Exhibit 4.2
FORM OF
STOCKHOLDERS AGREEMENT
HEALTHEXTRAS, INC.
Dated as of _____________, 1999
STOCKHOLDERS AGREEMENT
This Stockholders Agreement ("Stockholders Agreement"), dated as of
__________, 1999, is entered into by and among the parties (the "Parties")
listed on the signature pages hereof.
In consideration of the premises, mutual covenants and agreements
hereinafter contained and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, and intending to be legally bound
hereby, the Parties agree as follows:
TABLE OF CONTENTS
ARTICLE I - Definitions.................................................... 2
ARTICLE II - Plan of Reorganization........................................ 4
ARTICLE III - Management of the Company.................................... 4
Section 3.1 Board of Directors...................................... 4
Section 3.2 Obligations of Parties to Vote for Directors............ 5
Section 3.3. Vacancies............................................... 6
Section 3.4. Service on Committees of the Board...................... 6
ARTICLE IV - Certain Covenants............................................. 6
Section 4.1 Covenants............................................... 6
ARTICLE V - Certain Rights With Respect to Transfers....................... 7
Section 5.1 Certain Rights.......................................... 7
Section 5.2 Legend.................................................. 8
Section 5.3. Preemptive Rights....................................... 9
ARTICLE VI - Registration Rights........................................... 9
Section 6.1........................................................... 9
ARTICLE VII - Termination.................................................. 9
Section 7.1 Termination............................................. 9
ARTICLE VIII - Miscellaneous............................................... 9
Section 8.1 Notices................................................. 9
Section 8.2 Governing Law........................................... 10
Section 8.3 Successors and Assigns.................................. 10
Section 8.4 Duplicate Originals..................................... 10
Section 8.5 Severability............................................ 11
Section 8.6 No Waivers; Amendments.................................. 11
Exhibits
Exhibit I Plan of Reorganization
Exhibit II Registration Rights Agreement
ARTICLE I
Definitions
"Affiliate" means, with respect to any Person, any Person who, directly or
indirectly controls, is controlled by or is under common control with that
Person. For purposes of this definition, "control" when used with respect to
any Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of Voting Securities, by
contract or otherwise.
"CZHH" means Capital Z Healthcare Holding Corp., a Delaware corporation.
"CZHH Merger Agreement" shall mean the meaning given to such term in
Section 2.1 hereof.
"Capital Z Group" means Capital Z Partners, Ltd., a Bermuda exempt company,
and its Affiliates and its and their respective officers, directors, and
employees (and members of their respective families and trusts for the primary
benefit of such family members). Without limiting the foregoing, the Capital Z
Group shall be deemed to include CZHH, Capital Z Management, LLC, Capital Z
Financial Services Fund II, L.P., Capital Z Financial Services Private Fund II,
L.P., Health Partners, International Managed Care Advisors, Xxxxxx X.X. Xxxxx,
Xxxxxx X. Xxxxxxxxxx, Xxxxxx Spass, and Xxxx X. Xxxxxx.
"Capital Z Group Designees" means those directors of the Company who were
designated by the Capital Z Group pursuant to Section 3.1(c) and (d), and
initially are Xxxxxx X.X. Xxxxx and Xxxx X. Xxxxxx.
"Common Stock" means shares of the Common Stock, $.01 par value per share,
of the Company, and any capital stock of the Company into which such Common
Stock thereafter may be changed.
"Company" means HealthExtras, Inc., a Delaware corporation, and its
successors.
"Electing Holder" shall have the meaning assigned to such term in Section
5.1(a) hereof.
"First Offer Notice" shall have the meaning assigned to such term in
Section 5.1(b) hereof.
"Highland Group" means Highland Investments, LLC, a Maryland limited
liability company, and its Affiliates and its and their respective executive
officers and directors. Without limiting the foregoing, the Highland Group
shall be deemed to include Principal Holding Company, Principal Mutual Holding
Company and its Affiliates, United Payors & United Providers, Inc., Xxxxxx X.
Xxxxx and Xxxxx X. Xxxxx.
"Highland Group Designees" means those Directors of the Company who were
designated by the Highland Group pursuant to Section 3.1(b) and (d), and
initially are Xxxxxx X. Xxxxx, Xxxxx X. Xxxxx, Xxxxxx X. Xxxx, Xxxxx X. Xxxxxx
and Xxxxx X. Xxxxx.
2
"Holder" means (i) a securityholder listed on the signature page hereof,
and (ii) any direct or indirect transferee of any such securityholder who is an
affiliate of such securityholder.
"Holder Offerees" shall have the meaning assigned to such term in Section
5.1(b) hereof.
"LLC" means HealthExtras, LLC, a Delaware limited liability company.
"LLC Merger" means the merger of LLC into the Company in accordance with
the Plan of Reorganization.
"LLC Merger Agreement" shall have the meaning given to such term in Section
2.1 hereof.
"Offering Holder" shall have the meaning assigned to such term in Section
5.1(a) hereof.
"Parties" shall have the meaning set forth in the introductory paragraph
hereof.
"Permitted Transfer" shall have the meaning assigned to it in Section
5.1(c) hereof.
"Person" or "person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization, or government or other agency or political
subdivision thereof.
"Plan of Reorganization" shall have the meaning set forth in Section 2.1
hereof.
"Purchase Agreement" shall have the meaning set forth in Section 4.1(c)
hereof.
"Required Holders" means Holders who then own beneficially 85% or more of
the aggregate number of Voting Securities subject to this Stockholders
Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Transfer" means any disposition of any Voting Security or any interest
thereon that would constitute a "sale" thereof within the meaning of Section
2(3) of the Securities Act.
"Transfer Notice" shall have the meaning assigned to it in Section 5.1(a)
hereof.
"Transferring Holder" shall have the meaning assigned to such term in
Section 5.1(a) hereof.
"Voting Securities" means the Common Stock and any other shares of capital
stock of the Company which is entitled to vote generally for the election of
directors and on matters submitted for stockholder vote.
3
ARTICLE II
Plan of Reorganization
Section 2.1. The Parties (i) to the extent they are a signatory to the
Agreement and Plan of Reorganization (the "Plan of Reorganization") for the
Company attached as Exhibit I hereto, hereby agree to execute the Plan of
Reorganization; (ii) to the extent they are members of the LLC hereby approve
and consent in writing to the approval, adoption and execution by the LLC of the
Plan of Reorganization and the Agreement of Merger by and between the LLC and
the Company attached as Exhibit B to the Plan of Reorganization (the "LLC Merger
Agreement"); iii) to the extent that they are to become stockholders of the
Company, hereby authorize and consent in writing as stockholders of the Company
to the approval, adoption and execution by the Company of the Plan of
Reorganization, to the LLC Merger Agreement and the Agreement of Merger by and
between CZHH and the Company attached as Exhibit A to the Plan of Reorganization
(the "CZHH Merger Agreement") and to the transactions contemplated therein,
specifically including the adoption of the Amended and Restated Certificate of
Incorporation, the adoption of the HealthExtras, Inc. 1999 Stock Option Plan,
the grant of options thereunder, and the grant of rights to receive shares of
common stock; and (iv) to the extent they are stockholders of CZHH hereby
approve, authorize and consent in writing to the actions taken by CZHH with
respect to the Plan of Reorganization and to the CZHH Merger Agreement.
ARTICLE III
Management of the Company
Section 3.1. Board of Directors.
(a) Initial Directors. The parties agree that the initial Board
of Directors of the Company shall consent of:
(i) Xxxxxx X. Xxxxx, Xxxxx X. Xxxxx, Xxxxxx X. Xxxx, Xxxxx
X. Xxxxxx, and Xxxxx X. Xxxxx (who are the "Highland Group Designees");
(ii) Xxxxxx X.X. Xxxxx and Xxxx X. Xxxxxx (who are the
"Capital Z Group Designees"); and
(iii) Two independent directors to be selected by the Board
of Directors of the Company.
(b) Highland Group Designees. (i) Until such time as the
Highland Group ceases to beneficially own, in the aggregate, at least 40% of the
outstanding voting securities, the Highland Group shall have the right to
designate five (5) persons for election as Directors of the Company; (ii) after
such time and until such time as the Highland Group ceases to beneficially own
in the aggregate at least 25% of outstanding voting securities, the Highland
Group shall have the right to designate three (3) persons for election as
Directors of the Company; (iii) after such time and until
4
such time as the Highland Group ceases to beneficially own, in the aggregate, at
least 10% of outstanding voting securities, the Highland Group shall have the
right to designate two (2) persons for election as directors; and (iv) after
such time and until such time as the Highland Group ceases to beneficially own,
in the aggregate, at least 5% of outstanding voting securities, the Highland
Group shall have the right to designate one (1) person for election as a
Director.
(c) Capital Z Group Designees. (i) until such time as the Capital Z
Group ceases to beneficially own, in the aggregate, at least 10% of outstanding
voting securities, the Capital Z Group shall have the right to designate two (2)
persons for election as Directors; and (ii) after such time and until such time
as the Capital Z Group ceases to beneficially own, in the aggregate, at least 5%
of outstanding voting securities, the Capital Z Group shall have the right to
designate one (1) person for election as a Director.
(d) Increase in the number of Directors. To the extent that the
number of Directors shall be increased to greater than seven (7) plus that
number of Directors, not greater than three (3), who are not affiliated with
either the Highland Group or the Capital Z Group (in the aggregate the "base
number of Directors"), the number of Directors which the Highland Group and the
Capital Z Group shall be entitled to designate pursuant to paragraphs (b) and
(c) above, respectively, shall be adjusted to the extent that the adjusted
number of Directors to be designated by the Highland Group and the Capital Z
Group, respectively, as a percentage of the increased number of Directors, would
more closely approximate the percentage of the base number of Directors which
such Group is entitled to designate under paragraphs (b) or (c) above, than
would any other number of Directors.
Section 3.2. Obligations of Parties to Nominate and Vote for Directors.
The Company, from time to time at each appropriate time, will cause each of the
persons theretofore serving as Highland Group Designees or Capital Z Designees
(or other persons designated by the Highland Group as new Highland Group
Designees, or designated by the Capital Z Group as new Capital Z Designees, in
replacement of such persons) to be nominated and recommended by the Board of
Directors of the Company for reelection to the Board of Directors of the Company
by the stockholders of the Company upon any expiration of their respective terms
of office. Each Holder shall vote his or its shares of Common Stock at any
regular or special meeting of stockholders of the Company or in any written
consent executed in lieu of such a meeting of stockholders and shall take all
other lawful actions necessary to give effect to the agreements contained in
this Stockholders Agreement (including without limitation the election of the
Highland Group Designees and Capital Z Designees as described herein) and to
attempt to ensure that the certificate of incorporation and bylaws of the
Company do not, at any time hereafter during the term of this Stockholders
Agreement, conflict in any respect with the provisions of this Stockholders
Agreement.
Section 3.3. Vacancies. If, prior to his election to the Board of
Directors of the Company pursuant hereto, any Highland Group Designee or Capital
Z Group Designee shall be unable or unwilling to serve as a director of the
Company, then the Highland Group or Capital Z Group, as applicable, shall be
entitled to designate a replacement designee. If, following an election to the
Board of Directors of the Company pursuant hereto, any Highland Group Designee
or Capital Z Group Designee shall resign or be removed or be unable to serve for
any reason prior to the
5
expiration of his term as a director of the Company, then the Highland Group or
Capital Z Group, as applicable shall, within thirty (30) days of such event,
notify the Board of Directors of the Company in writing of a replacement
designee. Unless inconsistent with its fiduciary obligations, the Board of
Directors, as applicable, shall nominate for election by stockholders or appoint
as a Director to fill the unexpired term of the designee who such new designee
is replacing, of any such replacement designee.
Section 3.4. Service on Committees of the Board. The Company agrees that
a Highland Group Designee and a Capital Z Group Designee shall be entitled to
serve on each of the Board's committees.
ARTICLE IV
Certain Covenants
Section 4.1 Covenants.
(a) Transactions With Affiliates. The Company shall not enter into
any transaction, including, without limitation, any purchase, sale, exchange or
other transfer of property or any provision or receipt of services, with any
Affiliate of the Company (including, without limitation, United Payors & United
Providers, Inc. and any of its Affiliates) other than upon terms (i) no less
favorable to the Company than could be obtained by the Company in a comparable
arm's length transaction with a Person that is not an Affiliate of the Company
or (ii) approved by a majority of the Directors independent of such Affiliate.
The Administrative and Technical Services Agreement and the Provider Network
Access Agreement with United Payors & United Providers, Inc. are deemed approved
in accordance with this provision.
(b) Mergers, Acquisitions and Divestitures. The Company shall not
merge with, acquire stock or assets from, sell stock or assets to, or engage in
any similar business combination transaction with, an Affiliate of the Company
(including, without limitation, United Payors & United Providers, Inc.) if the
value of such transaction exceeds one million dollars ($1,000,000) unless the
Company first shall have obtained an opinion from a nationally recognized
investment banking firm to the effect that such transaction is fair to the
Company or its stockholders, as the case may be, from a financial point of view.
(c) Sale of Company. If the LLC Merger becomes effective, but the
Company does not complete its sale of common stock pursuant to the Purchase
Agreement discussed in Section 2.1(i) of this Plan of Reorganization, then if
the Company shall not have consummated a public offering of securities
substantially equivalent to the sale contemplated by that Purchase Agreement, a
merger or consolidation of the Company with or into any other entity in which
the Company will not be the surviving entity or a sale of all or substantially
all of the assets of the Company on or prior to May 21, 2004, the Company shall,
at the request of Health Partners, use its best efforts to sell the Company at a
price equal to the Fair Market Value within 180 days after the date of such
written request. For purposes hereof, "Fair Market Value" shall mean a value
agreed
6
upon by Health Partners and the Company. If Health Partners and the Company are
unable to agree upon a value, they shall jointly retain an independent,
nationally-recognized investment banking firm, accounting firm or other firm
providing similar valuation services (which firm shall not be a firm having a
continuing relationship with either the Company or Health Partners) (a
"Valuation Firm") satisfactory to each of them. If the Company and Health
Partners are unable to agree upon the selection of a Valuation Firm within five
(5) days, then the Company and Health Partners shall each retain a separate
Valuation Firm within twenty (20) days after the expiration of such five (5) day
period. If either the Company or Health Partners fails to retain a Valuation
Firm within such twenty (20) day period, then the Valuation Firm retained by the
Company or Health Partners, as the case may be, shall alone take the actions
described below. Such Valuation Firm(s) shall determine the Fair Market Value of
the Company and deliver its written opinion thereon to the Company and Health
Partners within thirty (3) days of being retained. If such Valuation Firms are
unable to agree on the Fair Market Value of the Company, then unless otherwise
directed in writing by the Company and Health Partners, such Valuation Firms, in
their sole discretion, shall select another Valuation Firm, which Valuation Firm
shall make such determination and render such an opinion as soon as practicable.
In either case, the determination so made will be conclusive and binding on the
Company and Health partners. The fees and expenses for such determination made
by any and all such Valuation firms shall be paid by the Company.
ARTICLE V
Certain Rights With Respect to Transfers
Section 5.1 Certain Rights.
(a) Tag-Along Rights.
(i) Subject to Section 5.1(b) and other than in connection with
a Permitted Transfer, as defined in Section 5.1(c), in the event that a Holder
proposes to transfer (in a single transaction or series of related transactions)
Voting Securities aggregating more than 10% of the outstanding Voting Securities
to a Person or group of affiliated Persons, (such Holder proposing such
Transfer, a "Transferring Holder") shall deliver a notice (a "Transfer Notice")
to the Company and the other Holders at least 30 days prior to any such
Transfer. The other Holders may elect to participate in the contemplated
Transfer by delivering written notice to the Transferring Holder within 15 days
after delivery by the Transferring Holder of such Transfer Notice. If any other
Holder has elected to participate in such Transfer (such other Holder so
electing, an "Electing Holder"), the Transferring Holder and any such Electing
Holder shall be entitled to Transfer in the contemplated Transfer, on the same
contract terms, the number of Voting Securities at the price determined under
(ii) below.
(ii) It is the intent of the Parties that, in a transaction in
which the tag-along rights provided for in Section 5.1(a)(i) apply, the
aggregate sale proceeds shall be divided proportionately with respect to all
Electing Holders and the Transferring Holder based on each
7
Electing Holder's and the Transferring Holder's respective shares of the
liquidation proceeds that all such Electing Holders and the Transferring Holder
would receive, respectively, in the event of a hypothetical liquidation of the
Company at the enterprise value implied by the proposed sales price.
(b) First Offer Rights. Prior to a Transfer (in a single transaction
or series of related transactions) of Voting Securities aggregating more than
10% of outstanding Voting Securities to a Person or group of affiliated Persons,
by a Holder (other than a Permitted Transfer), the Holder proposing to make such
Transfer (the "Offering Holder"), shall deliver a written notice to the Company
and to the other Holders (such other Holders the "Holder Offerees"), which
notice specifies in reasonable detail the number of Voting Securities to be so
transferred, the proposed purchase price therefor and the other terms and
conditions of such proposed Transfer (a "First Offer Notice"). The Company may
elect to purchase all (but not less than all) of the Voting Securities to be
transferred, upon the same terms and conditions as those set forth in the First
Offer Notice and other reasonable customary terms and conditions by delivering a
written notice of such election to the Offering Holder within 15 days after the
First Offer Notice has been delivered to the Company. If the Company has not
elected to purchase all of the Voting Securities to be Transferred, the Holder
Offerees may elect to purchase all (but not less than all) of the Voting
Securities to be Transferred, on a pro rata basis (based on the percentage
ownership of Voting Securities by a Holder Offerees compared to such ownership
by all Holder Offerees), upon the same terms and conditions as those set forth
in the First Offer Notice, by giving written notice of such election to the
Offering Holder within 15 days after the First Offer Notice was delivered to the
Company; provided, that if any Holder Offeree elects not to purchase its pro
rata share of the Voting Securities to be Transferred, the remaining Holder
Offerees that have so elected may purchase their pro rata share of such
unpurchased Voting Securities (based on the percentage ownership of Voting
Securities of a Holder Offerees electing to purchase such Voting Securities
compared to stock ownership by all Holder Offerees election to purchase such
Voting Securities). If neither the Company nor the Holder Offerees elect to
purchase all of the Voting Securities specified in the First Offer Notice, then
the Offering Holder may Transfer to any Person the Voting Securities
contemplated to be Transferred at a price and on terms and conditions in the
aggregate no more favorable to the Transferee than those specified in the First
Offer Notice during the 90-day period immediately following the date on which
the First Offer Notice was delivered to the Company and the Holder Offerees.
Any Voting Securities not Transferred within such 90-day period will be subject
to the provisions of this Section 5.2(b) upon subsequent Transfer.
(c) Permitted Transfers. The restrictions on Transfer contained in
Sections 5.1(a) and (b) shall not apply with respect to any Transfer of Voting
Securities (A) in the case of a Holder which is a natural Person, pursuant to
applicable laws of descent and distribution or to any member of such Holder's
Family Group who agrees to be subject to the Stockholder Agreement, (B) in the
case of a Holder other than a natural person, among its Affiliates who agree to
be subject to this Stockholder Agreement, or (C) to employees or management of
the Company.
Section 5.2 Legend. To the extent the Voting Securities have not been
registered under the Securities Act in addition to the other restrictions on
Transfer contained in this Agreement, such Voting Securities cannot be sold
unless subsequently registered under the Securities Act or an
8
exemption from such registration is then available. Each certificate for any
unregistered Voting Securities shall be stamped or otherwise imprinted with a
legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR IN THE ABSENCE OF AN EXEMPTION FROM
REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER SPECIFIED IN A STOCKHOLDERS' AGREEMENT. THE COMPANY
RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH SECURITIES
UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH
TRANSFER. A COPY OF SUCH CONDITIONS SHALL BE FURNISHED BY THE
COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT
CHARGE."
The Company may imprint such legend on certificates (if any) evidencing
Voting Securities held by a Holder. The legend set forth above shall be removed
from the certificates (if any) evidencing any Voting Securities only in
accordance with the terms and conditions hereof.
Section 5.3. Preemptive Rights. The Company will not make any offer for
sale of its Voting Securities other than in a public offer, in connection with
an acquisition or pursuant to employee benefit plan or arrangement, unless it
first offers in writing to sell to each Holder, on the same terms and conditions
and at the equivalent price, a number of shares of Voting Securities which would
enable the Holder to retain the same proportionate ownership of Voting
Securities that it holds prior to such offering.
ARTICLE VI
Registration Rights
Section 6.1 The Company agrees to execute the registration rights
agreement attached hereto as Exhibit II.
ARTICLE VII
Termination
Section 7.1 Termination. The provisions of this Agreement shall
terminate and be of no force and effect if the LLC Merger does not become
effective. In addition, the provisions of this Agreement shall terminate on the
tenth anniversary of the date of this Agreement.
9
ARTICLE VIII
Miscellaneous
Section 8.1 Notices. Any notices or other communications required or
permitted hereunder shall be in writing, and shall be sufficiently given if made
by hand delivery, by telex, by telecopier or registered or certified mail,
postage prepaid, return receipt requested, addressed as follows (or at such
other address as may be substituted by notice given as herein provided):
If to the Company:
HealthExtras, Inc.
0000 Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx
With copies to:
Xxxxxxx, Xxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: 000-000-0000
Attention: Xxxxxx Xxxxxxxx, Esq.
If to any Holder, at its address listed on the signature pages hereof.
Any notice or communication hereunder shall be deemed to have been given or
made as of the date so delivered if personally delivered; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and five (5) calendar days
after mailing if sent by registered or certified mail (except that a notice of
change of address shall not be deemed to have been given until actually received
by the addressee).
Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
Section 8.2 Governing Law. THIS STOCKHOLDERS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
Section 8.3 Successors and Assigns. Whether or not an express
assignment has been made pursuant to the provisions of this Stockholders
Agreement, provisions of this Stockholders Agreement that are for the Holders'
benefit as the holders of any Voting Securities are also for the
10
benefit of, and enforceable by, all subsequent holders of Voting Securities who
become Holders, except as otherwise expressly provided herein. This Stockholders
Agreement shall be binding upon the Company, each Holder, and their respective
successors and assigns.
Section 8.4 Duplicate Originals. All Parties may sign any number of
copies of this Stockholders Agreement. Each signed copy shall be an original,
but all of them together shall represent the same agreement.
Section 8.5 Severability. In case any provision in this Stockholders
Agreement shall be held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and the remaining provisions shall not in any way be affected or
impaired thereby.
Section 8.6 No Waivers; Amendments.
(a) No failure or delay on the part of the Company or any Holder in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the Company or
any Holder at law or in equity or otherwise.
(b) Any provision of this Stockholders Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed by
the Company and the Required Holders; provided, however, that no such amendment
or waiver shall, (i) unless signed by all of the Holders, amend the provisions
of Section 2.1, (ii) (A) unless signed by the Holders of a majority of the
Common Stock held by the Capital Z Group, adversely affect the rights of the
Capital Z Group or the Capital Z Group Designees under Article III, IV or V or
(B) unless signed by the Holders of a majority of the Common Stock held by the
Highland Group, adversely affect the rights of the Highland Group or the
Highland Group Designees under Article III, IV or V (iii) unless signed by all
of the Holders affected, (A) amend the provisions of this Section 8.6(b) or (B)
change the number of Holders which shall be required for the Holders or any of
them to take any action under this Section 8.6(b) or any other provision of this
Stockholders Agreement, and (iv) unless signed by a majority of the Holders
affected adversely amend any provision of Article IV, Article V, or Article VI,
or grant a waiver thereunder.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
11
IN WITNESS WHEREOF, the Parties hereto have caused this Stockholders
Agreement to be executed by their duly authorized representatives on this __ day
of _______, 1999.
HIGHLAND INVESTMENTS, LLC
By: ____________________________________
Xxxxxx X. Xxxxx
Representative
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
HEALTHEXTRAS, LLC
By: ____________________________________
Xxxxx X. Xxxxx
Chief Executive Officer
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
HEALTHEXTRAS, INC.
By: ____________________________________
Xxxxx X. Xxxxx
Chief Executive Officer
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx, Xxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
12
PRINCIPAL HOLDING COMPANY
By: ____________________________________
Xxxxxx X. Xxxx
Senior Vice President
000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
XXXXXX X. XXXXX
By: ____________________________________
Xxxxxx X. Xxxxx
00000 Xxxxxxxx Xxxx Xx.
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
HEALTH PARTNERS
By: ____________________________________
___________________
00 Xxxxxxxx Xx.
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
13
CAPITAL Z FINANCIAL SERVICES FUND II, L.P.
and
CAPITAL Z FINANCIAL SERVICES PRIVATE
FUND II, L.P.
By: ______________________________________
CAPITAL Z PARTNERS, LTD. their ultimate
general partner
By: _____________________________________
___________________
00 Xxxxxxxx Xx.
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
CAPITAL Z MANAGEMENT, LLC
By: ____________________________________
___________________
00 Xxxxxxxx Xx.
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
14
