EXHIBIT 99.3
EXECUTION COPY
AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT (this "Agreement") made
this 24th day of March, 2003, by and among (i) Occupational Health +
Rehabilitation Inc, a Delaware corporation (the "Company"), (ii) the individuals
and entities listed under the heading "Holders" on Schedule I attached hereto,
and (iii) those persons whose names are set forth under the heading "Investors"
on Schedule I hereto (the "Investors").
WHEREAS, the Investors acquired an aggregate of 1,416,667 shares of
Series A Convertible Preferred Stock, par value $.001 per share, of the Company
(the "Series A Preferred Stock") pursuant to a certain Series A Convertible
Preferred Stock Purchase Agreement dated as of November 6, 1996, by and among
the Investors and the Company (the "Purchase Agreement");
WHEREAS, in connection with the sale of the Series A Preferred Stock,
the Company entered into a Stockholders' Agreement dated as of November 6, 1996
with the Holders and the Investors (the "Prior Agreement");
WHEREAS, the Investors and the Company are, on the date hereof, entering
into a Series A Convertible Stock Repurchase Agreement (the "Repurchase
Agreement") pursuant to which the Company shall repurchase the Series A
Preferred Stock held by the Investors in exchange for consideration that
includes shares of the Company's Common Stock, par value $.001 per share;
WHEREAS, the Investors, the Holders and the Company have agreed that it
is in the best interest of the Company to amend and restate the Prior Agreement
to grant certain rights to the Investors with respect to the composition of the
Board of Directors; and
WHEREAS, pursuant to Section 7 of the Prior Agreement, amendments to the
Prior Agreement may be made with the written consent of the Company, Investors
holding a majority of the Series A Preferred Stock and Holders holding a
majority of the Common Stock subject to the Prior Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Company, the Holders and the Investors
agree as follows:
1. Board of Directors.
(a) Election of Directors. Each of the parties hereto agrees to vote
all of the Stock (as hereinafter defined) of the Company now owned or hereafter
acquired by such party (and attend, in person or by proxy, all meetings of
stockholders called for the purpose of electing directors), and the Company
agrees to take all actions (including, but not limited to the nomination of
specified persons) to cause and maintain the election to the Board of Directors
of the Company,
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to the extent permitted pursuant to the Company's Restated Certificate of
Incorporation, as amended, as set forth below:
(i) the Chief Executive Officer of the Company, who
initially is Xxxx X. Xxxxxxxxx;
(ii) a person designated by the Chief Executive Officer of
the Company, who shall initially be Xxxxx X. Xxxxxx;
(iii) a person designated by those persons designated as OH+R
Principal Stockholders on Schedule II hereto by a majority in interest of Stock
held by them, who shall initially be Xxxxx X. Xxxxxxxxx;
(iv) two persons designated by Xxxxxx, Xxxxxxx Strategic
Partners Fund, L.P. and Strategic Associates, L.P., one of whom shall initially
be Xxxxxx X. Xxxxxx and the other of whom shall initially be Xxxxxx X. Xxxxxx
(the "Xxxxxx Directors"), and
(v) two persons who shall be unaffiliated with the
management of the Company and mutually agreeable to all of the other directors,
one of whom shall initially be Xxxxx X. Xxxxx and the other of whom shall
initially be Xxxxxx X. Xxxxxxxxx.
Each of the parties further covenants and agrees to vote, to the
extent possible, all shares of Stock of the Company now owned or hereafter
acquired by such party so that the Company's Board of Directors shall consist of
no more than seven (7) members. For the purposes of this Agreement, "Stock"
shall mean and include all shares of Common Stock, and all other securities of
the Company which may be exchangeable for or issued in exchange for or in
respect of shares of Common Stock (whether by way of stock split, stock
dividend, combination, reclassification, reorganization or any other means).
In the absence of any designation from the persons or groups so
designating directors as specified above, the director previously designated by
them and then serving shall be reelected if still eligible to serve as provided
herein.
No party hereto shall vote to remove any member of the Board of
Directors designated in accordance with the aforesaid procedure unless the
persons or groups so designating directors as specified above so vote, and, if
such persons or groups so vote then the non-designating party or parties shall
likewise so vote.
Any vacancy on the Board of Directors created by the
resignation, removal, incapacity or death of any person designated under this
Section 1 shall be filled by another person designated in a manner so as to
preserve the constituency of the Board as provided above.
If any party to this Agreement shall fail to vote such party's
Stock as provided in this Agreement, without further action by such party, the
President of the Company shall be, and hereby is, irrevocably constituted the
attorney-in-fact and proxy of such party for the purpose of
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voting the shares of such Stock and shall vote the same in accordance with the
terms of this Agreement and is hereby authorized to revoke any proxy providing
for any other vote of such shares with respect to the election of directors.
(b) Committees of the Board of Directors. The membership of each
committee of the Board of Directors shall at all times include one of the Xxxxxx
Directors.
2. Termination. This Agreement, and the respective rights and
obligations of the parties hereto, shall terminate upon the earliest to occur of
the following: (i) the date on which the Investors no longer hold either the
Promissory Notes issued to the Investors pursuant to the Repurchase Agreement or
at least fifty percent (50%) of the shares of Common Stock issued to the
Investors pursuant to the Repurchase Agreement; (ii) a firm commitment
underwritten public offering of shares of Common Stock; (iii) the sale of the
Company, whether by merger, sale, or transfer of more than eighty percent (80%)
of its capital stock, or sale of substantially all of its assets; or (iv) the
date on which the Company's Common Stock is listed on a securities exchange or
the Nasdaq Stock Market if termination of this Agreement is required to be so
listed.
3. Notices. All notices, requests, demands and other communications
provided for hereunder shall be in writing (including electronic communication)
and delivered personally, or by overnight courier, or by facsimile or other
electronic means or sent by certified or registered United States mail, postage
prepaid, return receipt requested and addressed as follows:
If to any Investor: at such Investor's address for notice as set forth
in the register maintained by the Company, or, as to each of the foregoing, at
the addresses set forth on Schedule I hereto or at such other address as shall
be designated by such Person in a written notice to the other parties complying
as to delivery with the terms of this Section, with a copy to Xxxxxxx X.
Xxxxxxx, Esq., Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, High Street Tower, 000 Xxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
If to the Company: at 000 Xxxxx Xxxxxx, Xxxxx 00, Xxxxxxx, Xxxxxxxxxxxxx
00000, or at such other address as shall be designated by the Company in a
written notice to the other parties complying as to delivery with the terms of
this Section, with a copy to Xxxxx X. Xxxxxx, Esq., Xxxxxxx & Xxxxxxx LLP, Xxx
Xxxxxxxx Xxx, Xxxxxxxx, XX 00000.
All such notices, requests, demands and other communications shall be
effective three days after deposited in the mails or upon receipt when delivered
electronically, by facsimile, by hand or by overnight courier, respectively,
addressed as aforesaid, unless otherwise provided herein.
4. Specific Performance. The rights of the parties under this
Agreement are unique and, accordingly, the parties shall, in addition to such
other remedies as may be available to any of them at law or in equity, have the
right to enforce their rights hereunder by actions for specific performance to
the extent permitted by law.
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5. Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings between them or any of them
as to such subject matter, including, without limitation, the Prior Agreement.
6. Waivers and Further Agreements. Any of the provisions of this
Agreement may be waived with the consent of the Investors holding a majority in
interest of the issued and outstanding shares of Common Stock issued to the
Investors pursuant to the Repurchase Agreement by an instrument in writing. Any
waiver by any party of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent breach of that provision
or of any other provision hereof. Each of the parties hereto agrees to execute
all such further instruments and documents and to take all such further action
as any other party may reasonably require in order to effectuate the terms and
purposes of this Agreement. Notwithstanding the foregoing, no waiver approved in
accordance herewith shall be effective if and to the extent that such waiver
grants to any one or more Investors any rights more favorable than any rights
granted to all other Investors or otherwise treats any one or more Investors
differently than all other Investors.
7. Amendments. Except as otherwise expressly provided herein, this
Agreement may not be amended except by an instrument in writing executed by (i)
the Company, (ii) Investors holding a majority in interest of the issued and
outstanding shares of Common Stock issued to the Investors pursuant to the
Repurchase Agreement, and (iii) Holders holding a majority of the shares of
Common Stock subject to this Agreement. Notwithstanding the foregoing, no such
amendment shall be effective if and to the extent that such amendment creates
any additional affirmative obligations to be complied with by any or all of the
Investors.
8. Assignment; Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, executors, legal representatives, successors and permitted
transferees.
9. Severability. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, and such invalid,
illegal and unenforceable provision shall be reformed and construed so that it
will be valid, legal, and enforceable to the maximum extent permitted by law.
10. Counterparts. This Agreement 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.
11. Section Headings. The headings contained in this Agreement are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
12. Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the General Corporation Law of the State of
Delaware as to matters within
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the scope thereof, and as to all other matters shall be governed by and
construed in accordance with the internal laws of the Commonwealth of
Massachusetts.
13. Legend. The certificates representing the shares of Common Stock
issued to the Investors pursuant to the Repurchase Agreement shall bear a legend
substantially in the following form:
"The shares represented by this certificate are subject to the terms and
conditions of an Amended and Restated Stockholders' Agreement dated as of March
24, 2003, a copy of which will be furnished to any interested party upon written
request without charge."
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IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as a sealed instrument as of the day and date first above written.
INVESTORS: THE COMPANY:
XXXXXX, XXXXXXX STRATEGIC OCCUPATIONAL HEALTH +
PARTNERS FUND, L.P. REHABILITATION INC
By: Xxxxxx, Xxxxxxx Strategic Partners, L.P.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxx
----------------------------------------------- -----------------------------------------------
Title: General Partner Title: CFO
AXA U.S. GROWTH FUND LLC HOLDERS:
STRATEGIC ASSOCIATES, L.P.
By: /s/ Xxxxxx X. XxXxxxxx
----------------------------------------------- By: Xxxxxx, Xxxxxxx Strategic Partners, L.P.
Title: Managing Member
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
PANTHEON GLOBAL PCC LIMITED Title: General Partner
By: /s/ Xxxxxx Xxxx *THE VENTURE CAPITAL FUND OF
----------------------------------------------- NEW ENGLAND III, L.P.
Title: Alternate Director
By: FH & Co. III, L.P., Its General Partner
DOUBLE BLACK DIAMOND II LLC By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------------
Title: General Partner
By: /s/ Xxxxxx X. XxXxxxxx
-----------------------------------------------
Title: Managing Member
*BANCBOSTON VENTURES, INC.
/s/ Xxxxxx X. XxXxxxxx
-------------------------------------------------- By: /s/ Xxxx XxXxxxxxx
Xxxxxxx Worms, signed by Xxxxxx X. -----------------------------------------------
XxXxxxxx pursuant to a power of attorney Title: Vice President
/s/ Xxxx X. Xxxxxxxxx
--------------------------------------------------
Xxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxx
--------------------------------------------------
Xxxxx X. Xxxxx
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*VENROCK ASSOCIATES
*VENROCK ASSOCIATES II, L.P.
By: /s/ Xxxxxxx X. Envin
-----------------------------------------------
Title: General Partner
*ASSET MANAGEMENT ASSOCIATES,
1989, L.P.
By: AMC Partners 89, L.P., General Partner
By: /s/ Xxxxx Xxxxxx
-----------------------------------------------
Title: General Partner
*In their capacities as Holders and Investors
hereunder
SCHEDULE I
OCCUPATIONAL HEALTH + REHABILITATION INC
HOLDERS
The Venture Capital Fund of New England III, L.P.
BancBoston Ventures, Inc.
Xxxx X. Xxxxxxxxx
Xxxxx X. Xxxxx
Venrock Associates
Venrock Associates II, L.P.
Asset Management Associates, 1989, L.P.
INVESTORS
Xxxxxx, Xxxxxxx Strategic Partners Fund, L.P.
Xxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
with copy to:
Xxxxxx X. Xxxxxx
HLM Management
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Strategic Associates, L.P.
Xxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
with copy to:
Xxxxxx X. Xxxxxx
HLM Management
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
AXA U.S. Growth Fund LLC
c/o Partech International
00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. XxXxxxxx
Pantheon Global PCC Limited
Pantheon Ventures, Inc.
Transamerica Center
000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxxxx
Double Black Diamond II, LLC
c/o Partech International
00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. XxXxxxxx
Xxxxxxx Worms
00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Asset Management Associates, 1989, L.P.
Alloy Ventures
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxx Xxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxx
Venrock Associates
Room 5508
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx Xxxxx
Venrock Associates II, L.P.
Room 5508
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx Xxxxx
The Venture Capital Fund of New England, III, L.P.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000-0000
Attn: Xx. Xxxxx X. Xxxxxxxxx
BancBoston Ventures, Inc.
BancBoston Capital
Mail Stop: XX XX 00000X
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xx. Xxxx X. XxXxxxxxx
SCHEDULE II
OCCUPATIONAL HEALTH + REHABILITATION INC
OH+R Principal Stockholders
The Venture Capital Fund of New England III, L.P.
BancBoston Ventures, Inc.
