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EXHIBIT 99.4
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
This AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this
"Agreement") is made and entered into as of June __, 1998, by and among
Physicians Clinical Laboratory, Inc., a Delaware corporation (the "Company"),
and each of the entities listed under the caption "Stockholders" on the
signature pages hereof (collectively, the "Stockholders").
W I T N E S S E T H
WHEREAS, the Stockholders acquired the Securities (as defined
below) in exchange for claims against the Company that were relieved pursuant to
the Company's Plan of Reorganization approved by a court of appropriate
jurisdiction (the "Plan") or in connection with compensation arrangements
between the Company and such Stockholder or pursuant to a purchase of Securities
from other Stockholders;
WHEREAS, in connection with the acquisition of the Securities by
the Stockholders, the Company and certain of the Stockholders entered into that
certain Stockholders Agreement dated as of September 30, 1997 (the "Initial
Agreement");
WHEREAS, since the date of execution of the Initial Agreement,
certain of the Stockholders have sold a portion of their Securities to other
Stockholders;
WHEREAS, the Company and the Stockholders have agreed that it is
in the best interests of the parties hereto to amend and restate the Initial
Agreement to reflect the agreements among the Company and the Stockholders
resulting from the changes in relative holdings of the Stockholders;
WHEREAS, on the date hereof the Stockholders own the Securities
in the number of shares and percentage of outstanding Securities set forth in
Schedule I; and
WHEREAS, the Company and the Stockholders deem it to be in their
best interests to provide for continuity in the control and operation of the
Company and for various other matters set forth herein.
NOW, THEREFORE, in consideration of the agreements and mutual
covenants set forth herein, the parties agree as follows:
Section a. DEFINITIONS. As used in this Agreement, the following
terms have the following meanings:
"15% Notes" has the meaning assigned to such term in Section
8(d).
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"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 10% or more of the voting stock of a
Person shall be deemed to be control.
"Agreement" means this Agreement, as the same shall be amended
from time to time.
"Articles" means the Certificate of Incorporation of the Company
as in effect on the date hereof and, following the date of filing with the
Secretary of State of the State of Delaware, the Certificate of Incorporation as
amended and restated in the form attached hereto as Exhibit A.
"Business Day" means a day other than Saturday, Sunday or any
other day on which banks located in the State of California or New York are
authorized or obligated to close.
"Buy/Sell Offering Notice" has the meaning assigned to such term
in Section 8(a).
"Buy/Sell Closing" has the meaning assigned to such term in
Section 8(b).
"Cerberus" means Cerberus Partners, L.P. and any Affiliate of
Cerberus.
"Common Stock" means the Company's common stock, $0.01 par value
per share.
"Company" has the meaning assigned to such term in the preamble.
"Company Transferee" has the meaning assigned to such term in
Section 3(a).
"Company Transfer Notice" has the meaning assigned to such term
in Section 3(a).
"Company Transfer Securities" has the meaning assigned to such
term in Section 3(a).
"Employment Agreement" means that certain Employment Agreement
dated as of September 30, 1997 by and between the Company and J. Xxxxxx
Xxxxxxxxxx, as amended.
"Exchange Act" has the meaning assigned to such term in Section
4(a).
"Initiating Stockholder" has the meaning assigned to such term in
Section 8(a).
"Initial Public Offering" means the public offering of shares of
Common Stock of the Company pursuant to a Registration Statement in a
transaction where (A) the aggregate Proceeds to be paid to the Company in such
public offering (aggregated with the proceeds paid to the Company in any prior
public offerings of shares of Common Stock of the Company in any prior public
offerings of shares of Common Stock of the Corporation pursuant to a
Registration Statement) are not less than $10,000,000 and (B) the number of
shares of Common Stock sold pursuant to such Registration Statement (aggregated
with the shares previously sold pursuant to any
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Xxxxxxxxxxxx Xxxxxxxxx filed by the Company, including in each case any shares
sold or to be sold by selling shareholders) is not less than fifteen percent
(15%) of the fully-diluted number of outstanding shares of Common Stock after
giving pro forma effect to such Initial Public Offering.
"Nu-Tech" means Nu-Tech Bio-Med, Inc.
"Nu-Tech Stockholder Approval" has the meaning assigned to such
term in Section 9.
"Oaktree Holders" has the meaning assigned to such term in
Section 4(a).
"OCM" has the meaning assigned to such term in Section 4(a).
"Offer to Sell" has the meaning assigned to such term in Section
3(b).
"Option" has the meaning assigned to such term in Section 6(a).
"Option Closing" has the meaning assigned to such term in Section
6(b).
"Option Price" has the meaning assigned to such term in Section
6(a).
"Option Shares" has the meaning assigned to such term in Section
6(a).
"Person" shall mean any individual, corporation, partnership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization or government or agency or political
subdivision thereof.
"Proceeds" shall mean the proceeds of the Company in a public
offering net of underwriting discounts and commissions and before deducting any
other expenses payable by the Company.
"Pro Rata" shall mean, with respect to any offer of shares of
Common Stock or securities exercisable or convertible into shares of Common
Stock, an offer based on the relative percentages of Common Stock then held by
or issuable to all of the Stockholders to whom such offer is made.
"Public Offering" means any offering of Common Stock to the
public, including the Initial Public Offering, either on behalf of the Company
or any of its stockholders, pursuant to an effective Registration Statement
under the Securities Act.
"Qualifying Acquisition" has the meaning assigned to such term in
Section 3(a).
"Registration Statement" means a registration statement filed by
the Company pursuant to the Securities Act, other than registrations on Form S-8
or Form S-4 or any other registration form to be used for a business combination
or any successor form to either of such forms.
"Resolutions" has the meaning assigned to such term in Section
5(b).
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"Xxxxxxxxxx Xxxxxxxxxxx" has the meaning assigned to such term in
Section 8(a).
"Securities" shall mean the shares of Common Stock and any
securities exercisable for or convertible into shares of Common Stock, and
whenever an amount of Securities is calculated or used in any provision of this
Agreement, exercisable and convertible securities shall be counted as the number
of shares of Common Stock issuable upon such exercise or conversion.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Stockholders" has the meaning assigned to such term in the
preamble.
"Stockholder Termination Date" has the meaning assigned to such
term in Section 9.
"Stock Purchase Agreement" has the meaning assigned to such term
in Section 5(b).
"Transfer" has the meaning assigned to such term in Section 2(a).
"Transfer Notice" has the meaning assigned to such term in
Section 2.
"Triggering Event" has the meaning assigned to such term in
Section 6(a).
"Voting Stock" has the meaning assigned to such term in Section
3(a).
"Warrants" means the warrants issued pursuant to the Plan.
Section b. GENERAL PROVISIONS REGARDING TRANSFER.
(a) General Restrictions. Subject to Section 14(g), so long as
this Agreement shall remain in force, none of the Securities may be issued,
sold, assigned, transferred, given away or in any way disposed of by the
Stockholders (any of the foregoing being hereinafter referred to as a
"Transfer") unless:
(i) the Person in whose favor such Transfer is made shall
deliver to the Company a written acknowledgment that the Securities to be
transferred are subject to this Agreement and that such Person and such Person's
successors in interest are bound hereby on the same terms as the Transferor of
such Securities, but prior to any such Transfer, the Person proposing to make
such Transfer shall give the Company (1) notice describing the manner and
circumstances of the proposed Transfer and (2) if reasonably requested by the
Company, a written opinion in form and substance reasonably satisfactory to
legal counsel of the Company to the effect that the proposed Transfer may be
effected without registration under the Securities Act or any applicable state
law;
(ii) such Transfer shall be made pursuant to a public
offering registered under the Securities Act and in accordance with applicable
state law;
(iii) such Transfer is made to a Person who is an
Affiliate of the transferring Stockholder;
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(iv) such Transfer is made by Nu-Tech in a pro rata
distribution of Securities to its stockholders; or
(v) such Transfer is made by the Oaktree Holders in a
distribution of Securities to its partners.
Any attempted Transfer other than in accordance with this Agreement shall be
void, and the Company shall refuse to recognize any such Transfer and shall not
reflect on its records any change in record ownership of the Securities pursuant
to any such attempted Transfer.
(b) Mechanics of Transfer. Any Stockholder who Transfers
Securities shall (i) take all such actions and execute and deliver all such
documents as may be necessary or reasonably requested by the Company in order to
consummate the Transfer of such Securities and (ii) pay to the Company such
amounts as may be required for any applicable stock transfer taxes.
(c) Restrictions on Transfers by Stockholders. Each of the
Stockholders hereby agrees that, so long as this Agreement is in effect, it will
not, without the prior written consent of the Company, sell or otherwise
transfer any of the shares of Common Stock held by such Stockholder to Cerberus
or any entity, other than a Stockholder, which owns, directly or indirectly, 5%
or more of the issued and outstanding equity securities of any entity that
conducts clinical or specialized laboratory services as its principal business.
Section c. PREEMPTIVE RIGHTS. (a) If the Company proposes to
issue or otherwise Transfer any Securities to any Person, then the Company shall
make the offer to sell and otherwise comply with the requirements set forth in
this Section 3. Notwithstanding the foregoing, (A) the Company may Transfer
Securities, and any right, title or interest therein, without making the offer
to sell set forth in this Section 3 in connection with (i) an Initial Public
Offering, (ii) the issuance of up to 200,000 shares of Common Stock to
management and employees of the Company pursuant to the Company's 1997 Equity
and Performance Incentive Plan or any other incentive plan which provides for
the issuance of Securities exclusively to directors, officers or employees of
the Company, (iii) the issuance of shares of Common Stock pursuant to the
Employment Agreement and the Warrants or (iv) an issuance of Securities in
consideration for and upon consummation of (x) a merger with respect to which
the holders of Voting Stock immediately prior to such merger beneficially own
not less than a majority of the issued and outstanding shares of Voting Stock of
the surviving entity or (y) an acquisition of assets or stock by the Company so
long as, in either the case of (x) or (y), such transaction has been approved by
the affirmative vote of at least one director appointed by Nu-Tech if, at the
time such merger is consummated, Nu-Tech has the right to nominate directors
pursuant to Section 4 hereof and the approval of the transaction by such
director is required pursuant to Section 5 hereof (a "Qualifying Acquisition")
and (B) any rights or obligations pursuant to this Section 3 shall terminate
upon an Initial Public Offering. For purposes of this Section 3, "Voting Stock"
shall mean stock of the Company of any class or series entitled to vote
generally in the election of directors of the Company.
(b) Transfer Notice. If the Company desires in good faith to
Transfer any Securities to any Person and the Company is required to make an
offer to sell pursuant to paragraph (a) of this Section 3, the Company shall
deliver a written notice of the proposed Transfer (the "Company Transfer
Notice") to each Stockholder. The Company Transfer Notice shall contain a
description of the proposed transaction and the terms thereof including the
number of Securities and type of Securities proposed to be transferred
(collectively, the "Company Transfer Securities"),
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the name of each person to whom or in favor of whom the proposed Transfer is to
be made (the "Company Transferee") and a description of the consideration to be
received by the Company upon Transfer of the Company Transfer Securities. The
Company Transfer Notice shall be accompanied by a copy of the bona fide third
party written offer (for purposes of this Section 3, an executed letter of
intent stating the terms of such offer, or incorporating by reference a separate
summary of terms, shall be deemed a written offer). On a day that is not earlier
than ten (10) days following the delivery of the Company Transfer Notice and
after having received the requisite approval from the Board of Directors, the
Company may issue the Company Transfer Securities to the Company Transferee on
the terms set forth in the Company Transfer Notice.
(c) Terms of Offer. Upon completion of the issuance of the
Company Transfer Securities referred to in paragraph (b) above, the Company
shall deliver a written offer to sell (the "Offer to Sell") to each Stockholder
a Pro Rata portion of the Company Transfer Securities based upon such
Stockholder's holdings of Common Stock. The Offer to Sell shall be on the same
terms and conditions, and shall be for the same consideration, as described in
the Company Transfer Notice; provided, however, that any such Stockholder may,
at its option, pay fair market value in cash in lieu of any non-cash
consideration.
(d) Acceptance of Offer. For a period of thirty (30) days
after receipt of an Offer to Sell, any Stockholder may, by written notice to the
Company, accept the Offer to Sell in whole or in part.
(e) Transfer of Shares. Transfers of Securities pursuant to
offers made and accepted in accordance with this Section 3 shall occur
simultaneously on a Business Day not more than sixty (60) days after the last
date on which any offer made in accordance with this Section 3 could have been
accepted and each such Transfer shall be made in accordance with Sections 2(a)
and (b).
Section d. BOARD OF DIRECTORS.
(a) Designated Directors. The Board of Directors of the
Company shall consist of the following members:
Xx. Xxxxxx Xxxxx
Mr. J. Xxxxxx Xxxxxxxxxx
Xx. Xxxxxxx X. Xxxxxxx
Mr. Xxxxx Xxxxxxxx
Xx. Xxxxxxx Xxxxx
Each of such director shall hold office until the next annual or special meeting
called on or after the date one year from the date hereof for the purpose of
electing directors in accordance with the provisions of the Company's Bylaws.
Thereafter, each Stockholder shall cause all Securities that are entitled to
vote and are beneficially owned by such Stockholder or its Affiliates, with
respect to which such Stockholder or its Affiliates may direct the voting, or
that are registered in the name of such Stockholder or its Affiliates to be
voted as required, and will otherwise take or cause to be taken all such other
action as may be necessary, (i) to cause the Board of Directors of the Company
to consist of five (5) members, and (ii) until such time as Nu-Tech and its
Affiliates no longer beneficially own at least 20% of the issued and outstanding
Common Stock, to elect two individuals designated in writing by Nu- Tech, as
members of the Board of Directors, and (iii) until such time as
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(A) funds and accounts managed by Oaktree Capital Management, LLC ("OCM") and
their respective Affiliates (collectively, the "Oaktree Holders") no longer
beneficially own more than 30% of the issued and outstanding Common Stock or (B)
any "person" (as defined in Section 13(a) of the Exchange Act of 1934, as
amended (the "Exchange Act")) or a "group" (as defined in Section 13(a)(3) and
14(a)(2) of the Exchange Act), other than Nu-Tech and its Affiliates, holds a
number of shares of Common Stock of the Company that is greater than the number
of shares of Common Stock of the Company held by the Oaktree Holders, to elect
three individuals designated in writing by OCM; provided, that the requirement
that the Oaktree Holders or Nu-Tech and its Affiliates beneficially own more
than 30% or 20%, respectively, of the issued and outstanding Common Stock shall
be adjusted in the event of the issuance by the Company of shares of Common
Stock in a Qualifying Acquisition such that the percentage of the issued and
outstanding Common Stock required to be beneficially owned by the Oaktree
Holders or Nu-Tech and its Affiliates, as applicable, following such issuance of
Common Stock shall be equal to the quotient determined by dividing (x) the
aggregate number of shares of Common Stock that equals the specified percentage
of the issued and outstanding shares of Common Stock as of the date hereof by
(y) the sum of (I) the number of shares of Common Stock issued and outstanding
as of the date hereof plus (II) the number of shares of Common Stock issued in
such Qualifying Acquisition, plus (III) the number of shares of Common Stock
issued in all previously consummated Qualifying Acquisitions.
(b) Filling Vacancies, etc. At such time as a vacancy is
created on the Board of Directors by the death, removal or resignation of any
one of the directors, the remaining directors shall meet in person or by
telephone for the purpose of approving and appointing a director to fill such
vacancy in accordance with the provisions of the Bylaws of the Company.
Notwithstanding the foregoing sentence, if a director designated by OCM or
Nu-Tech, as the case may be, resigns or is removed from or vacates such position
for any reason prior to the expiration of his or her term as a director of the
Company, then, OCM or Nu-Tech, respectively, shall have the right to nominate a
replacement designee so long as it continues to beneficially own not less than
the applicable percentage of outstanding Securities set forth in paragraph (a)
of this Section 4, and the other Stockholders shall cause the directors to elect
such replacement designee to the Board of Directors or the Stockholders shall
vote their Securities at any regular or special meeting called for the purpose
of filling positions on the Board of Directors, or in any written consent
executed in lieu of such a meeting of stockholders, and shall take all other
actions necessary, to ensure the election to the Board of Directors of such
replacement designee to fill the unexpired term of the director whom such new
designee is replacing. Each director elected to the initial Board of Directors
and each nominee to the Board of Directors shall provide each of the
Stockholders with his or her resume prior to such time as he or she is elected
to the Board of Directors.
(c) Voting Agreement. All parties to this Agreement agree that
this Section 4 shall constitute a voting agreement within the meaning of Section
218 of the Delaware General Corporation Law.
(d) Termination. The rights and obligations of the
Stockholders pursuant to this Section 4 shall terminate on the date that is the
earlier of (i) ten years from the date hereof and (ii) the date on which Nu-Tech
ceases to own at least 20% of the issued and outstanding shares of Common Stock
held by Nu-Tech on the date hereof.
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Xxxxxxx x. XXXXXXXXX XXXXXXXXXX.
(x) During such time as Nu-Tech has the right to appoint
directors pursuant to Section 4 hereof, the affirmative vote of at least one
director appointed by Nu-Tech pursuant to Section 4 hereof shall be required to:
i) authorize, issue or enter into, or proposing to
authorize, issue or enter into, any agreement, including, without
limitation, options, warrants or other rights providing for the issuance
or sale (contingent or otherwise) of any equity securities or any notes
or debt securities containing equity features (including, without
limitation, any notes or debt securities convertible into or
exchangeable for equity securities, or containing provisions that set or
provide a mandatory formula for determining, directly or indirectly, the
participation in earnings and profits, or options, warrants or rights to
acquire securities exchangeable or exercisable for any such securities)
of the Company other than issuances of securities pursuant to the
Warrants, employee benefit plans, management incentive plans or
employment agreements with officers of the Company;
ii) issue, or propose to issue, any capital stock
whether of the same series as, or of a different series from, the
Securities;
iii) supplement, modify, amend, rescind, alter or
restate, or propose to supplement, modify, amend, rescind, alter or
restate, in any manner the Articles or the By-Laws of the Company;
iv) directly or indirectly, redeem, purchase or
otherwise acquire, or propose to redeem, purchase or otherwise acquire,
any of its capital stock, including any options, warrants or rights to
acquire any of its capital stock, or any security exercisable or
exchangeable for or convertible into any of its capital stock, directly
or indirectly;
v) liquidate or dissolve or propose to liquidate or
dissolve, or effecting, or propose to effect, a recapitalization or
reorganization of the Company in any form of transaction;
vi) consolidate or merge, or propose to consolidate
or merge, with or into any other Person or transfer (by lease,
assignment, sale or otherwise) all or substantially all of the
properties and assets of the Company, in a single transaction or through
a series of related transactions;
vii) incur, or cause any subsidiary of the Company to
incur, after the date hereof, any indebtedness or other payment
obligation out of the ordinary course of business (other than amounts
borrowed pursuant to that certain Loan and Security Agreement dated as
of September 30, 1997, by and between Bio-Cypher Funding Corp., a
Delaware corporation, and Daiwa Healthco-2, LLC, as in effect on the
date hereof) that, when aggregated with all other then outstanding
indebtedness of the Company and its subsidiaries incurred after the date
hereof and payment obligations of the Company and its subsidiaries
incurred after the date hereof, exceeds $1,000,000;
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viii) make any Capital Expenditure (as hereinafter
defined) after the date hereof that, when aggregated with all other
Capital Expenditures made in the immediately preceding twelve (12) month
period, which initial twelve (12) month period shall begin on the date
hereof, exceed $1,000,000. As used herein, "Capital Expenditure" means
expenditures made in connection with the purchase, construction or
improvement of items properly categorized, in accordance with generally
accepted accounting principles, on the balance sheet of the Company as
property, plant or equipment, but not including any Capital Expenditures
that are made out of the proceeds of casualty insurance covering any
property, plant and equipment of the Company; or
ix) modify, amend, extend or renew the Employment
Agreement or otherwise approve any compensation arrangement or other
transaction for the benefit of Xx. Xxxxxxxxxx other than as provided in
the Employment Agreement;
provided, however, that the affirmative vote of a director appointed by Nu-Tech
shall not be required to approve any of the foregoing actions following the
Stockholder Termination Date (as defined herein) if the Nu-Tech Stockholder
Approval has not been obtained prior to the Stockholder Termination Date; and,
provided further, that if, prior to the Stockholder Termination Date, both of
the directors nominated by Nu-Tech fail to affirmatively vote for any action
described in this Section 5(a) and the action is approved by a majority of the
directors constituting the Board of Directors, then the Company may take such
action despite the provisions of this Section 5(a) if OCM notifies Nu-Tech in
writing that it has elected to exercise the Option described in Section 6
hereof.
(b) During such period of time as indemnification claims may
be instituted pursuant to that certain Stock Purchase Agreement by and between
the Company and Nu- Tech dated as of February 24, 1997 (the "Stock Purchase
Agreement") and notwithstanding anything to the contrary contained in the
General Corporation Law of the State of Delaware or the contrary vote of
directors constituting the majority of the Board of Directors, upon the
affirmative vote of two directors, the Company shall institute claims for
indemnification pursuant to Section 10.6 of the Stock Purchase Agreement. In
furtherance of the foregoing, the Stockholders shall take or cause to be taken
all action as may be necessary to cause the Board of Directors to adopt
resolutions substantially in the form attached hereto as Exhibit A (the
"Resolutions"), which Resolutions shall establish an Indemnity Committee
composed of two Directors designated by OCM and, so long as Nu-Tech is entitled
to designate Directors pursuant to Section 4 hereof, one Director designated by
Nu-Tech, which committee shall have the sole authority to institute such claims
for indemnification and which committee shall cease to be a committee of the
Board of Directors of the Company at such time as the Company is no longer
permitted to institute claims for indemnification pursuant to the Stock Purchase
Agreement. Further, the Stockholders shall take or cause to be taken all action
as may be necessary to ensure that the Resolutions are not amended or rescinded,
and that no resolutions inconsistent therewith are adopted by the Board of
Directors, until the expiration of the term of the Indemnity Committee as set
forth in the Resolutions. In addition, the Company shall reimburse any such
director for the reasonable costs and expenses incurred by such director in
prosecuting claims instituted on behalf of the Company pursuant to the
provisions of this Section 5(b) and shall, to the fullest extent permitted by
Delaware law and the certificate of incorporation and bylaws of the Company,
indemnify and hold harmless such director for any liability incurred in
connection with the initiation or prosecution of such claims.
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Xxxxxxx x. XXXXXX.
(x) Nu-Tech hereby grants to OCM an exclusive option (the
"Option"), exercisable in OCM's sole and absolute discretion, to purchase all of
the Securities held at the time of exercise of such Option (the "Option Shares")
by Nu-Tech for aggregate consideration of $10,000,000 (the "Option Price"). The
Option is exercisable by OCM on or prior to the earlier of (x) December 31, 2000
or (y) if the Nu-Tech Stockholder Approval is not obtained prior to the
Stockholder Termination Date, the Stockholder Termination Date and in each case
shall be exercisable for a period of ninety (90) days following each date on
which (i) one or more directors nominated by Nu-Tech fails to affirmatively vote
for any action described in Section 5(a) of this Agreement that would, pursuant
to the terms of Section 5(a) of this Agreement, require the approval of a
director nominated by Nu-Tech and (ii) such action is approved by a majority of
the members of the Board of Directors (each such date, a "Triggering Event").
(b) OCM may exercise the Option by delivering written notice
to Nu-Tech of its intent to so exercise the Option and specifying the date on
which the closing of such exercise of the Option shall occur, which shall in no
event be later than ninety (90) days following the Triggering Event (the "Option
Closing"). In connection with the exercise of the Option and the Option Closing,
Nu-Tech will make such representations and warranties as are customary in
similar transactions and as may be reasonably requested by OCM regarding
ownership of, and ability to transfer, the shares of Common Stock subject to the
Option. At the Option Closing, Nu-Tech shall sell, transfer and assign, and OCM,
or its designees, shall purchase, all of Nu-Tech's right, title and interest in
and to the Option Shares and OCM or its designees, will pay the Option Price by
wire transfer of immediately available funds to such account or accounts as
Nu-Tech may reasonably direct by written notice delivered to OCM, or its
designees, by Nu-Tech at least one Business Day before the date of the Option
Closing. Simultaneously with the receipt of the Option Price, Nu-Tech will
assign and transfer to OCM, or its designees, all of Nu-Tech's right, title and
interest in and to the Option Shares by delivering to OCM a certificate or
certificates representing the Option Shares, in genuine and unaltered form, duly
endorsed in blank with requisite stock transfer tax stamps, if any, attached. In
the event that OCM exercises the option described herein prior to the
Stockholder Termination Date and, as of such date, the Nu-Tech Stockholder
Approval has not been obtained, the Option Closing shall occur as soon as
practicable following the date on which Nu-Tech Stockholder Approval is obtained
and at such closing Nu-Tech shall transfer and deliver to OCM or its designees
all right, title and interest in the Option Shares as described in this Section
6 together with all property or cash received by Nu-Tech as distributions from
the Company following the date on which OCM exercises the Option and prior to
the date on which the Option Closing occurs; provided that in the event the
Nu-Tech Stockholder Approval (as defined in Section 9) is not obtained prior to
the Stockholder Termination Date, the exercise of the Option shall be deemed to
have not occurred and OCM shall have no obligation to deliver the Option Price
to Nu-Tech. The obligations of Nu-Tech pursuant to this Section 6 shall be
binding upon any transferees of any Securities held by Nu- Tech and the
successors in interest of Nu-Tech.
Section g. VOTING AGREEMENT.
Xxxxxxxxxx hereby agrees that in the event that following the
purchase by Oaktree Holders of the Option Shares pursuant to the provisions of
Section 6 hereof or the purchase by the Oaktree Holders of Securities held by
Nu-Tech pursuant to Section 8 hereof, the Oaktree Holders beneficially own less
than 90% of the issued and outstanding shares of Common Stock, Xxxxxxxxxx and
each of his successors and transferees shall vote or cause to be voted all
Securities held by
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Xxxxxxxxxx and each of his successors and transferees as directed by OCM and
Xxxxxxxxxx will, and will cause each of his successors and transferees to,
execute such proxies and take all action deemed necessary by OCM to cause such
Securities to be so voted. The parties agree that this Section 7 shall
constitute a voting agreement within the meaning of Section 218 of the Delaware
General Corporation Law.
Section h. BUY-SELL AGREEMENT.
(a) Subject to receipt of the Nu-Tech Stockholder Approval,
from and after December 31, 2000 until the date that is five years following the
date the that Nu-Tech Stockholder Approval is obtained, either OCM or Nu-Tech
(the "Initiating Stockholder") may give written notice (the "Buy/Sell Offering
Notice") to the other party (the "Responding Stockholder") of the Initiating
Stockholder's intent to rely on this Section 8 and to purchase all (but not less
than all) of the Securities that the Responding Stockholder owns, whereupon the
provisions set forth in this Section 8 shall apply.
(b) The Initiating Stockholder shall specify in the Buy/Sell
Offering Notice the cash purchase price per share at which the Initiating
Stockholder would be willing to purchase all of the Securities that the
Responding Shareholder owns, which consideration shall not be less than $0.81
per share (subject to adjustment to reflect any and all stock splits, stock
dividends and other combinations and reclassifications of Securities occurring
following the date of this Agreement) and the date on which such transaction
will be consummated (which such date shall not be more than ninety (90) nor less
than fifteen (15) days after the date of receipt by the Responding Stockholder
of the Buy/Sell Offering Notice (the "Buy/Sell Closing")). "Cash" for purposes
of this Agreement shall mean same-day funds denominated in U.S. dollars. In
connection with the Buy/Sell Closing, the participating Stockholders will make
such representations and warranties as are customary in similar transactions and
as may be reasonably requested by the other party to such transaction, including
representations regarding ownership of, ability to transfer and ability to
purchase the Securities. At the Buy/Sell Closing, the selling Stockholder shall
sell, transfer and assign, and the purchasing Stockholder, or its designees,
shall purchase, all of the selling Stockholder's right, title and interest in
and to the Common Stock. At the Buy/Sell Closing, the purchasing Stockholders
will pay the purchase price by wire transfer of immediately available funds to
such account or accounts as selling Stockholder may reasonably direct by written
notice delivered to the purchasing Stockholder by the selling Stockholder at
least one Business Day before the date of the Buy/Sell Closing. Simultaneously,
the selling Stockholder will assign and transfer to the purchasing Stockholder,
all of the selling Stockholder's right, title and interest in and to the Common
Stock by delivering a certificate or certificates representing such shares, in
genuine and unaltered form, duly endorsed in blank with requisite stock transfer
tax stamps, if any, attached.
(c) Upon receipt of the Buy/Sell Offering Notice, the
Responding Stockholder shall be obligated either:
i) To sell to the Initiating Stockholder for Cash
all of its Securities on the date, at the price per share and on the
terms set forth in the Buy/Sell Offering Notice; or
ii) To purchase all of the Securities owned by the
Initiating Stockholder for cash on the date, at the price per share and
on the terms set forth in the Buy/Sell Offering Notice. If the
Responding Stockholder elects to purchase the
EXH. 99.4 - 11
12
shares of the Initiating Stockholder, the offer of the Initiating
Stockholder to purchase the Responding Stockholder's shares shall be
deemed to be null and void and the Initiating Stockholder shall be
deemed to have accepted an offer by the Responding Stockholder to
purchase the Initiating Stockholder's shares at the per share purchase
price proposed by the Initiating Stockholder.
The Responding Stockholder shall notify the Initiating Stockholder of its
election within thirty (30) days after receipt of the Buy/Sell Offering Notice.
Failure to give notice within the required time period shall be deemed an
election by the Responding Stockholder to sell its shares under subsection (a)
above.
(d) Notwithstanding anything to the contrary herein, the
obligations of OCM and the Oaktree Holders to sell Securities pursuant to this
Section 8 shall be conditioned upon the payment in full and in cash by the
Company of all unpaid principal and accrued and unpaid interest with respect to
the 15% Senior Secured Notes (the "15% Notes") of the Company due 2001 then
outstanding (including all 15% Notes issued in payment of interest obligations
on the 15% Notes).
(e) The obligations of Nu-Tech pursuant to this Section 6
shall be binding upon any transferees of any Securities held by Nu-Tech and the
successors in interest of Nu- Tech.
Section i. NU-TECH STOCKHOLDER APPROVAL. Nu-Tech hereby agrees to
use its best efforts to obtain all necessary approvals of the stockholders of
Nu-Tech for the transactions described in Section 6 and Section 8 of this
Agreement (the "Nu-Tech Stockholder Approval") as promptly as practicable and in
any event prior to the date that is the earlier of (a) one hundred and twenty
(120) days following the date on which the audit of Nu-Tech's financial
statements for the year ended March 31, 1998 has been completed and (b) December
31, 1998 (the "Stockholder Termination Date").
Section j. CERTIFICATE OF INCORPORATION.
Each of the parties hereto agrees that the Amended and Restated
Certificate of Incorporation attached hereto as Exhibit A is approved as the
Certificate of Incorporation of the Company and the parties hereto agree that
such Amended and Restated Certificate of Incorporation shall be filed with the
Secretary of State of the State of Delaware as promptly as practicable following
the earlier of the date on which the Company is in good standing in the State of
Delaware or the date on which the Secretary of State of the State of Delaware
shall accept such document for filing.
Section k. CERTIFICATES.
(a) Restrictive Endorsements. Each certificate evidencing any
Securities shall bear a legend in substantially the following form:
"The securities evidenced by this certificate are subject to an Amended
and Restated Stockholders Agreement dated as of June 12, 1998, copies of
which are on file at the principal office of the Company and will be
furnished to the holder on request to the Secretary of the Company. Such
Stockholders Agreement provides, among other things, for certain prior
rights to purchase and certain obligations to sell and to purchase
EXH. 99.4 - 12
13
the shares represented by this certificate and certain restrictions on
voting, sale, transfer, pledge, hypothecation or other disposition of
the securities evidenced by this certificate. By accepting the shares of
stock represented by this certificate the holder agrees to be bound by
such Stockholder's Agreement"
(b) Replacement Certificates. Upon receipt by the Company of
evidence reasonably satisfactory to it of the loss, theft, destruction
or mutilation of any certificate evidencing any Securities, and (in the
case of loss, theft or destruction) of indemnity reasonably satisfactory
to the Company, upon surrender and cancellation of such certificate or
receipt of such indemnity, the Company will execute, register and
deliver a new certificate of like tenor in lieu of such lost, stolen,
destroyed or mutilated certificate.
Section l. REPRESENTATIONS. Each Stockholder represents that such
Stockholder is the record and beneficial owner of the number of issued and
outstanding Securities appearing opposite such Stockholder's name in Schedule I
attached hereto, free and clear of any option, lien, encumbrance or charge of
any kind whatsoever, except as created by or described in this Agreement.
Section m. EQUITABLE RELIEF. The parties hereto agree and declare
that legal remedies may be inadequate to enforce the provisions of this
Agreement and that equitable relief, including specific performance and
injunctive relief, may be used to enforce such provisions.
Section n. MISCELLANEOUS.
(a) Notices. All communications under this Agreement shall be
in writing and shall be personally delivered, sent by facsimile transmission or
mailed by first class mail, postage prepaid:
i) if to the Company, at
Physicians Clinical Laboratory, Inc.
0000 X Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
ii) if to the Stockholders, at
NU-TECH BIO-MED, INC.
Attn: Mr. J. Xxxxxx Xxxxxxxxxx
000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxx 00000
Fax: 000-000-0000
OAKTREE CAPITAL MANAGEMENT, LLC
Attn: Mr. Xxxxxxx Xxxxxxx
000 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: 000-000-0000
XXX. 00.0 - 00
00
X. Xxxxxx Xxxxxxxxxx
C/O NU-TECH BIO-MED, INC.
000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxx 00000
Fax: 000-000-0000
or at such other address as the appropriate party to this Agreement may have
furnished in writing to each other party hereto, or
iii) if to any other Person who is the registered
holder of any Securities to the address for the purpose of such holder as it
appears in the stock ledger of the Company.
Any notice shall be deemed to have been duly given when delivered by hand if
personally delivered, by confirmation of completed facsimile transmission if
delivered by facsimile, and if sent by mail, two (2) Business Days after being
deposited in the mail, postage prepaid.
(b) Waiver. No failure or delay on the part of the parties or
any of them in exercising any right, power or privilege hereunder, nor any
course of dealing between the parties or any of them shall operate as a waiver
of any such right, power or privilege nor shall any single or partial exercise
of any such right, power or privilege preclude the simultaneous or later
exercise of any other right, power or privilege. The rights and remedies herein
expressly provided are cumulative and are not exclusive of any rights or
remedies which the parties or any of them would otherwise have. No notice to or
demand on the Company in any case shall entitle the Company to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the other parties or any of them to take any other or
further action in any circumstances without notice or demand.
(c) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
(d) Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware.
(e) Filing. A copy of this Agreement and of all amendments
hereto shall be filed at the principal office of the Company.
(f) Amendment or Termination. This Agreement may be amended or
terminated at any time only by an instrument in writing signed by holders of
shares of Common Stock representing 75% of shares of Common Stock held by the
Stockholders as of the date hereof (subject to adjustment for stock splits,
stock dividends and similar combinations and reclassifications of Common Stock).
(g) Benefit and Binding Effect. Except as otherwise provided in
this Agreement, no right under this Agreement shall be assignable and any
attempted assignment in violation of this provision shall be void. The rights of
Nu-Tech pursuant to Section 8 hereof and the obligations of OCM, as agent on
behalf of certain funds and accounts pursuant to Section 8
EXH. 99.4 - 14
15
hereof shall be binding upon and inure only to the benefit of Nu-Tech and OCM,
respectively, and shall not be assignable to or transferable to any successor
holder of Securities. Subject to the foregoing and compliance with the terms of
this Agreement regarding Transfer of Securities, this Agreement shall be binding
upon and inure to the benefit of the parties and their successors and permitted
assigns. This Agreement does not create and shall not be construed as creating
any rights enforceable by any Person not a party hereto.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provisions in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
Section 14. LIMITATIONS ON LIABILITY.
Each of the parties hereto acknowledges that in no event shall
any of the partners, officers, directors, shareholders, employees, agents,
affiliates or investment managers (collectively "Representatives") of OCM, as
agent and on behalf of the funds and accounts set forth on Schedule II attached
hereto (the "Funds"), have any obligation or liability to such party for any
action taken or omitted by or on behalf of such Funds or in connection herewith
(such obligation and liability being the sole responsibility of such Funds).
Each party hereto further acknowledges and agrees that (a) all obligations and
liabilities of each Fund under this Agreement or in connection herewith are
enforceable solely against such Fund and its assets and not against the assets
of OCM, any other Fund or any Representatives of OCM and (b) the obligations and
liabilities of each Fund shall be several in the proportions set forth on
Schedule II hereto and not joint and several.
[signature page follows]
XXX. 00.0 - 00
00
XX WITNESS WHEREOF, the parties hereto have executed this
Stockholders Agreement as of the day and year first above written.
The Company: PHYSICIANS CLINICAL LABORATORY, INC.
By:
------------------------------
J. Xxxxxx Xxxxxxxxxx
Chief Operating Officer
Stockholders:
NU-TECH BIO-MED, INC.
By: _______________________________
J. Xxxxxx Xxxxxxxxxx
Chief Executive Officer
OAKTREE CAPITAL MANAGEMENT, LLC, as
agent and on behalf of certain
funds and accounts
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
_______________________
J. Xxxxxx Xxxxxxxxxx
XXX. 00.0 - 00
00
XXXXXXXX I
STOCKHOLDER SECURITIES
----------- ----------
Nu-Tech Bio-Med, Inc.
Oaktree Capital Management, LLC,
as agent and on behalf of the
funds and accounts set forth on
Schedule II hereto
J. Xxxxxx Xxxxxxxxxx
EXH. 99.4 - 17
18
SCHEDULE II
OCM Opportunities Fund, L.P.
54.0%
Columbia/HCA Master Retirement Trust 4.0%
(Separate Account I)
OCM Opportunities Fund II, L.P.
41.0%
Columbia/HCA Master Retirement Trust 1.0%
(Separate Account II)
EXH. 99.4 - 18
