EXHIBIT 10.15B
EMAGEON UV, INC.
SECOND AMENDMENT AND JOINDER TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THIS SECOND AMENDMENT AND JOINDER ("Second Amendment") to the Amended
and Restated Stockholders Agreement of Emageon UV, Inc., dated October 2, 2001,
as amended by the First Amendment and Joinder to the Amended and Restated
Stockholders Agreement, dated May 30, 2003 (collectively, the "Agreement"), is
made as of June 25, 2003, by and among EMAGEON UV, INC., a Delaware corporation
(the "Company") and those holders of the Company's Common Stock, Series A
Preferred Stock, Series B Preferred Stock, Series B-1 Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock that are parties to the Agreement,
and the undersigned parties holding all of the Company's outstanding shares of
Series E Preferred Stock. Capitalized terms used herein but not otherwise
defined shall have the meanings given to such terms in the Agreement.
WITNESSETH:
WHEREAS, the Common Stockholders, Series A Investors, Series B
Investors, Series B-1 Investors, Series C Investors and Series D Investors
(collectively, the "Existing Parties") are parties to the Agreement;
WHEREAS, the Company and the Series E Investors have entered into a
Series E Preferred Stock Purchase Agreement of even date herewith pursuant to
which the Company desires to sell to the Series E Investors and the Series E
Investors desire to purchase from the Company shares of the Company's Series E
Preferred Stock;
WHEREAS, a condition to the Series E Investors' obligations under the
Series E Preferred Stock Purchase Agreement is that the Company, the Existing
Parties and the Series E Investors become parties to the Agreement in order to
provide the Series E Investors with certain rights and to address certain
matters relating to the governance of the Company;
WHEREAS, pursuant to Section 15(e) of the Agreement, any term of the
Agreement may be amended with the written consent of (i) the Company, (ii) the
Investors (or their transferees) holding a majority of the outstanding shares of
Preferred Stock (voting together as a single class) and (iii) the Common
Stockholders (or their transferees) holding a majority of the outstanding shares
of Common Stock, and any amendment effected in accordance with Section 15(e) of
the Agreement shall be binding upon the Company, the Common Stockholders and the
Investors and each of their future transferees;
WHEREAS, the Company desires to amend the Agreement;
WHEREAS, the undersigned Existing Parties, which hold a majority of the
outstanding shares of Preferred Stock and a majority of the outstanding shares
of Common Stock, desire to amend the Agreement; and
WHEREAS, the undersigned holders of all of the outstanding shares of
the Company's Series E Preferred Stock desire to become parties to the
Agreement, as amended by this Second Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual terms
and conditions set forth herein, it is hereby agreed by and among the Company,
the Common Stockholders, the Series A Investors, Series B Investors, Series B-1
Investors, Series C Investors and Series D Investors that the Agreement is
hereby amended in accordance with this Second Amendment, and the undersigned
holders of all of the outstanding shares of the Company's Series E Preferred
Stock shall become parties to the Agreement, as amended by this Second
Amendment:
1. AMENDMENTS.
(A) The initial paragraph of the Agreement is hereby deleted in
its entirety and replaced with the following:
"THIS AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
("Agreement"), made this 2nd day of October, 2001, by and
among EMAGEON UV, INC., a Delaware corporation (the
"Company"); those holders of the Company's Common Stock
listed on Schedule 1 attached hereto (the "Common
Stockholders"); those holders of the Company's Series A
Preferred Stock listed on Schedule 2 attached hereto (the
"Series A Investors"); those holders of the Company's Series
B Preferred Stock listed on Schedule 3 attached hereto (the
"Series B Investors"); those holders of the Company's Series
B-1 Preferred Stock listed on Schedule 4 attached hereto (the
"Series B-1 Investors"); those holders of the Company's
Series C Preferred Stock listed on Schedule 5 attached hereto
(the "Series C Investors"); those holders of the Company's
Series D Preferred Stock listed on Schedule 6 attached hereto
(the "Series D Investors"); and those holders of the
Company's Series E Preferred Stock listed on Schedule 7
attached hereto (the "Series E Investors", and together with
the Series A Investors, the Series B Investors, the Series
B-1 Investors, the Series C Investors and Series D Investors
collectively, the "Investors")."
(B) The third "WHEREAS" clause of the Agreement is hereby deleted
in its entirety and replaced with the following:
"WHEREAS, the Series A Investors are the holders of all of
the issued and outstanding shares of the Company's Series A
Preferred Stock, $0.001 par value (the "Series A Preferred"),
the Series B Investors are the holders of all of the issued
and outstanding shares of the Company's Series B Preferred
Stock, $0.001 par value (the "Series B Preferred"), the
Series B-1 Investors are the holders of all of the issued and
outstanding shares of the Company's Series B-1 Preferred
Stock, $0.001 par value (the "Series B-1 Preferred"), the
Series C Investors are the holders of all of the issued and
outstanding shares of the Company's Series C Preferred Stock,
$0.001 par value (the "Series C Preferred"), the Series D
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Investors are the holders of all of the issued and
outstanding shares of the Company's Series D Preferred Stock,
$0.001 par value (the "Series D Preferred"), and the Series E
Investors are the holders of all of the issued and
outstanding shares of the Company's Series E Preferred Stock,
$0.001 par value (the "Series E Preferred", and together with
the Series A Preferred, Series B Preferred, Series B-1
Preferred, Series C Preferred and Series D Preferred,
collectively, the "Preferred Stock")."
(C) Section 2(d) of the Agreement is hereby deleted in its
entirety and replaced with the following:
"(D) OFFER TO SERIES B INVESTORS, SERIES B-1 INVESTORS,
SERIES C INVESTORS, SERIES D INVESTORS AND SERIES E
INVESTORS. In the event the Company shall decide not to
purchase all the Offered Shares, Company shall notify each of
the Series B Investors, Series B-1 Investors, Series C
Investors, Series D Investors and Series E Investors of such
decision within thirty (30) days after receipt of the Notice.
The Series B Investors, Series B-1 Investors, Series C
Investors, Series D Investors and Series E Investors shall
have the right to purchase all (or any portion) of the
Offered Shares in accordance with the terms set forth in the
Notice on a pro rata basis determined by each such party's
proportionate ownership interest of all outstanding Shares
held by the Series B Investors, Series B-1 Investors, Series
C Investors, Series D Investors and Series E Investors. In
the event a Series B Investor, Series B-1 Investor, Series C
Investor, Series D Investor or Series E Investor elects not
to acquire its (or their) entire proportionate interest, the
remaining Series B Investors, Series B-1 Investors, Series C
Investors, Series D Investors and Series E Investors shall be
entitled to acquire the remainder of such interest on a pro
rata basis as described above; provided, however, that such
Investors must notify the Selling Stockholder (and the
Company) of their intention to purchase such shares within
thirty (30) days from the date the Notice was delivered to
the Company and the Series B Investors, Series B-1 Investors,
Series C Investors, Series D Investors and Series E
Investors. Investors holding a majority of the issued and
outstanding Series B Preferred, Series B-1 Preferred, Series
C Preferred, Series D Preferred and Series E Preferred
(voting together as a single class) may waive for such
Investors the rights of first refusal contained herein if
such Investors deem the transfer of the Offered Shares of the
Selling Stockholder to the person named in the Notice to be
in the best interest of the Investors and/or Company."
(D) The first sentence of Section 2(e) of the Agreement is hereby
deleted in its entirety and replaced with the following:
"In the event the Company, the Series B Investors, Series B-1
Investors, Series C Investors, Series D Investors and Series
E Investors shall decide not to purchase all the Offered
Shares, Company shall notify each of the Series A Investors
and Common Stockholders of such decision within thirty (30)
days after receipt of the Notice."
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(E) The first sentence of Section 3(a) of the Agreement is hereby
deleted in its entirety and replaced with the following:
"In the event of a Sale of the Company, as hereinafter
defined, which is approved by the holders of at least 60% of
the then-outstanding Series B Preferred, Series B-1
Preferred, Series C Preferred, Series D Preferred and Series
E Preferred (voting together as a single class on an
as-converted basis), each Investor and each Common
Stockholder shall vote all shares of Preferred Stock and/or
Common Stock (including Shares of Common Stock issued upon
conversion of Preferred Stock) held by him or it in favor of
the Sale of the Company."
(F) Section 5 of the Agreement is hereby deleted in its entirety
and replaced with the following:
"5. PROHIBITION AGAINST PLEDGE OF STOCK. No Common
Stockholder or Investor shall pledge, hypothecate or grant a
security interest in all or any part of the Shares (other
than pledges, hypothecations or security interests granted to
lenders in connection with loans to purchase Shares) without
the consent of the holders of at least 60% of the Series B
Preferred, Series B-1 Preferred, Series C Preferred, Series D
Preferred and Series E Preferred (voting together as a single
class)."
(G) Section 7(h) is hereby deleted in its entirety and replaced
with the following:
"(H) BOARD EXPENSES. Company shall pay all direct
out-of-pocket expenses reasonably incurred by directors and
those with observer rights under Section 7(j) herein in
attending each meeting of the Board of Directors or any
committee thereof."
(H) The first sentence of Section 7(j) of the Agreement is hereby
deleted in its entirety and replaced with the following:
"Each of STF Institutional Partners II, L.P. and Ascension
Health Ventures, LLC shall have the non-assignable right to send one
(1) representative to attend in a nonvoting observer capacity to all
meetings of the Board of Directors (whether held in person or by other
means)."
(I) Section 8(a)(i) is hereby deleted in its entirety and replaced
with the following:
"(i) Reports and Notifications to be Delivered by Company.
Unless waived, Company shall furnish to each Investor the
following reports and notices so long as such holder
continues to hold at least 40,000 Shares (as adjusted for
stock dividends, combinations, or splits) of Preferred Stock;
provided, that, in the case of affiliated Series A Investors,
Series B Investors, Series B-1 Investors, Series C Investors,
Series D Investors or Series E Investors, Company shall only
be obligated to furnish the following reports and notices to
one representative of such affiliated Series A Investors,
Series B Investors, Series B-1 Investors, Series C
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Investors, Series D Investors or Series E Investors. For
purposes of this Section 8(a)(i), Xxxx Brothers Health
Ventures and Ascension Health shall not be considered
affiliated."
(J) Section 8(b)(xvii) is hereby deleted in its entirety and
replaced with the following:
"(xvii) Key Man Insurance. Company shall maintain or
cause to be maintained, in Company's own name, with
financially sound and reputable insurers, life insurance in
an amount not less than One Million Dollars ($1,000,000) on
each of the lives of Xxxx, Xxxx X. York ("York") and Xxxx
Xxxxxxx (on or before July 30, 2003), for such period of time
as each is employed by Company or is an officer or director
of Company. Such policies shall be owned by Company and all
benefits thereunder shall be payable to Company."
(K) Section 8(b)(xx) is hereby deleted in its entirety and
replaced with the following:
"(xx) Fees and Expenses. Company shall reimburse Investors
upon demand for all reasonable costs and expenses (including
reasonable attorneys' fees and expenses) incurred by
Investors, or any successor thereto, in enforcing the
obligations of Company under this Agreement, the Series B
Purchase Agreement, the Series C Purchase Agreement or the
Series E Purchase Agreement."
(L) Section 9(a) is hereby deleted in its entirety and replaced
with the following:
"(a) Grant of Preemptive Rights. Except as set forth in
Section 9(c) hereof, in the event the Company shall issue or
sell any shares of Common Stock, any rights or options to
purchase Common Stock, or any debt or shares convertible into
or exchangeable for Common Stock, whether now or hereafter
authorized and whether unissued or in treasury (collectively,
"Preemptive Shares"), each Investor who at such time holds
any Preferred Stock (a "Preemptive Investor") shall have the
right to acquire, at a price no less favorable than that at
which such shares, rights, options or obligations are to be
offered to others, a proportion of the offered shares,
rights, options or obligations as provided in Section 9(b).
This Section 9 shall not be construed to limit in any manner
any restrictions on the sale of securities of the Company set
forth in the Certificate or elsewhere in this Agreement.
(M) Section 9(b) is hereby deleted in its entirety and replaced
with the following:
"(b) Method of Exercising Preemptive Right. The Company
shall give each Preemptive Investor written notice of any
issuance or sale to which the rights granted in Section 9(a)
apply (a "Subject Issuance"), in advance thereof or promptly
thereafter, and each such Preemptive Investor shall have
twenty (20) days from the giving of such notice within which
to elect to acquire such number of Preemptive Shares (of the
same class or series, and having the same relative rights and
preferences, as the securities offered in the Subject
Issuance) which
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shall be determined when such Preemptive Investor's
percentage ownership of the outstanding Common Stock (which
shall be determined as if all outstanding Preferred Stock had
been converted into Common Stock) immediately preceding the
Subject Issuance is multiplied by the aggregate number of
Preemptive Shares referred to in the Company's notice
("Initial Preemptive Right"). If any transaction specified by
the Company in any such notice shall be consummated after the
date that is six (6) months after the date of such notice,
the Company shall again comply with the provisions of this
Section 9(b) with respect to such transaction, and all
Preemptive Investors shall again have preemptive rights
hereunder with respect thereto, regardless of whether any
such Preemptive Investor had previously exercised or failed
to exercise such rights. Any purchase of securities pursuant
to the exercise of preemptive rights hereunder with respect
to a Subject Issuance that has not been consummated at the
time the Company's notice is given shall be consummated
simultaneously with, and shall be conditioned upon,
consummation of the transaction proposed by the Company."
(N) Section 15(d) is hereby amended by adding the following new
clause (vi) after clause (v):
"(vi) if to a Series E Investor, at such Series E
Investor's address as set forth on Schedule 7 attached
hereto, or at such other address as such Series E Investor
shall have furnished to the other parties hereto in writing."
(O) The last sentence of Section 15(e) is hereby deleted in its
entirety and replaced with the following:
"Notwithstanding anything to the contrary in this Section
15(e), the Company shall be entitled to add additional
purchasers of Shares of its Preferred Stock pursuant to
Section 2.1 of the Series E Preferred Stock Purchase
Agreement, dated as of June 25, 2003, as parties to this
Agreement as and in the manner set forth in such Section 2.1,
and each such additional purchaser shall thereafter be deemed
to be a Series E Investor for all purposes hereunder."
(P) A new Schedule 7 is hereby added to the Agreement in the form
attached as EXHIBIT A hereto.
2. JOINDER. Each undersigned holder of Series E Preferred hereby agrees
that upon execution of this Second Amendment by such person or entity, such
person or entity shall become a party to the Agreement, as amended by this
Second Amendment, and shall be fully bound by, and subject to, all of the
covenants, terms and conditions of the Agreement, as amended by this Second
Amendment, as though such person or entity were an original party thereto and
shall be deemed a Series E Investor for all purposes thereof.
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3. GENERAL PROVISIONS.
(A) NO OTHER AMENDMENTS. Except for the amendments contained in
SECTION 1 of this Second Amendment, the Agreement shall remain in full force and
effect.
(B) AUTHORIZATION. Each Common Stockholder and Investor (which
term shall include the undersigned holders of the Series E Preferred Shares)
hereby represents and warrants to the Company and to each other that (i) such
Common Stockholder or Investor has full power and authority to execute, to
deliver and to perform such Common Stockholder's or Investor's obligations under
this Second Amendment; and (ii) the execution and delivery of this Second
Amendment has been duly and validly authorized, and all necessary action has
been taken to make this Second Amendment a valid and binding obligation of such
Common Stockholder or Investor, enforceable in accordance with its terms, except
that the enforcement thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and to general principles of equity
(regardless of whether such enforcement is considered a proceeding in equity or
at law).
(C) GOVERNING LAW. This Second Amendment shall be governed by and
construed under the laws of the State of Delaware, as applied to agreements
among Delaware residents made and to be performed entirely within the State of
Delaware, and without regard to the conflicts of law principles as may otherwise
be applicable.
(D) BINDING ON SUCCESSORS. This Second Amendment shall bind and
inure to the benefit of the parties hereto, their respective heirs, executors,
administrators, successors and permitted assigns.
(E) COUNTERPARTS AND SIGNATURE BY FACSIMILE. This Second Amendment
may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. The facsimile signature of any party to this Second Amendment for
purposes of execution or otherwise is to be considered as an original signature,
and the document transmitted is to be considered to have the same binding effect
as an original signature on an original document. At the request of any party,
any facsimile or telecopy document is to be re-executed in original form by the
parties who executed the facsimile or telecopy document. No party may raise the
use of a facsimile machine or telecopier or the fact that any signature was
transmitted through the use of a facsimile or telecopier machine as a defense to
the enforcement of this Second Amendment or any notice required thereof.
[THE FOLLOWING PAGE IS THE SIGNATURE PAGE]
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IN WITNESS WHEREOF, the parties have executed this Amendment under seal
as of the day and year first above written.
COMPANY:
EMAGEON UV, INC.
By: /s/ Xxxxxxx X. Xxxx, Xx.
-------------------------------------
Xxxxxxx X. Xxxx, Xx., President
[Individual Signature Pages of Stockholders Omitted]
EXHIBIT A
SCHEDULE 7
SERIES E INVESTORS
Ascension Health
0000 Xxxxxxxxx Xxxx
Xx. Xxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
CB Healthcare Fund II, L.P.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000 x0000
Facsimile: 000-000-0000
CB-AH Parallel Fund II, L.P.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000 x0000
Facsimile: 000-000-0000
Southeastern Technology Fund, L.P.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
STF Partners II, L.P.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
STF Partners QP II, L.P.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
STF Institutional Partners II, L.P.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
The Permanente Federation LLC
0000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
Xxxxxx Foundation Hospitals
0000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
Harbinger/Aurora Venture Fund, L.L.C.
Xxx Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
Harbinger/Aurora QP Venture Fund, L.L.C.
Xxx Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
Xxxx X. Xxxxxxxx
Xxxxxxxx Xxxxx Investment 5th Floor
1200 Xxxx X. Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
R. Xxxx Xxxxx
0000 0xx Xxxxxx
Xxxxxx, XX 00000
Xxx Xxxxxxx
0000 X. Xxxxxx Xxx.
Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxxxx
0000 Xxxxxxxx Xx.
Xxxxxxx, XX 00000
Xxxxxxx Xxxxx & Xxxxxx Xxxxxxxx
0000 Xxxxx Xxx Xxxxx
Xxxxxx, XX 00000
Xxxxxx Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxx Xxxxxxxxx
0000 Xxxxxx Xxxxx Xx
Xxxxxxxxx, XX 00000
GFP Ultravisual LLC
Attn: Xx. Xxxxx X. Xxxxxxxxx
00000 X Xxxx Xxxxxxxxxx Xx., Xxx. 000
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxxx
000 Xxxxxxxxx Xx.
Xxxxxxx, XX 00000
Xxxx Xxxxxxx
0000 X. Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Xxxxx Case
X0000 Xxxxxxxx Xx
Xxxxxxxxx, XX 00000
Mehta Revocable Trust
0000 Xxxxxxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Xxxxxx Xxxxx, M.D.
000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxx Xxxx
0000 Xxxx Xxxxxxx Xx.
Xxxxxxx, XX 00000
Xxxxx Xxxxxxxx
0000 Xxxxxxx Xx
Xxx Xxxxxxx, XX 00000-0000
Xxxxxxx X. Xxxxx
X 0000 Xxxxxx Xx.
Xxxxxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx CLU Ltd.
000 X Xxxxxxxx #000
Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxx Xxxxxxxx
0000 Xxxxx Xxxxx Xx.
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxx
Suite 301 First Federal
000 Xxxxx Xx
Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx
0000 X. 00xx Xx.
Xxxx Xxxxx, XX 00000
Xxxxxx and Xxxx Xxxxxxx Foundation
Attn: Xx. Xxxxx X. Xxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Xxxxx X. Xxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxxxxxx and Xxxxxx X. Xxxxxxxxxxx
Family Trust
W 0000 Xxxxxxx Xx.
Xxxxxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx
000 Xxxxxxx Xxxx Xxxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000
Facsimile: 251-578-2427
Richgood Corporation
000 Xxxxxx Xxxx Xx., Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
Greystone Capital Partners I, LLC
0000 0xx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
Xxxxxxx Investment Co., Inc.
0000 Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
Xxxxx X. Xxxxx
0000 Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
Xxxxxx Investment LLC
X.X. Xxx 000
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
