any holders of the Company's
securities (other than Persons who hold GTCR Registrable Securities) exercise
demand registration rights to have the Company register their securities under
the Securities Act within 15 days before or after the time that holders of GTCR
Registrable Securities have requested a Demand Registration, then (i) the
holders of GTCR Registrable Securities who desire to have securities included in
such registration and the holders of such other securities shall be entitled to
participate in such registration on a pro rata basis, according to the number of
shares owned by each such holder, (ii) the Company shall pay all of the
Registration Expenses of the holders of GTCR Registrable Securities, and (iii)
such registration shall not count as a Long-Form Registration for purposes of
paragraph 1(b) unless the holders of GTCR Registrable Securities are able to
register and sell at least 90% of the GTCR Registrable Securities requested to
be registered.
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2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. At any time after 90 days following the date
on which the Company has completed an initial public offering, whenever the
Company proposes to register any of its securities under the Securities Act
(including without limitation pursuant to a Demand Registration) and the
registration form to be used may be used for the registration of Registrable
Securities (a "PIGGYBACK REGISTRATION"), the Company shall give prompt written
notice (in any event within three business days after its receipt of notice of
any exercise of demand registration rights other than under this Agreement) to
all holders of Registrable Securities of its intention to effect such a
registration and shall include in such registration all Registrable Securities
with respect to which the Company has received written requests for inclusion
therein within 20 days after the receipt of the Company's notice.
(b) PIGGYBACK EXPENSES. The Registration Expenses of the holders of
Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration
is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the
marketability of the offering, the Company shall include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the
Registrable Securities requested to be included in such registration and the
Common Stock requested to be included in such registration by any other holder
of Common Stock exercising similar piggyback registration rights, pro rata among
the holders of such securities on the basis of the number of shares owned by
each such holder, and (iii) third, other securities requested to be included in
such registration.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company shall include
in such registration (i) first, the securities requested to be included in such
registration by the holders requesting such registration, (ii) second, the
Registrable Securities requested to be included in such registration pursuant to
paragraph 2(a), pro rata among the holders of such Registrable Securities on the
basis of the number of shares owned by each such holder, and (iii) third, other
securities requested to be included in such registration.
(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration is an
underwritten offering, the selection of investment banker(s) and manager(s) for
the offering must be approved by the holders of a majority of the GTCR
Registrable Securities included in such Piggyback Registration. Such approval
shall not be unreasonably withheld.
(f) OTHER REGISTRATIONS. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
paragraph 1 or this paragraph 2, and if such previous registration has not been
withdrawn or abandoned, the Company shall not file or cause to be effected any
other registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Form S-8 or any successor form), whether on its own behalf or at
the request of any holder or holders of such securities, until a period of at
least 90 days has elapsed from the effective date of such previous registration.
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3. HOLDBACK AGREEMENTS.
(a) Upon the request of the underwriters managing the registered
public offering, each Required Holder (as such term is hereinafter defined)
shall agree not to effect any public sale or distribution (including sales
pursuant to Rule 144) of equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the
seven days prior to and the 180-day period beginning on the effective date of
any underwritten Demand Registration or any underwritten Piggyback Registration
in which Registrable Securities are included (except as part of such
underwritten registration). For purposes hereof, a "Required Holder" with
respect to a registered public offering shall mean each holder of Registrable
Securities then representing not less than 3% of the Company's issued and
outstanding shares of Common Stock who either (i) sold Registrable Securities
pursuant to a Piggyback Registration or (ii) had the right to sell Registrable
Securities in such offering pursuant to a Piggyback Registration but elected not
to request inclusion in such offering pursuant to Section 2(a) hereof.
(b) The Company (i) shall not effect any public sale or distribution
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
90-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form S-8 or any
successor form), unless the underwriters managing the registered public offering
otherwise agree, and (ii) shall cause each holder (other than a holder of
Registrable Securities who is not then a Required Holder) of at least 5% (on a
fully-diluted basis) of its Common Stock, or any securities convertible into or
exchangeable or exercisable for Common Stock, purchased from the Company at any
time after the date of this Agreement (other than in a registered public
offering) to agree not to effect any public sale or distribution (including
sales pursuant to Rule 144) of any such securities during such period (except as
part of such underwritten registration, if otherwise permitted), unless the
underwriters managing the registered public offering otherwise agree.
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use its reasonable best efforts to effect
the registration and the sale of such Registrable Securities in accordance with
the intended method of disposition thereof, and pursuant thereto the Company
shall as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
reasonable best efforts to cause such registration statement to become effective
(provided that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company shall furnish to the counsel
selected by the holders of a majority of the Registrable Securities covered by
such registration statement copies of all such documents proposed to be filed);
(b) notify each holder of Registrable Securities of the effectiveness
of each registration statement filed hereunder and prepare and file with the
Securities and Exchange Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period of not less
than 180 days and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
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(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (provided that the Company shall not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use its reasonable
best efforts to secure designation of all such Registrable Securities covered by
such registration statement as a NASDAQ "national market system security" within
the meaning of Rule 11Aa2-1 of the Securities and Exchange Commission or,
failing that, to secure NASDAQ authorization for such Registrable Securities
and, without limiting the generality of the foregoing, to arrange for at least
two market makers to register as such with respect to such Registrable
Securities with the NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including effecting a stock split or a combination of
shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as
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soon as reasonably practicable, an earnings statement covering the period of at
least twelve months beginning with the first day of the Company's first full
calendar quarter after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder; and
(k) permit any holder of Registrable Securities which holder, in its
sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Common Stock included in such registration statement for sale in any
jurisdiction, the Company shall use its reasonable best efforts promptly to
obtain the withdrawal of such order; and
(m) obtain a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the holders of a majority of the
Registrable Securities being sold reasonably request (provided that such
Registrable Securities constitute at least 10% of the securities covered by such
registration statement).
5. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions) and other Persons retained by the Company (all such expenses being
herein called "REGISTRATION EXPENSES"), shall be borne as provided in this
Agreement, and the Company shall pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit or quarterly
review, the expense of any liability insurance and the expenses and fees for
listing the securities to be registered on each securities exchange on which
similar securities issued by the Company are then listed or on the NASD
automated quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
included in such registration and for the reasonable fees and disbursements of
each additional counsel retained by any holder of Registrable Securities for the
sole and limited purpose of rendering a legal opinion on behalf of such holder
in connection with any underwritten Demand Registration or Piggyback
Registration.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or
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preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same are caused by or contained in any information furnished in writing to the
Company by such holder expressly for use therein. In connection with an
underwritten offering, the Company shall indemnify such underwriters, their
officers and directors and each Person who controls such underwriters (within
the meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder shall furnish to
the Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such holder; provided that the obligation to indemnify
shall be individual, not joint and several, for each holder and shall be limited
to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement shall
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and shall survive the transfer of securities. The
Company also agrees to make such provisions as are reasonably requested by any
indemnified party for contribution to such party in the event the Company's
indemnification is unavailable for any reason.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no
holder of Registrable Securities included in any underwritten registration shall
be required to make any representations or warranties to the Company or the
underwriters (other than representations and warranties regarding such holder
and such holder's
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intended method of distribution) or to undertake any indemnification obligations
to the Company or the underwriters with respect thereto, except as otherwise
provided in paragraph 6 hereof.
8. DEFINITIONS.
"COMMON STOCK" means Common Stock, $.01 par value per share, of
American Medserve Corporation.
"GTCR REGISTRABLE SECURITIES" means (i) any Common Stock issued to
GTCR and (ii) any Common Stock or other common stock of the Company issued or
issuable with respect to the securities referred to in clause (i) above by way
of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization.
"INVESTOR REGISTRABLE SECURITIES" means (i) any Common Stock issued to
the Investors and (ii) any Common Stock or other common stock of the Company
issued or issuable with respect to the securities referred to in clause (i)
above by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint company, a trust, a joint venture, an
unincorporated organization, a governmental entity (or any department, agency or
political subdivision thereof) or any other entity.
"REGISTRABLE SECURITIES" means GTCR Registrable Securities and
Investor Registrable Securities. As to any particular Registrable Securities,
such securities shall cease to be Registrable Securities when they have been
distributed to the public pursuant to a offering registered under the Securities
Act or sold to the public through a broker, dealer or market maker in compliance
with Rule 144 or repurchased by the Company or any Subsidiary. For purposes of
this Agreement, a Person shall be deemed to be a holder of Registrable
Securities, and the Registrable Securities shall be deemed to be in existence,
whenever such Person has the right to acquire directly or indirectly such
Registrable Securities (upon conversion or exercise in connection with a
transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected, and such Person shall be entitled to exercise the
rights of a holder of Registrable Securities hereunder.
"RULE 144" means Rule 144 under the Securities Act (or any similar
rule then in force).
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"SECURITIES AND EXCHANGE COMMISSION" includes any governmental body
or agency succeeding to the functions thereof.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended, or any similar federal law then in force.
"SUBSIDIARY" means any corporation of which the securities having a
majority of the ordinary voting power in electing the board of directors are, at
the time as of which any determination is being made, owned by the Company
either directly or through one or more Subsidiaries.
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9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company shall not hereafter
enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the holders of Registrable Securities in
this Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company shall
not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would materially and
adversely affect the marketability of such Registrable Securities in any such
registration (including, without limitation, effecting a stock split or a
combination of shares).
(c) REMEDIES. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and holders of at least a majority of the GTCR
Registrable Securities and a majority of the Investor Registrable Securities.
(e) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(f) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
(h) DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(i) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without giving
effect to any choice of law or conflict of law rules or provisions (whether of
the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Delaware.
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(j) NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, delivered to the recipient by reputable overnight courier
service (charges prepaid) or sent via facsimile to the recipient. Such notices,
demands and other communications shall be sent to GTCR and each Investor at the
address indicated on the records of the Company and to the Company at the
address indicated below:
American Medserve Corporation, Inc.
Park Lake Center
000 Xxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attn: President
Facsimile: (000) 000-0000
with copy to:
Xxxxxxx Xxxxxx & Xxxxxxx
Quaker Tower
000 X. Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
* * * *
-10-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMERICAN MEDSERVE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Its: Vice President - Business
Development
GOLDER, THOMA, XXXXXXX, XXXXXX
FUND IV, L.P.
By: GTCR IV, L.P.
Its: General Partner
By: Golder, Thoma, Cressey, Rauner,
Inc.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Its: Principal
INVESTORS:
/s/ Xxxxxxx X. Xxxxx
--------------------
XXXXXXX X. XXXXX
/s/ Xxxx Xxxx Xxxxx
-------------------
XXXX XXXX XXXXX
STERLING ACQUISITION PARTNERS, INC.
By: /s/ Xxxxxxx Xxxxx
-----------------
Its: President
PHARMED. INC.
By: /s/ Xxxxx Xxxxxxxxxxxx
-----------------------
Its: President
/s/ Xxxxxx X. Xxxxxxxxx
------------------------
XXXXXX X. XXXXXXXXX
/s/ X. Xxxxxxx
--------------
XXXXX XXXXXXX
-11-
/s/ Xxxxx Xxxxxxxxxx
--------------------
XXXXX XXXXXXXXXX
/s/ Xxx X. Xxxxxxxxx
--------------------
XXX X. XXXXXXXXX
/s/ Xxxxx X. Xxxxxxx
--------------------
XXXXX X. XXXXXXX
/s/ Xxx X. Xxxxx
----------------
XXXXXX X. XXXXX
/s/ Xxxxx Xxxxxxxx
------------------
XXXXX XXXXXXXX
PHARMED OF BATON ROUGE, INC.
By: /s/ Xxxxx Xxxxxxxxxxxx
----------------------
Its: President
-12-
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
XXXXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
XXXXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
----------------------
XXXXXXX X. XXXXXXX
/s/ J. Xxxxxxx Xxxxxxx
----------------------
J. XXXXXXX XXXXXXX
/s/ Xxxxx Xxxxxx
----------------
XXXXX X. X. XXXXXX
/s/ Xxxxxxx X. Xxxxxxx
----------------------
XXXXXXX X. XXXXXXX
/s/ Xxxx X. Xxxxxxx
-------------------
XXXX X. XXXXXXX
------------------------------
XXXXXX X. XXXXXXXXXXX
-13-
/s/ Xxxxxx X. Xxxxxx
--------------------
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxx
------------------
XXXXXX X. XXXX
-14-
