STOCKHOLDERS’ AGREEMENT
EXHIBIT 4.1
STOCKHOLDERS’
AGREEMENT
STOCKHOLDERS’ AGREEMENT, dated as of April 4, 2008 (this “ Agreement ”), between the former stockholders
of Biomed America, Inc., a Delaware corporation (the “ Seller ”), listed on
Appendix A hereto who have become parties to this Agreement through the
execution of a counterpart signature page (the “ Stockholders ” and
individually a “ Stockholder ”), and Allion Healthcare, Inc., a Delaware
corporation (the “ Company ”).
WHEREAS, the Company, the
Company’s wholly owned subsidiary, Biomed Healthcare, Inc., a Delaware
corporation (“ Merger Sub ”), and the Seller have
entered into that certain Merger Agreement, dated as of March 13, 2008, (the
“ Merger Agreement ”), pursuant to which the Stockholders shall
receive shares of Company Common Stock and Company Preferred Stock (as defined
in the Merger Agreement) in partial consideration for the shares of Seller’s
outstanding capital stock held by the Stockholders, all upon the terms and
subject to the conditions set forth in the Merger Agreement;
WHEREAS, upon consummation of the
transactions contemplated by the Merger Agreement (without giving effect to any
shares of Company Common Stock that may be issued as part of the Earn Out
Payment, as that term is defined in the Merger Agreement), the Stockholders will
beneficially own in the aggregate 3,380,869 shares of Company Common Stock and
5,969,131 shares of Company Preferred Stock;
WHEREAS, the Company and the
Stockholders have agreed to execute and deliver this Agreement, which is a
condition precedent to the obligations of the Company, Merger Sub and Seller
under the Merger Agreement; and
WHEREAS, the Company and the
Stockholders now wish to enter into this Agreement to set forth their
understanding with respect to, among other things, representation on the
Company’s Board of Directors (the “ Board ”) and
the holding, acquisition and transfer of Company Common Stock and Company
Preferred Stock by the Stockholders.
NOW, THEREFORE, in consideration
of the promises and the mutual agreements and covenants hereinafter set forth,
the Company and the Stockholder hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.1
Definitions .
(a)
As used in this Agreement, the following terms shall have the
following meanings:
“Affiliate” has the meaning set
forth in Rule 12b-2, as in effect on the date hereof, under the Exchange
Act.
“Beneficially Own” has the
meaning set forth in Rule 13d-3, as in effect on the date hereof, under the
Exchange Act.
“Business Day” means any day that
is not a Saturday, Sunday or other day on which banks are required or authorized
by law to be closed in The City of New York.
“Buyout Transaction” means a
completed tender offer, merger (other than a merger by the Company to effect a
reorganization or recapitalization), sale of all or substantially all of the
Company’s assets or any similar transaction in which each holder of Company
Common Stock (other than, if applicable, the Person proposing such transaction)
disposes of all Company Common Stock beneficially owned by each such holder or
which otherwise results in the acquisition of all (but not less than all)
Company Common Stock beneficially owned by each such holder.
“Closing” has the meaning set
forth in the Merger Agreement.
“Closing Date” has the meaning
set forth in the Merger Agreement.
“Commission” means the United
States Securities and Exchange Commission and any successor agency.
“Company Common Stock” has the
same meaning as the term “Parent Common Stock” as set forth in the Merger
Agreement.
“Company Preferred Stock” has the
same meaning as the term “Parent Preferred Stock” set forth in the Merger
Agreement.
“Director” means a member of the
Board.
“Earn Out Payment” shall have the
meaning set forth in the Merger Agreement.
“Earn Out Period” shall have the
meaning set forth in the Merger Agreement.
“Effective Time” shall have the
meaning set forth in the Merger Agreement.
“Exchange Act” means the United
States Securities Exchange Act of 1934, as amended.
“Governmental Entity” means any
Federal, state, local or foreign government or any court of competent
jurisdiction, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign.
“Group” means any group of
Persons formed for the purpose of acquiring, holding, voting or disposing of
securities that would be required under Section 13(d) of the Exchange Act and
the rules and regulations thereunder to file a statement on Schedule 13D with
the Commission as a “person” within the meaning of Section 13(d)(3) of the
Exchange Act if such group beneficially owned securities representing more than
5% of any class of securities then outstanding.
“Independent Director” means a
director who has been determined by the Board to be independent in accordance
with the Company’s organizational documents and charters for committees of the
Board, the rules and regulations of Nasdaq and the Commission, and any other
applicable regulations or policies deemed relevant by the Board.
“LLC Stockholder” means Parallex
LLC.
“Nasdaq” shall mean the Nasdaq
National Market.
“Person” means any individual,
firm, corporation, partnership, limited partnership, limited liability company,
association, trust, unincorporated organization or other entity, as well as any
syndicate or group that would be deemed to be a person under Section 13(d)(3) of
the Exchange Act.
“Register,” “Registered” and
“Registration” shall refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities Act
and the declaration or ordering of effectiveness of such registration statement
or document.
“Registrable Stock” means the
Stockholder Shares (excluding Company Preferred Stock and any shares of Company
Common Stock acquired in violation of Article IV hereof); provided, that any
Registrable Stock shall cease to be Registrable Stock when (i) a registration
statement covering such Registrable Stock has been declared effective and such
Registrable Stock has been disposed of pursuant to such effective registration
statement, (ii) such Registrable Stock is sold in a transaction in which the
rights under the provisions of this Agreement are not assigned, or (iii) such
Registrable Stock is sold pursuant to Rule 144 or otherwise under Section 4(1)
or any similar provisions then in force under the Securities Act without
registration under the Securities Act.
“Securities Act” means the United
States Securities Act of 1933, as amended.
“Stockholder Shares” means
Company Common Stock and Company Preferred Stock now or hereafter beneficially
owned by the Stockholders, including any securities issued or issuable in
respect of such Company Common Stock or Company Preferred Stock as a result of
conversion, exchange, recapitalization, reorganization, replacement, stock
dividend, stock split or other distribution, but excluding a Buyout
Transaction.
(b)
The following terms have the meanings set forth in the Sections set
forth below:
Term
Location
Affiliate
Transfer......................................................................
3.2
Agreement...............................................................................
Preamble
Board......................................................................................
Recitals
Company................................................................................
Preamble
Designees................................................................................
2.1(b)
Excess Threshold
Shares.........................................................
2.3(a)
Grantees..................................................................................
2.5(a)
Merger
Agreement..................................................................
Recitals
Merger
Sub.............................................................................
Recitals
Registration
Threshold.............................................................
5.1(a)
Seller.......................................................................................
Preamble
Standstill
Period.......................................................................
4.1(a)
Stockholder.............................................................................
Preamble
Stockholder
Director...............................................................
2.1
Stockholders’
Representative...................................................
7.10
Threshold
Percentage..............................................................
2.3(a)
Transfer...................................................................................
3.2
ARTICLE
II
GOVERNANCE
AND VOTING PROVISIONS
Section
2.1
Board
Representation .
(a)
At the Effective Time, the Stockholders shall have the right to
designate two (2) directors to serve on the Board until the next annual meeting
of stockholders to elect directors; provided, that each such director nominee
must be approved by the Company’s Nominating and Corporate Governance Committee
and by a majority of the Company’s Directors as set forth in Section 2.1(b).
(b)
In connection with the Company’s annual meeting of stockholders to
be held during the calendar years ending December 31, 2008, 2009 and 2010, the
Stockholders shall have the right to nominate two (2) members to the Board who
will be submitted by the Company for election at the annual meeting of
stockholders of the Company (each, a “ Designee ,” and
collectively, the “ Designees ”). If at any time the
Stockholders collectively own less than 15% of the aggregate outstanding Company
Common Stock (assuming conversion of the Company Preferred Stock), then the
Stockholders shall have no further contractual right to nominate any Designees.
Before being submitted by the Company to its stockholders for approval at
an annual meeting, each Designee shall be subject to the reasonable prior
approval of a majority of both the Directors (other than any Director nominated
or designated by the Stockholders) and the Company’s Nominating and Corporate
Governance Committee (excluding any member thereof nominated or designated by
the Stockholders). Each Designee elected to the Board pursuant to this
Section 2.1(b) shall hereinafter be referred to as a “Stockholder Director” and
collectively all Stockholder Directors shall hereinafter be referred to as the
“Stockholder Directors”.
(c)
Each Stockholder Director and each Designee must meet the
requirements of being an Independent Director. Further, the Company shall
be entitled to conduct reasonable diligence of any proposed Designee or
Stockholder Director as necessary to assist in its evaluation of such Designee
or Stockholder Director and to determine compliance with applicable rules and
regulation of the Commission and Nasdaq.
(d)
The Designees shall be selected by the Stockholders pursuant to a
process established by the Stockholders. Regardless of such process, the
Company shall be permitted to rely solely upon the direction of the
Stockholder’s Representative with respect to the identity of the
Designees.
(e)
During such time as the Stockholders have the right to appoint
Designees, there shall not be more than six (6) members on the Board of
Directors; provided, that the size of the Board of Directors may be increased
beyond six (6) members if approved by a majority vote of the Board of Directors,
which majority must include at least one Stockholder Director.
Section
2.2
Resignations and
Replacements . Subject to Section 2.1, if a Stockholder Director
ceases to serve as a Director for any reason prior to the next election of
Directors, the vacancy created thereby shall be filled by the Company’s
Nominating and Corporate Governance Committee and a majority of the remaining
Directors then in office (excluding the other Stockholder Director) with an
individual designated by the Stockholders. The Company shall be permitted
to rely solely upon the direction of the Stockholder’s Representative with
respect to the identity of any replacement Stockholder
Director.
Section
2.3
Voting
Restrictions .
(a) In connection with the
Company’s annual meeting of stockholders to be held during the calendar years
ending December 31, 2008, 2009 and 2010, the Stockholders shall vote all of
their Stockholder Shares (to the extent such Stockholder Shares have voting
rights) in favor of the nominees for director designated by the Board, or any
committee thereof, not in violation of this Article II. Further, on votes
relating to all other matters, except as set forth in Section 2.3(b) below, and
at all times that the Stockholder Shares that have voting rights collectively
represent more than 35% of the outstanding Company Common Stock (the “ Threshold Percentage ”), but in no event for longer than the
expiration of the Standstill Period (as defined as Article IV), all Stockholder
Shares (to the extent such Stockholder Shares have voting rights) in excess of
the Threshold Percentage (the “ Excess Threshold Shares ”) shall
either be voted (i) as recommended by a majority of the Board of Directors, or
(ii) in proportion to the votes cast with respect to the shares of Company
Common Stock not owned by the Stockholders. Each Stockholder shall vote
the number of Excess Threshold Shares held by such Stockholder in the manner set
forth in the preceding sentence. The number of Excess Threshold Shares
held by a Stockholder shall equal the multiple of (i) the total Excess Threshold
Shares, and (ii) the quotient determined by dividing (x) the Stockholder Shares
held by such Stockholder, by (y) the total number of Stockholder
Shares.
(b) Notwithstanding Section
2.3(a), the Stockholders may, in connection with any required vote of the
Company’s stockholders, vote all of their Stockholder Shares at their discretion
with respect to (i) any amendments to the Company’s Certificate of Incorporation
or Bylaws, (ii) any recapitalization, restructuring or similar transaction or
series of transactions involving the Company, (iii) any dissolution or complete
or partial liquidation, or similar arrangement, of the Company, (iv) any merger,
consolidation or other business combination of the Company, (v) any issuance of
any shares of Company Common Stock, or (vi) any sale, lease, transfer,
conveyance or other disposition (other than by way of merger or consolidation),
in one or a series of related transactions, of all or substantially all of the
assets of the Company to any Person, which, in the case of clause (ii), (iv) or
(v), results in any one Person or Group of Persons becoming the beneficial
owner, directly or indirectly, of more than 50% of the outstanding Company
Common Stock or, in the case of clause (i) either results in any one Person or
Group of Persons becoming the beneficial owner, directly or indirectly, of more
than 50% of the outstanding Company Common Stock or, in any way, affects the
Stockholders adversely in a substantive manner different from the other holders
of Company Common Stock.
(c) Each Stockholder hereby
agrees that it shall not vote any Stockholder Shares held by such Stockholder in
connection with any Conversion Approval Proposal (as defined in the Merger
Agreement).
Section
2.4
No Voting Trust .
This Agreement does not create or constitute, and shall not be construed
as creating or constituting, a voting trust agreement under the Delaware General
Corporation Law or any other applicable corporation law.
Section 2.5 Proxy .
(a) Each Stockholder hereby
irrevocably (to the fullest extent permitted by law) grants to, and appoints,
Company and each of its executive officers and any of them, in their capacities
as officers of the Company (the “Grantees”), as Stockholder’s proxy and
attorney-in-fact (with full power of substitution and re-substitution), for and
in the name, place and stead of Stockholder, to vote its Stockholder Shares or
Excess Threshold Shares, as applicable, to instruct nominees or record holders
to vote the Stockholder Shares or Excess Threshold Shares, as applicable,
and to sign or grant a consent, certificate, approval or other document
with respect to such Stockholder Shares or Excess Threshold Shares, as
applicable, in accordance with Section 2.3(a) hereof and applicable law, and, in
the discretion of the Grantees, with respect to any proposed adjournments or
postponements of any meeting of Stockholders.
(b) Each Stockholder represents
that any proxies heretofore given in respect of the Stockholders Shares held by
such Stockholder that may still be in effect are not irrevocable, and such
proxies are hereby revoked.
(c) Each Stockholder hereby
affirms that the irrevocable proxy set forth in this Section 2.5 is given to
secure the performance of the duties of such Stockholder under this
Agreement. Each Stockholder hereby further affirms that the irrevocable
proxy is coupled with an interest and may under no circumstances be
revoked. Each Stockholder hereby ratifies and confirms all that Grantees
may lawfully do or cause to be done by virtue hereof. This irrevocable
proxy is executed and intended to be irrevocable in accordance with the
provisions of Section 212 of the Delaware General Corporation Law. Each
Stockholder shall take further action and execute such other instruments as may
be necessary to effectuate the intent of this irrevocable proxy. For
Stockholder Shares as to which any Stockholder is the beneficial but not the
record owner, each Stockholder will cause any record owner of such Stockholder
Shares to grant the Grantees a proxy to the same effect as that contained in
this Section 2.5.
(d) The Grantees may not exercise
this irrevocable proxy on any other matter except as provided in Section 2.3(a)
hereof.
(e) The Company may terminate
this proxy at any time at its sole election by written notice provided to the
applicable Stockholder.
ARTICLE
III
RESTRICTIONS
ON TRANSFER OF STOCKHOLDER SHARES
Section
3.1
Restrictive Legend .
(a)
Each certificate representing Stockholder Shares held by the
Stockholders shall, except as otherwise provided in this Section 3.1 or in
Section 3.3, be stamped or otherwise imprinted with legends substantially in the
following form:
(i)
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
RESTRICTIONS ON DISPOSITION AND OTHER RESTRICTIONS OF A STOCKHOLDERS AGREEMENT
DATED AS OF ________, 2008, BETWEEN ______________________ AND
_______________________;”
(ii)
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED UNDER THAT ACT OR AN
EXEMPTION FROM REGISTRATION IS AVAILABLE;” and
(iii)
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE HELD BY AN
AFFILIATE OF THE COMPANY AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF
EXCEPT IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.”
(b)
Notwithstanding the foregoing, any Stockholder Shares held by the
Stockholders that are not “restricted securities” within the meaning of Rule
144(a)(3) under the Securities Act shall not be required to bear the legend set
forth in (ii) above. Further, any Stockholder Shares held by a Stockholder
who is not an Affiliate of the Company shall not be required to bear the legend
set forth in (iii) above.
(c)
The Company shall, at the request of a Stockholder, (i) remove the
legend described in Section 3.1(a)(i) from each certificate evidencing
Stockholder Shares held by a Stockholder transferred in compliance with the
terms of Section 3.2 and with respect to which no rights under this Agreement
shall transfer and (ii) remove from each certificate evidencing Stockholder
Shares held by a Stockholder the legend described in Section 3.1(a)(ii) if, in
the written opinion of counsel to the Stockholder reasonably satisfactory to the
Company, the securities evidenced thereby may be publicly sold without
registration under the Securities Act.
Section
3.2
Transfer
Restrictions . No Stockholder shall be permitted to transfer its
Stockholder Shares, whether by sale, assignment, gift, pledge, through
hypothecation, encumbrance, grant of future rights or otherwise
(“ Transfer ”) beginning from the date of this Agreement and expiring at
the end of the Earn Out Period, except (a) pursuant to an Affiliate Transfer (as
defined below) or (b) in connection with a transfer pursuant to Section 5.2 of
this Agreement. Further, for so long as the Standstill Period is in
effect, the LLC Stockholder shall not Transfer any of its Stockholder Shares
except (i) pursuant to a bona fide public offering (including pursuant to the
registration rights in Article V providing for a public offering that is not an
underwritten offering), (ii) pursuant to Rule 144 under the Securities Act but
subject in every respect to paragraphs (e), (f) and (g) of Rule 144, (iii) other
than in connection with a sale under (i) or (ii), to a Person or Group that is
permitted to file a Schedule 13G under the Exchange Act and that, after giving
effect to such Transfer, would beneficially own Company Common Stock
representing in the aggregate less than 5% of the outstanding Company Common
Stock, or (iv) pursuant to an “ Affiliate Transfer ,” which shall mean a
Transfer (a) to the equity owners of the LLC Stockholder, (b) to a family member
of the equity owners of the LLC Stockholder or to a family member of any other
Stockholder, (c) to a trust created for the benefit of (1) any Stockholder, (2)
a family member of any Stockholder, if not an entity, or (3) a family member of
the equity owners of the LLC Stockholder, or (d) to a corporation, partnership,
limited liability company or similar entity controlled by the LLC Stockholder,
provided that with respect to any transfer in accordance with Section 3.2(iv)
such transferee agrees to be bound by the terms of this Agreement. No
rights under this Agreement shall transfer to any transferee of the Stockholder
Shares other than in connection with a transfer pursuant to Section
3.2(iv).
Section
3.3
Transfer
Procedures . Prior to any proposed Transfer of any Stockholder
Shares held by the Stockholders (other than pursuant to a Buyout Transaction,
pursuant to a registration statement filed in accordance with Sections 5.1 or
5.2 or pursuant to Rule 144 of the Securities Act), the Stockholders shall give
written notice to the Company of its intention to effect such Transfer.
Each such notice shall describe the manner of the proposed Transfer and, if
requested by the Company, shall be accompanied by an opinion of counsel
satisfactory to the Company to the effect that the proposed Transfer may be
effected without registration under the Securities Act, whereupon the
Stockholders shall be entitled to Transfer such Registrable Stock in accordance
with the terms of its notice, subject in any event to the restrictions in this
Article III. Each certificate for Stockholder Shares transferred as above
provided shall bear the legend set forth in Section 3.1(a)(ii), except that such
certificate shall not bear such legend if (i) such transfer is in accordance
with the provisions of Rule 144 of the Securities Act (or any other rule
permitting public sale without registration under the Securities Act) or (ii)
the opinion of counsel referred to above is to the further effect that the
transferee and any subsequent transferee would be entitled to transfer such
securities in a public sale without registration under the Securities Act.
The restrictions provided for in this Section 3.3 shall not apply to securities
that are not required to bear the legend prescribed by Section 3.1(a)(ii) in
accordance with the provisions of Section 3.1.
ARTICLE
IV
STANDSTILL
PROVISIONS
Section
4.1
Standstill Period .
(a)
The “Standstill Period” shall mean the period beginning on the
Closing Date and continuing until the earlier of (i) the fifth (5th) anniversary of the
Closing Date or (ii) the date on which collectively the Stockholders
beneficially own less than 10% of the outstanding Company Common Stock (assuming
conversion of the Company Preferred Stock).
(b)
In the event the Standstill Period is discontinued pursuant to
Section 4.1(a)(ii), the Standstill Period shall be reinstated for the remainder
of the Standstill Period, if, at anytime prior to the fifth (5th) anniversary of the
Closing Date, the Stockholders collectively beneficially own 10% or more of the
outstanding Company Common Stock (assuming conversion of the Company Preferred
Stock).
Section
4.2
Acquisition of Additional Shares;
Other Restrictions . During the Standstill Period, except with
the prior approval of a majority of the Independent Directors (except any
Stockholder Director), neither LLC Stockholder nor any assignee of LLC
Stockholder pursuant to Section 3.2(iv) shall, directly or indirectly, and shall
cause their Affiliates not to, directly or indirectly:
(a)
Acquire (other than any shares received as part of the Earn Out
Payment as contemplated in the Merger Agreement), announce an intention to
acquire, offer to acquire, or enter into any agreement, arrangement or
undertaking of any kind the purpose of which is to acquire, by purchase,
exchange or otherwise, (i) any shares of Company Common Stock, or (ii) any other
security convertible into, or any option, warrant or right to acquire, Company
Common Stock or (iii) all or substantially all of the assets of the Company or
any of its Affiliates; provided that Sections 4.2(a)(i) and 4.2(a)(ii) shall not
be applicable to the extent that (A) the aggregate percentage of outstanding
Company Common Stock owned by the Stockholders is increased solely as a result
of corporate action taken by the Company and not caused by any action taken by
the Stockholders or (B) the number of shares of outstanding Company Common Stock
collectively owned by the Stockholders does not exceed the number of shares
collectively owned by the Stockholders at the Effective Time plus any shares
received as part of the Earn Out Payment; provided, further, that in no event
shall LLC Stockholder or any assignee of LLC Stockholder be permitted to acquire
any shares of Company stock (other than shares received as part of the Earn Out
Payment) if the acquisition of such shares would result in either of LLC
Stockholder (or an assignee) owning 35% or more of the outstanding Company
Common Stock.
(b)
Solicit, or participate in any solicitation of, proxies with
respect to any Company Common Stock, or become a “participant” in a
“solicitation” (as such terms are defined in Regulation 14A of the Exchange Act)
in opposition to any matter that has been recommended by a majority of the
Company’s Independent Directors (except any Stockholder Director) or in favor of
any matter that has not been approved by a majority of the Independent Directors
(except any Stockholder Director).
(c)
Propose or otherwise solicit stockholders of the Company for the
approval of one or more stockholder proposals, seek or solicit support for
(whether publicly or privately) any written consent of stockholders of the
Company, attempt to call a special meeting of stockholders (except with the
approval of a majority of the Independent Directors excluding any Stockholder
Director), nominate or attempt to nominate any Person for election as a Director
(except in accordance with Article II), or seek the removal or resignation of
any Director (except in accordance with Article II), in each case in opposition
to any matter that has been recommended by a majority of the Independent
Directors (except any Independent Director who is a Stockholder Director) (and
such recommendation has not been revoked or withdrawn) or in favor of any matter
that has not been approved by a majority of the Independent
Directors.
(d)
Deposit any Company Common Stock in a voting trust or similar
agreement or subject any Company Common Stock to any arrangement or agreement
with respect to the voting of such Company Common Stock.
(e)
Take any action to form, join or in any way participate in any
partnership, limited partnership, syndicate or other Group with respect to
Company Common Stock or otherwise act in concert with any Person for the purpose
of circumventing the provisions or purposes of this Agreement.
(f)
Propose (or publicly announce or otherwise disclose an intention to
propose), solicit, offer, seek to effect, negotiate with or provide any
confidential information relating to the Company or its business to any other
Person with respect to any tender or exchange offer, merger, consolidation,
share exchange, business combination, restructuring, recapitalization or similar
transaction involving the Company; provided, that nothing set forth in this
Section 4.2(f) shall prohibit the Stockholders from soliciting, offering,
seeking to effect and negotiating with any Person with respect to Transfers of
Company Common Stock permitted by this Article IV; provided, further, that in so
doing the Stockholders shall not issue any press release or otherwise make any
public statements (other than statements made in response to any request by any
Person for confirmation by the Stockholders or any of their Affiliates of
information contained in any statement on Schedule 13D under the Exchange Act)
with respect to such action (provided that the Stockholders may, and may permit
its Affiliates to, make any statement required by applicable law, including
without limitation, the amendment of any statement on Schedule 13D under the
Exchange Act); provided, however, that in doing so Stockholders shall not
provide any confidential information relating to the Company or its business to
any such Person.
(g)
Take any other action to seek control (as such term is defined
under Rule 12b-2 of the Exchange Act) of the Company.
(h)
Make or in any way advance any request or proposal to amend, modify
or waive any provision of this Agreement except in a nonpublic and confidential
manner.
(i)
Announce an intention to do, or solicit, assist, prompt, induce or
attempt to induce any Person, directly or indirectly, to do, any of the actions
restricted or prohibited under subparagraphs (a) through (h) above.
Notwithstanding the restrictions
contained in this Section 4.2, neither the actions taken by any Stockholder
Director in his or her capacity as a member of the Board pursuant to such
Person’s responsibilities in such capacity nor the exercise by any Stockholder
of its voting rights in accordance with Section 2.3 with respect to any
Stockholder Shares it beneficially owns shall be deemed to violate this Section
4.2.
ARTICLE
V
REGISTRATION
RIGHTS
Section
5.1
Demand
Registration .
(a)
On and after the end of the Earn Out Period, the Stockholders’
Representative may in his sole and absolute discretion request in a written
notice that the Company file a registration statement under the Securities Act
(or a similar document pursuant to any other statute then in effect
corresponding to the Securities Act) covering the registration of any or all
Registrable Stock held by the Stockholders; provided, that there must be
included in such registration Registrable Stock having a minimum value of Ten
Million Dollars ($10,000,000) (based on the then current market price of such
Registrable Stock) or such lesser amount if it constitutes all of the
Registrable Stock held by such Shareholders participating in the registration
(the “ Registration Threshold ”); provided, that
the Registration Threshold shall be increased to Twenty Million Dollars
($20,000,000) or such lesser amount if it constitutes all of the Registrable
Stock held by such Shareholders participating in the registration, but in no
event less than a minimum value of Five Million Dollars ($5,000,000), if the
Company is not eligible to register the sale or other disposition of Registrable
Securities on Form S-3 (or a successor form). Following receipt of any
notice under this Section 5.1, the Company shall use its reasonable efforts
to cause to be registered under the Securities Act all Registrable Stock that
the Stockholders have requested be registered in a manner of disposition
reasonably acceptable to the Company, including but not limited to, an offering
on a delayed or continuous basis pursuant to Rule 415 (or any successor rule)
under the Securities Act.
(b)
If the Company intends to have the Registrable Stock distributed by
means of an underwritten offering the Stockholders shall enter into an
underwriting agreement in customary form with the underwriter or
underwriters. If any Stockholder who intends to sell Registrable
Securities in the offering disapproves of the terms of the underwriting, such
Stockholder may elect to withdraw all its Registrable Stock from the
registration by written notice to the Company and the managing
underwriter. The underwriters shall be selected by the Company in its sole
discretion.
(c)
Notwithstanding any provision of this Agreement to the
contrary,
(i)
the Company shall not be required to effect a registration pursuant
to this Section 5.1 during the period starting with the date of filing by the
Company of, and ending on a date 120 days following the effective date of, a
registration statement pertaining to a public offering of securities for the
account of the Company or on behalf of the selling stockholders under any other
registration rights agreement which the Stockholders have been entitled to join
pursuant to Section 5.2;
(ii)
if the Board determines in good faith that it is in the best
interests of the Company (A) not to disclose the existence of facts
surrounding any proposed or pending acquisition, disposition, strategic alliance
or financing transaction or other potential material event involving the Company
or (B) to suspend the registration rights set forth herein, the Company may
(1) postpone the filing of any registration pursuant to this Section 5.1
and (2) suspend the rights of any Stockholder to make sales pursuant to any
registration statement for such a period of time as the Board may determine;
provided, that such periods of postponement and suspension may not exceed 120
days in the aggregate during any period of 12 consecutive months; and each
Stockholder agrees in consideration of the obligations of the Company set forth
herein to maintain any communication by the Company with respect to the
postponement or suspension of the any registration pursuant to this Section 5.1
in confidence such that the Company may rely on the safe harbor provisions of
Rule 100(b)(2)(ii) of Regulation FD under the Exchange Act with respect to such
communications; provided, further, that in the event the Company shall give such
notice, the Company shall extend the period during which such registration
statement shall be maintained effective as provided in Section 5.3(a) by the
number of days by which the Company suspends such registration statement;
and
(iii)
the Company shall not be required to effect a registration pursuant
to this Section 5.1 more than one time in any twelve-month period and shall not
be obligated to cause any audit to be undertaken in connection with any such
registration that the Company is not otherwise required to undertake at that
time in connection with its obligations under the Securities Act, the Exchange
Act and the rules and regulations thereunder.
(d)
The Company shall not be obligated to effect and pay for more than
three registrations pursuant to this Section 5.1; provided, that a registration
requested pursuant to this Section 5.1 shall not be deemed to have been effected
for purposes of this Section 5.1(d) unless (i) it has been declared effective by
the Commission, (ii) it has remained effective for the period set forth in
Section 5.3(a), and (iii) the offering of Registrable Stock pursuant to such
registration is not subject to any stop order, injunction or other order or
requirement of the Commission (other than any such stop order, injunction, or
other requirement of the Commission prompted by any act or omission of holders
of Registrable Stock).
Section
5.2
Incidental
Registration .
(a)
From the date hereof and until the end of the Earn Out Period, with
respect to all Stockholders, and (ii) thereafter throughout the remainder of the
Standstill Period for so long as a Stockholder owns more than 1% of outstanding
Company Common Stock (assuming conversion of the Company Preferred Stock), and
subject to Section 5.6, if at any time the Company determines that it shall file
a registration statement under the Securities Act for the registration of
Company Common Stock (other than a registration statement on a Form S-4 or S-8
or filed in connection with an exchange offer, an offering of securities solely
to the Company’s existing stockholders, or a registration statement registering
Company Common Stock which is issuable solely upon conversion of debt
securities) on any form that would also permit the registration of the
Registrable Stock and such filing is to be on its behalf or on behalf of selling
holders of its securities for the general registration of Company Common Stock
to be sold for cash, the Company shall each such time promptly give the
Stockholders’ Representative written notice of such determination setting forth
the date on which the Company proposes to file such registration statement,
which date shall be no earlier than 15 business days from the date of such
notice, and advising the Stockholders of their right to have Registrable Stock
included in such registration; provided, however, that such right to have
Registrable Stock included in such registration shall not terminate for LLC
Stockholder but shall continue for so long as LLC Stockholder owns more than 1%
of outstanding Company Common Stock (assuming conversion of the Company
Preferred Stock). Upon the written request of a Stockholder received by
the Company no later than 15 business days after the date of the Company’s
notice to the Stockholders’ Representative, the Company shall use all reasonable
efforts to cause to be registered under the Securities Act all of the
Registrable Stock that each such Stockholder has so requested to be
registered.
(b)
If, in the written opinion of the managing underwriter (or, in the
case of a non-underwritten offering, in the written opinion of the Company), the
total amount of such securities to be so registered, including such Registrable
Stock, will exceed the maximum amount of the Company’s securities which can be
marketed (i) at a price reasonably related to the then current market value of
such securities, or (ii) without otherwise materially and adversely affecting
the entire offering, then the Company shall be entitled to reduce the number of
shares of Registrable Stock to be sold in such offering by the Stockholders and
any other stockholder of the Company hereafter granted incidental registration
rights in proportion (as nearly as practicable) to the amount of Registrable
Stock requested to be included by each Stockholder and each other stockholder at
the time of filing the registration statement. The Company agrees not to
give any other stockholder of the Company registration rights superior to those
granted to the Stockholders without the Stockholders’ Representative’s prior
written approval.
(c)
If, at any time after giving written notice of its intention to
register any Company Common Stock and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register or to delay registration of such
Company Common Stock, the Company may, at its election, give written notice of
such determination to the Stockholders’ Representative and (i) in the case
of a determination not to register, shall be relieved of its obligation to
register any Registrable Securities in connection with such abandoned
registration, and (ii) in the case of a determination to delay such
registration of its equity securities, shall be permitted to delay the
registration of such Registrable Securities for the same period as the delay in
registering such other equity securities.
Section
5.3
Registration
Procedures . Whenever required under Section 5.1 to use all
reasonable efforts to effect the registration of any Registrable Stock, the
Company shall, as expeditiously as possible:
(a)
prepare and file with the Commission a registration statement with
respect to such Registrable Stock (which shall be filed in no event later than
60 days after written notice requesting a registration statement under Section
5.1 has been received by the Company), and use all reasonable efforts to cause
such registration statement to become and remain effective for the period of the
distribution contemplated thereby determined as provided hereafter; provided,
that the Company shall not be required to keep any registration statement
effective more than 90 days (or such shorter period which will terminate when
all of the Registrable Stock covered by such registration statement has been
sold pursuant thereto), in each case subject to Section 5.1(c)(ii) above and
Section 5.3(e) below;
(b)
prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Stock covered by such
registration statement and as may be necessary to keep such registration
statement effective for a reasonable period not to exceed 90 days, and promptly
notify the Stockholders’ Representative of any stop order issued or, to the
Company’s knowledge, threatened to be issued by the Commission and take all
reasonable actions required to prevent the entry of such stop order or to remove
it if entered;
(c)
furnish to the Stockholders selling Registrable Stock such numbers
of copies of the registration statement and the prospectus included therein
(including each preliminary prospectus and any amendments or supplements thereto
in conformity with the requirements of the Securities Act) and any exhibits
filed therewith;
(d)
use all reasonable efforts to register or qualify the Registrable
Stock covered by such registration statement under such other securities or blue
sky laws of such jurisdiction within the United States and Puerto Rico as shall
be reasonably appropriate for the distribution of the Registrable Stock covered
by the registration statement; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business in any jurisdiction wherein it would not but for the requirements of
this paragraph (d) be obligated to do so; and provided, further, that the
Company shall not be required to qualify such Registrable Stock in any
jurisdiction in which the securities regulatory authority requires that any
Stockholder submit any shares of its Registrable Stock to the terms, provisions
and restrictions of any escrow, lockup or similar agreement(s) for consent to
sell Registrable Stock in such jurisdiction unless such Stockholder agrees to do
so;
(e)
promptly notify each Stockholder for whom such Registrable Stock is
covered by such registration statement, 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, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances under
which they were made, and at the request of any such Stockholder promptly
prepare and furnish to such Stockholder a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such prospectus shall
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances under which they were made; and in
the event the Company shall give such notice, the Company shall extend the
period during which such registration statement shall be maintained effective as
provided in Section 5.3(a) by the number of days during the period from and
including the date of the giving of such notice to the date when the Company
shall make available to the Stockholders such supplemented or amended
prospectus;
(f)
enter into customary agreements (including, if the method of
distribution is by means of an underwriting, an underwriting agreement in
customary form) and take such other actions as are reasonably required in order
to expedite or facilitate the disposition of the Registrable Stock to be so
included in the registration statement;
(g)
otherwise use all reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, but not later than [15] months after
the effective date of the registration statement, an earnings statement covering
the period of at least 12 months beginning with the first full month after the
effective date of such registration statement, which earnings statements shall
satisfy the provisions of Section 11(a) of the Securities Act; and
(h)
use all reasonable efforts to list the Registrable Stock covered by
such registration statement with any securities exchange on which the Company
Common Stock is then listed.
For purposes of Sections 5.3(a)
and 5.3(b), the period of distribution of Registrable Stock in a firm commitment
underwritten public offering shall be deemed to extend until each underwriter
has completed the distribution of all securities purchased by it, and the period
of distribution of Registrable Stock in any other registration shall be deemed
to extend until the earlier of the sale of all Registrable Stock covered thereby
or 90 days after the effective date thereof.
Section
5.4
Furnish Information . It
shall be a condition precedent to the obligations of the Company to take any
action pursuant to this Agreement that the Stockholders shall furnish to the
Company such information regarding themselves, the Registrable Stock held by
them, and the intended method of disposition of such securities as the Company
shall reasonably request and as shall be required in connection with the action
to be taken by the Company.
Section
5.5
Expenses of
Registration . All expenses incurred in connection with each
registration pursuant to Sections 5.1 and 5.2 of this Agreement, excluding
underwriters’ discounts and commissions, but including without limitation all
registration, filing and qualification fees, word processing, duplicating,
printers’ and accounting fees (including the expenses of any special audits or
“cold comfort” letters required by or incident to such performance and
compliance), stock exchange fees, messenger and delivery expenses, all fees and
expenses of complying with state securities or blue sky laws, and the fees and
disbursements of counsel for the Company, shall be paid by the Company;
provided, however, that if a registration request pursuant to Section 5.1 is
subsequently withdrawn by the Stockholders, the Company shall not be required to
pay any expenses of such registration proceeding, and such withdrawing
Stockholders shall bear such expenses and reimburse the Company for such
expenses incurred by it (alternatively, at the discretion of the Stockholders’
Representative, such registration proceeding shall count as one of the three
registration statements required to be filed by the Company pursuant to Section
5.1). The Stockholders shall bear and pay the underwriting commissions and
discounts applicable to securities offered for their account and the fees and
disbursements of their counsel in connection with any registrations, filings and
qualifications made pursuant to this Agreement.
Section
5.6
Underwriting
Requirements . In connection with any underwritten offering, the
Company shall not be required under section 5.2 to include shares of Registrable
Stock in such underwritten offering unless the holders of such shares of
Registrable Stock accept the terms of the underwriting of such offering that
have been reasonably agreed upon between the Company and the
underwriters.
Section
5.7
Indemnification .
In the event any Registrable Stock is included in a registration statement under
this Agreement:
(a)
The Company shall indemnify, defend and hold harmless each
Stockholder, such Stockholder’s directors and officers, each person who
participates in the offering of such Registrable Stock, including underwriters
(as defined in the Securities Act), and each person, if any, who controls such
Stockholder or participating person within the meaning of the Securities Act,
against any losses, claims, damages, liabilities, expenses or actions, joint or
several, to which they may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, liabilities, expenses or actions (or
proceedings in respect thereof) arise out of or are based on any untrue or
alleged untrue statement of any material fact contained in such registration
statement on the effective date thereof (including any prospectus filed under
Rule 424 under the Securities Act or any amendments or supplements thereto) or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse each such Stockholder,
such Stockholder’s directors and officers, such participating person or
controlling person for any legal or other expenses reasonably incurred by them
(but not in excess of expenses incurred in respect of one counsel for all of
them) in connection with investigating or defending any such loss, claim,
damage, liability, expense or action; provided, however, that the indemnity
agreement contained in this Section 5.7(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the reasonable consent of the Company; provided,
further, that the Company shall not be liable to any Stockholder, such
Stockholder’s directors and officers, participating person or controlling person
in any such case for any such loss, claim, damage, liability, expense or action
to the extent that it arises solely out of or is solely based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
connection with such registration statement, preliminary prospectus, final
prospectus or amendments or supplements thereto, in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration, by any such Stockholder, such Stockholder’s directors
and officers, participating person or controlling person. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of any such Stockholder, such Stockholder’s directors and officers,
participating person or controlling person, and shall survive the transfer of
such securities by such Stockholder.
(b)
Each Stockholder whose Registrable Securities are included in the
registration being effected shall, severally and not jointly, indemnify, defend
and hold harmless the Company, each of its directors and officers, each person,
if any, who controls the Company within the meaning of the Securities Act, and
each agent and any underwriter for the Company (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities, expenses or
actions to which the Company or any such director, officer, controlling person,
agent or underwriter may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages, liabilities, expenses or actions
(or proceedings in respect thereof) arise solely out of or are solely
based upon any untrue statement or alleged untrue statement of any material fact
contained in such registration statement on the effective date thereof
(including any prospectus filed under Rule 424 under the Securities Act or any
amendments on supplements thereto) or solely arise out of or are solely based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in such
registration statement, preliminary or final prospectus, or amendments or
supplements thereto, in reliance upon and in conformity with written information
furnished by or on behalf of such Stockholder expressly for use in connection
with such registration; and each such Stockholder shall reimburse any legal or
other expenses reasonably incurred by the Company or any such director, officer,
controlling person, agent or underwriter (but not in excess of expenses incurred
in respect of one counsel for all of them) in connection with investigating or
defending any such loss, claim, damage, liability, expense or action; provided,
however, that the indemnity agreement contained in this Section 5.7(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability,
expense or action if such settlement is effected without the reasonable consent
of such Stockholder, and provided, further, that the liability of each
Stockholder hereunder shall be limited to the proportion of any such loss,
claim, damage, liability, expense or action which is equal to the proportion
that the net proceeds from the sale of the shares sold by such Stockholder under
such registration statement bears to the total net proceeds from the sale of all
securities sold thereunder, but not in any event to exceed the net proceeds
received by such Stockholder (after the deduction of all underwriters’ discounts
and commissions and all other expenses paid by such Stockholder in connection
with such registration) from the sale of Registrable Stock covered by such
registration statement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Company, the
Company’s directors and officers, participating person or controlling person,
and shall survive the transfer of such securities by such
Stockholder.
(c)
Promptly after receipt by an indemnified party under this Section
5.7 of notice of the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against any indemnifying party under
this Section 5.7, notify the indemnifying party in writing of the commencement
thereof and the indemnifying party shall have the right to participate in and
assume the defense thereof with counsel selected by the indemnifying party and
reasonably satisfactory to the indemnified party (unless (i) such indemnified
party reasonably objects to such assumption on the grounds that there may be
defenses available to it which are different from or in addition to those
available to such indemnifying party, (ii) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such counsel or
(iii) in the reasonable opinion of such indemnified party representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding, in which case the indemnified party shall be reimbursed by the
indemnifying party for the reasonable expenses incurred in connection with
retaining separate legal counsel); provided, however, that an indemnified party
shall have the right to retain its own counsel, with all fees and expenses
thereof to be paid by such indemnified party, and to be apprised of all progress
in any proceeding the defense of which has been assumed by the indemnifying
party. The failure to notify an indemnifying party promptly of the
commencement of any such action shall not relieve the indemnifying party from
any liability in respect of such action which it may have to such indemnified
party on account of the indemnity contained in this Section 5.7, unless (and
only to the extent) the indemnifying party was prejudiced by such failure, and
in no event shall such failure relieve the indemnifying party from any other
liability which it may have to such indemnified party. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any claim or pending or threatened proceeding in respect of
which the indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
arising out of such claim or proceeding.
(d)
(i) To the extent
any indemnification by an indemnifying party is prohibited or limited by law,
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and
indemnified party in connection with the actions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities,
expenses or actions referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
(ii)
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5.7(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(iii)
The liability of each Stockholder in respect of any contribution
obligation of such Stockholder under this Agreement with respect to a particular
registration shall not exceed the net proceeds received by such Stockholder
(after deduction of all underwriters’ discounts and commissions and all other
expenses paid by such Stockholder in connection with such registration) from the
sale of the Registrable Stock covered by such registration
statement.
Section
5.8
Lockup . Each
Stockholder shall, in connection with any registration of the Company’s
securities, upon the request of the Company or the underwriters managing any
underwritten offering of the Company’s securities, agree in writing not to
effect any sale, disposition or distribution of any Registrable Stock (other
than that included in the registration) without the prior written consent of the
Company or such underwriters, as the case may be, for such period of time from
30 days prior to the effective date of such registration as the Company or the
underwriters may specify; provided, however, that (i) all executive officers and
directors of the Company shall also have agreed not to effect any sale,
disposition or distribution of any Registrable Stock under the circumstances and
pursuant to the terms set forth in this Section 5.8 and (ii) in no event shall
the Stockholders be required to not effect any sale, disposition or distribution
for longer than 180 days after the registration statement becomes
effective. The obligations in this Section 5.8 shall expire on the one
(1)-year anniversary of the Closing Date; provided, that with respect to the LLC
Stockholder the obligations in this Section 5.8 shall continue to be in effect
until the expiration of the Standstill Period, unless any such Stockholder’s
ownership of Company Common Stock (assuming conversion of the Company Preferred
Stock) falls below 3%.
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES
Section
6.1
Representations and Warranties of
the Company . The Company represents
and warrants to the Stockholder as follows:
(a)
The Company has the requisite corporate power and authority to
execute, deliver and perform this Agreement;
(b)
This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation of the
Company, enforceable in accordance with its terms, except that (i) such
enforcement may be subject to any bankruptcy, insolvency, reorganization,
moratorium or other similar laws, now or hereafter in effect relating to or
limiting creditors' rights generally and (ii) the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to certain
equitable defenses and to the discretion of the court before which any
proceedings therefor may be brought;
(c)
The execution, delivery and performance of this Agreement by the
Company do not violate or conflict with or constitute a default under the
Company's certificate of incorporation or bylaws; and
(d)
No holders of the Company’s Common Stock or any securities
converted into the Company’s Stock have been granted as of the date of this
Agreement registration rights superior to or pari passu to those granted
to the Stockholders.
Section
6.2
Representations and Warranties of
the Stockholders . Each Stockholder
represents and warrants to the Company as follows:
(a)
The Stockholder has the requisite power and authority (whether
corporate or otherwise) to execute, deliver and perform this
Agreement;
(b)
This Agreement has been duly and validly authorized, executed and
delivered by the Stockholder and constitutes a valid and binding obligation of
the Stockholder, enforceable in accordance with its terms, except that (i) such
enforcement may be subject to any bankruptcy, insolvency, reorganization,
moratorium or other similar laws, now or hereafter in effect relating to or
limiting creditors' rights generally and (ii) the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to certain
equitable defenses and to the discretion of the court before which any
proceedings therefor may be brought;
(c)
As of the date of this Agreement, the Stockholder does not own any
securities of the Company other than the Company Common Stock or Company
Preferred Stock received pursuant to the Merger Agreement.
ARTICLE
VII
MISCELLANEOUS
Section 7.1 Interpretation .
(a)
The headings contained in this Agreement and in the table of
contents to this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
(b)
In the event of an ambiguity or a question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this
Agreement.
(c)
The definitions of the terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words “include,” “includes” and “including” shall be
deemed to be followed by the phrase “without limitation.” The word “will”
shall be construed to have the same meaning and effect as the word
“shall.” Unless the context requires otherwise (i) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(ii) any reference herein to any Person shall be construed to include the
Person’s successors and permitted assigns, (iii) the words “herein,” “hereof”
and “hereunder,” and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, and
(iv) all references herein to Articles and Sections shall be construed to refer
to Articles and Sections of this Agreement.
Section
7.2
Amendments . No
amendment, modification or waiver in respect of this Agreement shall be
effective unless it shall be in writing and signed by both parties
hereto.
Section
7.3
Assignment .
Except where otherwise expressly provided herein or pursuant to a Transfer in
accordance with Section 3.2(iv), this Agreement and the rights and obligations
hereunder shall not be assignable or transferable by the parties hereto (except
by operation of law in connection with a merger, or sale of substantially all
the assets, of the parties hereto) without the prior written consent of the
other party hereto. Any attempted assignment in violation of this Section 7.3
shall be void.
Section
7.4
No Third-Party
Beneficiaries . This Agreement is for the sole benefit of the
parties hereto and their permitted assigns and nothing herein expressed or
implied shall give or be construed to give to any Person, other than the parties
hereto and such assigns, any legal or equitable rights
hereunder.
Section
7.5
Notices .
(a)
All notices and other communications under this Agreement shall be
in the English language, shall be in writing and shall be delivered (i) by
facsimile or telecopier transmission (provided that a transmission confirmation
is received by the sender and a confirmation copy is sent by a recognized
overnight courier service), in which case such notice or communication shall be
deemed to have been delivered as of the date so transmitted (or, if not
transmitted during a business day for the recipient, the next following business
day), or (ii) by a recognized international overnight courier service, in which
case such notice or communication shall be deemed to have been delivered the
next business day of the recipient following deposit with an international
overnight courier service, in each case to the addresses set forth below (or at
such other addresses as may be provided hereunder):
|
If to the Company:
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Allion
Healthcare, Inc.
0000
Xxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000 Telecopier Number: (000) 000-0000
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Copy to Counsel:
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Xxxxxx
& Bird LLP
One Atlantic
Center
0000 X. Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx
00000
Attention: Xxxxxx X. Xxxxxx, Esquire Telecopier Number: (000)
000-0000
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|
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|
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If to the Stockholders’
Representative:
|
Xxxxxxx X. Xxxxx, Xx.,
Stockholders’ Representative
0000 Xxxxxx Xxxx, Xxxxx
000
Xxxxxxxx, XX 00000
Telecopier Number: (000) 000-0000
|
|
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Copy to Counsel:
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Xxxxxxx X. Xxxxx
Fox Rothschild LLP
0000 Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Telecopier Number: 000-000-0000
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(b)
Any party hereto may change its address specified for notices
herein by designating a new address by notice in accordance with this Section
7.5.
Section
7.6
Counterparts .
This Agreement may be executed in one or more counterparts, all of which shall
be considered one and the same agreement, and shall become effective when one or
more such counterparts have been signed by each of the parties and delivered to
the other party. Copies of executed counterparts transmitted by telecopy,
telefax or other electronic transmission service shall be considered original
executed counterparts for purposes of this Section 7.6.
Section
7.7
Severability . If
any provision of this Agreement (or any portion thereof) or the application of
any such provision (or any portion thereof) to any Person or circumstance shall
be held invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof (or the remaining portion thereof) or the application
of such provision to any other Persons or circumstances.
Section
7.8
Governing Law; Jurisdiction; Waiver of
Jury Trial . This Agreement shall be governed and construed in
accordance with the internal laws (without reference to choice or conflict of
laws) of the State of Delaware, and each party hereby submits to the exclusive
jurisdiction of the Delaware Court of Chancery of the State of Delaware.
Each party hereby waives all right to a trial by jury in any action, suit or
proceeding brought to enforce or defend any rights or remedies under this
Agreement. Each party irrevocably consents to the service of any and all
process in any such action, suit or proceeding by the delivery of such process
to such party at the address and in the manner provided in Section
7.5 .
Section
7.9
<?xml:namespace prefix = v ns = "urn:schemas-microsoft-com:vml"
/> Specific
Performance . The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at law
or equity.
Section
7.10 Stockholders’
Representative . Each Stockholder hereby constitutes and
appoints Xxxxxxx X. Xxxxx, Xx. as the Stockholders’ representative (the
“ Stockholders’ Representative ”) as his or her true and lawful
attorney-in-fact (i) to give and receive all notices and communications required
or permitted under this Agreement, (ii) to agree to, negotiate, enter into
settlements and compromises with respect to this Agreement, (iii) to negotiate,
agree and enter into any amendments to this Agreement as per Section 7.2 of this
Agreement, (iv) to select and communicate to the Company the designees to serve
on the Board as provided for in Section 2.1 hereof, and (v) to communicate to
the Company any elections of the Stockholders with respect to the registration
rights provided for in Article 5 hereof. The Stockholders’ Representative
may take all actions necessary or appropriate in the judgment of the
Stockholders’ Representative for the accomplishment of any of the foregoing,
each Stockholder agreeing to be fully bound by the acts, decisions and
agreements of the Stockholders’ Representative taken and done pursuant to the
authority herein granted. Notices and communications to or from the
Stockholders’ Representative shall constitute notice to or from each of the
Stockholders. In the event that Xx. Xxxxx dies or becomes incapacitated,
the Stockholders shall promptly select an alternate person to serve as the
Stockholders’ Representative and shall promptly notify the Company of such
selection. The Company may rely upon any such decision, act, consent or
instruction of the Stockholders’ Representative as being the decision, act,
consent or instruction of each of and all of the Stockholders. The Company
is hereby relieved from any liability to any Person for any acts done in
accordance with such decision, act, consent or instruction of the Stockholders’
Representative.
Section
7.11 Termination .
Upon the closing of a Buyout Transaction, this Agreement shall terminate and be
of no further force and effect.
Section
7.12 Confidentiality.
The Stockholders agree to maintain, and they shall cause their respective
directors, officers, employees and other representatives to maintain, the
confidentiality of all material non-public information obtained by the
Stockholders from the Company or any of the Company’s officers, directors,
employees or representatives, and not to use such information for any purpose
other than (i) the evaluation and protection of their investment in the Company,
(ii) the exercise of their respective rights under this Agreement, and (iii) the
exercise by the Stockholder Directors of their fiduciary duties as directors of
the Company.
Section
7.13 Change in Law . In
the event any law, rule or regulation comes into force or effect which conflicts
with the terms and conditions of this Agreement, the parties shall negotiate in
good faith to revise this Agreement to achieve the parties’ intention set forth
herein.
[Remainder of Page Intentionally Left Blank; Signatures on Following
Page]
IN WITNESS WHEREOF, the parties have caused this Stockholders’ Agreement
to be duly executed as of the date first above written.
COMPANY:
ALLION HEALTHCARE, INC.
By:
/s/ Xxxxxxx X.
Xxxxx
Name: Xxxxxxx X.
Xxxxx
Title: Chief
Executive Officer
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxx
Xxxxxxx
NAME:
Xxxxx Xxxxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxxx
Xxxxx
NAME:
Xxxxxx Xxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxx
Xxxxx
NAME:
Xxxx Xxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxx
Xxx
NAME:
Xxxx Xxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxxxx
Xxxxx
NAME:
Xxxxxxx Xxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxx
Xxxxxxx
NAME:
Xxxxx Xxxxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxxxxx
Xxxxx
NAME:
Xxxxxxxx Xxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxx
Colonel
NAME:
Xxxxx Colonel
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees
to all the terms and provisions of the Stockholder’s Agreement dated April 4,
2008, by and among Allion Healthcare, Inc., a Delaware corporation and the
former stockholders of Biomed America, Inc., a Delaware corporation (the
“ Stockholder’s Agreement ”), and agrees to be
bound by the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxxxx
Xxxx
NAME:
Xxxxxxx Xxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxx
Xxxxxxx
NAME:
Xxxx Xxxxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxxx
Xxxxxx
NAME:
Xxxxxx Xxxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxxxx
Xxxxxxx
NAME:
Xxxxxxx Xxxxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxx
Xxxxxxx
NAME:
Xxxxx Xxxxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxx
Xxxxxxxx
NAME:
Xxxx Xxxxxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxxx
Xxxxxxx
NAME:
Xxxxxx Xxxxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxx Xxxxx
Xxxxx
NAME:
Xxx Xxxxx Xxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008, by and among Allion Healthcare, Inc., a Delaware corporation and the former stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by the terms and provisions thereof as evidenced by the execution of this Counterpart Signature Page which, together with other Counterpart Signature Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxx
Xxxxxx
NAME:
Xxxxx Xxxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxx
Xxxxxxxx
NAME:
Xxxx Xxxxxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxx
Xxxxxx
NAME:
Xxxxx Xxxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
PARALLEX LLC
BY:
/s/ Xxxxxxx X. Xxxxx,
Xx.
NAME:
Xxxxxxx X. Xxxxx, Xx.
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxxxxx
Xxxxxxx
NAME:
Xxxxxxxx Xxxxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxx
Xxxxxxx
NAME:
Xxxxx Xxxxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxx
Xxxxxxx
NAME:
Xxxxx Xxxxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxx
Xxxx
NAME:
Xxxxx Xxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxx
Cefferati
NAME:
Xxxxx Cefferati
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxxx
Xxxxx
NAME:
Xxxxxx Xxxxx, Custodian for Xxxxxxx Xxxxxxxx, a Minor under PUIMA
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxxx
XxXxxx
NAME:
Xxxxxx XxXxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxxxxx
Xxxxxxx
NAME:
Xxxxxxxx Xxxxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxx
Xxxx
NAME:
Xxxxx Xxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxxx
Xxxxx
NAME:
Xxxxxx Xxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxx
Xxxxx
NAME:
Xxxxx Xxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxx
Xxxxxx
NAME:
Xxxxx Xxxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxx Xxxx
Xxxxxx
NAME:
Xxxx Xxxx Xxxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxxx
Xxxxxx-Xxxx
NAME:
Xxxxxx Xxxxxx-Xxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxxx
Xxxxxxxx
NAME:
Xxxxxx Xxxxxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxxx
Xxxxxx
NAME:
Xxxxxx Xxxxxx
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxxxxx
Moleiri
NAME:
Xxxxxx Moleiri
STOCKHOLDER'S
AGREEMENT
COUNTERPART
SIGNATURE PAGE
The undersigned hereby agrees to
all the terms and provisions of the Stockholder’s Agreement dated April 4, 2008,
by and among Allion Healthcare, Inc., a Delaware corporation and the former
stockholders of Biomed America, Inc., a Delaware corporation (the “ Stockholder’s Agreement ”), and agrees to be bound by
the terms and provisions thereof as evidenced by the execution of this
Counterpart Signature Page which, together with other Counterpart Signature
Pages, is hereby incorporated into the Stockholder’s Agreement.
IN WITNESS WHEREOF, the
undersigned has signed this Counterpart Signature Page effective the 4th day of
April, 2008.
BY:
/s/ Xxx
Xxxx
NAME:
Xxx Xxxx
APPENDIX
A
STOCKHOLDERS
Xxxxx
Xxxxxxx
Xxxxxxxx Xxxxxxx
Xxxxxx
Xxxxx
Xxxxx Xxxxxxx
Xxxx
Xxxxx
Xxxxx Xxxxxxx
Xxxx
Xxx
Xxxxx Xxxx
Xxxxxxx
Xxxxx
Xxxxx Cefferati
Xxxxx
Xxxxxxx
Xxxxxxx Xxxxxxxx
Xxxxxxxx
Xxxxx
Xxxxxx
XxXxxx
Xxxxx
Colonel
Xxxxxxxx Xxxxxxx
Xxxxxxx
Xxxx Xxxxx
Xxxx
Xxxx
Xxxxxxx Xxxxxx
Xxxxx
Xxxxxx Xxxxxx Xxxxx Xxxxx
Xxxxxxx
Xxxxxxx
Xxxxx Xxxxxx
Xxxxx
Xxxxxxx
Xxxx Xxxx Xxxxxx
Xxxx
Xxxxxxxx Xxxxxx
Xxxxxx-Xxxx
Xxxxxx
Xxxxxxx
Xxxxxx Xxxxxxxx
Xxx Xxxxx
Xxxxx
Xxxxxx Xxxxxx
Xxxxx
Xxxxxx
Xxxxxx Moleiri
Xxxx
Xxxxxxxx
Xxx Xxxx
Xxxxx
Xxxxxx
Parallex
LLC
