Exhibit 4.03
SHAREHOLDER AGREEMENT
This Agreement, made as of June 15, 1999, is entered into by and among
RealMed Corporation (the "Company"), an Indiana corporation, Xxxxxx X. Xxxxxxxx
("Xxxxxxxx"), Xxxx X. Xxxxxx ("Xxxxxx"), JLT, LP, an Indiana limited partnership
("JLT"), Gemplus SCA, Gemplus Corp., Xxxxx Xxxxx, West Plains Investment, Inc.,
Finno SCA, and Candel & Partners (collectively, the foregoing six persons are
sometimes hereinafter referred to as the "French Shareholders") and Newcourt
Financial USA Inc. ("Newcourt") (individually, each a "Current Shareholder" and
collectively the "Current Shareholders") and Xxxxxx X. Xxxx.
RECITALS:
A. Immediately upon the closing (the "Closing Time") of the Loan
Agreement described below and the related transactions which are being
consummated contemporaneously therewith, the authorized capital stock of the
Company will consist of 200,000,000 shares of common stock without par value
(the "Common Shares"), of which the Current Shareholders will own, or have the
right to acquire, the number of shares set forth on Exhibit A.
B. The Company and Newcourt intend to enter into a Loan Agreement
pursuant to which, among other things, Newcourt will commit, subject to certain
terms and conditions, to loan up to $17,500,000 to the Company. Newcourt will
not enter into the Loan Agreement unless, among other things, this Agreement is
executed and delivered by the Company and the Current Shareholders.
C. The Company, Peterson, Morris, JLT and the French Shareholders
believe that it is desirable for the Company and Newcourt to enter into the Loan
Agreement and are, therefore, willing to enter into this Agreement in order to
induce Newcourt to enter into the Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and promises contained in this Agreement, the parties hereby
agree as follows:
Section 1. Definitions. The following terms and words, as used in
this Agreement, shall have the meanings ascribed to them below:
(a) The term "Affiliate" means, with respect to any specified Person,
any member of the specified Persons family and any other Person controlling,
controlled by, or under common control with, (i) the specified Person, and/or
(ii) any member of the specified Person's family.
(b) The term "Board of Directors" means the Board of Directors of
the Company as such Board shall exist from time to time.
(c) The term "Initial Public Offering" means the initial public
offering of Common Shares of the Company pursuant to an effective registration
statement under the Securities Act of 1933 which generates gross proceeds to the
Company of at least $50,000,000 or involves the issuance of Common Shares of the
Company at least equal to 20% of the then outstanding Common Shares.
(d) The term "Involuntary Transfer" means any transfer of Shares made
contrary to or without the free will, choice or consent of a Shareholder,
including, without limitation, a transfer to a trustee in bankruptcy, a
receiver, a judgment creditor, a lienholder, the holder of a security interest
or other encumbrance, a transfer pursuant to a divorce decree or other transfer
made pursuant to a judicial order or legal process, and a transfer to a personal
representative or other fiduciary upon the death or incapacity of a Shareholder.
(e) The term "Involuntary Transfer Date" means the date upon which an
Involuntary Transfer of Shares occurs.
(f) The term "Person" includes, but is not limited to, an individual, a
fiduciary, a trust, an estate, a partnership, an association, a corporation, and
any other entity.
(g) The term "Prorata Portion" means, with respect to any Remaining
Shareholder at any point in time, a fraction (i) the numerator of which is equal
to the sum of (A) the Shares then owned by such Remaining Shareholder plus (B)
the number of additional Shares which such Remaining Shareholder would be able
to acquire if it were fully to exercise all of its option, warrant and
conversion rights (such sum being referred to as the "Remaining Shareholder's
Total Shares") and (ii) the denominator of which is the aggregate of all
Remaining Shareholder's Total Shares.
(h) The term "Purchase Price" means the price to be paid for the
purchase of Shares as determined pursuant to Section 6.
(i) The terms "Remaining Shareholder" and "Remaining Shareholders"
mean, in any particular instance, the Shareholder or Shareholders, as
applicable, who is (are), at the relevant time, still holders of Shares and is
(are) not the Shareholder desiring to make a Voluntary Transfer or making an
Involuntary Transfer, as applicable.
(j) The terms "Share" and "Shares" mean (i) capital stock of the
Company now issued and outstanding, (ii) any and all capital stock which may
later be issued, and (iii) any and all shares of stock or other securities into
which the issued and outstanding capital stock may be converted in any corporate
reorganization including, but not limited to, a sale, exchange, recapitalization
or merger, which in any event are at any time owned of record or beneficially by
any of the Current Shareholders.
(k) The terms "Shareholder" and "Shareholders" mean the Current
Shareholders and any and all other persons who, from time to time, own any
Shares.
(l) The term "Special Transaction" means any of the transactions
requiring the approval of the Company's shareholders pursuant to Article V of
the Company's Articles of Incorporation.
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(m) The term "Transferor" means any person(s) who sell(s) Shares
pursuant to this Agreement, whether such person is a Shareholder or the
transferee of an Involuntary Transfer.
(n) The term "Transferee" has the meaning set forth in Section 7.
(o) The term "Voluntary Transfer" means any transfer of Shares
(including, but not limited to, a sale, gift, transfer to a trust, encumbrance,
grant or pledge) which is not an Involuntary Transfer.
Section 2. Representations, Warranties and Covenants.
(a) Each of JLT, Newcourt and the French Shareholders represents and
warrants to the other Current Shareholders that, as of the Closing Time, the
information set forth on Exhibit A to this Agreement with respect to such
Current Shareholder's ownership of, and rights with respect to, Shares is true,
accurate and complete and such Current Shareholder owns no Shares or other
securities of the Company and has no rights with respect thereto, except as
disclosed on Exhibit X. Xxxxxxxx and Xxxxxx, jointly and severally, represent
and warrant to the other Current Shareholders that, as of the Closing Time, the
information on Exhibit A to this Agreement is true, accurate and complete to
within a margin of error equal to 50,000 Shares and no person, other than those
identified on Exhibit A, owns any Shares or other securities of the Company or
has any rights with respect thereto.
(b) The Company, Xxxxxxxx and Xxxxxx, jointly and severally, represent
and warrant to the other Current Shareholders that Schedule 2(b) sets forth a
true, accurate and complete description of all contracts, agreements,
commitments, transactions, transfers, or other arrangements, directly or
indirectly, between the Company and any Affiliate of the Company, Xxxxxxxx
and/or Xxxxxx which currently exist or which took place or were in effect at any
time since January 1, 1997.
(c) The Company represents and warrants to Newcourt, JLT and the French
Shareholders, and Xxxxxxxx and Xxxxxx, jointly and severally, represent and
warrant to Newcourt, JLT and the French Shareholders to the best of their
knowledge (after due inquiry), that, except as otherwise disclosed in Schedule
2(c) to this Agreement, upon the closing of the transactions contemplated in
connection with the closing of the Newcourt Loan Agreement, the Company has no
payables, liabilities or obligations, either direct or indirect, absolute,
contingent or otherwise, including, without limitation, any direct or indirect
indebtedness, guaranty, endorsement, claim, loss, damage, deficiency, cost,
expense, obligation or responsibility, fixed or unfixed, known or unknown,
asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, secured
or unsecured.
(d) The Company represents and warrants to Newcourt, JLT and the French
Shareholders and Xxxxxxxx and Xxxxxx, jointly and severally, represent and
warrant to Newcourt, JLT and the French Shareholders, to the best of their
knowledge, that:
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(i) The Company, in the conduct of its business, has not
utilized and does not utilize any patent, trademark,
trade name, service xxxx, copyright, software, trade
secret or know-how except for those listed in
Schedule 2(d) to this Agreement (the "Intellectual
Property");
(ii) All of the Intellectual Property listed in Schedule
2(d) to this Agreement (A) is valid and in full force
and effect and any applications for registrations
relating thereto are pending and in good standing,
all without challenge of any kind; and (B) is owned
entirely by the Company, without qualification,
limitation, burden or encumbrance of any kind; and
(iii) The Company does not infringe upon or unlawfully or
wrongfully use any patent, trademark, trade name,
service xxxx, copyright or trade secret owned or
claimed by another. The Company is not in default
under, and has not received any notice of any claim
of infringement or any other claim or proceeding
relating to any such patent, trademark, trade name,
service xxxx, copyright or trade secret.
(e) JLT, Xxxxxx X. Xxxx and the Company hereby acknowledge and agree
that:
(i) In lieu of receiving repayment of the promissory
notes in the original principal amounts of $100,000,
$500,000, $250,000, $250,000 and $150,000, dated
March 19, 1999, April 16, 1999, May 3, 1999, May 19,
1999 and June 7, 1999, respectively, with accrued
collective interest of $15,890.42 as of June 15, 1999
for a total outstanding amount of $1,265,890.42, JLT
hereby applies the amount owed thereunder and agrees
to pay the Company $30,734.58 in order to exercise
the warrant dated April 16, 1999 for 1,375,000
shares. JLT agrees to remit the $30,734.58 within ten
business days of the date of this Agreement.
(ii) The Agreement dated December 17, 1998 by and between
Xxxxxx X. Xxxx and the Company is hereby canceled.
(iii) Within 15 days of the date of this Agreement, Xxxxxx
X. Xxxx shall advance the Company One Million Dollars
($1,000,000) to pay off the principal balance of that
certain credit facility (the "Facility") of the
Company with the First National Bank & Trust, Kokomo,
Indiana (the "Bank") and as consideration for such
payment, the Company shall (A) cause the Bank to
release Xx. Xxxx'x guaranty of the Facility, and (B)
issue 1,060,455 Common Shares to JLT.
(f) Each of the French Shareholders and the Company hereby agree as
follows:
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(i) Definitions. For purposes of this Section 2(f), the
following terms have the following meanings:
A. "Notes" shall mean:
(1) Promissory Note dated February 22,
1999 in favor of Xxxxx Xxxxx in the
principal amount of $566,943.57 with
accrued interest of $14,041.56
through June 15, 1999;
(2) Promissory Note dated February 23,
1999 in favor of Candel & Partners
in the principal amount of
$164,401.10 with accrued interest of
$4,035.71 through June 15, 1999; and
(3) Promissory Notes in favor of Gemplus
Corp. in the principal amount of
$4,180,187.01 (the "Reader Note"),
$350,000, $50,000 and $50,000 dated
November 13, 1998, January 12, 1999,
March 15, 1999 and March 23, 1999,
respectively, with accrued interest
of $212,533.59 as of June 15, 1999.
B. "Green Agreement" means the Financial Advisor
Agreement dated June 17, 1998 pursuant to which
the Company owed Green $75,000 for services
rendered.
C. "Green Warrant" shall mean the warrant dated
February 23, 1999 executed by the Company in
favor of Xxxxx Xxxxx whereby Green can
purchase up to $180,000 of the Company's
Common Shares.
D. "Gemplus Warrants" shall mean the two warrants
dated March 15, 1999 and March 23, 1999 in favor
of Gemplus Corp. whereby Gemplus Corp. has the
option to purchase under each warrant up to
$10,000 of the Company's Common Shares.
(ii) In lieu of receiving repayment of the Notes, any
future rights under the Green Warrant and the Gemplus
Warrants and any amount owing under the Green
Agreement, each French Shareholder hereby applies
such amount in order that the Company shall issue a
promissory note in the principal amount of
$4,287,797.87 to Gemplus Corp., convert the Gemplus
Warrants into 21,276 shares of Stock, convert the
Green Warrant into 191,489 shares of Stock, and
convert the principal balance of all Notes (except
the Reader Note) into 1,252,750 shares of Stock.
(iii) Each French Shareholder by execution of this
Agreement hereby authorizes the Company to transfer
its shares to the other French Shareholders in order
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that each French Shareholder's total equity interest
in the Company corresponds to that set forth opposite
such French Shareholder's name in Exhibit A.
(iv) Each French Shareholder hereby represents and
warrants that all the actions required under this
Section 4(f) of this Agreement by each French
Shareholder have been duly authorized and are valid
and binding on each French Shareholder.
(v) The French Shareholders shall promptly deliver to the
Company the originals of the Notes, Green Warrant and
Gemplus Warrants and they shall indemnify and hold
the Company harmless from and against any and all
claims, demands, actions, costs and expenses
(including, without limitation, reasonable attorneys'
fees) based upon or arising out of the Notes, Green
Warrant and/or Gemplus Warrants.
(g) Xxxxxx X. Xxxx, JLT, each of the French Shareholders, Xxxxxxxx
and Xxxxxx hereby acknowledge that pursuant to the Newcourt
Loan Agreement and Promissory Note, Newcourt may convert up to
$17,500,000 into 19,530,286 Common Shares and that such
conversion allows Newcourt to purchase Shares for
approximately $.896 per share. Each of the foregoing parties
agree that they have waived any "down round" or similar right,
in converting any warrants, options or convertible notes or
any similar equity anti-dilution rights and that all such
rights have been terminated pursuant to the terms and
conditions of the Release and Termination Agreement of even
date herewith.
(h) Xxxxxx and Xxxxxxxx shall use their best efforts to cause any
employees or former employees who are participants in the 1997
Incentive Stock Option Plan and have granted Xxxxxx and/or
Xxxxxxxx a proxy to vote his shares to transfer the proxy to,
or execute a replacement proxy in favor of, Xxxxxx X. Xxxxx or
such other person who may be Chief Executive Officer of the
Company.
Section 3. Restrictions on Transfer. Except as set forth in Sections 4,
5 and 11, a Shareholder shall not voluntarily or involuntarily, by operation of
law or otherwise, sell, assign, convey, transfer, donate, pledge, encumber or
dispose of any Shares except in accordance with the terms of this Agreement.
Section 4. Voluntary Transfers.
(a) If a Shareholder desires to make a Voluntary Transfer of any of his
Shares, or any interest in his Shares, he shall give notice to the Remaining
Shareholders of his intention to make a Voluntary Transfer (the "Transfer
Notice"). The Transfer Notice shall contain the following information:
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(i) the number of Shares to be transferred (the "Section
4 Shares");
(ii) the name and address of the proposed transferee;
(iii) the terms and conditions, including the purchase
price per Share, of the proposed transfer; and
(iv) a representation and warranty that the proposed
transferee has a bona fide intention to purchase the
Section 4 Shares on such terms and conditions and is
ready, willing and able (financially and otherwise)
to acquire the Section 4 Shares on such terms and
conditions (it being expressly agreed that no
Shareholder may make (or seek to make) a Voluntary
Transfer of any of his Shares to a person or entity
not so qualified).
The Transfer Notice shall constitute an offer to sell the Section 4
Shares to the Remaining Shareholders and each Remaining Shareholder shall have
an option to purchase that number of the Section 4 Shares which is equal to the
product of (a) such Remaining Shareholder's Prorata Portion of such Section 4
Shares, and (b) the total number of Section 4 Shares, at the Purchase Price
specified in Section 6(a) and upon the terms and conditions set forth in this
Agreement. The date upon which the Transfer Notice is mailed or personally
delivered, as applicable, shall be the effective date of the option given to the
Remaining Shareholders.
Each Remaining Shareholder may, but shall not be required to, purchase
any or all of his Prorata Portion of the Section 4 Shares by giving notice
(within one month after the effective date of the option granted under this
Section 4 and in accordance with Sections 9 and 18) to the selling Shareholder
and the Company of his decision to purchase such Shares. Within five days after
the last one-month option period has expired, the Company shall give notice to
each Remaining Shareholder of the option election results (including, but not
limited to, a statement of the number of Section 4 Shares, if any, not being
purchased by the Remaining Shareholders) (the "Section 4 Exercise Notice").
In the event any Remaining Shareholder fails to exercise his option to
purchase his Prorata Portion of the Section 4 Shares, or purchases less than all
of his Prorata Portion of the Section 4 Shares, each other Remaining Shareholder
who has exercised his option to purchase his entire Prorata Portion of the
Section 4 Shares shall have an option to purchase X% of those Section 4 Shares
not purchased, where X equals such Remaining Shareholder's Prorata Portion
expressed as a percentage of the Prorata Portions of all Remaining Shareholders
who have an option to purchase additional Section 4 Shares pursuant to this
sentence. This secondary option may be exercised in the same manner as described
above at any time during a ten-day period beginning on the date on which the
Section 4 Exercise Notice was given. The Company shall provide each Remaining
Shareholder with a Section 4 Exercise Notice, as provided above, with respect to
the secondary option and this procedure for the secondary option shall be
followed in successive turns until all of the Section 4 Shares have been
purchased by Remaining Shareholders or until each Remaining Shareholder has
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declined to exercise his option to purchase additional Section 4 Shares. The
final date upon which the last Remaining Shareholder provides written notice of
the exercise of his last option to purchase Section 4 Shares or the final date
upon which such Remaining Shareholder is entitled to provide such notice but
fails to do so, as applicable, shall be referred to as the "Section 4 Offer
Termination Date."
In the event that less than all of the Section 4 Shares are purchased
by the Remaining Shareholders, the rights of each of the Remaining Shareholders
under this Section 4(a) with respect to such transfer shall immediately
terminate and the Shareholder desiring to make the transfers may make such
transfer; provided, however, that the transfer only may be made in accordance
with the terms and conditions of the proposed transfer specified in the
applicable Transfer Notice and may be made only if the transferee executes and
delivers to each Remaining Shareholder a written instrument by which the
transferee agrees to be bound by this Agreement.
(b) If a Shareholder desires to acquire, directly or indirectly, any of
the Common Shares owned by Xxxxxxx Xxxxxxxxxx (the "Xxxxxxxxxx Shares"), such
Shareholders shall give notice to the other Shareholders of his intention to
make such acquisition and each Shareholder may, but shall not be required to,
purchase any or all of his Prorata Portion of the Xxxxxxxxxx Shares. The parties
shall follow procedures analogous to those set forth in Section 4(a) in
connection with the exercise of their rights to acquire Xxxxxxxxxx Shares;
provided, however, that the "all or nothing" concept set forth in the last
paragraph of Section 4(a) shall not apply.
Section 5. Involuntary Transfers.
Upon a Shareholder's Involuntary Transfer of Shares, the Person(s)
having an interest in those Shares (the "Section 5 Shares") as a result of the
Involuntary Transfer shall be deemed to have made an offer to sell to each
Remaining Shareholder, and each Remaining Shareholder shall be deemed to have an
option to purchase from such person(s), that number of the Section 5 Shares
which is equal to the product of (a) such Remaining Shareholder's Prorata
Portion of the Section 5 Shares, and (b) the total number of Section 5 Shares.
The Shareholder whose Shares are the subject of an Involuntary Transfer shall,
within three days of the Involuntary Transfer Date, give notice to the Remaining
Shareholders and the Company of the Involuntary Transfer (the "Involuntary
Transfer Notice"). The Involuntary Transfer Notice shall contain the following
information:
(a) the number of Shares subject to the Involuntary Transfer;
and
(b) the name and address of the transferee.
The date upon which the Involuntary Transfer Notice is mailed or personally
delivered, as applicable, shall be the effective date of the option given to the
Remaining Shareholders.
Each Remaining Shareholder may, but shall not be required to, purchase
any or all of his Prorata Portion of the Section 5 Shares by giving notice of
his decision to purchase such Shares (within one month after receiving the Fair
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Value Notice (as defined in Section 7) and in accordance with Sections 9 and 18)
to the Person(s) having an interest in the Section 5 Shares as a result of the
Involuntary Transfer and to the Company. Within five days after the last
one-month option period has expired, the Company shall give notice to each
Remaining Shareholder of the option election results (including, but not limited
to, a statement of the number of Section 5 Shares, if any, not being purchased
by the Remaining Shareholders ) (the "Section 5 Exercise Notice").
In the event any Remaining Shareholder fails to exercise his option to
purchase his Prorata Portion of Section 5 Shares, or purchases less than all of
his Prorata Portion of the Section 5 Shares, each other Remaining Shareholder
who has exercised his option to purchase his entire Prorata Portion of the
Section 5 Shares shall have an option to purchase X% of those Section 5 Shares
not purchased, where X equals such Remaining Shareholder's Prorata Portion
expressed as a percentage of the sum of the Prorata Portion of all Remaining
Shareholders who have an option to purchase additional Section 5 Shares pursuant
to this sentence. This secondary option may be exercised in the same manner as
described above at any time during a ten-day period beginning on the date the
Section 5 Exercise Notice was given. The Company shall provide each Remaining
Shareholder with a Section 5 Exercise Notice, as provided above, with respect to
this secondary option and this procedure for the secondary option shall be
followed in successive turns until all of the Section 5 Shares have been
purchased by Remaining Shareholders or until each Remaining Shareholder has
declined to exercise his option to purchase additional Section 5 Shares. The
final date upon which the last Remaining Shareholder provides written notice of
the exercise of his last option to purchase Section 5 Shares or the final date
upon which such Remaining Shareholder is entitled to provide such notice but
fails to do so, as applicable, shall be referred to as the "Section 5 Offer
Termination Date."
Section 6. Purchase Price. The Purchase Price per Share for Shares
sold and purchased pursuant to this Agreement shall be determined as follows:
(a) Voluntary Transfers. With respect to a sale and purchase of Shares
pursuant to Section 4(a), the Purchase Price shall be the price per Share to be
paid by the proposed transferee of the Section 4(a) Shares (as specified in the
applicable Transfer Notice).
(b) Involuntary Transfers. With respect to a purchase of Shares
pursuant to Section 5 the Purchase Price per Share shall be the fair market
value per Share (established pursuant to Section 7) as of the end of the month
immediately prior to the Involuntary Transfer Date.
Section 7. Determination of Fair Value. Upon receipt of an Involuntary
Transfer Notice, the party(s) to whom the Shares would be transferred (the
"Transferee(s)") and the Remaining Shareholders shall attempt to mutually agree
upon a fair market value. In the event the Transferee(s) and the Remaining
Shareholder are unable, within 30 days of the date that the Remaining
Shareholders received the Involuntary Transfer Notice (the "Involuntary Transfer
Notice Date"), to mutually agree upon a fair market value of the Section 5
Shares, the Remaining Shareholders shall engage an appraiser, at the Remaining
Shareholders's expense, to value the Shares of the Company ("First Appraisal").
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The Remaining Shareholder shall forward such report within 60 days after the
date of Involuntary Transfer Notice Date. If the Transferee disagrees with the
determined value which such appraiser establishes, the Transferee shall be
entitled to engage another appraiser within 30 days after receipt of the First
Appraisal, at the Transferee's own expense, to value the Shares of the Company
("Second Appraisal").
If the First Appraisal is obtained and no Second Appraisal is obtained,
the price per Share established pursuant to the First Appraisal shall be the
Purchase Price. If a First Appraisal and a Second Appraisal are both obtained,
the Purchase Price shall be the average of the price per Share established in
the First Appraisal and the price per Share established in the Second Appraisal
unless such Appraisals establish prices per Share which are different by more
than ten percent (10%). If such Appraisals establish prices per Share which are
different by more than ten percent (10%), then the two appraisers selected shall
select a third appraiser (within 15 days after the Second Appraisal is
obtained), who shall determine which of the First Appraisal and the Second
Appraisal is the more reasonable (the "Selected Appraisal"). In such event, the
Determined Value shall be equal to the price per Share established pursuant to
the Selected Appraisal. The costs and expenses of the third appraiser shall be
shared equally between the Remaining Shareholders and the Transferee(s). The
determinations of the appraisers shall be final, binding and conclusive upon the
Transferee(s), the Company and the Remaining Shareholders.
Section 8. Manner of Purchase by Remaining Shareholders. Within sixty
days after the Section 4 Offer Termination Date or Section 5 Offer Termination
Date, as applicable, each Remaining Shareholder purchasing Shares shall tender
to the Secretary of the Company a certified check made payable to the
appropriate Transferor in an amount equal to the number of shares being
purchased by the Remaining Shareholder multiplied by the applicable purchase
price per Share established by this Agreement; provided, however, in the event a
proposed Voluntary Transfer provides that some or all of the aggregate purchase
price of Section 4 Shares will be paid to the Transferor in one or more future
installments ("Deferred Purchase Price"), then each Remaining Shareholder who is
purchasing Section 4 Shares shall tender to the Secretary of the Company (a) a
certified check made payable to the Transferor in an amount equal to that
portion of the aggregate purchase price of the Section 4 Shares being purchased
by him for cash, and (b) a promissory note executed by such Remaining
Shareholder to and in favor of the Transferor, in a principal amount equal to
that portion of the Deferred Purchase Price attributable to the Section 4 Shares
being purchased by such Remaining Shareholders and containing such terms and
conditions as are set forth in the Transfer Notice. Upon receipt of the
foregoing certified check and, if applicable, promissory note from a Remaining
Shareholder, the Secretary of the Company shall: (i) cause such certified check
and, if applicable, promissory note, to be delivered to the Transferor in
exchange for delivery by the Transferor of a certificate or certificates,
endorsed in blank, evidencing the Shares being sold, and (ii) cause the
appropriate certificates evidencing such Shares being sold to be delivered to
the Remaining Shareholder.
Section 9. Notice of Exercise of Option to Purchase Shares. Each notice
of exercise required pursuant to Sections 4 and 5 of this Agreement shall be
written and shall specify the number of Shares which the Remaining Shareholder
is purchasing.
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Section 10. Restrictive Legends. The following restrictive legend
shall be placed upon each certificate evidencing Shares subject to this
Agreement:
The sale, assignment, transfer, encumbrance or other
disposition of the shares of common stock represented by this
certificate are restricted by the terms of a Shareholder
Agreement, dated as of June 15, 1999, among RealMed
Corporation and certain of its shareholders. A copy of that
agreement is on file with, and available for inspection at,
the offices of RealMed Corporation.
Section 11. Permitted Transfers.
(a) Notwithstanding any other provision of this Agreement to the
contrary, Xxxxxxxx and Xxxxxx shall each be entitled to sell, convey, assign and
transfer to JLT up to 944,111 Shares pursuant to the terms of an Option
Agreement, dated June 10, 1996, by and among Xxxxxxxx, Xxxxxx and JLT without
complying with the provisions of this Agreement. Any such Shares transferred to
JLT shall, after such transfer to JLT, be subject to the provisions of this
Agreement.
(b) Notwithstanding any other provision of this Agreement to the
contrary, each of Xxxxxxxx and Xxxxxx shall be entitled to sell, convey, assign
and transfer Shares to members of his family and/or key executive employees of
the Company without complying with the provisions of this Agreement; provided,
however, that each of Xxxxxxxx and Xxxxxx shall be entitled to transfer no more
than a total of 2,500,000 Shares pursuant to this Section 11(b), and any such
transfer shall be null and void unless the transferee of such Shares executes
and delivers a written instrument by which the transferee agrees to be bound by
this Agreement.
(c) Notwithstanding any other provision of this Agreement to the
contrary, Newcourt shall be entitled to sell, convey, assign and transfer any or
all of its Shares to any entity, if Newcourt Credit Group Inc., directly or
indirectly, maintains more than fifty percent of the voting interest in such
entity, without complying with the terms of this Agreement; provided, however,
that any such transfer shall be null and void unless the transferee of such
Shares executes and delivers a written instrument by which such transferee
agrees to be bound by the terms of this Agreement.
(d) Notwithstanding any other provision of this Agreement to the
contrary, the French Shareholders shall be entitled to sell, convey, assign and
transfer all of their respective Shares to Newco 1 and Newco 2 as contemplated
in Section 14 of this Agreement and Newco 1 and Newco 2 shall be entitled to
sell, convey, assign and transfer Shares to other entities, if Gemplus Corp.
and/or Gemplus SCA, directly or indirectly, maintain more than fifty percent of
the voting interest in each such entity (the "Gemplus Affiliates"); provided,
however, that any such transfer shall be null and void unless the transferee of
such Shares executes and delivers a written instrument by which such transferee
agrees to be bound by the terms of this Agreement.
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(e) Notwithstanding any other provision of this Agreement to the
contrary, JLT shall be entitled to sell, convey, assign and transfer its Shares
to other entities, if Xxxxxx X. Xxxx and/or Xxxxx X. Xxxx, directly or
indirectly, maintain more than fifty percent of the voting interest in each such
entity ("JLT Affiliates") without complying with the terms of this Agreement;
provided, however, that any such transfer shall be null and void unless the
transferee of such Shares executes and delivers a written instrument by which
such transferee agrees to be bound by the terms of this Agreement.
Section 12. Voting Agreement.
(a) Subject to the conditions set forth in this Section 12(a), each
Shareholder hereby agrees to vote all of the Shares owned or controlled by such
Shareholder to effectuate the election of the following persons to the Board of
Directors: (i) Xxxxxx X. Xxxxx (so long as he is Chief Executive Officer of the
Company); (ii) Xxxxxx X. Xxxx (so long as JLT owns at least 5% of the issued and
outstanding voting securities of the Company); (iii) Xxxxxxxx (so long as he,
his wife and/or an entity controlled by he and/or his wife owns at least 10% of
the issued and outstanding voting securities of the Company); (iv) Xxxxxx (so
long as he, his wife and/or an entity controlled by he and/or his wife owns at
least 10% of the issued and outstanding voting securities of the Company); (v)
one person designated by Gemplus Corp. (so long as the Gemplus Corp., Gemplus
SCA, Gemplus Affiliates and/or Newco 1 and Newco 2 collectively own at least 10%
of the issued and outstanding voting securities of the Company); and (vi) up to
two persons designated by Newcourt (so long as Newcourt owns at least 10% of the
issued and outstanding voting securities of the Company).
(b) At least two business days prior to a vote by the shareholders of
the Company on any Special Transaction, the Shareholders shall meet in person,
by telephone or by other means by which all Shareholders may simultaneously hear
each other during the meeting, to determine how their Shares will be voted with
respect to such Special Transaction. At such meeting, Newcourt shall be entitled
to a total of two votes, Xxxxxx, Xxxxxxxx and JLT shall each be entitled to a
single vote and the French Shareholders collectively shall be entitled to a
single vote (collectively, the "Special Transaction Votes") for purposes of
determining how the Shares will be voted with respect to such Special
Transaction. Except as set forth in Section 12(c), each Shareholder hereby
agrees to vote all of his Shares against each Special Transaction unless at
least all but two of the Special Transaction Votes eligible to vote have been
cast in favor of such Special Transaction, in which case, each Shareholder
agrees to vote all of his Shares in favor of such Special Transaction; provided,
however, that if any Shareholder (or an Affiliate of any Shareholder) is a party
to or directly interested (other than in its capacity as a Shareholder) in a
Special Transaction, such Shareholder shall not be entitled to its Special
Transaction Vote(s) with respect to such Special Transaction and such vote(s)
shall not be considered to be "eligible to vote" with respect to such Special
Transaction for purposes of this sentence. All parties agree that any Common
Shares which a party may be entitled to vote pursuant to a proxy or otherwise
shall be voted in accordance with the provisions of this Section 12(b).
12
(c) In the event any person other than Current Shareholders shall
become a Shareholder subject to this Agreement, the following rules shall apply
with respect to the casting of Special Transaction Votes:
(i) in no event shall the total number of Special
Transaction Votes be more than six;
(ii) in the event a Current Shareholder transfers any of
his Shares to a person other than a Current
Shareholder, such other Shareholder shall not be
entitled to an independent Special Transaction Vote,
rather the Special Transaction Vote(s) of the
transferring Current Shareholder shall be cast based
on the majority vote of the Shares then held or
previously transferred by such Current Shareholder.
Thus, for example, if Xxxxxxxx has transferred 1,000 of his Shares to person A
and 500 of his Shares to person B and person B has in turn transferred 100 of
such Shares to person C, then in the event of a Special Transaction, person A
shall be entitled to vote 1,000 Shares, person B shall be entitled to vote 400
Shares, person C shall be entitled to vote 100 Shares and Xxxxxxxx shall be
entitled to vote all of his retained Shares (all the foregoing Shares shall be
referred to in this Section as the "Xxxxxxxx Shares") for purposes of
determining how the "Xxxxxxxx" Special Transaction Vote shall be cast and such
Special Transaction Vote shall be cast in the manner which receives the vote of
the majority of the Xxxxxxxx Shares which were voted. The provisions of Sections
12(b) and (c) shall not apply to any Special Transaction which meets each of the
following criteria:
(i) it involves the issuance of Shares; and
(ii) each Shareholder has been granted an enforceable
right to acquire (on the same terms and conditions as
those applicable to the proposed issuance)
proportional amounts of the Shares to be issued .
(d) The voting agreement created by this Section 12 has been created
under and pursuant to Ind. Codess.23-1-31-2.
Section 13. During the term of this Agreement, the Company shall
(a) keep adequate records and books of account, in which complete
entries will be made in accordance with GAAP and with applicable requirements of
any governmental authority having jurisdiction over Company reflecting all
financial transactions;
(b) furnish to Shareholders (i) within ninety days after the end of
each fiscal year of Company, a balance sheet as of the close of such fiscal year
and statements of income, retained earnings and changes in financial position of
Company for such fiscal year, all of which are to be audited by a certified
public accountant (provided, however, that such financial statements for 1999
13
need only be compiled and reviewed), (ii) within forty-five days after the end
of each of the first three fiscal quarters of each fiscal year of Company, a
balance sheet and statements of income, retained earnings and changes in
financial position of Company as of the end of each such quarter and for the
then elapsed portion of such fiscal year, certified by a financial officer of
Company, and (iii) when or before the same are first due, copies of all federal,
state and local income tax returns filed by Company; and
(c) permit, at any reasonable time and from time to time, each
Shareholder or any of its agents or representatives, to examine and make copies
of and abstracts from the records and books of account of Company and visit the
properties of Company to discuss the affairs, finances, and accounts of Company
with any of its officers, employees and/or certified public accountants;
provided, that, each Shareholder agrees that it will not, except to the extent
required by law, disclose such information to any other person and will require
its agents to keep such information confidential.
Section 14. Newco Formation and Newco Transfer.
(a) Within thirteen (13) weeks of the effective date of this Agreement,
each of the French Shareholders agrees to use its commercially reasonable best
efforts to sell, convey, assign, and transfer all of its respective Shares (the
"French Shares") to one of two entities ("Newco 1" and "Newco 2") each of which
shall be owned by some combination of the French Shareholders. If such transfers
are effected, the French Shareholders shall cause Newco 1 and Newco 2 to execute
instruments confirming the transfer of the French Shares and agreeing that it
and such Shares are bound by this Agreement, and Newco 1 and Newco 2 shall then
be considered a "Current Shareholder."
(b) During the term of this Agreement, Gemplus Corp. shall, at all
times, hold an irrevocable proxy to vote, for all purposes, all of the French
Shares and to cast the French Shareholders' Special Transaction Vote. In the
event that the ownership of either Newco 1 or Newco 2 or any Gemplus Affiliate
which owns Shares is directly or indirectly subject to a voluntary or
involuntary transfer in such a manner that the French Shareholders no longer
maintain more than fifty percent (50%) of the voting interest in such entity,
such transfer shall be deemed to be Voluntary of Involuntary Transfer of the
Shares owned by such entity and all such Shares shall be subject to purchase as
provided in Section 4 or Section 5, as applicable.
Section 15. JLT Transfers. In the event that the ownership of JLT or
any JLT Affiliate which owns Shares is directly or indirectly subject to a
voluntary transfer or involuntary transfer in such a manner that Xxxxxx X. Xxxx
or Xxxxx X. Xxxx no longer, directly or indirectly, collectively maintain more
than fifty percent (50%) of the voting interest in such entity, such transfer
shall be deemed to be a Voluntary Transfer or Involuntary Transfer of the Shares
owned by such entity and all such Shares shall be subject to purchase as
provided in Section 4 or Section 5, as applicable.
14
Section 16. Term. This Agreement, and the obligations of the
parties to this Agreement and their respective assigns and successors in
interest, shall terminate upon the happening of any of the following events:
(a) the dissolution or termination of the existence of the Company;
(b) the adjudication of the Company as a bankrupt;
(c) the appointment of a receiver for the Company followed by a
failure to remove the receiver within three months;
(d) whenever there is only one Shareholder still bound by this
Agreement;
(e) the execution and delivery of a termination agreement by the
Company and all Current Shareholders who, at the time of such execution and
delivery, are record owners of Shares subject to the terms of this Agreement;
(f) the closing of the offering of Common Shares pursuant to an
Initial Public Offering; and
(g) Newcourt is in default of any of its material obligations under
this Agreement and such default remains uncured for a period of fifteen business
days after written notice of such default has been delivered to Newcourt.
Upon termination of this Agreement pursuant to this Section 16, each
Shareholder shall promptly surrender the certificate(s) representing his Shares
and the Company shall issue him a new certificate for an equal number of Shares
without the legend required by Section 10. The rights and obligations set forth
in the foregoing sentence shall survive the termination of this Agreement.
Section 17. Disclaimer of Interest. If any Current Shareholder shall be
deemed or determined to have owned (beneficially or of record), as of the
Closing Time, any capital stock of the Company, or any options, warrants, puts,
calls or other rights with respect to the capital stock of the Company not set
forth on Exhibit A, such Current Shareholder hereby disclaims and renounces such
capital stock, options, warrants, puts, calls or other rights and all of same
are hereby terminated and rendered null and void.
Section 18. Parties Bound By This Agreement. This Agreement shall be
binding upon and shall inure to the benefit of all of the parties to this
Agreement and their respective heirs, executors, administrators, assigns and
successors in interest. In the event any Shares or any interest or interests in
any Shares are issued or transferred to any person or entity, such person or
entity shall receive and hold those Shares or interests in Shares subject to the
terms of this Agreement and subject to all obligations and limitations imposed
by this Agreement with respect to any transfer of Shares.
15
Section 19. Enforcement. It is agreed that there will be irreparable
damage if this Agreement is not specifically enforced or if a breach or
anticipated breach is not enjoined. If any person who is required by this
Agreement to perform, or refrain from performing, an act refuses to perform, or
refrain from performing (as the case may be) that act, one or more of the
parties to this Agreement may institute and maintain proceedings to compel the
specific performance of this Agreement by the person in default. In addition, if
any person breaches this Agreement or if a breach is reasonably anticipated, one
or more parties to this Agreement may institute and maintain proceedings to
enjoin the breach or anticipated breach, and may obtain an injunction against
the breach or anticipated breach. These remedies are cumulative and are in
addition to any rights and remedies otherwise available to any party. The
prevailing party in any litigation brought to enforce this Agreement shall be
entitled to receive from the non-prevailing party all costs, expenses and
reasonable attorney's fees paid or incurred by the prevailing party in
connection with the litigation.
Section 20. Applicable Law and Choice of Forum. The parties affirm that
this Agreement has been entered into in the State of Indiana and shall be
governed by and construed in accordance with the substantive laws of the State
of Indiana, notwithstanding any state's choice of law rules to the contrary.
Further, the parties expressly agree that any and all action concerning any
dispute arising under this Agreement shall be filed and maintained only in a
state or federal court sitting in the State of Indiana or the State of
California, and each party hereby consents and submits to the jurisdiction of
such state or federal court.
Section 21. Applicability to All Shares. All Shares owned by a party to
this Agreement, whether acquired before or after the execution of this
Agreement, as well as all Shares owned from time to time by an other person,
shall be subject to this Agreement.
Section 22. Notices. Unless expressly provided herein, all notices,
claims, certificates, requests, demands and other communications hereunder shall
be in writing and shall be deemed to be duly given (i) when personally delivered
or (ii) if mailed, registered or certified mail, postage prepaid, return receipt
requested, on the date the return receipt is executed or the letter refused by
the addressee or its agent or (iii) if sent by overnight courier which delivers
only upon the signed receipt of the addressee, on the date the receipt
acknowledgment is executed or refused by the addressee or its agent:
(i) if to the Company:
RealMed Corporation
Suite 350
00000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Chief Executive Officer
Facsimile Number: (000) 000-0000
16
with copies to:
Xxxxxx X. Xxxxx
Xxxxx & Xxxxxxx
Suite 2700
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Facsimile Number: (000) 000-0000
(ii) if to Xxxxxxxx:
RealMed Corporation
Suite 350
00000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Facsimile Number: (000) 000-0000
(iii) if to Xxxxxx:
RealMed Corporation
Suite 350
00000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxx
Facsimile Number: (000) 000-0000
(iv) if to JLT:
Conseco Companies
00000 X. Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxx
Facsimile Number: (000) 000-0000
(v) if to Gemplus SCA:
Avenue du Pic de Bertange
X.X. 000
00000 Xxxxxxx Xxxxx
Xxxxxx
Attn: Legal Dept.
Facsimile Number: 011-33-4-42-36-59-27
17
with copies to:
Gemplus Corp.
Xxxxx 000
0 Xxxxxx Xxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Legal Dept.
Facsimile Number: (000) 000-0000
(vi) if to Gemplus Corp.:
Xxxxx 000
0 Xxxxxx Xxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Legal Dept.
Facsimile Number: (000) 000-0000
(vii) if to Xxxxx Xxxxx:
0 Xxxxxx Xxxxx
00000 Xxxxx, Xxxxxx
Facsimile Number: 011-331-56-791029
(viii) if to West Plains Investment, Inc.:
x/x Xxxxxx & Xxxxxxxx
0 Xxxxxx Xxxxx
00000 Xxxxx, Xxxxxx
Xxxxx Xxxxx
Facsimile Number: 011-331-56-791029
(ix) if to Finno SCA:
x/x Xxxxxx & Xxxxxxxx
0 Xxxxxx Xxxxx
00000 Xxxxx, Xxxxxx
Xxxxx Xxxxx
Facsimile Number: 011-331-56-791029
(x) If to Candel & Partners:
0 Xxxxxx Xxxxx
00000 Xxxxx, Xxxxxx
Xxxxx Xxxxx
Facsimile Number: 011-331-56-791029
18
(xi) if to Newcourt:
Newcourt Financial USA Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxxxx
Facsimile Number: (000) 000-0000
with copies to:
Xxxx X. Xxxxxxx
Xxxxxx & Xxxxxxx, PC
4000 Bank Xxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile Number: (000) 000-0000
or to such other address as may have previously furnished to the other party in
writing in the manner set forth above.
Section 23. Severability. If any term or provision of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms and provisions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
each of the parties shall use its reasonable best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term or provision.
Section 24. Amendments. No change, amendment, modification or
supplement to this Agreement shall be valid or effective unless it is in writing
and is duly executed by each party to this Agreement or its duly authorized
successor or assign.
Section 25. Waivers. The failure of any party to this Agreement to
enforce at any time any provision of this Agreement shall not be construed to be
a waiver of such provision, nor in any way to affect the validity of this
Agreement or any part of it or the right of such party to enforce each and every
provision of this Agreement. Any waiver of any breach or provision of this
Agreement must be in a writing signed by the waiving party in order to be
effective and, except as otherwise clearly expressed in such a writing, no
waiver of any breach or provision of this Agreement shall constitute a waiver of
any other breach or provision or a continuing waiver. The performance by any
party to this Agreement of any act not required of it by the terms of this
Agreement shall not constitute either an agreement that such act is required or
a waiver of the scope of, or limitations on, its obligations under this
Agreement and no such performance shall estop such party from denying any
obligation to perform such act or asserting such scope or limitations with
respect to any further or future acts or failures to act.
Section 26. Singular, Plural and Gender Usage. When used in this
Agreement, words denoting the singular include the plural and vice versa and
words of any gender include all genders.
19
Section 27. Complete Agreement. This Agreement constitutes a complete
and total integration of the understanding of the parties with respect to the
subject matter of this Agreement and it supersedes all prior and all
contemporaneous agreements and understandings (whether written, oral or implied)
of the parties, or their respective agents, with respect to such subject matter.
Section 28. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute but one agreement. Any facsimile transmission of a
signed counterpart of this Agreement shall be deemed to be an original
counterpart and all signatures appearing thereon shall be deemed to be
originals.
Section 29. References to Sections. Unless otherwise stated, each
reference in this Agreement to a Section is a reference to the specified Section
of this Agreement.
Section 30. Headings. The headings in this Agreement are for purposes
of convenience of reference only, shall not be deemed to constitute a part of
this Agreement and shall not be considered in construing the terms of this
Agreement.
Section 31. Confidential Information. The parties to this Agreement
shall treat in confidence, and not disclose without the prior consent of each
other party hereto, the terms of this Agreement and the information contained on
all Schedules hereto. The obligations of the parties under this Section 31 shall
survive the termination of this Agreement and remain in full force and effect
until released by each party hereto, in writing.
Section 32. Gender. Wherever the context shall so require, all words in
the masculine gender shall be deemed to include the feminine or neuter gender;
all singular words shall include the plural; and, all plural words shall include
the singular.
Section 33. Construction. This Agreement shall not be strictly
construed against any party.
Section 34. Attorneys' Fees. In the event of any litigation among any
of the parties to this Agreement regarding the matters governed hereby or the
enforcement hereof, the losing party shall pay to the prevailing party all
reasonable expenses and costs, including reasonable attorneys' fees, incurred by
the prevailing party in connection with such litigation.
20
IN WITNESS WHEREOF, the parties of this Agreement have entered into
this Agreement as of the date first written above.
"The French Shareholders"
GEMPLUS SCA GEMPLUS CORP.
By: By:
------------------------------
Printed Name, Title Printed Name, Title
WEST PLAINS INVESTMENT, INC. FINNO SCA
By: By:
-----------------------------
Printed Name, Title Printed Name, Title
CANDEL & PARTNERS
By: Xxxxx Xxxxx
Printed Name, Title
JLT, LP
By:
Xxxxxx X. Xxxx
Xxxxxx X. Xxxx, General Partner
(Signatures continued on next page)
(Signatures continued from preceding page)
"Xxxxxxxx" "Xxxxxx"
Xxxxxx X. Xxxxxxxx Xxxx X. Xxxxxx
REALMED CORPORATION
By:
Xxxxxx X. Xxxxxxxx, President
NEWCOURT FINANCIAL USA INC.
By:
Xxxxxx X. Xxxxx, Executive Vice President
