EXHIBIT 10.2
FIRST AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
dated as of August 1, 2000
between
HEALTHOLOGY, INC.
AND
ITS STOCKHOLDERS
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Table of Contents
Page
Section 1. Board of Directors............................................1
1.1 Number of Directors..................................1
1.2 Election.............................................2
1.3 Committees...........................................3
1.4 Vacancies and Removal................................4
1.5 Voting Cap...........................................4
Section 2. Right of First Refusal; Co-Sale Right.........................5
2.1 Restrictions on Transfer.............................5
2.2 Right of First Refusal...............................5
2.3 Right of Co-Sale.....................................7
2.4 Non-Exercise of Rights...............................8
2.5 Prohibited Transfers.................................9
2.6 Permitted Transfer...................................9
2.7 Assignment..........................................10
Section 3. Restrictions on Transfer.....................................10
3.1 General.............................................10
3.2 Legend..............................................10
3.3 Procedures for Transferring.........................11
3.4 Termination of Restrictions.........................11
Section 4. Certain Corporate Actions....................................11
Section 5. Miscellaneous................................................12
5.1 Lock-Up Agreements..................................12
5.2 Termination.........................................12
5.3 Injunctive Relief...................................12
5.4 Assignment..........................................12
5.5 Successors and Assigns..............................12
5.6 Entire Agreement....................................13
5.7 Notices.............................................13
5.8 Modifications; Amendments; Waivers..................13
5.9 Counterparts........................................13
5.10 Headings............................................13
5.11 Severability........................................13
5.12 Governing Law.......................................14
5.13 Representations and Warranties......................14
5.14 Termination of Existing
Stockholders' Agreement.............................14
5.15 Further Assurances..................................14
5.16 WAIVER OF JURY TRIAL................................14
FIRST AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT
FIRST AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT, dated as of August 3rd,
2000, among HEALTHOLOGY, INC., a Delaware corporation (the "Company"), the
stockholders set forth on Schedule I attached hereto (the "Existing
Stockholders"), Le@p Technology, Inc. ("Leap") and Communicade, Inc.
("Communicade") (each of Leap and Communicade, an "Investor," and, collectively
with the Existing Stockholders, the "Stockholders").
WHEREAS, certain of the Stockholders of the Company are currently parties
to the Stockholders' Agreement, dated as of March 1, 2000 (the "Existing
Stockholders' Agreement") between the Company and the signatories thereto;
WHEREAS, one of the conditions to the purchase by Communicade under the
Series B Stock Purchase Agreement, dated as of the date hereof, between
Communicade and the Company (the "Series B Agreement") of the shares of Series B
Convertible Voting Preferred Stock, par value $.01 per share (the "Series B
Preferred Stock"), is the amendment and restatement of the Existing
Stockholders' Agreement;
WHEREAS, upon consummation of the transactions contemplated by the Series B
Stock Agreement the Stockholders will own the number of shares of Common Stock,
par value $.01 per share (the "Common Stock") and the number of shares of Series
A Convertible Voting Preferred Stock, par value $.01 per share (the "Series A
Preferred Stock") and/or the number of shares of Series B Preferred Stock of the
Company as set forth on Schedule I and Schedule II attached hereto
(collectively, the "Shares").
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and the investment by Communicade under the Series B Agreement,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows (capitalized terms used herein and not defined herein have the
meanings set forth in the Series B Agreement):
Section 1. Board of Directors
1.1 Number of Directors.
The authorized number of the Company's Board of Directors (the "Board of
Directors") shall not be more than nine (9). Notwithstanding the foregoing, the
authorized number of directors stated in the prior sentence may be changed upon
the affirmative vote of a majority of the members of the Board of Directors,
which such vote shall include the affirmative vote of one of the Leap Directors
and one of the Communicade Directors (each as defined below).
1.2 Election.
(a) At any time at which Stockholders of the Company will have the right to
or will vote shares of capital stock of the Company in an election of directors,
Xxxxxx X. Xxxxxxxxx, M.D. shall be entitled to cause and maintain the election
to the Board of Directors of one (1) representative. Such representative shall
initially be Xxxxxx X. Xxxxxxxxx, M.D.
(b) At any time at which Stockholders of the Company will have the right to
or will vote shares of capital stock of the Company in an election of directors,
Xxxxxxx Xxxxx, M.D. shall be entitled to cause and maintain the election to the
Board of Directors of one (1) representative. Such representative shall
initially be Xxxxxxx Caleb, M.D.
(c) At any time at which Stockholders of the Company will have the right to
or will vote shares of capital stock of the Company in an election of directors,
Xxxxxx Xxxx and Xxxxxx Xxxx shall be entitled to cause and maintain the election
to the Board of Directors of one (1) representative.
(d) As long as Leap or its Permitted Transferees (as defined below) owns at
least 50% of the aggregate amount of such shares of Series A Preferred Stock
originally purchased, any time at which stockholders of the Company will have
the right to or will vote shares of capital stock of the Company in an election
of directors, the Stockholders shall vote all shares of capital stock of the
Company presently owned or hereafter acquired by them so as to cause and
maintain the election to the Board of Directors of two (2) representatives
designated by Leap. As long as Leap or its Permitted Transferees owns at least
25% of the aggregate amount of such shares of Series A Preferred Stock
originally purchased, any time at which stockholders of the Company will have
the right to or will vote shares of capital stock of the Company in an election
of directors, the Stockholders shall vote all shares of capital stock of the
Company presently owned or hereafter acquired by them so as to cause and
maintain the election to the Board of Directors of one (1) representative
designated by Leap. The Leap representatives shall initially be Xxxxxx X.
Xxxxxxxx, M.D. and Xxxx X. Xxxxxxxxx (the "Leap Directors"), it being understood
that the Stockholders shall not be obligated to vote their shares of capital
stock in favor of more than two (2) such representatives. Notwithstanding the
foregoing, in the event that subsequent to the Closing Date the Company issues
$7.0 million or more in equity securities to one investor, and that investor is
only entitled to designate one (1) director (or no director), then Leap will be
entitled to designate only one (1) director, and the Stockholders shall vote all
shares of capital stock of the Company presently owned or hereafter acquired by
them so as to cause and maintain the election to the Board of Directors of only
one (1) representative designated by Leap.
(e) As long as Communicade or its Permitted Transferees (as defined below)
owns at least 50% of the aggregate amount of such shares of Series B Preferred
Stock originally purchased, any time at which stockholders of the Company will
have the right to or will vote shares of capital stock of the Company in an
election of directors, the Stockholders shall vote all shares of capital stock
of the Company presently owned or hereafter acquired by them so as to cause and
maintain the election to the Board of Directors of two (2) representatives
designated by Communicade. As long as Communicade or its Permitted Transferees
owns at least 25% of the aggregate amount of such shares of Series B Preferred
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Stock originally purchased, any time at which stockholders of the Company will
have the right to or will vote shares of capital stock of the Company in an
election of directors, the Stockholders shall vote all shares of capital stock
of the Company presently owned or hereafter acquired by them so as to cause and
maintain the election to the Board of Directors of one (1) representative
designated by Communicade. The Communicade representatives shall initially be
Xxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxxx (the "Communicade Directors and
collectively with the Leap Directors, the "Investor Directors"), it being
understood that the Stockholders shall not be obligated to vote their shares of
capital stock in favor of more than two (2) such representatives.
Notwithstanding the foregoing, in the event that subsequent to the Closing Date
the Company issues $10.0 million or more in equity securities to one investor,
and that investor is only entitled to designate one (1) director (or no
director), then Communicade will be entitled to designate only one (1) director,
and the Stockholders shall vote all shares of capital stock of the Company
presently owned or hereafter acquired by them so as to cause and maintain the
election to the Board of Directors of only one (1) representative designated by
Communicade.
(f) If any Stockholder shall refuse to vote the Shares held by it as
provided in this Agreement at any meeting of the Stockholders of the Company, or
shall refuse to give its written consent in lieu of a meeting, thereupon,
without further action by such Stockholder, the President or any Vice President
of the Company shall be, and hereby is, irrevocably constituted the
attorney-in-fact and proxy of such Stockholder for the purpose of voting, and
shall vote such shares at such meeting as provided in this Agreement, or give
such consent, as the case may be. Should the provisions of this Agreement be
construed to constitute the granting of proxies, such proxies shall be deemed
coupled with an interest and are irrevocable for the term of this Agreement.
(g) It is agreed and understood that monetary damages would not adequately
compensate an injured party for the breach of this Agreement by any party, that
this Agreement shall be specifically enforceable, and that any breach or
threatened breach of this Agreement shall be the proper subject of a temporary
or permanent injunction or restraining order. Further, each party hereto waives
any claim or defense that there is an adequate remedy at law for such breach of
threatened breach.
1.3 Committees.
At all times the Board of Directors shall have both a Compensation
Committee and an Audit Committee in addition to such other committees as are
created by the Board of Directors. The Compensation Committee shall be comprised
of Xxxxxx X. Xxxxxxxxx, M.D., one independent director determined in accordance
with the Independent Director Standards issued by the Securities and Exchange
Commission and the American Institute of Certified Public Accountants (the
"Independent Director") and one director designated by Communicade.
Notwithstanding the foregoing, until an Independent Director is elected to the
Board of Directors, Xxxxxx X. Xxxxxxxxx, M.D., Xxxxxxx Caleb, M.D. and Xxxxx X.
Xxxxxxx shall act as the Compensation Committee (the "Initial Compensation
Committee"); provided, however, that the Initial Compensation Committee shall
not have the power to act with respect to compensating or altering the current
compensation of either Xxxxxx X. Xxxxxxxxx, M.D. or Xxxxxxx Xxxxx, M.D., and
provided, further, that the Initial Compensation Committee shall not have the
power to grant options or warrants to purchase more than (i) 100,000 shares of
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Common Stock of the Company to any individual or (ii) 500,000 shares of Common
Stock of the Company in the aggregate without the unanimous consent of the
Initial Compensation Committee. If by the time that is ninety (90) days after
the Closing Date an Independent Director has not yet been elected to the Board
of Directors, the Initial Compensation Committee shall consist only of Xxxxxx
Xxxxxxxxx, M.D., one Communicade Director and one Leap Director. The Audit
Committee shall be comprised exclusively of Independent Directors and Investor
Directors, as determined by the Board of Directors.
1.4 Vacancies and Removal.
(a) Each director designated in Section 1.2 shall be elected at any annual
or special meeting of Stockholders (or by written consent in lieu of a meeting
of Stockholders) and shall serve until his successor is elected and qualified or
until his earlier resignation or removal.
(b) The director elected by Xxxxxx X. Xxxxxxxxx, M.D. may be removed during
his or her term of office, without cause, by and only by the affirmative vote or
written consent of Xxxxxx X. Xxxxxxxxx, M.D. The director elected by Xxxxxxx
Caleb, M.D. may be removed during his or her term of office, without cause, by
and only by the affirmative vote or written consent of Xxxxxxx Xxxxx, M.D. The
director elected by Xxxxxx Xxxx and Xxxxxx Xxxx may be removed during his or her
term of office, without cause, by and only by the affirmative vote or written
consent of Xxxxxx Xxxx and Xxxxxx Xxxx. Each Leap Director may be removed during
his or her term of office, without cause, by and only by the affirmative vote or
written consent of Leap. Each Communicade Director may be removed during his or
her term of office, without cause, by and only by the affirmative vote or
written consent of Communicade. Each Independent Director may be removed during
his or her term of office, without cause, by and only by the affirmative vote or
written consent of not less than five directors.
(c) Any vacancy in the office of the director appointed by Xxxxxx X.
Xxxxxxxxx, M.D. may only be filled by a designee of Xxxxxx X. Xxxxxxxxx, M.D.
Any vacancy in the office of the director appointed by Xxxxxxx Caleb, M.D. may
only be filled by a designee of Xxxxxxx Xxxxx, M.D. Any vacancy in the office of
the director appointed by Xxxxxx Xxxx and Xxxxxx Xxxx may only be filled by a
designee of Xxxxxx Xxxx and Xxxxxx Xxxx. Any vacancy in the office of any Leap
Director may only be filled by a designee of Leap. Any vacancy in the office of
any Communicade Director may only be filled by a designee of Communicade. Each
Stockholder shall vote its shares of capital stock of the Company (or act by
written consent) to elect each such designee to the Board of Directors.
(d) The Company shall pay the reasonable out-of-pocket expenses incurred by
each director in connection with attending the meetings of the Board of
Directors and any committees thereof. So long as either Investor shall be
entitled to designate a director pursuant to Section 1.2(c), the Company's
Certificate of Incorporation and Bylaws shall provide for indemnification and
exculpation of directors to the fullest extent permitted under applicable law.
The Company shall enter into indemnity agreements with the Investor Directors on
terms no less favorable than any other director of the Company.
1.5 Voting Cap. Notwithstanding the foregoing, on all matters that shall
come before the stockholders of the Company for a vote, Communicade shall only
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be entitled to vote, in its discretion, its Shares (on an as-converted basis) in
an amount of up to 19% of the total issued and outstanding voting securities of
the Company.
1.6 Stockholder Voting. Except as declared advisable by the Board of
Directors in accordance with Section 1.1, the Stockholders will not vote for any
amendment or change to the certificate of incorporation or Bylaws of the Company
providing for the election of more or less than nine (9) directors, or any other
amendment or change to the certificate of incorporation or Bylaws of the Company
inconsistent with the terms of this Agreement.
Section 2. Right of First Refusal; Co-Sale Right
2.1 Restrictions on Transfer.
Without limiting any other restriction contained in this Agreement, no
Stockholder may sell, assign, transfer, pledge, bequeath, hypothecate, mortgage,
grant any proxy with respect to, or in any other way encumber or otherwise
dispose of, directly or indirectly (collectively, a "Transfer") any shares
except pursuant to a Permitted Transfer (as defined below) or unless such
Stockholder first complies with the provisions of Sections 2 and 3.
2.2 Right of First Refusal.
(a) Transfer Notice. If at any time a Stockholder (the "Selling
Stockholder") proposes to Transfer equity securities to one or more unrelated
third parties (which parties shall be accredited investors) pursuant to an
understanding with such third parties, then such Selling Stockholder shall give
the Company and each Stockholder written notice of the Selling Stockholder's
intention to make the Transfer (the "Transfer Notice"), which Transfer Notice
shall include (i) a description of the equity securities to be transferred
("Offered Shares"), (ii) the identity of the prospective transferee(s) and (iii)
the consideration and the material terms and conditions upon which the proposed
Transfer is to be made. The Transfer Notice shall certify that the Selling
Stockholder has received a firm offer from the prospective transferee(s) and in
good faith believes a binding agreement for the Transfer is obtainable on the
terms set forth in the Transfer Notice. The Transfer Notice shall also include a
copy of any written proposal, term sheet or letter of intent or other agreement
relating to the proposed Transfer. The Company shall provide any information
reasonably requested by a Selling Stockholder to be provided to a potential
purchaser of such Selling Stockholder's Shares.
(b) Company's Option. The Company shall have an option for a period of ten
(10) days from receipt of the Transfer Notice to elect to purchase the Offered
Shares at the same price and subject to the same material terms and conditions
as described in the Transfer Notice. The Company may exercise such purchase
option and, thereby, purchase all (or a portion of) the Offered Shares by
notifying the Selling Stockholder in writing before expiration of such ten (10)
day period as to the number of such shares which it wishes to purchase. If the
Company gives the Selling Stockholder notice that it desires to purchase such
shares, then payment for the Offered Shares shall be by check or wire transfer,
against delivery of the Offered Shares to be purchased at a place agreed upon
between the parties and at the time of the scheduled closing therefor, which
shall be not later than fifteen (15) days after the Company's receipt of the
Transfer Notice, unless the Transfer Notice contemplated a later closing with
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the prospective third party transferee(s) or unless the value of the purchase
price has not yet been established pursuant to Section 2.2(e). If the Company
fails to purchase all of the Offered Shares by exercising the option granted in
this Section 2.2(b) within the period provided, the Offered Shares shall be
subject to the options granted to the Stockholders pursuant to this Agreement.
(c) Additional Transfer Notice. Subject to the Company's right set forth in
Section 2.2(b), if at any time the Selling Stockholder proposes a Transfer,
then, after the Company has declined to purchase all, or a portion of, the
Offered Shares, the Selling Stockholder shall give each Stockholder an
"Additional Transfer Notice" which shall include all of the information and
certifications required in a Transfer Notice and shall additionally identify the
Offered Shares which the Company has declined to purchase (the "Remaining
Shares") and briefly describe Stockholders' rights of first refusal and co-sale
(if applicable) with respect to the proposed Transfer.
(d) Stockholders' Option. The Stockholders shall have an option for a
period of ten (10) days from the Stockholders' receipt of the Additional
Transfer Notice from the Selling Stockholder set forth in Section 2.2(c) to
elect to purchase their respective pro rata shares of the Remaining Shares at
the same price and subject to the same material terms and conditions as
described in the Additional Transfer Notice. Each Stockholder may exercise such
purchase option and, thereby, purchase all or any portion of his, her or its pro
rata share (with any reallotments as provided below) of the Remaining Shares, by
notifying the Selling Stockholder and the Company in writing, before expiration
of the ten (10) day period as to the number of such shares which he, she or it
wishes to purchase (including any reallotment). Each Stockholders' pro rata
share of the Remaining Shares shall be a fraction of the Remaining Shares, of
which the number of shares of Common Stock (including shares of Common Stock
issuable upon conversion of Preferred Shares) owned by such Stockholder on the
date of the Transfer Notice shall be the numerator and the total number of
shares of Common Stock (including shares of Common Stock issuable upon
conversion of Preferred Shares) held by all Stockholders on the date of the
Transfer Notice shall be the denominator. Each Stockholder shall have a right of
reallotment such that, if any other Stockholder fails to exercise the right to
purchase its full pro rata share of the Remaining Shares, the other
participating Stockholders may exercise an additional right to purchase, on a
pro rata basis, the Remaining Shares not previously purchased. Each Stockholder
shall be entitled to apportion Remaining Shares to be purchased among its
partners and affiliates, provided that such Stockholder notifies the Selling
Stockholder of such allocation. If a Stockholder gives the Selling Stockholder
notice that it desires to purchase its pro rata share of the Remaining Shares
and, as the case may be, its reallotment, then payment for the Remaining Shares
shall be by check or wire transfer, against delivery of the Remaining Shares to
be purchased at a place agreed upon between the parties and at the time of the
scheduled closing therefor, which shall be not later than fifteen (15) days
after the Stockholder's receipt of the Additional Transfer Notice, unless the
Transfer Notice contemplated a later closing with the prospective third party
transferee(s) or unless the value of the purchase price has not yet been
established pursuant to Section 2.2(e).
(e) Valuation of Property. Should the purchase price specified in the
Transfer Notice or Additional Transfer Notice be payable in property other than
cash or evidences of indebtedness, the Company (or the Stockholders) shall have
the right to pay the purchase price in the form of cash equal in amount to the
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value of such property. If the Selling Stockholder and the Company (or the
Stockholders) cannot agree on such cash value within ten (10) days after the
Company's receipt of the Transfer Notice (or the Stockholders' receipt of the
Additional Transfer Notice), the valuation shall be made by an appraiser of
recognized standing selected by the Selling Stockholder and the Company (or the
Stockholders) or, if they cannot agree on an appraiser within twenty (20) days
after the Company's receipt of the Transfer Notice (or the Stockholders' receipt
of the Additional Transfer Notice), each shall select an appraiser of recognized
standing and the two appraisers shall designate a third appraiser of recognized
standing, whose appraisal shall be determinative of such value. The cost of such
appraisal shall be shared equally by the Selling Stockholder and the Company (or
the Stockholders) (with the half of the cost borne by the Stockholders pro rata
by each based on the number of shares such parties were interested in purchasing
pursuant to this Section 2.2). The Selling Stockholder may elect, either before
or after an appraisal has been completed, to withdraw its offer to make a
Transfer, in which event all options to purchase under this Section 2.2 shall be
null and void as to such withdrawn Transfer; provided, however, that in such
event, the Selling Stockholder shall bear all the costs of the appraisal, if
any, including any costs associated with the selection and retention of
appraiser(s). If the time for the closing of the Company's purchase (or the
Stockholders') has expired but for the determination of the value of the
purchase price offered by the prospective transferee(s), then such closing shall
be held on or prior to the fifth business day after such valuation shall have
been made pursuant to this subsection.
(f) Notwithstanding anything else contained in this Subsection 2.2, neither
the Company nor any Stockholder shall have the right to purchase any Offered
Shares unless all of the Offered Shares are to be purchased pursuant to the
exercise of the right of first refusal granted hereby.
(g) The Company may not assign its rights of refusal under this Section
2.2.
2.3 Right of Co-Sale.
(a) To the extent the Company and the Stockholders do not exercise their
respective rights of first refusal as to all of the Offered Shares pursuant to
Section 2.2, then each of the Investors, if it or they so notify the Selling
Stockholder (the "Co-Sale Notice") in writing within thirty (30) days after
receipt of the Transfer Notice referred to in Section 2.2(a), shall have the
right to participate in such sale of equity securities on the same terms and
conditions as specified in the Transfer Notice. Each Investor's notice to the
Selling Stockholder shall indicate the number of shares of equity securities the
Investor wishes to sell under this Section 2.3. To the extent an Investor
exercises such right in accordance with the terms and conditions set forth
below, the number of shares of equity securities that the Selling Stockholder
may sell in the Transfer shall be correspondingly reduced. Notwithstanding the
foregoing, neither Investor shall have the right to participate in any sale of
equity securities made by the other Investor.
(b) Each Investor may sell, at its discretion, all or any part of the
greater of (i) that number of shares of equity securities equal to the product
obtained by multiplying (a) the aggregate number of shares of equity securities
covered by the Transfer Notice by (b) a fraction, the numerator of which is the
number of shares of Common Stock (including shares of Common Stock issuable upon
conversion of Shares) owned by the Investor on the date of the Co-Sale Notice
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and the denominator of which is the total number of shares of Common Stock
(including shares of Common Stock issuable upon conversion of Shares) owned by
the Selling Stockholder and the Investor on the date of the Co-Sale Notice or
(ii) an equivalent number of shares to that being sold by the Selling
Stockholder pursuant to this Section 2.3.
(c) Each Investor shall effect its participation in the sale by promptly
delivering to the Selling Stockholder for transfer to the prospective purchaser
one or more certificates, properly endorsed for transfer, which represent:
(i) the type and number of shares of equity securities which the
Investor elects to sell; or
(ii) that number of shares of equities securities which are at such
time convertible into the number of shares of Common Stock which the
Investor elects to sell; provided, however, that if the prospective
third-party purchaser objects to the delivery of equity securities in lieu
of Common Stock, the Investor shall convert such equity securities into
Common Stock and deliver Common Stock as provided in this Section 2.3. The
Company agrees to make any such conversion concurrent with the actual
transfer of such shares to the purchaser and contingent on such transfer.
(d) The stock certificate or certificates that an Investor delivers to the
Selling Stockholder pursuant to Section 2.3(c) shall be transferred to the
prospective purchaser in consummation of the sale of the equity securities
pursuant to the terms and conditions specified in the Transfer Notice, and the
Selling Stockholder shall concurrently therewith remit to the Investor that
portion of the sale proceeds to which the Investor is entitled by reason of its
participation in such sale. To the extent that any prospective purchaser or
purchasers prohibits such assignment or otherwise refuses to purchase shares or
other securities from the Investor exercising its rights of co-sale hereunder,
the Selling Stockholder shall not sell to such prospective purchaser or
purchasers any equity securities unless and until, simultaneously with such
sale, the Selling Stockholder shall purchase such shares or other securities
from the Investor for the same consideration and on the same terms and
conditions as the proposed transfer described in the Transfer Notice. Each
Investor shall retain all rights with respect to the Shares until receipt of
payment of the purchase price therefor.
(e) Notwithstanding the foregoing, an Investor may elect, if it is
dissatisfied with the definitive documentation relating to its right of co-sale,
to withdraw its participation under this subsection 2.3.
2.4 Non-Exercise of Rights. To the extent that the Company and the
Stockholders have not exercised their rights to purchase the Offered Shares or
the Remaining Shares within the time periods specified in Section 2.2 and to the
extent that the Investors have not exercised their rights to participate in the
sale of the Offered Shares or the Remaining Shares within the time periods
specified in Section 2.3, the Selling Stockholder shall have a period of ninety
(90) days from the expiration of such rights in which to sell the Offered Shares
or the Remaining Shares, as the case may be, upon terms and conditions
(including the purchase price) no more favorable than those specified in the
Transfer Notice to the third-party transferee(s) identified in the Transfer
Notice. In the event Selling Stockholder does not consummate the sale or
disposition of the Offered Shares or the Remaining Shares within the ninety (90)
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day period from the expiration of these rights, the Company's and the
Stockholder's first refusal rights and the Investors' co-sale rights shall
continue to be applicable to any subsequent disposition of the Offered Shares or
the Remaining Shares by the Selling Stockholder until such right lapses in
accordance with the terms of this Agreement. Furthermore, the exercise or
non-exercise of the rights of the Company and the Stockholders under this
Section 2 to purchase equity securities from the Selling Stockholder or to
participate in sales of equity securities by the Selling Stockholder shall not
adversely affect their rights to make subsequent purchases from the Selling
Stockholder of equity securities or subsequently participate in sales of equity
securities by the Selling Stockholder.
2.5 Prohibited Transfers.
(a) In the event a Selling Stockholder should sell any equity securities in
contravention of the Company's and the Stockholders' rights of first refusal and
the Investors' co-sale rights, such sale shall be void and the Company agrees it
will not effect such a transfer nor will it treat any alleged transferee(s) as
the holder of such shares without the written consent of all Stockholders or the
Investors, as the case may be.
(b) No Stockholder may transfer Shares to any competitor of the Company or
any party affiliated with a competitor of the Company. For purposes of this
Section 2.5(b), a "competitor" shall mean any person or entity engaged in a
business which involves (i) the production or distribution of healthcare
content, (ii) the provision of on-line health-related interactive marketing
services, (iii) the establishment of a network of healthcare professionals for
the purpose of on-line activities or (iv) the creation or maintenance of
healthcare related web sites.
2.6 Permitted Transfer.
(a) The terms and conditions of Sections 2.1, 2.2, and 2.3 shall not apply
to any Permitted Transfer by any Stockholder. For purposes of this Agreement,
"Permitted Transfer" means (a) any transfer by any Stockholder who is a natural
person (i) to or for the benefit of any parent, sibling, spouse, child or
grandchild of such Stockholder, or to a trust for the benefit of any such
Stockholder, or to a trust for the benefit of any of the foregoing, (ii) by will
or the laws of descent and distribution or (iii) to a Stockholder or (b) any
transfer by an Investor to any of its partners, subsidiaries or affiliates or
any Stockholders (any person to whom a Permitted Transfer is made being defined
as a "Permitted Transferee"); provided, that it shall be a condition of each
such Transfer (A) that the Permitted Transferee agree to be bound by the terms
and conditions of this Agreement as a Stockholder and execute a counterpart of
this Agreement, as set forth in Section 4.3 and (B) voting control over the
Shares to be transferred shall be retained by the transferring Stockholder. For
purposes of this Section 2.6, an affiliate of an Investor shall mean a person
that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Investor.
(b) The rights of Section 2.2 shall not apply to Transfers by Stockholders
that own less than .25% of the outstanding shares of Common Stock on a fully
diluted basis.
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2.7 Assignment. The right of each Stockholder to purchase or sell any
equity securities from or with any Selling Stockholder may be assigned in whole
or in part to any partner, subsidiary, affiliate or Stockholder.
Section 3. Restrictions on Transfer
3.1 General.
The Shares may not be Transferred except after compliance with the
conditions specified in this Section and Section 2. Any attempt by any
Stockholder to transfer any Shares in violation of any provision of this
Agreement will be void. The Company will not be required (i) to transfer on its
books any Shares that have been transferred in violation of this Agreement, or
(ii) to treat as owner of such Shares, or to accord the right to vote or pay
dividends to any purchaser, donee or other transferee to whom such Shares may
have been so transferred.
3.2 Legend.
(a) Each certificate representing Shares shall (unless otherwise permitted
by the provisions of Section 3.4(a)) be stamped or otherwise imprinted with a
legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THESE SECURITIES MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN EXEMPTION THEREFROM UNDER SUCH ACT."
(b) Each certificate representing Shares shall (unless otherwise permitted
by the provisions of Section 3.4(b)) be stamped or otherwise imprinted with a
legend in substantially the following form:
"THE TRANSFER AND VOTING OF THESE SECURITIES IS SUBJECT TO THE
TERMS AND CONDITIONS SPECIFIED IN A STOCKHOLDERS' AGREEMENT,
DATED AS OF AUGUST 1, 2000, BETWEEN HEALTHOLOGY, INC. (THE
"COMPANY"), AND THE STOCKHOLDERS OF THE COMPANY, AND NO
TRANSFER OF THESE SECURITIES SHALL BE VALID OR EFFECTIVE UNTIL
SUCH CONDITIONS HAVE BEEN FULFILLED. COPIES OF SUCH AGREEMENT
MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE
HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE
COMPANY."
3.3 Procedures for Transferring.
10
Upon request by the Company, any Stockholder Transferring Shares shall
deliver a written opinion of counsel for such Stockholder, addressed to the
Company, stating that in the opinion of such counsel (which opinion and counsel
shall be reasonably satisfactory to the Company), the proposed Transfer does not
involve a transaction requiring registration or qualification of such Shares
under the Securities Act of 1933, as amended (the "Securities Act") or the
securities or "blue sky" laws of any state of the United States. Subject to
Section 2, such Stockholder shall be entitled to Transfer such Shares if the
Company does not reasonably object to such Transfer and request such opinion
within fifteen (15) days after delivery of Transfer Notice to the Company, or,
if it requests such opinion, after it has received such opinion. Subject to
Section 3.4, each certificate or other instrument evidencing the securities
issued upon the Transfer of any Shares (and each certificate or other instrument
evidencing any untransferred balance of such Shares) shall bear the legends set
forth in Section 3.2.
3.4 Termination of Restrictions.
(a) If (i) any Shares are sold or otherwise disposed of pursuant to an
effective registration statement under the Securities Act or in a transaction
contemplated by Section 3.3 which does not require that the Shares so
transferred bear the legend set forth in Section 3.2(a) or (ii) the holder of
Shares has met the requirements for Transfer of such restricted shares under
Rule 144(k) under the Securities Act (subject to the delivery of opinions as set
forth above), then the holder of such Shares shall be entitled to receive from
the Company, without expense, a new certificate not bearing the restrictive
legend set forth in Section 3.2(a).
(b) Upon the termination of this Agreement pursuant to Section 5.2, the
holders of Shares shall be entitled to receive from the Company, without
expense, new certificates not bearing the restrictive legend set forth in
Section 3.2(b).
Section 4. Certain Corporate Actions
If the Stockholders of more than 66 2/3% of the Company's equity
securities, including the Series A Preferred Stock and Series B Preferred Stock
as if converted, but not including outstanding options and warrants desire to
sell all of their shares to a purchaser who wishes to purchase all of the
Company's outstanding shares at a price in excess of $3.00 per share, subject to
adjustment for stock dividends, stock splits, or similar events, then such
Stockholders shall have the right, upon twenty (20) days prior written notice,
to require the other Stockholders of the Company to sell, and the purchaser
shall purchase, all of their shares on the same terms and conditions.
11
Section 5. Miscellaneous
5.1 Lock-Up Agreements.
Xxxxxx X. Xxxxxxxxx, MD, Xxxxxxx X. Xxxxx, MD, Xxxxxx Xxxx, Xxxxxx Xxxx, BW
Ventures I, LLP, Gorann, LLC, Spydre LLC and the Investors agree to execute
lock-up agreements with the Company pursuant to which such Stockholders will
agree, if so requested by the Company or any underwriters' representative in
connection with the first public offering of the Common Stock of the Company,
not to sell or otherwise transfer any securities of the Company during a period
of up to one hundred and eighty (180) days following the effective date of the
registration statement.
5.2 Termination.
This Agreement shall terminate and be of no further force or effect from
and after the consummation of a Qualified Public Offering, as defined in the
First Amended and Restated Investor Rights Agreement.
5.3 Injunctive Relief.
It is acknowledged that it will be impossible to measure the damages that
would be suffered by the parties hereto if any other party fails to comply with
the provisions of this Agreement and that in the event of any such failure, the
affected party will not have an adequate remedy at law. The affected party
shall, therefore, be entitled to obtain specific performance of the obligations
hereunder and to obtain immediate injunctive relief. The other party shall not
argue, as a defense to any proceeding for such specific performance or
injunctive relief, that the affected party has an adequate remedy at law.
5.4 Assignment.
(a) Without limiting the restrictions on transfer contained in any other
agreement between the Company and any Stockholder and in this Agreement, the
Company and each Stockholder (in the case of a transfer of Shares) shall cause
any person or entity who acquires Shares to become a Stockholder hereunder,
unless at the time of such purchase such person or entity was a Stockholder, in
which case such person or entity shall remain a Stockholder hereunder.
(b) Execution of a counterpart of this Agreement by any person or entity
who acquires Shares and an amendment adding the name or such person or entity
shall be a condition of any acquisition of such Shares by such person or entity.
5.5 Successors and Assigns.
This Agreement shall bind and inure to the benefit of the Company and the
Stockholders and, subject to Section 5.4, their respective successors and
assigns, and such successors and assigns shall obtain all of the rights of their
respective assignors.
12
5.6 Entire Agreement.
This Agreement contains the entire agreement among the parties with respect
to the subject matter hereof and supersedes all prior arrangements or
understandings with respect hereto.
5.7 Notices.
All notices, requests, consents and other communications hereunder to any
party shall be deemed to be sufficient if contained in a written instrument and
shall be deemed to have been duly given when delivered in person, by telecopy,
by nationally-recognized overnight courier, or by first class registered or
certified mail, postage prepaid, addressed to such party at the address set
forth below or such other address as may hereafter be designated in writing by
the addressee as follows: (a) if to an Existing Stockholder, at the address and
telecopier numbers set forth on Schedule I, (b) if to an Investor, at the
address and telecopier numbers set forth in Schedule II, and (c) if to the
Company, at the address set forth in the Series B Agreement. All such notices,
requests, consents and other communications shall be deemed to have been
delivered (a) in the case of personal delivery or delivery by telecopy, on the
date of such delivery, (b) in the case of nationally-recognized overnight
courier, on the next business day and (c) in the case of mailing, on the third
business day following such mailing if sent by certified mail, return receipt
requested.
5.8 Modifications; Amendments; Waivers.
The terms and provisions of this Agreement may not be modified, waived or
amended, except pursuant to a writing signed by each of (i) the Company, (ii)
the Investors and (iii) the Existing Stockholders holding at least 51% of the
outstanding shares of Common Stock (on an as-converted basis).
5.9 Counterparts.
This Agreement may be executed in any number of counterparts, and each such
counterpart hereof shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
5.10 Headings.
The headings of the various sections of this agreement have been inserted
for convenience of reference only and shall not be deemed to be a part of this
Agreement.
5.11 Severability.
It is the desire and intent of the parties that the provisions of this
Agreement be enforced to the fullest extent permissible under the law and public
policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if any provision of this Agreement would be held in any
jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating
13
the remaining provisions 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 drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
5.12 Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to principles governing
conflicts of laws.
5.13 Representations and Warranties.
Each Stockholder represents and warrants that (a) this Agreement has been
duly authorized, executed and delivered by such Stockholder and constitutes the
valid and binding obligation of such Stockholder, enforceable in accordance with
its terms, and (b) each Stockholder has not granted and is not a party to any
proxy, voting trust or other agreement which is inconsistent with, conflicts
with or violates any provision of this Agreement. No holder of Shares shall
grant any proxy or become party to any voting trust or other agreement which is
inconsistent with, conflicts with or violates any provision of this Agreement.
5.14 Termination of Existing Stockholders' Agreement.
It is the intention of the Stockholders that the terms and conditions of
this Agreement amend, restate and supersede in all respects the terms and
conditions set forth in the Existing Stockholders' Agreement.
5.15 Further Assurances.
The parties shall cooperate and take such actions, and execute such other
documents as either may reasonably request in order to carry out the provisions
or purposes of this Agreement.
5.16 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, ARISING OUT OF
OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[Signature Pages Immediately Follow]
14
IN WITNESS WHEREOF, the parties have executed this First Amended and
Restated Stockholders' Agreement as of the date first above written.
HEALTHOLOGY, INC. LE@P TECHNOLOGY, INC.
By:/s/ Xxxxxx X. Xxxxxxxxx, MD By:/s/ Xxxxxx X. Xxxxxxxx, MD
------------------------------------ ----------------------------------
Xxxxxx X. Xxxxxxxxx, M.D., President Xxxxxx X. Xxxxxxxx, MD, President
and Chief Executive Officer and Chief Executive Officer
COMMUNICADE, INC.
By:/s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxxx
Vice President
[SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT]
15
IN WITNESS WHEREOF, the parties have executed this First Amended and
Restated Stockholders' Agreement as of the date first above written.
EXISTING STOCKHOLDERS:
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Xxxxxx X. Xxxxxxxxx, MD
/s/ Xxxxxxx Xxxxx
-----------------------
Xxxxxxx Caleb, MD
/s/ Xxxxxx Xxxx
-----------------------
Xxxxxx Xxxx
/s/ Xxxxxx Xxxx
------------------------
Xxxxxx Xxxx
/s/ Xxxxx Xxxxxxxx
------------------------
SPYDRE TECHNOLOGIES, LLC
/s/ Xxxxx Xxxxxx
------------------------
GORANN LLC
/s/ Xxxxxx X. Xxxxxxxxx
------------------------
BW VENTURES I, LLC
16
OTHER COMMON STOCK HOLDERS
WADE, GOLDSTEIN, LANDAU,
ABRUZZO, MACKAREY, &
DAVIDSON PC
Xxxxxxx X. Xxxxx
Xxxxxx Xxxx
17
Xxxx X. Xxxxxx
Xxxxx Xxxxxxxxx
Xxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Xxxxxx X. Xxxxxxxxx
Xxxxx-Xxx Xxx
Xxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx XxXxxxx
18
Xxx Xxxxxxxxxxx
Xxxxxxx Xxxx
Xxxxxx X. Xxxxxx
Xxxx Xxxxxxxxxx
Xxxxxx Xxxxxx
Xxxxx X. Xxxxxxxxxx
Xxxxx Xxxxxx
Xxxxxxx X. Xxxx
19
M. Xxxxxxx Xxxxxxxxx
Xxxxxxx X. Black
M. Xxxxxxx Xxxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxx X. Xxxxxx
Xxx XxXxxxxxxx
20
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxx
21
FIRST STANFORD HEALTHOLOGY
PARTNERS LLC:
Xxxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxxx Xxxxxxxx
22
SCHEDULE I
EXISTING STOCKHOLDERS
----------------------------- ---------------------- --------------------------
Name and Address Number of Shares Number of Shares
of Common Stock of Series A Preferred Stock
----------------------------- ---------------------- ---------------------------
----------------------------- ---------------------- ---------------------------
6,087,030 0
Xxxxxx Xxxxxxxxx, M.D.
000 X. 00xx Xx., Xxx. 0
Xxx Xxxx, XX 00000
----------------------------- ---------------------- ---------------------------
----------------------------- ---------------------- ---------------------------
Xxxxxxx Xxxxx, M.D. 2,608,737 0
0000 Xxxxxxxx, Xxx. 0000
Xxx Xxxx, XX 00000
----------------------------- ---------------------- ---------------------------
----------------------------- ---------------------- ---------------------------
Spydre Technologies LLC 325,000 0
9 Xxxxxxxx Place, 4th Fl.
Xxxxxx, XX 00000
----------------------------- ---------------------- ---------------------------
----------------------------- ---------------------- ---------------------------
Gorann LLC 675,000 0
0 Xxxxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, XX 00000
----------------------------- ---------------------- ---------------------------
----------------------------- ---------------------- ---------------------------
Xxxxxx Xxxx 250,000 0
00 Xxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
----------------------------- ---------------------- ---------------------------
----------------------------- ---------------------- ---------------------------
Xxxxxx Xxxx 250,000 0
000 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
----------------------------- ---------------------- ---------------------------
----------------------------- ---------------------- ---------------------------
Xxxxx & Wood Ventures 166,667 0
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
----------------------------- ---------------------- ---------------------------
----------------------------- ---------------------- ---------------------------
Sch-I
SCHEDULE II
INVESTOR SCHEDULE
----------------------------- ----------------------- -----------------------
Number of Shares Number of Shares
Name and Address of Series A of Series B
Preferred Stock Preferred Stock
----------------------------- ----------------------- -----------------------
----------------------------- ----------------------- -----------------------
Le@p Technology, Inc. 3,050,880 0
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxx 000,
Xxxx Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx, Esq.
----------------------------- ----------------------- -----------------------
----------------------------- ----------------------- -----------------------
Communicade, Inc. 0 6,000,000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
----------------------------- ----------------------- -----------------------
----------------------------- ----------------------- -----------------------
Sch-II
