Exhibit 10.8
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT (this "Agreement") is made and entered
into as of December 28, 1999, and amended and restated March 17, 2000,
effective as of December 28, 1999, by and among XXXXXXXXXXXXXXX.XXX, INC., a
Delaware corporation (the "Company"), and the individuals and entities set
forth on the signature page below (individually, a "Stockholder" and
collectively, the "Stockholders").
R E C I T A L S
WHEREAS, the Stockholders owning one hundred percent (100%) of the
outstanding shares of the $0.001 par value common stock ("Company Common Stock,"
and a holder thereof sometimes referred to as a "Common Stockholder") and one
hundred percent (100%) of the $.001 par value preferred stock ("Company
Preferred Stock," and a holder thereof sometimes referred to as a "Preferred
Stockholder") of the Company (the Company Common Stock and the Company Preferred
Stock being sometimes collectively referred to as the "Shares") desire to enter
into this Agreement to provide for continuity in the management and policies of
the Company and to make provisions with respect to the ownership, transfer or
other disposition of the Shares.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. AUTHORIZATION. Each Stockholder hereby represents and warrants to the Company
and to each other that (a) such Stockholder has full power and authority to
execute, to deliver and to perform such Stockholder's obligations under this
Agreement; and (b) the execution and delivery of this Agreement has been duly
and validly authorized, and all necessary action has been taken to make this
Agreement a valid and binding obligation of such Stockholder, 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).
2. CERTAIN COVENANTS OF THE COMPANY. When it is first legally required to do so,
the Company will register the Company Common Stock under Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), will keep such
registration effective and will timely file such information, documents and
reports as the Securities and Exchange Commission (the "Commission") may require
or prescribe under Section 13 of the Exchange Act, including the rules of the
Commission promulgated thereunder. From and after the effective date of any
registration statement filed by the Company under the Securities Act of 1933, as
amended (the "Act"), the Company will timely file such information, documents
and reports as the Commission may require under Section 13 or 15(d) (whichever
is applicable) of the Exchange Act, including the rules of the Commission
promulgated thereunder. Immediately upon becoming subject to the reporting
requirements of either Section 13 or 15(d) of the Exchange Act, the
Company will forthwith upon request furnish any Stockholder (a) a written
statement by the Company that it has complied with such reporting requirements,
(b) a copy of the most recent annual or quarterly report of the Company filed by
the Company with the Commission, and (c) such other reports and documents filed
by the Company with the Commission as such Stockholder may reasonably request.
The Company acknowledges and agrees that the purposes of the requirements
contained in this Section are to enable any such Stockholder to comply with the
current public information requirements contained in Commission Rule 144 and
Rule 144A under the Act should such Stockholder ever wish to dispose of any
Company Common Stock without registration under the Act in reliance upon Rule
144 or Rule 144A (or any other similar exemptive provision). Therefore,
following the completion of an initial public offering of Company Common Stock
pursuant to an effective registration statement under the Act, the Company will
take such measures, and file such information, documents and reports, as shall
hereafter be required by the Commission as a condition to the availability of
Rule 144 and Rule 144A under the Act (or any similar exemptive provision
hereafter in effect).
3. RESTRICTIONS ON TRANSFER. Without the prior written consent of the Board of
Directors of the Company (the "Board"), no Common Stockholder may sell,
transfer, assign, pledge, convey, give, devise or otherwise dispose of, encumber
or alienate all or any portion of such Stockholder's Company Common Stock, or
any right or interest therein, whether voluntarily or by operation of law, or
enter into any contract or agreement, or grant any option, with respect to the
sale, transfer, assignment, conveyance or disposition of any Company Common
Stock, or any right or interest therein, except as permitted or required under
this Section or Section 4 hereof and in compliance with or pursuant to an
exemption from all applicable state and federal securities laws. Any purported
transfer in violation of the provisions of this Agreement shall be void and
ineffective and shall not operate to transfer any interest in or title to such
Company Common Stock to the purported transferee, and the Company shall not
record any such purported transfer in its transfer records.
(a) RIGHTS OF FIRST REFUSAL. Except with respect to an offer described in
Section 4 hereof or a transfer pursuant to Section 3(c) hereof, if a Stockholder
receives a bona fide offer to purchase such Stockholder's shares of Company
Common Stock or any portion thereof, which offer such Stockholder desires to
accept, such Stockholder (the "Offering Stockholder") shall so notify the
Company and each other Stockholder in writing and deliver to each of them a copy
of such offer along with, if not clearly reflected therein, the name of the
offeror, the principal occupation of the offeror (or in the case of an offeror
that is not a natural person, its principal line of business), the price and
form of consideration offered for such shares of Company Common Stock, the
number of shares of Company Common Stock in respect of which such offer is made,
the date of the proposed closing and all other terms and conditions of such
offer (the "Offering Notice"). In order to facilitate the prompt delivery of the
Offering Notice, the Company hereby covenants to provide any Offering
Stockholder access to the stock record books of the Company. Within fifteen (15)
days following delivery of the Offering Notice (the "Company's Option Period"),
the Company shall determine, in its sole discretion, whether it will purchase
any of such shares of Company Common Stock for the same price set forth in the
Offering Notice, payable on the same terms and conditions as set forth therein.
The Company shall notify the Offering Stockholder and
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each other Stockholder of its decision in writing prior to the expiration of the
Company's Option Period.
If the Company elects not to purchase all of such shares of Company Common
Stock, then for a period of fifteen (15) days following the expiration of the
Company's Option Period (the "Common Stockholders' Option Period"), each of the
other Common Stockholders shall have the option, but not the obligation, to
purchase his or her pro rata portion of such shares of Company Common Stock as
are not to be purchased by the Company at the same price per share and on the
same terms and conditions contained in the Offering Notice. For purposes of this
Agreement, a Common Stockholder's pro rata portion shall be a fraction, the
numerator of which is the number of shares of Company Common Stock owned by such
Common Stockholder and the denominator of which is the number of shares of
Company Common Stock owned by all Common Stockholders other than the Offering
Stockholder. In the event a Common Stockholder elects not to purchase his or her
pro rata portion (a "Non-Purchasing Common Stockholder"), then any other Common
Stockholder electing to purchase (a "Purchasing Common Stockholder") his or her
pro rata portion shall also have the right, on a pro rata basis with each other
Purchasing Common Stockholder, to purchase the shares constituting the pro rata
portion of each Non-Purchasing Common Stockholder. All Purchasing Common
Stockholders shall notify the Offering Stockholder, the Company and each other
Stockholder of their decisions in writing prior to the expiration of the Common
Stockholders' Option Period.
If the Company and the Common Stockholders elect not to purchase all of such
shares of Company Common Stock, then for a period of fifteen (15) days following
the expiration of the Common Stockholders' Option Period (the "Preferred
Stockholders' Option Period"), each of the Preferred Stockholders shall have the
option, but not the obligation, to purchase his or her pro rata portion of such
shares of Company Common Stock as are not to be purchased by the Company and the
Common Stockholders at the same price per share and on the same terms and
conditions contained in the Offering Notice. For purposes of this Agreement, a
Preferred Stockholder's pro rata portion shall be a fraction, the numerator of
which is the number of shares of Company Preferred Stock owned by such Preferred
Stockholder and the denominator of which is the number of shares of Company
Preferred Stock owned by all Preferred Stockholders. In the event a Preferred
Stockholder elects not to purchase his or her pro rata portion (a
"Non-Purchasing Preferred Stockholder"), then any other Preferred Stockholder
electing to purchase (a "Purchasing Preferred Stockholder") his or her pro rata
portion shall also have the right, on a pro rata basis with any other Purchasing
Preferred Stockholder, to purchase the shares constituting the pro rata portion
of each Non-Purchasing Preferred Stockholder. All Purchasing Preferred
Stockholders shall notify the Offering Stockholder, the Company and each other
Stockholder of their decisions in writing prior to the expiration of the
Preferred Stockholders' Option Period.
In the event the Company and the other Stockholders, shall have given notice as
hereinabove provided to purchase all but not less than all of the shares of
Company Common Stock of the Offering Stockholder, the closing of the purchase
and sale of such shares of Company Common Stock shall be held at the Company's
offices at 9:00 a.m. Central Time on the fiftieth (50th) day following delivery
of the Offering Notice or such earlier date as the Offering Stockholder and the
purchaser or purchasers of the Offered Shares may agree. At such closing, the
Company or the
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other Stockholders, as the case may be, shall pay the Offering Stockholder the
amount of consideration set forth in the Offering Notice, payable in accordance
with the terms set forth therein, and the Offering Stockholder shall deliver to
the purchaser or purchasers certificates evidencing such shares of Company
Common Stock, duly endorsed for transfer to such purchaser or purchasers.
(b) SALE TO TRANSFEREE. In the event the Company and the other Stockholders do
not elect to purchase all of such shares of Company Common Stock, then the
Offering Stockholder may sell all such shares of Company Common Stock to the
proposed transferee at the price and on the terms and conditions contained in
the Offering Notice and the sale of such shares of Company Common Stock shall be
conditioned upon execution by the transferee of a counterpart of this Agreement,
and delivery by the transferee of an opinion of counsel reasonably satisfactory
to the Company to the effect that registration of such shares of Company Common
Stock is not required because of the availability of an exemption therefrom
under the Act, and applicable state securities laws. If the sale of such shares
of Company Common Stock to the proposed transferee is not completed within
thirty (30) days after the expiration of the Preferred Stockholders' Option
Period, the provisions and restrictions of this Agreement shall again apply to
any proposed transfer by such Offering Stockholder of any shares of Company
Common Stock owned by him.
(c) PERMITTED TRANSFEREES. A Stockholder may transfer all or any number of such
Stockholder's Shares to (i) one or more of such Stockholder's lineal descendants
or a trustee of a trust, custodian or guardian for the exclusive benefit of one
or more of such lineal descendants, (ii) the spouse of such Stockholder, (iii)
an Affiliate (as hereinafter defined) of such Stockholder or any officer or
director of such Stockholder or of such Affiliate, or (iv) a charitable
foundation or other organization exempt from income tax under Section 501(c)(3)
of the Internal Revenue Code. For purposes of this Agreement, the term
"Affiliate" shall mean, with respect to any Stockholder, any individual or
entity directly or indirectly controlling, controlled by or under common control
with such Stockholder.
(d) OBLIGATION OF TRANSFEREE. A transferee who takes Shares of Company Common
Stock under any provision of this Section, or by descent, devise or operation of
law, shall take and hold such shares of Company Common Stock subject to this
Agreement and must execute a counterpart of this Agreement. Delay or failure by
the Company or any other party hereto to require compliance with the preceding
sentence shall not constitute a waiver of such party's rights with respect
thereto and shall not constitute a waiver of the restrictions imposed hereunder
on any such transferee of the shares of Company Common Stock acquired by him or
her. Upon (i) the transfer of shares of Company Common Stock pursuant to this
Section, or by descent, devise or operation of law, and (ii) the delivery of
such counterpart, such transferee shall become and be a party to this Agreement,
shall be bound by all of the provisions hereof applicable to such transferee's
transferor and shall have all of the rights of such transferor (to the extent of
the shares of Company Common Stock so transferred) hereunder immediately prior
to such transfer. The shares of Company Common Stock so transferred pursuant to
this Section, or by descent, devise or operation of law, shall be subject to all
of the terms and restrictions to which such shares of Company Common Stock were
subject immediately prior to such transfer.
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(e) TERMINATION. The provisions of this Section shall terminate on the
consummation of an initial public offering of shares of Company Common Stock
pursuant to an effective registration statement under the Act.
4. TAG-ALONG RIGHTS.
(a) RIGHT TO PARTICIPATE. If holders of a majority of the outstanding shares of
Company Preferred Stock (the "Preferred Majority") receive an offer which the
Preferred Majority desires to accept, at any time or from time to time, to
transfer, sell or otherwise dispose of, directly or indirectly (a "Tag-Along
Sale"), ten percent (10%) or more of the outstanding shares of Company Preferred
Stock, other than in a transaction pursuant to Section 3(c) hereof, whether in a
single transaction or a series of related transactions, then each other
Stockholder shall have the right, but not the obligation, to offer for sale to
the purchaser thereof, the same proportion of the Shares owned by such
Stockholder as the proposed sale represents with respect to said Shares then
owned by such Preferred Majority (the "Stockholder's Allotment") and as a
condition to the Tag-Along Sale, the purchaser thereof shall be required to
accept such offer, subject to the closing of the Tag-Along Sale.
Any such sale by any Stockholder shall be on the same terms and conditions as
the proposed Tag-Along Sale by the Preferred Majority; PROVIDED, HOWEVER, that
all selling Stockholders shall share PRO RATA, based upon the number of Shares
being sold by each, in any indemnity obligations and any escrow or holdback
established for satisfying indemnity liabilities to the purchaser in the
Tag-Along Sale (other than representations as to unencumbered ownership of and
ability to transfer the Shares being sold in the Tag-Along Sale, which shall be
the sole responsibility of each seller). The provisions of this Section shall
apply regardless of the form of consideration received in the Tag-Along Sale.
(b) NOTICES. The Preferred Majority shall promptly provide each Stockholder with
written notice (the "Tag-Along Sale Notice") not more than sixty (60) nor less
than twenty (20) days prior to the proposed date of the Tag-Along Sale (the
"Tag-Along Sale Date"). In order to facilitate the prompt delivery of the
Tag-Along Sale Notices, the Company hereby covenants to provide the Preferred
Majority access to the stock record books of the Company. Each Tag-Along Sale
Notice shall set forth: (i) the name and address of each proposed transferee or
purchaser of Shares in the Tag-Along Sale; (ii) the number of Shares proposed to
be transferred or sold by the Preferred Majority; (iii) the proposed amount and
form of consideration to be paid for such shares and the terms and conditions of
payment offered by each proposed transferee or purchaser, (iv) the aggregate
number of Shares held of record as of the close of business on the date of the
Tag-Along Sale Notice (the "Tag-Along Notice Date") by the Stockholder to whom
the notice is sent and the aggregate number of Shares outstanding on the
Tag-Along Notice Date; (v) the aggregate number of Shares held of record as of
the Tag-Along Notice Date by the Preferred Majority; (vi) the maximum number of
Shares (the "Stockholder's Allotment") that the Stockholder to whom the notice
is sent is entitled to include in the Tag-Along Sale assuming each Stockholder
elected to participate in the Tag-Along Sale and elected to sell the maximum
number of shares owned by each such Stockholder; (vii) confirmation that the
proposed purchaser or transferee has been informed of the "Tag-Along Rights"
provided for herein and has agreed to
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purchase Shares in accordance with the terms hereof; (viii) the Tag-Along Sale
Date and (ix) confirmation that, with respect to the Shares to be acquired by
the proposed transferee or purchaser, the proposed transferee or purchaser
agrees in writing to be bound by, and covenants that each transferee of all such
shares shall be bound by, the provisions of this Agreement as if it were the
Preferred Majority.
Each Stockholder shall provide written notice of such Stockholder's intention to
participate in the Tag-Along Sale (the "Tag-Along Acceptance Notice") to the
Preferred Majority, no less than ten (10) days prior to the Tag-Along Sale Date.
The Tag-Along Acceptance Notice shall set forth the number of Shares, if any,
that such Stockholder desires to include in the Tag-Along Sale (which shall not
exceed such Stockholder's Allotment) and shall also specify the aggregate number
of additional Shares owned of record as of the Tag-Along Acceptance Notice Date
by such Stockholder, if any, which such Stockholder desires also to include in
the Tag-Along Sale ("Additional Shares") in the event that all Stockholders do
not elect to participate in the Tag-Along Sale or do not elect to sell or
dispose of the entire amount of their Stockholder's Allotment. In such event,
the Preferred Majority shall apportion the aggregate number of Additional Shares
to Stockholders whose Tag-Along Acceptance Notices specified an amount of
Additional Shares, which apportionment shall be on a PRO RATA basis among such
Stockholders in accordance with the number of Additional Shares specified by all
such Stockholders in their Tag-Along Acceptance Notices.
The Preferred Majority shall determine the aggregate number of Shares to be sold
by each participating Stockholder in any given Tag-Along Sale in accordance with
the terms hereof, and the Tag-Along Acceptance Notices given by the Stockholders
shall constitute their respective binding agreements to sell such shares on the
terms and conditions applicable to such sale (including the requirements of this
Section). If the proposed transferee or purchaser does not purchase all of such
shares on the same terms and conditions applicable to the Preferred Majority
(except as otherwise provided herein) then no Stockholder shall be permitted to
participate in such Tag-Along Sale.
If a Tag-Along Acceptance Notice from a Stockholder is not received by the
Preferred Majority within the ten (10) day period specified above, the Preferred
Majority shall have the right to sell or otherwise transfer the number of Shares
specified in clause (ii) of the Tag-Along Sale Notice to the proposed purchaser
or transferee without any participation by such Stockholder, but only on the
terms and conditions stated in such Tag-Along Sale Notice and only if such sale
occurs on a date within five business days of the Tag-Along Sale Date.
(c) TERMINATION. The provisions of this Section shall terminate on the
consummation of public offering of the Company Common Stock pursuant to an
effective registration statement under the Act.
5. REGISTRATION RIGHTS. Each of the Stockholders shall have the registration
rights ("Registration Rights") set forth in Exhibit A hereto, which is hereby
incorporated herein as if set forth in full in this Agreement.
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6. RESTRICTION ON PUBLIC SALE. Anything to the contrary herein notwithstanding,
in the event that the Company files a registration statement with respect to an
underwritten public offering under the Act in which any class of the Company's
equity securities is offered and provides a Stockholder with notice of such
filing at least fifteen (15) days before the filing, no Stockholder shall effect
any public sale or distribution (except pursuant to said registration statement
or a binding commitment to do so prior to receipt of notice of the Company
filing) of any of the shares of stock of the Company (which shares, for the
purposes of this Section, shall include any and all voting securities received
by such Stockholder as a stock dividend, stock split or other recapitalization
or similar distribution on or in respect of the shares of stock of the Company)
or any of the Company's other equity securities, or of any securities
convertible into or exchangeable for such securities, during the period
beginning ten (10) days before the filing of such registration statement with
the Commission and ending on the later of ninety (90) days after such
registration statement has become effective or ten (10) days after it has been
withdrawn. After the completion of two (2) underwritten public offerings of the
Company' equity securities, this Section shall cease to apply to any Stockholder
who, at the time of any subsequent registration, is not an officer, director or
stockholder required to be named by the Company in a registration statement on
Form S-1 promulgated by the Commission.
7. REGISTER OF SECURITIES; REMOVAL OF RESTRICTIONS ON TRANSFER; LEGENDS.
(a) REGISTER OF SECURITIES. The Company or its duly appointed agent shall
maintain a register for the Shares in which it shall register the issuance and
sale of all such Shares. The Company may issue stop transfer instructions to
such agent and make similar notations in such register to ensure that all
transfers of such securities are made in accordance with the provisions of this
Agreement. All transfers of such securities shall be recorded on the register
maintained by the Company or its agent, and the Company shall be entitled to
regard the registered holder of such securities as the actual holder thereof
until the Company or its agent is required to record a transfer of such
securities on its register.
(b) REMOVAL OF TRANSFER RESTRICTIONS. The legend specified in subsection (c)(ii)
of this Section shall be removed from a certificate evidencing Shares, and the
Company shall issue a certificate without such legend to the owner of such
Company Common Stock promptly upon delivery of such certificate to the Company
following the consummation of an initial public offering of Company Common Stock
pursuant to an effective registration statement under the Act.
(c) LEGENDS. All certificates evidencing the Shares subject to this Agreement
shall bear substantially the following legends:
(i) "The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act").
These securities have been acquired for investment and not with a view
to distribution or resale, and may not be sold, offered for sale,
pledged or hypothecated in the absence of an effective registration
statement for such shares under the Act or an opinion of counsel
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satisfactory in form and content to the issuer that such registration
is not required under such Act."
(ii) "The securities represented by this certificate are subject to
restrictions on transfer, as set forth in a Stockholders Agreement, as
amended from time to time, between the issuer Company and the
registered holder, or its predecessor in interest, and in the case of
the preferred stock of the Company, that certain Preferred Stock
Purchase Agreement dated as of December 28, 1999, copies of which are
on file at the principal office of the issuer Company and will be
furnished upon request to the holder of record of the shares
represented by this certificate."
(iii) Any legend required to be placed thereon by any applicable state
securities law.
8. GOVERNANCE; BOARD OF DIRECTORS.
(a) ELECTIONS TO BOARD. Except as provided in this Section 8(a), the Board of
Directors of the Company (the "Board") shall consist of six (6) directors, three
(3) of whom shall be elected by the holders of the Company Common Stock (the
"Management Directors") and three (3) of whom shall be elected by the holders of
the Company Preferred Stock (the "Investor Directors"). Notwithstanding the
preceding sentence, prior to the consummation of an initial public offering of
Company Common Stock pursuant to an effective registration statement under the
Act, in the event the Company (i) does not achieve the performance goals set by
the Board in such business plans or budgets as may be approved by the Board from
time to time (the "Performance Goals") or (ii) within one (1) year from the date
hereof, fails to complete the Company's Internet platform as described on
Exhibit B attached hereto (the "Internet Platform") to the reasonable
satisfaction of HEALTHSOUTH Corporation ("HEALTHSOUTH") then, at the election of
HEALTHSOUTH, the number of directors shall be increased by one (1), and the
Investor Directors shall have the right to elect such additional director (the
"Additional Investor Director") to fill the vacancy created by such increase.
The term of such Additional Investor Director shall extend until he is removed
as set forth below. The Additional Investor Director may be removed at any time,
but only by the Preferred Stockholders. The failure of the Investor Directors or
the Preferred Stockholders to elect the Additional Investor Director or any
successor shall not constitute a waiver of such right.
(b) VACANCIES. If at any time a vacancy is created in the Board of Directors by
reason of death, removal or resignation of a Management Director, the remaining
Management Directors shall have the right to elect a person to fill such vacancy
until the next annual meeting of the stockholders of the Company. If at any time
a vacancy is created in the Board of Directors by reason of death, removal or
resignation of an Investor Director, the remaining Investor Directors shall have
the right to elect a person to fill such vacancy until the next annual meeting
of the stockholders of the Company. If at any time a vacancy is created in the
Board of Directors by reason of death, removal or resignation of the Additional
Investor Director, the Preferred
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Stockholders shall have the right to elect a person to fill such vacancy until
the expiration of the term of the Additional Investor Director.
(c) CERTIFICATE AND BYLAWS. Each Stockholder hereby agrees that such Stockholder
shall not take any action to amend the Company's Certificate of Incorporation or
the Bylaws of the Company except as provided in such Certificate of
Incorporation or Bylaws.
(d) TERMINATION. The provisions of this Section shall terminate on the
consummation of an initial public offering of the Company Common Stock pursuant
to an effective registration statement under the Act.
9. ENFORCEMENT. The parties acknowledge that the remedy at law for any breach or
violation of the provisions of this Agreement shall be inadequate and that, in
the event of any such breach or violation, the Company and the Stockholders
shall be entitled to injunctive relief in addition to any other remedy, at law
or in equity, to which any such party may be entitled.
10. VIOLATION OF TRANSFER PROVISIONS. The Company shall not be required (a) to
transfer on its books any Shares which shall have been sold, transferred,
assigned or pledged in violation of any of the provisions set forth in this
Agreement, or (b) to treat as owner of such Shares or to accord the right to
vote as such owner or to pay dividends to any transferee to whom such Shares
shall have been so transferred.
11. TERMINATION OF FOUNDERS STOCK AGREEMENTS. By separate instrument of even
date herewith, the Founders Stock Agreements between each of Xxxxxx X. Xxxxx,
Xx., Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxxx have been terminated and neither
party shall have further liability thereunder.
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12. GENERAL PROVISIONS.
(a) AFTER-ACQUIRED SHARES. All of the provisions of this Agreement shall
apply to (i) all of the Shares now owned or which may be transferred
hereafter to, or owned by, any Stockholder and (ii) all securities and
instruments (A) received by a Stockholder as a dividend on or other payment
made to holders of shares of stock of the Company, or (B) issued in
connection with a split of shares of stock of the Company, or as a result of
any exchange for or reclassification of shares of stock of the Company, or a
reorganization, recapitalization, consolidation or merger. In addition, any
person or entity who does not presently own but subsequently acquires
newly-issued shares or securities convertible into or exercisable or
exchangeable for shares of stock of the Company may become a party to and
bound by this Agreement to such extent as the Company and such person or
entity may agree.
(b) RIGHTS AND OBLIGATIONS OF TRANSFEREES. If a Stockholder transfers any or all
of its Shares to any person, such person and each subsequent transferee shall
have the same rights hereunder as are given to such Stockholder, and shall be
subject to the same obligations as are imposed upon such Stockholder by the
terms hereof (and all references herein to a Stockholder shall include such
transferee), unless otherwise provided herein. Any such transferee shall execute
and deliver to the Stockholders and the Company an instrument acknowledging such
transferee's rights and
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obligations hereunder to be consistent with this subsection (b). The Company
will not record any transfer of Shares that was made in violation of any
provision of this Agreement. Nothing herein shall permit any assignment of
Stockholders rights under Section 8 hereof.
(c) OWNER OF SHARES. The person in whose name shares of stock of the Company are
registered in the stock books of the Company may be treated as the owner thereof
for all purposes, including without limitation, for the giving of notices under
this Agreement.
(d) NOTICES. All notices, requests, consents and other communications required
or permitted hereunder shall be in writing and shall be deemed to have been duly
given and made and served either by personal delivery to the person for whom it
is intended or if deposited, postage prepaid, registered or certified mail,
return receipt requested, in the United States mail:
(i) if to any Stockholder, addressed to such Stockholder at its
address shown on the stock register maintained by the Company, or
at such other as such Stockholder may specify by written notice to
the Company, or
(ii) if to the Company:
xxxxxxxxxxxxxxx.xxx, inc.
Xxx Xxxxxxx Xxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx.
or to such other address as the Company may specify by written
notice to the Stockholders, with a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx.
Each such notice, request, consent or other communication shall be deemed to
have been given upon receipt thereof or, if sooner, five (5) days after such has
been deposited as described above. The addresses for the purposes of this
Section may be changed by giving written notice of such change in the manner
provided herein for giving notice. Unless and until such written notice is
received, the address provided herein shall be deemed to continue in effect for
all purposes hereunder.
(e) CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the internal laws, and not the laws of conflicts of laws, of the
State of Delaware. Each of the parties to this Agreement hereby irrevocably and
unconditionally agrees to be subject to, and hereby consents and submits to, the
jurisdiction of the courts of the Jefferson County Alabama and of the federal
courts sitting in the Northern District of Alabama.
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(f) SEVERABILITY. The parties hereto agree that the terms and provisions in this
Agreement are reasonable and shall be binding and enforceable in accordance with
the terms hereof and, in any event, that the terms and provisions of this
Agreement shall be enforced to the fullest extent permissible under law. In the
event that any term or provision of this Agreement shall for any reason be
adjudged to be unenforceable or invalid, then such unenforceable or invalid term
or provision shall not affect the enforceability or validity of the remaining
terms and provisions of this Agreement, and the parties hereto hereby agree to
replace such unenforceable or invalid term or provision with an enforceable and
valid arrangement which in its economic effect shall be as close as possible to
the unenforceable or invalid term or provision.
(g) PARTIES IN INTEREST. All the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto, whether so expressed or not.
(h) MODIFICATION, AMENDMENT AND WAIVER. Except as provided in Section 9 and
except for modifications or amendments which make only clarifying changes or
which do not increase any Stockholder's obligations hereunder or deprive any
Stockholder of a benefit granted herein (which amendments may be made by the
Company and the holders of a majority of the Shares), no modification, amendment
or waiver of any provision of this Agreement shall be effective against or inure
to the benefit of (i) any Stockholder unless approved by such Stockholder, or
(ii) the Company unless approved by its Board. The failure at any time to
enforce any of the provisions of this Agreement shall in no way be construed as
a waiver of such provisions and shall not affect the right of any of the parties
thereafter to enforce each and every provision hereof in accordance with its
terms.
(i) EMPLOYMENT. Nothing herein shall be construed as creating any contract of
employment between the Company and any Stockholder.
(j) INTEGRATION. This Agreement, together with Exhibit A hereto constitutes the
entire agreement of the parties with respect to the subject matter hereof and
thereof and supersedes all prior agreements and negotiations with respect
thereto.
(k) HEADINGS. The headings of the sections and paragraphs of this Agreement have
been inserted for convenience of reference only and do not constitute a part of
this Agreement.
(l) DISPUTE RESOLUTION; ARBITRATION.
(i) BASIS FOR ARBITRATION. The parties hereto agree that the subject
matter of this Agreement and any agreement that may be entered in connection
herewith both involve and affect interstate commerce within the meaning of the
commerce clause of the United States Constitution. This Section 12(l) shall be
irrevocable and is binding upon the parties and is subject to being specifically
enforced.
(ii) MANDATORY ARBITRATION OF DISPUTES. All actions, disputes, claims,
counterclaims or controversies arising in connection with this Agreement or in
any other agreement entered
12
by the parties in connection with this Agreement, any action taken (or any
omission to take any action) in connection with any of the foregoing, any past
and present agreements between or among the parties, including, without
limitation, this Agreement, or any agreement entered in connection with this
Agreement ("Dispute" or "Disputes") shall be resolved by binding arbitration in
accordance with Title 9 of the U.S. Code and the Commercial Arbitration Rules of
the American Arbitration Association ("AAA"). Defenses based on statutes of
limitation, estoppel, waiver, laches and similar doctrines that would otherwise
be applicable to an action brought by a party shall be applicable in any such
arbitration proceeding, and the commencement of an arbitration proceeding with
respect to this Agreement shall be deemed the commencement of an action for such
purposes.
(iii) SELECTION OF ARBITRATORS. Whenever an arbitration is required
hereunder, three arbitrators shall be selected in accordance with the Commercial
Arbitration rules of the AAA. The panel of arbitrators shall determine the
resolution of the Dispute.
(iv) PLACE OF ARBITRATION. Whenever an arbitration is required
hereunder, such arbitration shall be conducted in Birmingham, Alabama.
(v) MISCELLANEOUS. Any arbitration questions arising under this
Agreement shall be governed in accordance with Title 9 of the U.S. Code. The
provisions of this Section 12(l) shall survive any termination, amendment or
expiration of the Agreement in which this section is contained, unless the
parties otherwise expressly agree in writing. In the event of any Dispute
governed by this section, each of the parties shall pay all of its own expenses,
and, subject to the award of the arbitrator, shall pay an equal share of the
arbitrators' fees. The arbitrator shall have the power to award recovery of all
costs and fees (including attorneys' fees, administrative fees, arbitrators'
fees and court costs) to the prevailing party. This section may be amended,
changed or modified only by the express provisions of a writing which
specifically refers to this section and which is signed by all the parties
hereto.
(m) COUNTERPARTS. This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, with the same effect
as if all parties had signed the same document. All such counterparts shall be
deemed an original, shall be construed together and shall constitute one and the
same instrument.
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first written above.
COMPANY:
XXXXXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------------
Its President
------------------------------
STOCKHOLDER:
/s/ Xxxxxx X. Xxxxx, Xx.
--------------------------------------------
Name (if an individual) Xxxxxx X. Xxxxx, Xx.
/s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name (if an individual) Xxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name (if an individual) Xxxxxxx X. Xxxxxxxx
HEALTHSOUTH Corporation
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Xxxxxxx Xxxxxxx, Trustee of MVP Physicians'
Group, Inc. 401(k) Profit Sharing Plan,
f/b/o Xxxxxxx Xxxxxxx
--------------------------------------------
By:/s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Trustee
/s/ P. Xxxxx Xxxxx
--------------------------------------------
Name (if an individual) P. Xxxxx Xxxxx
Perch Bay II, LLC
---------------------------------
By: /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Managing Partner
/s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name (if an individual) Xxxxx X. Xxxxxx
14
/s/ Xxxxxxx X. Xxxx
--------------------------------------------
Name (if an individual) Xxxxxxx X. Xxxx
/s/ Xxxxxxx Xxxxx
--------------------------------------------
Name (if an individual) Xxxxxxx Xxxxx
/s/ Xxxxx X. Xxxxxxxx, Xx.
--------------------------------------------
Name (if an individual) Xxxxx X. Xxxxxxxx, Xx.
/s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name (if an individual) Xxxxx X. Xxxxxx
Marin Family Limited Partnership
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Member
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name (if an individual) Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx Charitable
Foundation, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
/s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name (if an individual) Xxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name (if an individual) Xxxxxxx X. Xxxxx
/s/ Xxxx X. XxXxxxxxx
--------------------------------------------
Name (if an individual) Xxxx X. XxXxxxxxx
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name (if an individual) Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name (if an individual) Xxxxxxx X. Xxxxx
15
The Xxxx Company
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Partner
Xxxxxx Family Trust
By: /s/ X.X. Xxxxx
-----------------------------------
Name: X.X. Xxxxx
Title: Trustee
/s/ Xxxx X. Xxxxxx
--------------------------------------------
Name (if an individual) Xxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name (if an individual) Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Name (if an individual) Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Name (if an individual) Xxxxxx X. Xxxxxxx
/s/ Swaid X. Xxxxx
--------------------------------------------
Name (if an individual) Swaid X. Xxxxx
/s/ Xxxxxx X. XxXxxxxx, Xx.
--------------------------------------------
Name (if an individual) Xxxxxx X. XxXxxxxx, Xx.
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name (if an individual) Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Name (if an individual) Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name (if an individual) Xxxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxxxxxx
--------------------------------------------
Name (if an individual) Xxxx X. Xxxxxxxxxx
/s/ Xxxxx Xxxxxx
--------------------------------------------
Name (if an individual) Xxxxx Xxxxxx
16
Acacia Venture Partners II, L.P.
By: Acacia Management, LLC
-----------------------------------
Its General Partner
------------------------------
By: /s/ X. Xxxx Xxxxxx
-----------------------------------
Its Manager
New Enterprise Associates 9, LP
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: General Partner
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name (if an individual) Xxxxxxx X. Xxxxx
---------------------
/s/ Xxxxx Xxxxxxxx
--------------------------------------------
Name (if an individual) Xxxxx Xxxxxxxx
---------------------
/s/ H. Xxxxx Xxxxxxxx
--------------------------------------------
Name (if an individual) H. Xxxxx Xxxxxxxx
---------------------
/s/ Xxxxx X. Xxxxx
--------------------------------------------
Name (if an individual) Xxxxx X. Xxxxx
---------------------
/s/ Xxxxxxx X. XxXxx
--------------------------------------------
Name (if an individual) Xxxxxxx X. XxXxx
---------------------
/s/ Xxxxxxx X. Nico
--------------------------------------------
Name (if an individual) Xxxxxxx X. Nico
---------------------
/s/ Xxxxxx Xxxxxx Xxxxxx
--------------------------------------------
Name (if an individual) Xxxxxx Xxxxxx Xxxxxx
---------------------
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name (if an individual) Xxxxxx X. Xxxxx
---------------------
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name (if an individual) Xxxxxxx X. Xxxxx
---------------------
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name (if an individual) Xxxxxxx X. Xxxxxxxx
---------------------
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name (if an individual) Xxxxxx X. Xxxxxxxx
---------------------
17
/s/ Xxxx X. Xxxxxxx
--------------------------------------------
Name (if an individual) Xxxx X. Xxxxxxx
---------------------
/s/ Lincoln X. Xxxxxx
--------------------------------------------
Name (if an individual) Lincoln X. Xxxxxx
---------------------
/s/ Xxxx X. Xxxxxxx
--------------------------------------------
Name (if an individual) Xxxx X. Xxxxxxx
---------------------
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name (if an individual) Xxxxxxx X. Xxxxxx
---------------------
/s/ Xxxx X. Xxxx
--------------------------------------------
Name (if an individual) Xxxx X. Xxxx
---------------------
/s/ Xxx X. Xxxxxxx
--------------------------------------------
Name (if an individual) Xxx X. Xxxxxxx
---------------------
/s/ Xxxxx Xxxxxx Xxxxxx
--------------------------------------------
Name (if an individual) Xxxxx Xxxxxx Xxxxxx
---------------------
18
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the
day and year first written above:
Series B Preferred Stock:
/s/
--------------------------------------------
Xxxxxxx Xxxxx Xxxxxxxxx XXX Rollover
Series C Preferred Stock:
/s/
--------------------------------------------
Xxxxxx Xxx
/s/
--------------------------------------------
Xxxxxx Xxxxx, M.D.
19
EXHIBIT A
REGISTRATION RIGHTS
1. DEFINITIONS. Terms defined in the foregoing Stockholders Agreement (the
"Agreement") are used as therein defined unless otherwise defined in this
Exhibit A. In addition, the following terms shall have the meanings indicated:
"Commission" means the Securities and Exchange Commission, or any other
federal agency then administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor Federal statute, and the rules and regulations of the
Commission thereunder, all as the same may be in effect from time to time.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented, including, without limitation any
post-effective amendments and all material incorporated by reference in such
prospectus.
"Registrable Securities" means all Company Common Stock including
Company Common Stock issuable upon conversion of Company Preferred Stock.
"Registration" means any registration of shares of Stock of the Company
pursuant to Section 2 or 3 hereof.
"Registration Statement' shall mean any registration statement under
the Securities Act which covers any Company Common Stock, including any Company
Common Stock issuable upon conversion of Company Preferred Stock, and any
amendments or supplements thereto.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
2. DEMAND REGISTRATION AND QUALIFICATION. HEALTHSOUTH may, at its option, at any
time after the completion by the Company of an initial public offering of equity
securities (pursuant to an effective registration statement under the Securities
Act), require the Company to use its reasonable best efforts to effect a
registration of Registrable Securities held by HEALTHSOUTH under the Securities
Act and to qualify such Registrable Securities under the securities or blue sky
laws of any United States jurisdiction requested by HEALTHSOUTH, and HEALTHSOUTH
shall specify in a notice to the Company whether the manner of sale of the
Registrable Securities shall involve an underwritten public offering (a "Demand
Registration"); PROVIDED, HOWEVER, that the Company shall not be required to
effect such Registration unless the Company is requested to do so with respect
to at least fifty percent (50%) of the Registrable Securities held by
HEALTHSOUTH and, in the case of an underwritten public offering, such
Registration is to be managed by an underwriter acceptable
to the Company in its reasonable discretion; at its option, the Company shall
not be required to effect such Registration for a period not to exceed six (6)
months immediately following the date on which a public offering of equity
securities of the Company (pursuant to an effective registration statement under
the Securities Act) is commenced, if such public offering is commenced prior to
the date of a request for a Demand Registration; PROVIDED, FURTHER, that, in the
case of an underwritten public offering, if, in the opinion of an independent
investment banking firm selected by the Company, such registration would, if not
deferred, materially and adversely affect a proposed business or financial
transaction of substantial importance to the Company's financial condition, the
Company may defer such registration for a single period (specified in such
notice) of not more than one hundred eighty (180) days with respect to each such
registration; and the Company shall not be required to effect a registration of
Registrable Securities under this Section more than (A) once in any twelve (12)
month period, or (B) two times in the aggregate; PROVIDED, HOWEVER, if
HEALTHSOUTH is unable to sell at least seventy-five percent (75%) of the amount
of Registrable Securities requested by HEALTHSOUTH, due to under subscription,
the reduction in Registrable Securities being offered on the recommendation of
the underwriter, or any other reason, such Demand Registration shall not be
counted for the purposes of determining the aggregate number of Demand
Registrations made by HEALTHSOUTH.
3. PIGGY-BACK REGISTRATION AND QUALIFICATION. If the Company or any security
holder of the Company at any time shall determine, at any time after the
completion by the Company of an initial public offering of equity securities
under the Securities Act, to register any of the Company's equity securities
under the Securities Act (except for shares issuable solely upon the exercise of
stock options, or shares issuable solely pursuant to employee benefit plans) on
any form other than Form S-4 or S-8 (or any similar form then in effect),
whether or not for sale for its own account, and if the registration form
proposed to be used may be used for the registration of Registrable Securities,
the Company will each such time give written notice to each Stockholder of its
intention to do so, not less than sixty (60) days prior to such proposed
registration, which notice shall describe in reasonable detail the proposed
registration and distribution. Upon the written request of a Stockholder to
register Registrable Securities and specifying the Registrable Securities
requested by such Stockholder to be registered, made within thirty (30) days
after the receipt of any such notice other, the Company will use its reasonable
best efforts to cause all such Registrable Securities as to which such
Stockholder has requested registration ("Piggy-Back Shares") to be registered
under the Securities Act and qualified under the securities or blue sky laws of
any jurisdiction requested by such Stockholder (a "Piggy-Back Registration"),
with the other securities the Company proposes to register at the time, so as to
permit the sale or other disposition of such Registrable Securities.
Notwithstanding anything to the contrary in this Section 3, the Company shall
have the right to discontinue any Piggy-Back Registration at any time prior to
the effective date of such Piggy-Back Registration if the registration of the
other securities giving rise to such Piggy-Back Registration rights is
discontinued.
4. CERTAIN LIMITATIONS ON PIGGY-BACK REGISTRATION RIGHTS. In the case of a
Piggy-Back Registration, if the Company has determined to enter into an
underwriting agreement in connection therewith, all Registrable Securities to be
included in such Registration shall be
A-2
subject to such underwriting agreement, and a Stockholder may not participate in
such Registration unless such Stockholder agrees to sell its Registrable
Securities on the basis provided in the underwriting arrangements approved by
such holders and completes and/or executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other reasonable documents
which must be executed under the terms of such underwriting arrangements.
5. ALLOCATION OF SECURITIES INCLUDED IN REGISTRATION STATEMENT. If the managing
underwriter for any Registration shall advise the Company in writing that the
inclusion in such Registration of some or all of the Registrable Securities
sought to be registered creates a substantial risk that the proceeds or price
per share the Sellers (as hereinafter defined) will derive from such
Registration will be reduced or that the number of securities to be registered
(including those sought to be registered at the instance of the Company and any
other party entitled to participate in such Registration) is too large a number
to be reasonably sold, then the number of securities sought to be registered
shall be reduced in accordance with this Section 5. For purposes of this Section
5, the term "Seller" shall mean and include the Company and each holder of
securities (including, but not necessarily limited to, Registrable Securities)
seeking to participate in the subject Registration.
(A) DEMAND REGISTRATION. In the case of a Demand Registration which involves an
underwritten public offering, the number of securities sought to be registered
by each Seller shall be reduced to the amount necessary to reduce the number of
securities to be registered to the number recommended by the managing
underwriter (the "Recommended Number") as follows: (i) first, the number of
securities proposed to be registered by the Company shall be reduced to zero, if
necessary; and (ii) second, each Seller may sell that proportion of Recommended
Number to be sold in the proposed distribution which the number of securities
proposed to be sold by such Seller bears to the aggregate number of securities
proposed to be sold by all Sellers.
(b) PIGGY-BACK REGISTRATION. (i) In the case of a Piggy-Back Registration in
which HEALTHSOUTH participates, the Company and each Seller may sell that
proportion of the securities to be sold in the proposed distribution which the
number of securities proposed to be sold by such Seller bears to the aggregate
number of securities proposed to be sold by all Sellers (including the Company);
and (ii) in the case of a Piggy-Back Registration initiated by the Company, the
Company shall first include in such registration the shares of Company Common
Stock that the Company initially proposed to sell in such Registration and then
include in such registration shares of Company Common Stock held by each other
Seller, pro rata based upon the number of shares of Company Common Stock
proposed to be sold pursuant to the Registration in relation to the aggregate
number of shares of Company Common Stock proposed to be sold by all Sellers
other than the Company.
If on any occasion of registration in which the Company proposes to file a
registration statement under the Securities Act with respect to the proposed
sale of Common Stock pursuant to a fully-underwritten public offering, and the
managing underwriter shall request an agreement by the Sellers (as defined in
this Section 5) not to sell any of the Registrable
A-3
Securities so held by each Seller for a period of ninety (90) days (or such
greater period, not to exceed one hundred eighty (180) days, as the managing
underwriter may request), after the effectiveness of any such registration
statement in order to effect an orderly public distribution thereof, then the
Sellers shall agree to enter into and execute such an agreement with such
managing underwriter and the Company pertaining to a restriction on the transfer
of any securities of the Company during such period. Each Seller further agrees,
upon request of the managing underwriter, to enter into and execute an agreement
with such managing underwriter and the Company pursuant to the terms of which
each Seller will agree not to transfer any securities of the Company during the
seven (7) day period immediately preceding the effectiveness of such
registration statement or the pricing of such offering.
6. REGISTRATION PROCEDURES. In connection with the Company's obligation
to file a Registration Statement pursuant to Section 2 or Section 3 hereof, the
Company will use its reasonable best efforts to effect such registration to
permit the sale of such Registrable Securities in accordance with the intended
method or methods of disposition thereof, and pursuant thereto, the Company will
as expeditiously as possible:
(a) before filing a Registration Statement or Prospectus or
any amendments or supplements thereto, including documents incorporated by
reference after the initial filing of the Registration Statement, furnish to the
holders of the Registrable Securities covered by such Registration Statement and
the underwriters, if any, copies of all such documents proposed to be filed,
which documents will be subject to the review of such holders and underwriters;
(b) prepare and file with the Commission a Registration
Statement with respect to such Registrable Securities to be registered and such
amendments and post-effective amendments to any Registration Statement, and such
supplements to the Prospectus, as may be reasonably required by any underwriter
of Registrable Securities or as may be required by the rules, regulations or
instructions applicable to the registration form utilized by the Company or by
the Securities Act or rules and regulations thereunder for registration or
otherwise necessary to keep the Registration Statement effective for the
applicable period and cause the Prospectus as so supplemented to be filed as
required pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
in accordance with the intended methods of disposition by the sellers thereof
set forth in such Registration Statement or supplement to the Prospectus;
(c) notify the selling holders of Registrable Securities and
managing underwriters, if any, promptly, and (if requested by any such Person)
confirm such advice in writing:
(i) when the Prospectus or any Prospectus
supplement or post-effective amendment has
been filed, and, with respect to the
Registration Statement or any post-effective
amendment, when the same has become
effective,
A-4
(ii) of any request by the Commission for
amendments or supplements to the
Registration Statement or Prospectus or for
additional information,
(iii) of the issuance by the Commission of any
stop order suspending the effectiveness of
the Registration Statement or the initiation
of any proceedings for that purpose,
(iv) if at any time the representations and
warranties of the Company in connection with
the transactions contemplated hereby cease
to be true and correct,
(v) of the receipt by the Company of any
notification with respect to the suspension
of the qualification of the Registrable
Securities for sale in any jurisdiction or
the initiation or threatening of any
proceeding for such purpose, and
(vi) of the existence of any fact which results
in the Registration Statement, the
Prospectus or any document incorporated
therein by reference containing an untrue
statement of a material fact or omitting to
state a material fact required to be stated
therein or necessary to make the statements
therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement at the
earliest possible moment;
(e) if requested by the managing underwriter or underwriters
or a holder of Registrable Securities being sold pursuant to a Registration
Statement, incorporate in a Prospectus supplement or post-effective amendment
such information as the managing underwriters and the holders of a majority in
the number of shares of the Registrable Securities being sold reasonably agree
should be included therein relating to the sale of the Common Stock, and make
all required filings of such Prospectus supplement or post-effective amendment
as soon as notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities
and each managing underwriter, without charge, at least one conformed copy of
the Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference) and as
many copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons may reasonably request;
(g) prior to any public offering of Registrable Securities,
use its best efforts to register or qualify or cooperate with the selling
holders of Registrable Securities, the
A-5
underwriters, if any, and their respective counsel in connection with the
registration or qualification of such Registrable Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as any seller or
underwriter reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of
the Registrable Securities covered by the Registration Statement, provided that
the Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which would
subject it to general service of process in any such jurisdiction where it is
not then so subject;
(h) if any fact contemplated by subsection (c)(vi) above shall
exist, prepare a supplement or post-effective amendment to the Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, the Prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(i) enter into such agreements (including, in the case of an
underwritten public offering, an underwriting agreement containing such terms
and conditions as are customary for such offerings) and take all such other
actions in connection therewith in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection:
(i) make such representations and warranties to
the holders of such Registrable Securities
and the underwriters, if any, in form,
substance and scope as are customarily made
by issuers to underwriters in primary
underwritten offerings, and
(ii) obtain opinions of counsel to the Company,
which counsel and opinions (in form, scope
and substance) shall be reasonably
satisfactory to the managing underwriters,
if any, addressed to the underwriters, if
any, covering matters customarily covered in
opinions requested in underwritten offerings
and such other matters as may be reasonably
requested by such holders and underwriters,
the above shall be done at each closing under such underwriting or similar
agreement or as and to the extent required thereunder;
(j) make available for inspection by a representative of the
holders of a majority in the number of shares of the Registrable Securities, any
underwriter participating in any disposition pursuant to such Registration
Statement, and any attorney or accountant retained by the sellers or
underwriter, all financial and other records, pertinent corporate documents and
properties of the Company reasonably requested by any such holder, underwriter,
attorney or accountant, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection with the
Registration, provided that any
A-6
records, information or documents that are designated by the Company in writing
as confidential shall be kept confidential by such persons unless disclosure of
such records, information or documents is required by court or administrative
order;
(k) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally available
to its security holders, earnings statements satisfying the provisions of
Section 11(a) of the Securities Act, no later than forty-five (45) days after
the end of any twelve (12)-month period (or ninety [90] days, if such period is
a fiscal year) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in an underwritten offering.
7. POSTPONEMENT EVENTS.
(a) The Company shall be entitled to postpone for a reasonable period of time
(not exceeding sixty [60] days) the filing (but not the preparation) of any
Registration Statement otherwise required to be prepared and filed by it
pursuant to the terms of this Agreement if, at the time the Company receives a
request for such registration, the Company is in possession of material
non-public information that would be required to be disclosed in a Registration
Statement, but that has not been and would otherwise not then be disclosed to
the public, and the Company deems disclosure not to be in the best interests of
the Company and its Stockholders. The Company shall be entitled to postpone the
filing of such a Registration Statement for additional thirty (30) day periods
(not to exceed in any event an aggregate of ninety [90] days) if it delivers to
the Stockholders an opinion of counsel to the effect that there is a reasonable
likelihood that the filing of a Registration Statement would result in the
disclosure of material non-public information that would be required to be
disclosed in a Registration Statement, the disclosure of which at such time
appears not to be in the best interests of the Company and its Stockholders;
(b) The Company shall be entitled to postpone for a reasonable period of time
(not exceeding sixty [60] days) the distribution of preliminary or final
prospectuses under any Registration Statement required to be prepared and filed
by it pursuant hereto, if at the time such distribution would otherwise be made,
the Company is engaged in an issuer tender offer within the meaning of Section
13(e) of the Exchange Act for securities of the same class (within the meaning
of the Exchange Act) as the Registrable Securities that are proposed to be
registered, unless the holders of the Registrable Securities proposed to be
registered can obtain an opinion of counsel to the effect that the staff would
not recommend enforcement action to the Commission if offers or sales were made
pursuant to a prospectus under such circumstances; and
(c) The Company shall be entitled to postpone for a reasonable period of time
(not exceeding sixty [60] days) the effectiveness (but not the filing or
preparation) of any Registration Statement otherwise required to be prepared and
filed by it pursuant to the terms of this Agreement if, within ten (10) days
after it receives a request for a registration pursuant hereto, the Company's
investment banking firm determines (and the Company so notifies the
Stockholders) that, in its judgment, such registration and offering would
materially interfere
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with any financing, acquisition, corporate reorganization or other material
transaction involving the Company that before such request was made the Board of
Directors of the Company had agreed by resolution to pursue.
10. ADDITIONAL INFORMATION. The Company may require each seller of Registrable
Securities as to which any registration is being effected to furnish to the
Company such information regarding the distribution of such securities as the
Company may from time to time reasonably request in writing.
11. DISCONTINUANCE OF DISPOSITION. Each holder of Registrable Securities agrees
by acquisition of such Registrable Securities that, upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
6(c)(vi) hereof, such holder will forthwith discontinue disposition of
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6 hereof, or until it
is advised in writing by the Company that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental filings which
are incorporated by reference in the Prospectus, and, if so directed by the
Company, such holder will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such holder's possession, of
the Prospectus covering such Registrable Securities current at the time of
receipt of such notice.
12. REGISTRATION EXPENSES
(l) All expenses incident to the Company's performance of or
compliance with this Exhibit A, including without limitation:
(i) all registration and filing fees (including
filings required to be made with the
National Association of Securities Dealers);
(ii) fees and expenses of compliance with
securities or blue sky laws (including fees
and disbursements of counsel for the
underwriters or selling holders in
connection with blue sky qualifications of
the Registrable Securities and determination
of their eligibility for investment under
the laws of such jurisdictions as the
managing underwriters or holders of a
majority of the Registrable Securities being
sold may reasonably designate);
(iii) printing, copying, messenger, telephone,
facsimile and delivery expense;
(iv) fees and disbursements of counsel for the
Company;
(v) fees and disbursements of a independent
certified public accountants of the Company
(including the expenses of any
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special audit and "cold comfort" letters
required by or incident to such
performance);
(vi) underwriting discounts or other fees and
expenses of underwriters, selling brokers,
dealer managers or similar securities
industry professionals relating to the
distribution of the Registrable Securities;
and
(vii) fees and expenses of other Persons retained
by the Company
(all such expenses being herein called "Registration Expenses"), will be borne
by the Company.
The Company will pay all internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal, accounting or related duties), the expense of any annual audit, the fees
and expenses incurred in connection with the listing of the securities to be
registered on each securities exchange on which similar securities issued by the
Company are then listed, and the fees and expenses of any Person, including
special experts, retained by the Company.
13. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each holder of Registrable Securities, its officers,
directors, employees and agents and each Person who controls such holder within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act (each such Person being sometimes hereinafter referred to as an
"Indemnified Holder") from and against all losses, claims, damages, liabilities
and expenses (including reasonable costs of investigation and legal expenses)
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement or Prospectus or in any
amendment or supplement thereto or in any preliminary prospectus, or arising out
of or based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any such untrue statement or omission or
allegation thereof based upon information furnished in writing to the Company by
such holder expressly for use therein; PROVIDED, HOWEVER, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any preliminary
prospectus if (i) such holder failed to send or deliver a copy of the Prospectus
with or prior to the delivery of written confirmation of the sale of Registrable
Securities and (ii) the Prospectus would have corrected such untrue statement or
omission; and, PROVIDED FURTHER, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission in the Prospectus, if such untrue statement or
alleged untrue statement, omission or alleged omission is corrected in an
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amendment or supplement to the Prospectus and if, having previously been
furnished by or on behalf of the Company with copies of the Prospectus as so
amended or supplemented, such holder thereafter fails to deliver such Prospectus
as so amended or supplemented, prior to or concurrently with the sale of a
Registrable Security to the Person asserting such loss, claim, damage, liability
or expense who purchased such Registrable Security which is the subject thereof
from such holder. This indemnity will be in addition to any liability which the
Company may otherwise have.
If any action or proceeding (including any governmental investigation
or inquiry) shall be brought or asserted against an Indemnified Holder in
respect of which indemnity might be sought from the Company, such Indemnified
Holder shall promptly notify the Company in writing, and the Company shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Holder and the payment of all expenses. Such
Indemnified Holder shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel shall be the expense of such Indemnified Holder unless (x) the
Company has agreed to pay such fees and expenses, (y) the Company shall have
failed to assume the defense of such action or proceeding and has failed to
employ counsel reasonably satisfactory to such Indemnified Holder in any such
action or proceeding or (z) the named parties to any such action or proceeding
(including any impleaded parties) include both such Indemnified Holder and the
Company and such Indemnified Holder shall have been reasonably advised by
counsel that there may be one or more legal defenses available to such
Indemnified Holder which are in conflict with, those available to the Company
(in which case, if such Indemnified Holder notifies the Company in writing that
it elects to employ separate counsel at the expense of the Company, the Company
shall not have the right to assume the defense of such action or proceeding on
behalf of such Indemnified Holder, it being understood, however, that the
Company shall not, in connection with any one such action or proceeding or
separate but substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm of attorneys at
any time for such Indemnified Holder and any other Indemnified Holders, which
firm shall be designated in writing by such Indemnified Holder) and reasonably
acceptable to the Company. The Company shall not be liable for any settlement of
any such action or proceeding effected without its written consent, which shall
not be unreasonably withheld, but, if settled with its written consent, or if
there be a final judgment for the plaintiff in any such action or proceeding,
the Company agrees to indemnify and hold harmless such Indemnified Holders from
and against any loss or liability by reason of such settlement or judgment.
(b) INDEMNIFICATION BY HOLDER OF REGISTRABLE SECURITIES. Each
holder of Registrable Securities agrees to indemnify and hold harmless the
Company, its directors and officers and each Person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the
Company to such holder, but only with respect to information relating to such
holder furnished in writing by such holder expressly for use in any Registration
Statement or Prospectus, or any amendment or supplement thereto, or any
preliminary prospectus. In case any action or proceeding shall be brought
against the Company or its directors or officers or any such
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controlling Person, in respect of which indemnity may be sought against a holder
of Registrable Securities, such holder shall have the rights and duties given
the Company, and the Company or its directors or officers or such controlling
Person shall have the rights and duties given to each holder by the preceding
subsection (a). In no event shall the liability of any selling holder of
Registrable Securities hereunder be greater in amount than the dollar amount of
the proceeds received by such holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation. The Company shall be entitled to
receive indemnities from underwriters, selling brokers, dealer managers and
similar securities industry professionals participating in the distribution, to
the same extent as provided above with respect to information so furnished in
writing by such Persons specifically for inclusion in any Prospectus or
Registration Statement.
(c) CONTRIBUTION. If the indemnification provided for in this
Section 8 is unavailable to an indemnified party under Section 13(a) or Section
13(b) hereof (other than by reason of conditions provided in those Sections) in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the Company, on the one hand, and of the Indemnified Holder, on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of the Company, on the one hand,
and of the Indemnified Holder, on the other, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Indemnified Holder and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable by
a party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in the second paragraph of Section 13(a), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Company and each holder of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this Section 13(c)
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this Section
13(c), an Indemnified Holder shall not be required to contribute any amount in
excess of the amount by which the total price at which the Securities sold by
such Indemnified Holder or its affiliated Indemnified Holders and distributed to
the public were offered to the public exceeds the amount of any damages which
such Indemnified Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation.
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14. RULE 144. If the Company shall be subject to the reporting requirements of
Section 13 of the Exchange Act, the Company will timely file all reports
required to be filed from time to time with the Commission (including but not
limited to the reports under Sections 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144 adopted by the Commission under the
Securities Act). After the consummation of an initial public offering of the
Company Common Stock under the Securities Act, if there is a public market for
any securities of the Company at any time that the Company is not subject to the
reporting requirements of either of said Section 13 or 15(d), the Company will,
upon the request of any holder of any warrant or restricted Stock, use its best
efforts to make publicly available the information concerning the Company
referred to in subparagraph (c)(2) of said Rule 144. The Company will furnish to
each holder of any warrant or restricted Stock, promptly upon request, (a) a
written statement of the Company's compliance with the requirements of
subparagraph (c)(1) or (c)(2), as the case may be, of said Rule 144 and (b)
written information concerning the Company sufficient to enable such holder to
complete any Form 144 required to be filed with the Commission pursuant to said
Rule 144.
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EXHIBIT B
INTERNET PLATFORM
The following sets forth a description of the functions which must be
operational in the Company's internet based business-to-business e-commerce
medical product procurement system in order for the Company to have completed
the "Internet Platform," as described in the foregoing Stockholder's Agreement:
1. A qualified user must be able to search HEALTHSOUTH's product catalog for
medical systems;
2. The system must produce an automated requisition form to request medical
products;
3. The system must issue a purchase order for desired medical products;
4. The system must transmit a purchase order to the appropriate vendor for
fulfillment;
5. The system must provide automatic electronic invoicing to HEALTHSOUTH; and
6. The system must enable HEALTHSOUTH to monitor status of shipment through
delivery.
