RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (the "Agreement") is entered into as of
October 16, 1997, between BMJ MEDICAL MANAGEMENT, INC., a Delaware corporation
(the "Company"), and the individuals identified on the signature page hereto
(each, a "Stockholder" and collectively, the "Stockholders"). This Agreement is
entered into in connection with and concurrently with that certain Management
Services Agreement effective as of September 1, 1997 (the "Management Services
Agreement") between the Company and Orthopaedic Surgery Associates, Inc. (the
"Medical Group"). The issuance of capital stock hereunder is also consideration
under the Asset Purchase Agreement between the Company and the Medical Group.
Certain capitalized terms used herein are defined in Section 5 below.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, the Company
and each Stockholder (for himself or herself only) hereby agree as follows:
1. Purchase and Sale of Restricted Shares; Representations and Warranties
of Stockholder.
(a) Upon execution of this Agreement, the Company shall, pursuant to
Section 4 and Schedule III of the Management Services Agreement, issue to each
Stockholder that number of shares (such shares are referred to herein as the
"Restricted Shares") of common stock, $.001 par value (the "Common Stock"), of
the Company set forth opposite such Stockholder's name on Schedule A attached
hereto. The aggregate shares of Common Stock issued to the Stockholders are
referred to collectively herein as "Restricted Stock." Simultaneously with the
execution and delivery hereof, the Company is delivering to each Stockholder the
certificate(s) representing the Restricted Shares.
(b) In connection with the issuance of the Restricted Shares hereunder,
each Stockholder (as to himself or herself only) represents and warrants to the
Company that:
(i) the Restricted Shares to be issued to such Stockholder pursuant to
this Agreement shall be acquired for such Stockholder's own account, for
investment only and not with a view to, or intention of, distribution
thereof in violation of the 1933 Act, or any applicable state securities
laws, and the Restricted Shares will not be disposed of in contravention of
the 1933 Act or any applicable state securities laws;
(ii) such Stockholder has generally such knowledge and experience in
business and financial matters and with respect to investments in
securities of privately held companies so as to enable such Stockholder to
understand and evaluate the risks and benefits of his or her investment in
the Restricted Shares;
(iii) such Stockholder has no need for liquidity in his or her
investment in the Restricted Shares and is able to bear the economic risk
of his or her investment in the Restricted Shares for an indefinite period
of time and understands that the Restricted Shares have not been registered
or qualified under the 1933 Act or any applicable state securities laws, by
reason of the issuance of the Restricted Shares in a transaction exempt
from the registration and qualification requirements of the 1933 Act or
such state securities laws and, therefore, cannot be sold unless
subsequently registered or qualified under the 1933 Act or such state
securities laws or an exemption from such registration or qualification is
available;
(iv) such Stockholder understands that the exemption from registration
afforded by Rule 144 (the provisions of which are known to such
Stockholder) promulgated under the 1933 Act, depends on satisfaction of
various conditions and that, if applicable, Rule 144 may only afford the
basis for sales under certain circumstances and only in limited amounts;
(v) except as set forth on Annex I attached hereto, such Stockholder
is an individual (A) whose individual net worth, or joint net worth with
his or her spouse, presently exceeds $1,000,000 or (B) who had an income in
excess of $200,000 in each of the two most recent years, or joint income
with his or her spouse in excess of $300,000 in each of those years (in
each case including foreign income, tax exempt income and the full amount
of capital gains and losses but excluding any income of other family
members and any unrealized capital appreciation) and has a reasonable
expectation of reaching the same income level in the current year; or such
Stockholder otherwise meets the requirements to be considered an accredited
investor, as defined under the 1933 Act; and
(vi) such Stockholder has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of the
Restricted Shares and has had full access to or been provided with such
other information concerning the Company as he or she has requested.
(c) This Agreement constitutes the legal, valid and binding obligation of
each Stockholder, enforceable in
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accordance with its terms, and the execution, delivery and performance of this
Agreement by each such Stockholder does not and will not conflict with, violate
or cause a breach of any agreement, contract or instrument to which such
Stockholder is a party or any judgment, order or decree to which such
Stockholder is subject.
(d) As an inducement to the Company to issue the Restricted Shares to each
Stockholder and as a condition thereto, each Stockholder acknowledges and agrees
that:
(i) neither the issuance of the Restricted Shares to such Stockholder
nor any provision contained herein shall affect the right of the Company to
terminate the Management Services Agreement in accordance with its terms;
and
(ii) the Company shall only be obligated to provide to such
Stockholder substantially the same information regarding the Company that
the Company regularly discloses to its other shareholders.
2. Vesting of the Restricted Shares.
(a) Except as otherwise provided in Section 2(b) below, the Restricted
Shares held by each Stockholder shall become vested in accordance with the
following schedule, if, as of each such date, (i) the Management Services
Agreement has not been terminated, (ii) there has not been a Cessation of Active
Practice by such Stockholder (as defined in Section 2(c) below), (iii) such
Stockholder has not become permanently disabled (as described in Section
3(a)(iii) below), and (iv) such Stockholder has not died:
Anniversary Date Percentage of
of this Agreement Restricted Shares Vested
----------------- ------------------------
First 25%
Second 25%
Third 25%
Fourth 25%
For purposes of this Agreement, "Anniversary Date of this Agreement" means
September 1 of each year after 1997. Restricted Shares which have become vested
are referred to herein as "Vested Shares" and all other Restricted Shares are
referred to herein as "Unvested Shares."
(b) Notwithstanding the foregoing, in the event of the death of such
Stockholder, in addition to any shares that have vested in accordance with
Section 2(a) above, the number of Unvested Shares, if any, that would have
become Vested Shares
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during the 12-month period immediately following the date of death had such
death not occurred shall be deemed Vested Shares as of the date of death.
(c) For purposes of this Agreement, "Cessation of Active Practice" means a
physician Stockholder's resignation from or termination of employment with the
Medical Group (other than by reason of death or permanent disability).
3. Forfeiture and Repurchase of Restricted Shares.
(a) Forfeiture. In the event of the Cessation of Active Practice by or the
death or permanent disability of a Stockholder (the "Forfeiture Event"), the
following provisions shall apply:
(i) Such Stockholder or the estate (in the case of death) of such
Stockholder shall transfer to the Medical Group, all of the Unvested Shares
held by such Stockholder. Such Unvested Shares shall be transferred for no
consideration from the Company and the stock certificate(s) representing
those shares shall be delivered to the Company, no later than thirty (30)
days after the Forfeiture Event, duly endorsed for transfer in accordance
with this Section 3(a). The Company shall, within thirty (30) days after
its receipt of a joinder to this Agreement executed by the Medical Group,
issue and deliver to the Medical Group a certificate representing the
Unvested Shares. Such Unvested Shares shall continue to vest according to
the vesting schedule set forth in Section 2(a) above.
(ii) The Medical Group shall not Sell (as hereinafter defined) any
Unvested Shares to any Person, other than to one or more physician
employees or equity owners of the Medical Group, who prior to the receipt
of such shares from the Medical Group had not acquired any shares of the
Company's Common Stock pursuant to the Management Services Agreement
between the Company and the Medical Group. As a condition to any such Sale,
the transferee shall execute and deliver to the Company a Restricted Stock
Agreement in substantially the form of this Agreement, effective as of the
date of transfer of such shares. Any Unvested Shares distributed according
to this Section 3(a) shall be subject to the vesting schedule set forth in
Section 2(a) hereof.
(iii) For purposes of this Agreement, if such Stockholder is insured
under a disability insurance policy, the determination under such policy as
to whether such Stockholder's condition constitutes a permanent disability
shall be binding on the parties hereto. If such Stockholder is not insured
under a policy of disability insurance, such
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determination shall be made by an independent qualified physician proposed
by the Medical Group, subject to the approval of the Company, which
approval shall not be unreasonably withheld.
(b) Repurchase. In the event that the Management Services Agreement is
terminated for any reason prior to the fourth anniversary of the Commencement
Date (as defined therein) (the "Repurchase Event"), the Company shall have the
right (but not the obligation) (the "Repurchase Option"), to be exercised in its
sole discretion, to repurchase all or any portion of the Restricted Shares
(whether vested or unvested and whether held by the Stockholders or one or more
of any Stockholder's Permitted Transferees) pursuant to the terms and conditions
set forth in this Section 3(b).
(i) The Company may elect to exercise the Repurchase Option and
repurchase all or any portion of the Restricted Shares by delivering
written notice (the "Repurchase Notice") to each Stockholder within ninety
(90) days after the Repurchase Event; provided, however, that, if the
Company elects to repurchase less than all of the Restricted Shares, the
Company shall first repurchase Unvested Shares and then repurchase that
number of Vested Shares, if any, as the Company may, in its sole
discretion, elect. The Repurchase Notice shall set forth the number of
Unvested Shares and Vested Shares to be repurchased, the aggregate
consideration to be paid for such shares, and the time and place for the
closing of the transaction. The purchase price payable for each Unvested
Share shall equal $.01 and the purchase price payable for each Vested Share
shall equal the Original Value of such share. If the Company decides to
repurchase Restricted Shares from any Stockholder pursuant to this Section
3(b), then the Company must purchase that number of Restricted Shares which
it has elected to repurchase from all of the Stockholders pro rata
according to the number of shares of Restricted Stock held by all of the
Stockholders at the time of delivery of such Repurchase Notice (determined
as nearly as practicable to the nearest whole share).
(ii) The closing of the repurchase of Restricted Shares pursuant to
the Repurchase Option shall take place on the date designated by the
Company in the Repurchase Notice, which date shall not be more than sixty
(60) days nor less than five (5) days after the delivery of the Repurchase
Notice. The Company shall pay for Restricted Shares to be purchased
pursuant to the Repurchase Option by delivery of (A) a cashier's check or
wire transfer of funds, (B) subordinated note or notes payable in up to
four equal annual installments beginning on the first anniversary of the
closing of such purchase and bearing interest (payable quarterly) at a rate
per annum equal to the greater of
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either the prime rate announced from time to time by The Chase Manhattan
Bank (National Association) plus 1/2% or the "applicable Federal rate" (as
defined in Section 1274(d) of the Internal Revenue Code) in effect from
time to time, or (C) a combination of both (A) and (B), in the aggregate
amount of the repurchase price for such shares; provided, however, that in
the event the Medical Group is obligated to pay to the Company any sums in
connection with the repurchase of assets by the Medical Group pursuant to
Section 13.5 of the Management Services Agreement, the total amount of such
sums may be offset by the Company against any amounts owed by the Company
to the Stockholders pursuant to this Agreement (if any such Stockholder is,
at such time, an equity owner of or partner in the Medical Group), such
offset amount to be allocated pro rata among all of the Stockholders who at
such time hold equity of or are partners in the Medical Group. Any notes
issued by the Company pursuant to this paragraph 3(b)(ii) shall be subject
to the restrictive covenants, if any, to which the Company is subject at
the time of such repurchase. The Company shall be entitled to receive
representations and warranties from such Stockholder regarding (x) such
Stockholder's power, authority and legal capacity to enter into such sale
and to transfer valid right, title and interest in such Restricted Shares,
(y) such Stockholder's ownership of such Restricted Shares and the absence
of any liens, pledges, and other encumbrances on such Restricted Shares and
(z) the absence of any violation, default, or acceleration of any agreement
or instrument pursuant to which such Stockholder or such Stockholder's
assets are bound resulting from such sale.
(iii) Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of Restricted Shares by the Company under this
Section 3(b) shall be subject to applicable restrictions, if any, contained
in its certificate of incorporation, any financing agreement to which the
Company is a party, Federal law or the Delaware General Corporation Law. If
any such restrictions prohibit or otherwise delay the repurchase of
Restricted Shares hereunder which the Company is otherwise entitled or
required to make, the Company may make such repurchases as soon as it is
permitted to do so.
(iv) In the event that any Restricted Shares are repurchased pursuant
to this Section 3(b), such Stockholder and his or her successors and
assigns shall, at the Company's expense, take all reasonable steps to
obtain all required third-party, governmental and regulatory consents and
approvals and take all other reasonable actions necessary to facilitate
consummation of such repurchase in a timely manner.
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4.Transfer Restriction; Legend.
Except as otherwise expressly provided in Section 3 and except for
Permitted Transfers, no Stockholder may sell or transfer or agree to sell or
transfer ("Sale" or "Sell") any Restricted Shares unless such Sale shall be in
accordance with the procedures set forth in this Section 4; provided, however,
that with respect to this Section 4, Restricted Shares, at any point in time,
shall be limited to Vested Shares and at no time shall any Stockholder have the
right to Sell Unvested Shares (other than pursuant to Section 3 above):
(a) In the event that a Stockholder receives a bona fide offer from a
third party (the "Prospective Stockholder") to purchase all or any part of
the Restricted Shares owned by such Stockholder, such Stockholder shall
deliver to the Company a written notice (the "Offer Notice"), which shall
be irrevocable for a period of fifteen (15) business days after delivery
thereof (the "Offer Period"), offering (the "Offer") all of the Restricted
Shares proposed to be Sold by such Stockholder to the Prospective
Stockholder at the purchase price and on the terms of the proposed Sale to
the Prospective Stockholder (such Offer Notice shall include the foregoing
information, a copy of the Prospective Stockholder's bona fide offer and
all other relevant terms of the proposed Sale, including the identification
of the Prospective Stockholder). The Company shall have the right and
option, for a period of fifteen (15) business days after delivery of the
Offer Notice, to repurchase all or any part of the Restricted Shares so
offered at the purchase price and on the terms stated in the Offer Notice.
Such acceptance shall be made by delivering a written notice to such
Stockholder within said fifteen (15) business-day period.
(b) Sales of Restricted Shares under the terms of Section 4(a) above
shall be made on a mutually satisfactory business day within fifteen (15)
business days after the expiration of the Offer Period. Delivery of
certificates or other instruments evidencing such Restricted Shares duly
endorsed for transfer shall be made on such date against payment of the
purchase price therefor.
(c) If the Company fails to purchase all of the Restricted Shares
offered for Sale pursuant to the Offer Notice, then at any time within
sixty (60) business days after the expiration of the Offer Period such
Stockholder may Sell all or any part of the remaining Restricted Shares so
offered for Sale on terms no more favorable to the Prospective Stockholder
than the terms stated in the Offer Notice; provided, however, that such
Stockholder shall not, under any circumstances, Sell any Restricted Shares
to the Prospective Stockholder if the Board of Directors of the Company, in
its sole discretion, determines in good faith that the Prospective
Stockholder is a competitor, or an Affiliate of a competitor, of the
Company or that such
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Prospective Stockholder's ownership of such Restricted Shares would be
contrary to the best interests of the Company. In the event that all of
such Restricted Shares are not Sold by such Stockholder to the Prospective
Stockholder during such period, the right of such Stockholder to Sell such
Restricted Shares to the Prospective Stockholder shall expire and the
obligations of such Stockholder pursuant to this Section 4 shall be
reinstated.
(d) Any Permitted Transferee (other than the Company) shall, as a
condition to such transfer, (i) agree to be bound by all of the provisions
of this Agreement applicable to a Stockholder and shall evidence such
agreement by executing and delivering to the Company a joinder to this
Agreement in form and substance satisfactory to the Company, and (ii) if
such transferee is a partner in or an equity owner or employee of the
Medical Group, execute a noncompetition agreement in form and substance
satisfactory to the Company (if such transferee is not, as of the date of
such transfer, a party to such an agreement with the Company).
(e) The certificate(s) representing the Restricted Shares will bear
the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES OR "BLUE-SKY"
LAWS. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT OR LAWS.
ADDITIONALLY, THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN REPURCHASE OPTIONS, TRANSFER RESTRICTIONS AND
CERTAIN OTHER AGREEMENTS SET FORTH IN A RESTRICTED STOCK AGREEMENT
DATED AS OF OCTOBER 16, 1997, BETWEEN THE STOCKHOLDER AND BMJ MEDICAL
MANAGEMENT, INC. A COPY OF SUCH AGREEMENT MAY BE OBTAINED BY THE
HOLDER HEREOF AT THE COMPANY'S PRINCIPAL PLACE OF BUSINESS WITHOUT
CHARGE."
(f) The restrictions on transfers of Vested Shares set forth in this
Section 4 shall expire, and shall be of no further force or effect, upon
the consummation of the initial public offering of the Company's Common
Stock pursuant to the 0000 Xxx.
5.Definitions.
(a) "Affiliate" means, with respect to any Person, (a) any director,
officer, 10% stockholder or partner of such Person and (b) any other Person
that, directly or indirectly, through one or more intermediaries, controls, or
is controlled by, or is under common control with, such Person. The term
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"control" includes, without limitation, the possession, directly or indirectly,
of the power to direct the management and policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
(b) "Internal Revenue Code" means the Internal Revenue Code of 1986, as the
same may be amended or supplemented from time to time, or any successor statute,
and the rules and regulations thereunder, as the same are from time to time in
effect.
(c) "Original Value" of each share of Restricted Stock purchased hereunder
will be equal to $6.50 (as proportionately adjusted for all subsequent stock
splits, stock dividends and other recapitalizations).
(d) "Person" shall be construed broadly and shall include, without
limitation, an individual, a partnership, an investment fund, a limited
liability corporation or partnership, a corporation, an association, a joint
stock company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision thereof.
(e) "Permitted Transferee" means, as to any Stockholder, any transferee who
acquires the Restricted Shares pursuant to a Permitted Transfer or any other
transfer made in accordance with the provisions of this Agreement.
(f) "Permitted Transfer" means, as to any Stockholder, (i) any sale or
transfer of Vested Shares to (A) the spouse or lineal descendants of such
Stockholder or (B) a trust for the benefit of any of the foregoing and (ii) any
sale or transfer of Vested Shares or Unvested Shares to any other Stockholder,
or any physician who, as of the date of such transfer, is an equity owner or
employee of the Medical Group.
(g) "Public Sale" means any sale of Restricted Stock to the public pursuant
to an offering registered under the 1933 Act or to the public through a broker,
dealer or market maker pursuant to the provisions of Rule 144 adopted under the
1933 Act.
(h) "Restricted Shares" has the meaning set forth in Section 1(a). The
Restricted Shares will continue to be Restricted Shares in the hands of any
holder (other than the Company and any transferees in a Public Sale), and except
as otherwise provided herein, each such holder of the Restricted Shares will
succeed to all rights and obligations attributable to a Stockholder as the
holder of the Restricted Shares hereunder. The Restricted Shares will also
include shares of the Company's capital stock issued with respect to the
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Restricted Stock by way of a stock split, stock dividend or other
recapitalization.
(i) "1933 Act" means the Securities Act of 1933, as the same may be amended
or supplemented from time to time, or any successor statute, and the rules and
regulations thereunder, as the same are from time to time in effect.
6. Indemnification.
(a) The Company shall indemnify, defend and hold harmless each Stockholder
against all liability, loss or damage sustained by such Stockholder, together
with all reasonable costs and expenses related thereto (including reasonable
legal fees and expenses), relating to or arising from the untruth, inaccuracy or
breach of any of the representations, warranties or agreements of the Company
contained in this Agreement.
(b) Each Stockholder shall indemnify and hold harmless the Company against
all liability, loss or damage, together with all reasonable costs and expenses
related thereto (including reasonable legal fees and expenses), relating to or
arising from the untruth, inaccuracy or breach of any of the representations,
warranties or agreements of such Stockholder contained in this Agreement.
7. General Provisions.
(a) Transfers in Violation of Agreement. Any sale, transfer, assignment or
other disposition (whether with or without consideration and whether voluntarily
or involuntarily or by operation of law) (each, a "Transfer") or attempted
Transfer of any Restricted Shares in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on its
books or treat any purported transferee of such Restricted Shares as the owner
of such stock for any purpose.
(b) Severability. It is the desire and intent of the parties hereto that
the provisions of this Agreement be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of this
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction. Notwithstanding the foregoing, if such provision could be
more narrowly drawn so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly
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drawn, without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction.
(c) Entire Agreement. This Agreement, those documents expressly referred to
herein and other documents of even date herewith embody the complete agreement
and understanding among the parties hereto with respect to the subject matter
hereof and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
(d) Relationship Among Stockholders. No Stockholder shall have any
responsibility for any breach of this Agreement by any other Stockholder or for
any representations, warranties, acts or omissions of any other Stockholder.
Each Stockholder is entering into this Agreement for and on behalf of such
Stockholder only, and no partnership, joint venture, unincorporated association
or any other legal entity is intended to be formed by or among the Stockholders
as a result of or in connection with this Agreement. The parties have chosen to
execute a single instrument for convenience only, and this Agreement shall be
construed as separate and several agreements among the Medical Group, the
Company and each of the respective Stockholders for all purposes. This Agreement
may be executed in separate counterparts.
(e) Counterparts. This Agreement may be executed in separate counterparts,
each of which is deemed to be an original and all of which taken together
constitute one and the same agreement.
(f) mSuccessors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by each
Stockholder, the Company and their respective successors, permitted assigns,
heirs, representatives and estate, as the case may be (including subsequent
holders of Restricted Stock); provided, however, that the rights and obligations
of any Stockholder under this Agreement shall not be assignable except in
connection with a Permitted Transfer of Restricted Shares hereunder.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to any
choice of law or conflicting provision or rule (whether of the State of Delaware
or any other jurisdiction), that would cause the laws of any jurisdiction other
than the State of Delaware to be applied. In furtherance of the foregoing, the
internal law of the State of Delaware will control the interpretation and
construction of this agreement, even if under such jurisdiction's choice of law
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or conflict of law analysis, the substantive law of some other jurisdiction
would ordinarily apply.
(h) Jurisdiction. Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any Florida state court or Federal court of the United States of
America sitting in Palm Beach County, Florida, and any appellate court thereof,
in any action or proceeding arising out of or relating to this Agreement or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such Florida state
court or, to the extent permitted by law, in such Federal court. Nothing in this
Agreement shall affect the right that any party may otherwise have to bring any
action or proceeding relating to this Agreement in the courts of any other
jurisdiction.
(i) Remedies. Each of the parties to this Agreement shall be entitled to
enforce its rights under this Agreement specifically to recover damages and
costs (including reasonable attorneys' fees) for any breach of any provision of
this Agreement, which is not cured within thirty (30) days after the breaching
party receives written notice thereof from the other party, and to exercise all
other rights existing in its favor. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any party in the event of a
breach of the provisions of this Agreement by any other party hereto and that
each party may, in its sole discretion, apply to any court of law or equity of
competent jurisdiction for specific performance and/or other injunctive relief
in order to enforce or prevent any violations of the provisions of this
Agreement.
(j) Amendment and Waiver. The provisions of this Agreement may be amended
and waived only with the prior written consent of the Company and the
Stockholders and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall be construed as a waiver of such provisions
or affect the validity, binding effect or enforceability of this Agreement or
any provision hereof; provided, however, that the Company may, without the
consent of any Stockholder, amend Schedule A hereto upon consummation of a
Permitted Transfer of Restricted Shares hereunder by any Stockholder to reflect
the then current ownership of the Restricted Stock.
(k) Notices. Any notice provided for in this Agreement must be in writing
and must be either personally delivered, transmitted via telecopier, mailed by
first class mail (postage prepaid and return receipt requested) or sent by
nationally-recognized overnight courier service (charges prepaid) to the
recipient at the address below indicated or at such other address or to the
attention of such other person as
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the recipient party has specified by prior written notice to the sending party.
Notices will be deemed to have been given hereunder and received when delivered
personally, when received if transmitted via telecopier, three business days
after deposit in the U.S. mail and one business day after deposit with a
nationally-recognized overnight courier service.
(i) If to the Company, to:
BMJ Medical Management, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx, M.D., President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000;
with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Held, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000; and
(ii) If to any Stockholder, to his or her address set forth on the
signature page hereto beneath his or her name.
(l) Business Days. If any time period for giving notice or taking action
hereunder expires on a day which is a Saturday, Sunday or holiday in the State
of Florida, the time period for giving notice or taking action shall be
automatically extended to the business day immediately following such Saturday,
Sunday or holiday.
(m) Attorneys' Fees. In the event of any dispute or controversy arising out
of or relating to this Agreement, the prevailing party shall be entitled to
recover from the other party all costs and expenses, including attorneys' fees
and accountants' fees, incurred in connection with such dispute or controversy.
(n) Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
(o) Construction. Where specific language is used to clarify by example a
general statement contained herein, such specific language shall not be deemed
to modify, limit or restrict in any manner the construction of the general
statement to which it relates. The language used in this Agreement shall be
deemed to be the language chosen by the parties to express
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their mutual intent, and no rule of strict construction shall be applied against
any party.
(p) Nouns and Pronouns. Whenever the context may require, any pronouns used
herein shall include the corresponding masculine, feminine or neuter forms, and
the singular form of nouns and pronouns shall include the plural and vice-versa.
(q) Change of Law. In the event that legal counsel for the Company or any
Stockholder reasonably determines (the "Legal Determination") that the payments
hereunder, or the ability of the parties to fulfill their material obligations
hereunder, are materially and adversely impacted by any change in Federal, state
or local law, rules, regulations or any published official interpretation of any
of the foregoing, as applied to this Agreement, and such Legal Determination is
confirmed in writing by independent legal counsel mutually agreeable to the
parties hereto, the parties shall negotiate in good faith to amend this
Agreement to avoid such materially adverse impact, if possible, while
maintaining the material economic benefits intended to be conferred thereby. If
this Agreement is not so amended within ninety (90) days after confirmation by
the independent legal counsel, or such amendment is not possible, then this
Agreement may be terminated by any party hereto. The fees and expenses of the
independent counsel shall be borne equally by the parties if such independent
counsel confirms the Legal Determination, and shall be borne solely by the
initiating party if the Legal Determination is not so confirmed. Each party
shall pay its own legal costs and fees in connection with the foregoing.
* * * *
IN WITNESS WHEREOF, the parties hereto have executed this Restricted Stock
Agreement effective as of the date first written above.
COMPANY
-------
BMJ MEDICAL MANAGEMENT, INC.
By:_______________________________
Name:
Title:
STOCKHOLDERS:
__________________________________
Xxxxxxx Xxxxxxxx, M.D.
Address for notices:
__________________________________
__________________________________
__________________________________
Xxxx XxxXxxxxx, M.D.
Address for notices:
__________________________________
__________________________________
__________________________________
Xxxxxx Xxxx, M.D.
Address for notices:
__________________________________
__________________________________
__________________________________
Xxxx Xxxxxxx, M.D.
Address for notices:
__________________________________
__________________________________
___________________________________
Xxxxx Xxxxxx, M.D.
Address for notices:
__________________________________
__________________________________
__________________________________
Xxxxxxx Xxxxxx, M.D.
Address for notices:
__________________________________
__________________________________
MEDICAL GROUP
ACCEPTED AND AGREED
AS TO PARAGRAPH 3
ORTHOPAEDIC SURGERY ASSOCIATES, INC.
By:_________________________________
Name:
Title:
SCHEDULE A
Stockholders
------------
Aggregate Number of
Name Restricted Shares
---- -----------------
Xxxxxxx Xxxxxxxx, M.D. 70,149
Xxxx XxxXxxxxx, M.D. 69,325
Xxxxxx Xxxx, M.D. 65,383
Xxxx Xxxxxxx, M.D. 66,399
Xxxxx Xxxxxx, M.D. 28,434
Xxxxxxx Xxxxxx, M.D. 10,856
ANNEX I
Non-accredited Investors
------------------------
Each of the Stockholders listed below is not an accredited investor, as
defined under the 1933 Act:
Xxxxx Xxxxxx, M.D.
Xxxxxxx Xxxxxx, M.D.
