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Exhibit 10.2
STOCKHOLDERS' AGREEMENT
DATED AS OF
NOVEMBER 12, 1999
BY AND AMONG
MAXXIM MEDICAL, INC.
AND
THE INVESTORS LISTED
ON THE SIGNATURE PAGES HERETO
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS...................................................................3
ARTICLE II RESTRICTIONS ON TRANSFERS OF STOCK............................................8
2.1 General Limitations on Transfers..............................................8
2.1.1 Transfers Generally...................................................8
2.1.2 Recordation...........................................................8
2.1.3 Obligations of Transferees............................................8
2.1.4 Transfers to Competitors..............................................8
2.2 Compliance with Securities Laws...............................................9
2.3 Permitted Transfers...........................................................9
2.3.1 FPC Transfers.........................................................9
2.3.2 Rollover Investors...................................................10
2.3.3 Permitted Transferees................................................10
2.3.4 Transfer by Permitted Transferees....................................10
2.3.5 Other Transfer Restrictions..........................................10
2.3.6 Transfers by Mezzanine Investor......................................11
2.3.7 Transfer by Discount Note Purchaser..................................12
2.4 Right of First Offer.........................................................12
2.4.1 Right of First Offer.................................................12
2.4.2 First Offer Notice...................................................13
2.4.3 First Offer Election.................................................13
2.4.4 Sale Agreement; Reoffer..............................................13
2.5 Tag-Along Rights.............................................................13
2.5.1 Sale Notice..........................................................13
2.5.2 Tag-Along Election...................................................14
2.5.3 Seller's Rights to Transfer..........................................14
2.6 Drag-Along Right.............................................................15
2.6.1 Exercise.............................................................15
2.6.2 Sale Agreement.......................................................16
2.6.3 No Liability.........................................................16
2.7 Additional Provisions Relating to Restrictions on Transfers..................16
2.7.1 Legends..............................................................16
2.7.2 Copy of Agreement....................................................17
2.7.3 Termination of Restrictions..........................................17
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ARTICLE III REGISTRATION RIGHTS..........................................................18
3.1 Piggyback and Demand Registrations...........................................18
3.1.1 Piggyback Registrations..............................................18
3.1.2 Demand Registrations.................................................19
3.1.3 Expenses.............................................................19
3.1.4 Priority in Piggyback and Demand Registrations.......................19
3.1.5 Underwriting Requirements............................................20
3.2 Registration Procedures......................................................20
3.3 Indemnification..............................................................23
3.4 Holdback Agreement...........................................................26
3.5 Deferral.....................................................................27
ARTICLE IV EXECUTIVE MANAGEMENT INVESTORS' PUT RIGHTS...................................28
4.1 Put Rights...................................................................28
ARTICLE V MISCELLANEOUS................................................................29
5.1 Effectiveness; Term..........................................................29
5.2 No Voting or Conflicting Agreements..........................................29
5.3 Composition of the Board of Directors........................................30
5.4 Approval of Stock Incentive Plan by Stockholders.............................30
5.5 Specific Performance.........................................................30
5.6 Notices......................................................................31
5.7 Successors and Assigns.......................................................31
5.8 Recapitalizations and Exchanges Affecting Common Stock.......................31
5.9 Governing Law................................................................31
5.10 Descriptive Headings, Etc....................................................31
5.11 Amendment....................................................................31
5.12 Severability.................................................................32
5.13 Further Assurances...........................................................32
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5.14 Complete Agreement; Counterparts.............................................32
5.15 Certain Transactions.........................................................32
5.16 No Third-Party Beneficiaries.................................................33
SIGNATURES........................................................................34
Exhibits
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Exhibit A - Stock Incentive Plan
Schedules
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Schedule I - Stockholder Holdings of Common Stock, Options and Warrants
Schedule II - Reinvestment Shares
Schedule 2.3.7(a) - Transfer by Discount Note Purchaser
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STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, dated as of November 12, 1999 (the
"Agreement"), by and among MAXXIM MEDICAL, INC., a Texas Corporation (the
"Company"), FOX XXXXX CAPITAL FUND, L.P., a Delaware limited partnership (the
"Fund"), FPC INVESTORS, L.P., a Delaware limited partnership ("FPC Investors"
and, together with the Fund and the Co-Investors (as defined below), "FPC"),
MAXXIM COINVESTMENT FUND I, LLC, a Delaware limited liability company, MAXXIM
COINVESTMENT FUND II, LLC, a Delaware limited liability company, MAXXIM
COINVESTMENT FUND III, LLC, a Delaware limited liability company, MAXXIM
COINVESTMENT FUND IV, LLC, a Delaware limited liability company, MAXXIM
COINVESTMENT FUND V, LLC, a Delaware limited liability company (such
coinvestment funds, collectively, the "Co-Investors"), and GS Mezzanine
Partners, L.P. and GS Mezzanine Partners Offshore, L.P. (collectively, the
"Mezzanine Investor"), and Xxxxxxx X. Xxxxxxxx, acting in his individual
capacity and as President of Davidson Management, Inc., the general partner of
Davidson Management International Limited Partnership, a Nevada limited
partnership, Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxx, Xxxxx X. XxXxxx, Xxxx X. Xxxxxx,
Xxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxx (such executives and the
related entities so listed, collectively, the "Executive Management
Investors"), and Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx (together with the
Executive Management Investors, the "Rollover Investors"), and Chase Equity
Associates, L.P., Nationwide Life Insurance Company, Xxxx Xxxxxxx Mutual Life
Insurance Company, Xxxx Xxxxxxx Variable Life Insurance Company, Signature 3
Limited, Xxxxxxx Xxxxx International, The Northwestern Mutual Life Insurance
Company, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Deutsche Bank AG,
New York Branch, CIBC WMC, Inc., Credit Suisse First Boston Corporation
(collectively, and together with the Mezzanine Investor, the "Discount Note
Purchasers" and, together with the Rollover Investors, the Mezzanine Investor,
the "Other Investors"). Xxxx Xxxxxxx Mutual Life Insurance Company, Xxxx
Xxxxxxx Variable Life Insurance Company, Signature 3 Limited and Xxxxxxx Xxxxx
International shall be treated as a single Discount Note Purchase for purposes
of this Agreement. References herein to the Company shall mean the Company as
the surviving corporation in the Merger (as defined below). Employees,
directors, consultants and certain other Persons (as defined below) having
significant business relationships with the Company and its Affiliates (as
defined below) may be issued shares of Common Stock (as defined below) (or
other equity securities of the Company) or securities convertible into or
exchangeable for Common Stock (or other equity securities of the Company)
subject to the terms of this Agreement and, if so issued, the Company, without
the consent of any other party hereto, may amend this Agreement to allow any
such Person the Company so chooses to become an additional Executive Management
Investor hereunder and listing such Person on Schedule I hereto, subject to
such Person becoming a signatory to this Agreement. The parties hereto (other
than the Company) and any other Person who shall hereafter acquire shares of
Common Stock (or other equity securities of the Company) or securities
convertible into or exchangeable for Common Stock (or other equity securities
of the Company) pursuant to the provisions of, and/or subject to the
restrictions and rights set forth in, this Agreement (including through
participation in certain Company stock or option plans) are sometimes
hereinafter referred to individually as a "Stockholder" or collectively as the
"Stockholders."
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RECITALS
WHEREAS, as of the Effective Date (as defined below), the
Company will have authorized 40,000,000 shares of Common Stock, par value
$0.001 per share ("Common Stock"), each share of which is entitled to one vote
on all Stockholder matters as more specifically provided in the restated
articles of incorporation, as amended of the Company (the "Certificate"), and
of which 5,770,704 shares of Common Stock will be issued and outstanding
immediately after the Effective Date. In addition, the Company will have
reserved, as of the Effective Date, 1,172,875 shares of Common Stock for
issuance pursuant to the Company 1999 Stock Incentive Plan (the "Stock
Incentive Plan"), 118,910 shares of Common Stock for issuance pursuant to the
Warrant Agreement (as defined herein) and 144,132 shares of Common Stock for
issuance pursuant to the Mezzanine Warrant Agreement (as defined below);
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as
of June 13, 1999, as amended by Amendment No. 1 to Merger Agreement, dated as
of October 1, 1999, by and between Fox Xxxxx Medic Acquisition Corporation, a
Texas corporation ("Fox Xxxxx Medic") and the Company (the "Merger Agreement"),
Fox Xxxxx Medic will be merged with and into the Company (the "Merger") with
the Company as the surviving corporation in the Merger;
WHEREAS, in connection with the issuance by Maxxim Medical
Group, Inc., a Delaware corporation ("Maxxim Medical Group"), of its Senior
Discount Subordinated Notes due 2009 (the "Notes"), the Company has entered
into a warrant agreement with the Discount Notes Purchasers (the "Warrant
Agreement") that provides for, among other things, issuance of Note Purchaser
Warrants (as defined below) to the Discount Notes Purchasers;
WHEREAS, in connection with the issuance by the Company of its
Senior Discount Notes due 2010 (the "Holdco Notes"), the Company has entered
into a warrant agreement with the Mezzanine Investor (the "Mezzanine Warrant
Agreement") that provides for, among other things, the issuance of Mezzanine
Warrants (as defined below) to the Mezzanine Investor;
WHEREAS, in connection with the Merger, the Company will enter
into employment agreements (the "Employment Agreements") and option agreements
with the Executive Management Investors; and
WHEREAS, the parties hereto desire to restrict the sale,
assignment, transfer, encumbrance or other disposition of the Common Stock that
the parties hereto own, or may hereafter acquire, and to provide for certain
rights and obligations in respect thereof as hereinafter provided.
NOW, THEREFORE, in consideration of the premises and of the
terms and conditions contained herein, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the
meanings ascribed to them below:
"Affected Holder" shall have the meaning ascribed to it in
Section 5.11 hereof.
"Affiliate" of a Person shall mean a Person, directly or
indirectly, controlled by, controlling or under common control with such
Person, and, in the case of the entities included in FPC, their equity holders.
"Agreement" shall have the meaning ascribed to it in the
Preamble hereto.
"Applicable Federal Rate" shall have the meaning ascribed to it
in Section 4.1 hereof.
"Certificate" shall have the meaning ascribed to it in the
Recitals hereof.
"Claims" shall mean losses, claims, damages or liabilities,
joint or several, actions or proceedings (whether commenced or threatened).
"Co-Investors" shall have the meaning ascribed to it in the
Preamble hereto.
"Common Stock" shall have the meaning ascribed to it in the
Recitals hereof.
"Company" shall have the meaning ascribed to it in the Preamble
hereto.
"Competitor" shall have the meaning ascribed to it in Section
2.1.4.
"Demand Registration" shall have the meaning ascribed to it in
Section 3.1.2 hereof.
"Discount Note Purchasers" shall have the meaning ascribed to it
in the Preamble hereto.
"Drag-Along Right" shall have the meaning ascribed to it in
Section 2.6.1 hereof.
"Drag-Along Seller" shall have the meaning ascribed to it in
Section 2.6.2 hereof.
"Effective Date" shall have the meaning ascribed to it in
Section 5.1.1 hereof.
"Employment Agreements" shall have the meaning ascribed to it in
the Recitals hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
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"Executive Management Investors" shall have the meaning ascribed
to it in the Preamble hereto.
"Fair Market Value" shall mean fair value as reasonably
determined by the Board of Directors of the Company in light of all
circumstances, including comparable recent bona fide third-party sales;
provided, however, that such determination may be challenged by any Stockholder
(but no such challenge may be made more than once in any 12-month period if the
value is at least equal to the prior value determined by the last such
challenge), whereupon the Board of Directors of the Company will appoint an
independent appraiser, which appraiser shall in any event be unrelated to the
Company and its Stockholders, to make such determination; and provided, further
that, if such determination by the independent appraiser is greater than 105%
of the fair value determination by the Board of Directors of the Company, the
Company will pay all costs and expenses associated with the independent
appraisal, otherwise the costs and expenses associated with the independent
appraisal will be paid by the challenging Stockholder or Stockholders, as the
case may be.
"First Offer Notice" shall have the meaning ascribed to it in
Section 2.4.2 hereof.
"Fox Xxxxx Medic" shall have the meaning ascribed to it in the
Recitals hereof.
"FPC" shall have the meaning ascribed to it in the Preamble
hereto.
"FPC Affiliate Transferee" shall have the meaning ascribed to it
in Section 2.3.1 hereof.
"FPC Investors" shall have the meaning ascribed to in the
Preamble hereto.
"Fund" shall have the meaning ascribed to it in the Preamble
hereto.
"Xxxxxxx Sachs" shall have the meaning ascribed to it in Section
2.3.6(a) hereof.
"Holdco Notes" shall have the meaning ascribed to it in the
Recitals hereof.
"Initiating Party" shall have the meaning ascribed to it in
Section 3.1.2 hereof.
"Initiator" shall have the meaning ascribed to it in Section
2.4.1 hereof.
"IPO" shall mean an underwritten initial public offering or
public offerings (on a cumulative basis) of shares of Common Stock pursuant to
a registration statement or registration statements under the Securities Act
with aggregate gross proceeds to the Company of at least $50 million.
"Maxxim" shall have the meaning ascribed to it in the Preamble
hereto.
"Maxxim Medical Group" shall have the meaning ascribed to it in
the Recitals hereof.
"Merger" shall have the meaning ascribed to it in the Recitals
hereof.
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"Merger Agreement" shall have the meaning ascribed to it in the
Recitals hereof.
"Mezzanine Investor" shall have the meaning ascribed to it in
the Preamble hereto.
"Mezzanine Investor Permitted Transferee" shall have the meaning
ascribed to it in Section 2.3.6(b) and 2.3.6(c) hereto.
"Mezzanine Warrant Agreement" shall have the meaning ascribed to
it in the Recitals hereof.
"Mezzanine Warrants" shall mean warrants to purchase shares of
Common Stock issued pursuant to the Mezzanine Warrant Agreement.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Nasdaq" shall mean The Nasdaq Stock Market, Inc.
"Note Purchaser Warrants" shall mean warrants to purchase shares
of Common Stock issued pursuant to the Warrant Agreement.
"Notes" shall have the meaning ascribed to it in the Recitals
hereof.
"Offer Shares" shall have the meaning ascribed to it in Section
2.5.1 hereof.
"Offeree Stockholders" shall have the meaning ascribed to it in
Section 2.5.1 hereof.
"Options" shall mean options to purchase shares of Common Stock
from the Company, whether granted pursuant to the Stock Incentive Plan or
otherwise, but shall exclude Warrants.
"Other Investors" shall have the meaning ascribed to it in the
Preamble hereto.
"Permitted Transferee" shall have the meaning ascribed to it in
Sections 2.3.3 and 2.3.4 hereof.
"Person" shall mean an individual, corporation, partnership,
limited liability company, joint venture, trust, unincorporated organization,
government (or any department or agency thereof) or other entity.
"Piggyback Notice" shall have the meaning ascribed to it in
Section 3.1.1 hereof.
"Piggyback Registration" shall have the meaning ascribed to it
in Section 3.1.1 hereof.
"Proposed Transferee" means a Person or group (as defined in
Section 13(d)(3) of the Exchange Act) other than any Stockholders or their
Affiliates (whether any such Affiliate is such prior to or upon consummation of
the proposed Transfer, but not solely by virtue of
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becoming a party to this Agreement), to whom Common Stock is proposed to be
Transferred pursuant to the terms of Section 2.5.3(a) or 2.6 of this Agreement.
"Purchasing Stockholder" shall have the meaning ascribed to it
in Section 2.4.3 hereof.
"Registrable Securities" shall mean shares of Common Stock;
provided, however, as to any particular Registrable Securities, once issued,
such securities shall cease to be Registrable Securities when (i) a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (ii) such
securities shall have been sold pursuant to Rule 144 (or any successor
provision under the Securities Act), (iii) such securities shall have been
otherwise transferred and new certificates for such securities not bearing a
legend restricting further transfer shall have been delivered by the Company,
or (iv) such securities shall have ceased to be outstanding (and, in the case
of shares of Common Stock underlying Options granted under the Stock Incentive
Plan, underlying Mezzanine Warrants or Note Purchaser Warrants granted under
the Warrant Agreement, or underlying Options or warrants granted otherwise,
such shares of Common Stock shall have ceased to be outstanding after issuance
pursuant to the exercise of such Options or warrants).
"Registration Expenses" shall mean any and all expenses incident
to performance of or compliance with Article III, including, without
limitation, (i) all SEC and stock exchange or the NASD registration and filing
fees, (ii) all fees and expenses of complying with securities or "blue sky"
laws (including reasonable fees and disbursements of counsel for the
underwriters in connection with "blue sky" qualifications of the Registrable
Securities), (iii) all printing, messenger and delivery expenses, (iv) the fees
and disbursements of counsel for the Company and of the Company's independent
public accountants, including the expenses of any special audits and/or "cold
comfort" letters required by or incident to such performance and compliance,
(v) the reasonable fees and disbursements of one counsel retained by the
Stockholders such counsel to be chosen by the Stockholders by vote of a
plurality of the shares of such Stockholders being registered) as a group in
connection with each such registration, (vi) any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities and the
reasonable fees and expenses of any special experts retained in connection with
the requested registration, including any fee payable to a qualified
independent underwriter within the meaning of the rules of the NASD, but
excluding underwriting discounts and commissions and transfer taxes, if any,
(vii) internal expenses of the Company (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties) and (viii) securities acts liability insurance (if the
Company elects to obtain such insurance).
"Reinvestment Shares" shall mean the shares of Common Stock
purchased by certain Executive Management Investors with the proceeds received
from the cash out of certain of their stock options in the Merger, in the
amounts set forth on Schedule II hereto.
"Restricted Stock" shall have the meaning, if any, ascribed to
it in an employment agreement with anyone who is or becomes a Management
Investor.
"Rollover Investors" shall have the meaning ascribed to it in
the Preamble hereto.
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"Rule 144" shall mean Rule 144 under the Securities Act.
"Sale Notice" shall have the meaning ascribed to it is Section
2.5.1.
"SEC" shall mean the Securities and Exchange Commission.
"Section 3.1 Sale Number" shall have the meaning ascribed to it
in Section 3.1.4 hereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock Incentive Plan" shall have the meaning ascribed to it in
the Recitals hereof.
"Stockholder" shall have the meaning ascribed to it in the
Recitals hereof.
"Subsidiary Dividend" shall have the meaning ascribed to it in
Section 4.1(a) hereof.
"Tag-Along Right" shall have the meaning ascribed to it in
Section 2.5.3(a) hereof.
"Tag-Along Seller" shall have the meaning ascribed to it in
Section 2.5.3(b) hereof.
"Tag-Along Shares" shall have the meaning ascribed to it in
Section 2.5.2 hereof.
"Transfer" shall mean to sell, assign, pledge or encumber or
otherwise transfer, directly or indirectly, whether or not for consideration.
"Transfer Shares" shall have the meaning ascribed to it in
Section 2.4.1 hereof.
"Transferee" shall mean any Person to whom a Transfer is made,
regardless of the method of Transfer.
"Transferor" shall mean any Person by whom a Transfer is made,
regardless of the method of Transfer.
"Violation" shall have the meaning ascribed to it in Section
3.3(a) hereof.
"Warrant Agreement" shall have the meaning ascribed to it in the
Recitals hereof.
"Warrants" shall mean the Note Purchaser Warrants and the
Mezzanine Warrants.
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ARTICLE II
RESTRICTIONS ON TRANSFERS OF STOCK
2.1 General Limitations on Transfers.
2.1.1 Transfers Generally. (a) No Rollover Investor shall, at any
time prior to an IPO, Transfer any shares of Common Stock, unless such Transfer
is made in accordance with Sections 2.1, 2.2, 2.3, 2.4, 2.5 or 2.6 or pursuant
to Section 3.1, and any Transfer by any Rollover Investor of any shares of
Common Stock owned as of the date hereof or hereafter acquired in violation of
such provisions shall be null and void.
(b) As used in this Agreement, Common Stock shall include any
shares of Restricted Stock granted to any of the Rollover Investors; provided,
however, that, to the extent the Transfer thereof is otherwise prohibited or
restricted, no rights to Transfer, including pursuant to Sections 2.3, 2.4 and
2.5 and Article III, shall be granted hereunder.
2.1.2 Recordation. The Company shall not record upon its books any
Transfer of shares of Common Stock held or owned by any of the Stockholders to
any other Person, except Transfers in accordance with this Agreement.
2.1.3 Obligations of Transferees. No Transfer of shares of Common
Stock by a Stockholder otherwise permitted pursuant to this Agreement (other
than pursuant to a Piggyback Registration, Demand Registration or pursuant to a
Tag-Along Right or Drag-Along Right) shall be effective unless (a) the
Transferee (including a Permitted Transferee pursuant to Section 2.3) shall
have executed an appropriate document in form and substance reasonably
satisfactory to the Company confirming that (i) the Transferee takes such
shares subject to all the terms and conditions of this Agreement to the same
extent as its Transferor was bound by and entitled to the benefits of such
provisions and (ii) the shares shall bear legends, substantially in the forms
required by Section 2.7, and (b) such document shall have been delivered to and
approved (as described above) by the Company prior to such Transferee's
acquisition of shares of Common Stock, such approval not to be unreasonably
withheld or delayed.
2.1.4 Transfers to Competitors. Notwithstanding anything to the
contrary in this Agreement, without the consent of the Board of Directors of
the Company, no Stockholder shall, at any time, directly or indirectly,
Transfer any shares of Common Stock to any Person who is a Competitor of the
Company or any of its subsidiaries and, in addition, Circon Holdings
Corporation, a Delaware corporation, and its subsidiaries ("Circon")
("Competitor" being defined herein as a Person that competes in a significant
way with a substantial business of the Company or any such subsidiary, and, in
addition, Circon or a Person that has a substantial investment in any such
competing entity; provided that an institutional investor or its Affiliates
that hold nonvoting debt or less than 5% of the publicly traded equity
securities of any such Competitor as a passive portfolio investment shall not
be a Competitor) or to any Affiliate of such a Competitor (other than Transfers
to the Company and its Affiliates) unless such Transfer (a) is made in
connection with the exercise of a Tag-Along Right (but not by the Initiator)
pursuant to Section 2.5 or in connection with the exercise of a Drag-Along
Right pursuant to Section 2.6, in which event such sale may be effected only in
accordance with Section 2.5 or
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Section 2.6, as applicable, or (b) is made in accordance with the terms of this
Agreement and is made pursuant to a widely distributed, underwritten public
offering registered under the Securities Act (or an underwritten offering
pursuant to the exercise of such other Stockholders piggyback registration
rights pursuant to Section 3.1.1) or pursuant to a sale effected through an
open market, nondirected broker's transaction pursuant to Rule 144 in which the
seller does not know that the buyer is a Competitor. For purposes of this
provision, the good faith determination of a majority of the entire Board of
Directors of the Company that a proposed Transferee is a Competitor, made
within 30 days of written notice to the Board of Directors of the Company of
the proposed Transfer, shall in all respects be conclusive.
2.2 Compliance with Securities Laws. No Stockholder shall Transfer any
shares of Common Stock unless the Transfer is made in accordance with the terms
of this Agreement and (a) the Transfer is pursuant to an effective registration
statement under the Securities Act and in compliance with any other applicable
federal securities laws and state securities or "blue sky" laws or (b) such
Stockholder shall have furnished the Company with (i) an opinion of counsel, if
reasonably requested by the Company, which opinion and counsel shall be
reasonably satisfactory to the Company, to the effect that no such registration
is required because of the availability of an exemption from registration under
the Securities Act and under any applicable state securities or "blue sky" laws
and that the Transfer otherwise complies with this Agreement and any other
applicable federal securities laws and state securities or "blue sky" laws and
(ii) such representation and covenants of such Stockholder as are reasonably
requested by the Company to ensure compliance with any applicable federal
securities laws and state securities or "blue sky" laws.
2.3 Permitted Transfers.
2.3.1 FPC Transfers. (a) FPC may Transfer any shares of Common
Stock to an Affiliate of FPC; provided, however, that, if FPC shall have
transferred any shares of Common Stock to an Affiliate of FPC (each, a "FPC
Affiliate Transferee"), and, thereafter, such FPC Affiliate Transferee ceases
to be an Affiliate of FPC (other than in connection with a liquidation or
dissolution of the relevant Affiliate of FPC), then such FPC Affiliate
Transferee shall, within 30 days from the date on which such FPC Affiliate
Transferee ceased to be an Affiliate of FPC, transfer such shares of Common
Stock back to FPC or one or more Affiliates of FPC.
(b) FPC and any Affiliate of FPC shall be free to Transfer shares
of Common Stock to any Person, in whole at any time or in part from time to
time; provided, however, that, if such Person is not FPC or an Affiliate of
FPC, such Transfer shall be subject to Sections 2.1, 2.2, 2.3, 2.4, 2.5, 2 .6
and 3.1. Any Transfer by FPC or Affiliates of FPC of any shares of Common Stock
owned as of the date hereof or hereafter acquired in violation of such
provisions shall be null and void.
(c) No Transfer of shares of Common Stock by FPC or an Affiliate
of FPC otherwise permitted pursuant to this Section 2.3.1 shall be effective
unless (i) the Transferee (whether or not an Affiliate of FPC) shall have
executed an appropriate document in form and substance reasonably satisfactory
to the Company confirming that (A) the Transferee takes such shares subject to
all the terms and conditions of this Agreement to the same extent as its
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Transferor was bound by and entitled to the benefits of such provisions and (B)
the shares shall bear legends, substantially in the forms required by Section
2.7, and (ii) such document shall have been delivered to and approved (as
described above) by the Company prior to such Transferee's acquisition of
shares of Common Stock.
2.3.2 Rollover Investors. The restrictions contained in Section
2.1.1 with respect to Transfers by Rollover Investors of shares of Common Stock
shall not apply to any Transfer by a Rollover Investor: (a) to or among such
Rollover Investor's spouse, children (including adopted), grandchildren
(including adopted) or other living descendants, or executors, administrators,
testamentary trustees or to a trust or family partnership of which there are no
principal (i.e., corpus) beneficiaries or partners other than the grantor or
one or more of such Rollover Investor, spouse or described relatives,
executors, administrators, testamentary trustees, or by the laws of descent and
distribution and provided that, in the case of a trust, the existing
beneficiaries and/or trustee(s) and/or grantor(s) of such trust have the power
to act with respect to the trust's assets without court approval and, in the
case of a family partnership, that the partners thereof have the power to act
with respect to the partnership's assets without court approval and the
partnership is not permitted to (i) distribute assets to Persons who are not
among the relatives listed above or (ii) have partners who are not among the
relatives listed above, and, in any case, all the partners agree, for the
benefit of the Company and FPC, not to amend such provisions; (b) to a legal
representative of such Rollover Investor in the event such Rollover Investor
becomes mentally incompetent or to such Rollover Investor's personal
representative following the death of such Rollover Investor; or (c) with the
prior written approval of the Company, which approval may be granted or
withheld by the Board of Directors of the Company, in its sole and absolute
discretion.
2.3.3 Permitted Transferees. Transferees to whom Transfers are
permitted pursuant to Sections 2.3.2(a), 2.3.2(b) and 2.3.2(c) are referred to
herein as "Permitted Transferees." Any such permitted Transfer shall be subject
to the terms of this Agreement, including compliance with Sections 2.1.1 and
2.2.
2.3.4 Transfer by Permitted Transferees. The restrictions
contained in Section 2.1.1 with respect to Transfers by Rollover Investors of
shares of Common Stock shall not apply to any Transfer by a Permitted
Transferee of a Rollover Investor to such Rollover Investor or to another
Permitted Transferee of such Stockholder, and any such Transferee shall also be
a "Permitted Transferee," subject to the provisions of Section 2.3.3.
2.3.5 Other Transfer Restrictions. (a) The Mezzanine Investor
agrees that, prior to the consummation of an IPO, no Transfer of Mezzanine
Warrants (or shares of Common Stock issued upon exercise of the Mezzanine
Warrants) by the Mezzanine Investor or its direct or indirect Transferees shall
be effective if, following such Transfer, there are more than 10 holders of
Mezzanine Warrants and Note Purchaser Warrants (or Common Stock issued upon
exercise thereof), originally issued to the Mezzanine Investor, excluding
Mezzanine Investor Permitted Transferees, which securities are required to bear
the legend provided in Section 2.7.1(a), without the consent of the Company or
the Fund. Any Transfer by a Mezzanine Investor shall, other than to the extent
provided in Section 2.3.6, be subject to the terms of this Agreement, including
compliance with this Section 2.3.5(a) and Sections 2.1, 2.2, 2.3, 2.4, 2.5, 2.6
and 3.1. Any Transfer by the Mezzanine Investor of Mezzanine Warrants (or
shares of
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Common Stock issued upon exercise of the Mezzanine Warrants) owned as of the
date hereof or hereafter acquired in violation of such provisions shall be null
and void.
(b) Each Discount Note Purchaser other than the Mezzanine Investor
agrees that, prior to the consummation of an IPO, no Transfer of Note Purchaser
Warrants (or shares of Common Stock issued upon exercise thereof) by such
Discount Note Purchaser or its direct or indirect Transferees shall be
effective, if, following such Transfer, there are more than 5 holders of Note
Purchaser Warrants originally issued to such Discount Note Purchaser (or Common
Stock issued upon exercise thereof), which securities are required to bear the
legend provided in Section 2.7.1(a), without the consent of the Company or the
Fund. Any Transfer by a Discount Note Purchaser shall, other than to the extent
provided in Section 2.3.7, be subject to the terms of this Agreement, including
compliance with this Section 2.3.5(b) and Sections 2.1, 2.2, 2.3, 2.4, 2.5, 2.6
and 3.1. Any Transfer by the Discount Note Purchaser of Note Purchaser Warrants
(or shares of Common Stock issued upon exercise of the Mezzanine Warrants owned
as of the date hereof or hereafter acquired in violation of such provisions
shall be null and void.
(c) The restrictions contained in Sections 2.1.1, 2.4, 2.5 and 2.6
and the provisions contained in this Section 2.3 shall be in addition to and
not in lieu or limitation of any restrictions on the ownership or Transfer of
shares of Common Stock (including with respect to any Restricted Stock)
contained in any stock subscription agreement or Employment Agreement or in any
analogous provision of any employment, compensation or benefit agreement or
arrangement or other agreement between Fox Xxxxx Medic or the Company or any of
its Affiliates and any Stockholder; provided, however, that, upon the
termination of any such Employment Agreement or other such agreement or
arrangement or lapsing of such restrictions, the restrictions and provisions
contained herein shall continue in full force and effect pursuant to this
Agreement.
2.3.6 (a) Transfers by Mezzanine Investor. The restrictions
contained in Section 2.3.5(a) with respect to Transfers by the Mezzanine
Investor of shares of Common Stock and Warrants shall not apply to (i) any
Transfer by a Mezzanine Investor to (A) its respective partners on a pro rata
basis on final liquidation of such Mezzanine Investor in accordance with its
terms or (B) Xxxxxxx, Sachs & Co., together with The Xxxxxxx Xxxxx Group, Inc.
(or any Person that succeeds to the business of The Xxxxxxx Sachs Group, Inc.
substantially as an entirety) (collectively, "Xxxxxxx Xxxxx") and any
subsidiaries of Xxxxxxx Sachs principally engaged in the investment or merchant
banking or private investment business and including any investment funds
controlled, directly or indirectly, by Xxxxxxx Xxxxx but no more than five such
entities or (ii) any bona fide pledge by a Mezzanine Investor to any lending or
financial institution (or any agent therefor) as security for any indebtedness
issued by such lender (but any exercise by the pledgee upon such security
without resale shall be subject to Section 2.3.5, and any sale by, to or for
the benefit of such pledgee shall be subject to all the terms of this
Agreement, including Sections 2.1, 2.2, 2.3, 2.4, 2.5, 2.6 and 3.1). No
Transfer permitted pursuant to this Section 2.3.6 shall be effective unless the
Transferee shall have executed an appropriate document in form and substance
reasonably satisfactory to the Company confirming that the Transferee takes
such shares of Common Stock or Warrants subject to all of the terms and
conditions of this Agreement to the same extent as its Transferor was bound by
and entitled to the benefits of such provisions.
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(b) Mezzanine Investor Permitted Transferees. Transferees to whom
Transfers are permitted pursuant to Sections 2.3.6(a)(i) and 2.3.6(a)(ii) are
referred to herein as "Mezzanine Investor Permitted Transferees." Any Transfer
to a Mezzanine Investor Permitted Transferee pursuant to this Section 2.3.6.
shall be subject to the terms of this Agreement, including compliance with
Sections 2.1 and 2.2.
(c) Transfer by Mezzanine Investor Permitted Transferees. The
restrictions contained in Section 2.3.5(a) with respect to Transfers by the
Mezzanine Investor of shares of Common Stock shall not apply to any Transfer by
a Mezzanine Investor Permitted Transferee to the Mezzanine Investor or to
another Mezzanine Investor Permitted Transferee, and any such Transferee shall
also be a "Mezzanine Investor Permitted Transferee," subject to the provisions
of this Section 2.3.6.
2.3.7 Transfer by Discount Note Purchaser. (a) The restrictions
contained in Section 2.3.5(b) with respect to Transfers by Discount Note
Purchasers of shares of Common Stock and Warrants shall not apply to any
Transfer by a Discount Note Purchaser to any of its Affiliates that are under
common majority control with such Discount Note Purchaser, but to no more than
3 such entities by each Discount Note Purchaser or to a Transfer described in
Schedule 2.3.7(a). No Transfer permitted pursuant to this Section 2.3.7 shall
be effective unless the Transferee shall have executed an appropriate document
in form and substance reasonably satisfactory to the Company confirming that
the Transferee takes such shares of Common Stock or Warrants subject to all of
the terms and conditions of this Agreement to the same extent as its Transferor
was bound by and entitled to the benefits of such provisions.
(b) Discount Note Purchaser Permitted Transferees. Transferees to
whom Transfers are permitted pursuant to Section 2.3.7(a) are referred to
herein as "Discount Note Purchaser Permitted Transferees." Any such Transfer to
a Discount Note Purchaser Permitted Transferee shall be subject to the terms of
this Agreement, including compliance with Sections 2.1 and 2.2.
(c) The restrictions contained in Section 2.3.5(b) with respect to
Transfers by the Discount Note Purchasers of shares of Common Stock shall not
apply to any Transfer by a Discount Note Purchaser Permitted Transferee to such
Discount Note Purchaser or to another Discount Note Purchaser Permitted
Transferee, and any such Transferee shall also be a "Discount Note Purchaser
Permitted Transferee," subject to the provisions of this Section 2.3.7.
2.4 Right of First Offer.
2.4.1 Right of First Offer. Prior to an IPO, and subject to the
terms and conditions specified in this Section 2.4, the Stockholders shall have
a right of first offer if a Stockholder (the "Initiator") proposes to sell any
shares of Common Stock, or securities convertible into or exercisable for any
shares of Common Stock (the "Transfer Shares"), owned by it, other than to a
Transferee of such Stockholder permitted pursuant to Sections 2.3.1, 2.3.2,
2.3.4, 2.3.6 or 2.3.7. Each time the Initiator proposes to sell any Transfer
Shares, the Initiator must first make an offering of the Transfer Shares to the
other Stockholders in accordance with the following provisions of this Section
2.4.
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2.4.2 First Offer Notice. The Initiator shall give written notice
(the "First Offer Notice") to the Company and the other Stockholders stating
its bona fide intention to sell the Transfer Shares and specifying the number
of Transfer Shares, price (assuming in the case of any Options or Warrants,
that the same shall have been exercised in accordance with their terms before
such sale which shall be required in order to consummate such sale) and form of
consideration upon which the Initiator proposes to sell such Transfer Shares.
2.4.3 First Offer Election. Within seven business days of the date
of receipt of the First Offer Notice, the other Stockholders shall each deliver
a written notice to the Initiator and the Company stating whether such
Stockholder elects to purchase the Transfer Shares (and, if so, how many) at
the price and on the terms specified in the First Offer Notice. Any such
election to purchase shall be binding upon delivery and irrevocable without the
consent of the Initiator. If the offer of Transfer Shares is oversubscribed,
each Stockholder who delivered a written notice electing to purchase the
Transfer Shares (the "Purchasing Stockholders") shall receive a pro rata
portion of the Transfer Shares (but not in excess of the amount so elected to
purchase) equal to (a) the total number of Transfer Shares multiplied by (b) a
fraction (i) the numerator of which is the number of shares of Common Stock
plus the total number of shares of Common Stock then issuable upon the exercise
of Options or Warrants (in each case, whether vested or unvested) owned by such
Purchasing Stockholder and (ii) the denominator of which is the total number of
shares of Common Stock plus the total number of shares of Common Stock then
issuable upon the exercise of Options or Warrants (in each case, whether vested
or unvested) owned by all of the Purchasing Stockholders. Any shares not
allocated pursuant to the preceding sentence shall be reallocated iteratively
in accordance with the foregoing formula (with the denominator being Shares
owned only by Purchasing Stockholders who have not received the maximum amount
they elected) until all the Transfer Shares have been allocated.
2.4.4 Sale Agreement; Reoffer. If all of the Transfer Shares are
not elected to be purchased as provided in Section 2.4.3, the Initiator may,
during the 120-day period following the expiration of the seven business day
period provided in Section 2.4.3 and subject to the other restrictions
contained in Sections 2.1, 2.2, 2.3.5 and 2.5, enter into an agreement for the
sale of all the Transfer Shares to any Person at a price not less than, and
upon terms no more favorable to the offeree than those specified in the First
Offer Notice; provided, however, that any Proposed Transferee shall agree to
hold such Transfer Shares pursuant to the terms of this Agreement. If the
Initiator does not enter into an agreement for the sale of the Transfer Shares
within such period, or, if such agreement is not consummated within 120 days of
the execution thereof, the right provided hereunder shall be deemed to be
revived and such Transfer Shares shall not be offered unless first reoffered to
the other Stockholders in accordance with this Section 2.4.
2.5 Tag-Along Rights.
2.5.1 Sale Notice. If, prior to an IPO and following the offer
process required by Section 2.4, the Initiator proposes to sell any of the
Common Stock owned by it, other than (a) to a Transferee of such Stockholder
permitted pursuant to Sections 2.3.1, 2.3.2, 2.3.4, 2.3.6 or 2.3.7., (b)
Purchasing Stockholders pursuant to Section 2.4.3, (c) pursuant to the exercise
of a Drag-Along Right pursuant to Section 2.6, or (d) pursuant to a Piggyback
Registration, then the Initiator shall first give written notice (the "Sale
Notice") to the Company and to each of the
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other Stockholders (such other Stockholders, the "Offeree Stockholders"),
stating that the Initiator desires to make such sale, referring to Section 2.5,
specifying the number of shares of Common Stock proposed to be sold by the
Initiator pursuant to the offer (the "Offer Shares"), and, subject to the
requirements of Section 2.4.4, specifying the price, the form of consideration,
name and description of the purchaser (including controlling Persons) and the
material terms pursuant to which such sale is proposed to be made.
2.5.2 Tag-Along Election. Within seven business days of the date
of receipt of the Sale Notice, each Offeree Stockholder, other than the
Initiator, shall deliver to the Initiator and to the Company a written notice
stating whether the Offeree Stockholder elects to sell a pro rata portion of
its Common Stock (equal to (a) the total number of shares of Common Stock owned
by such Offeree Stockholder, plus the total number of shares of Common Stock
then issuable upon exercise of vested Options or Warrants then exercisable by
such Offeree Stockholder, multiplied by (b) a fraction, (i) the numerator of
which is the number of Offer Shares and (ii) the denominator of which is the
total number of shares of Common Stock held by the Initiator plus the total
number of shares of Common Stock then issuable upon exercise or conversion of
any convertible securities (including Options and Warrants), if applicable,
then exercisable or convertible by the Initiator) to such Proposed Transferee
on the same terms, purchase price and conditions as the Initiator (with respect
to each Offeree Stockholder, its "Tag-Along Shares"). An election pursuant to
the first sentence of this Section 2.5.2 shall constitute an irrevocable
commitment by the Offeree Stockholder making such election to sell such
Tag-Along Shares to the Proposed Transferee if the sale of Offer Shares to the
Proposed Transferee occurs on the terms contemplated hereby. Section 2.4 shall
not apply to an election pursuant to the first sentence of this Section 2.5.2.
Such terms may include a maximum number of shares such Proposed Transferee is
willing to purchase, and, in such case, the Initiator and the Offeree
Stockholders selling shares pursuant hereto shall be cut back pro rata based on
the number of shares each such Stockholder is electing to sell.
2.5.3 Seller's Rights to Transfer.
(a) Third-Party Sale; Tag-Along Buyer. A sale to a Proposed
Transferee pursuant to this Section 2.5 shall only be consummated if the
Proposed Transferee shall purchase, within 120 days of the date of the Sale
Notice (or such shorter period as required by Section 2.4.4), concurrently with
and on the same terms and conditions and at the same price as the Offer Shares,
all of each Offeree Stockholder's Tag-Along Shares with respect to such sale,
in accordance with their elections pursuant to Section 2.5.2, and subject to
the last sentence thereof (the "Tag-Along Right").
(b) Sale Agreement. Each Offeree Stockholder electing to sell
Tag-Along Shares (a "Tag-Along Seller") agrees to cooperate in consummating
such a sale, including, without limitation, by becoming a party to the sales
agreement and all other appropriate related agreements, delivering, at the
consummation of such sale, stock certificates and other instruments for such
Common Stock duly endorsed for transfer, free and clear of all liens and
encumbrances, and voting or consenting in favor of such transaction (to the
extent a vote or consent is required) and taking any other necessary or
appropriate action in furtherance thereof, including the execution and delivery
of any other appropriate agreements, certificates, instruments and other
documents. The foregoing notwithstanding, in connection with such sale,
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a Tag-Along Seller, as such, shall not be required to make any representations
and warranties with respect to the Company or the Company's business or with
respect to any other seller. In addition, each Tag-Along Seller shall be
severally responsible for its proportionate share of the third-party expenses
of sale incurred by the sellers in connection with such sale and the monetary
obligations and liabilities incurred by the sellers in connection with such
sale. Such monetary obligations and liabilities shall include (to the extent
such obligations are incurred) obligations and liabilities for indemnification
(including for (i) breaches of representations and warranties made in
connection with such sale by the Company or any other seller with respect to
the Company or the Company's business, (ii) breaches of covenants in effect
prior to closing and (iii) other matters), and shall also include amounts paid
into escrow or subject to holdbacks, and amounts subject to post-closing
purchase price adjustments provided all such obligations are equally applicable
on a several and not joint basis to each Tag-Along Seller based on the
consideration received by such Tag-Along Seller. The foregoing notwithstanding,
(i) without the written consent of a Tag-Along Seller, the amount of such
obligations and liabilities for which such Tag-Along Seller shall be
responsible shall not exceed the gross proceeds received by such Tag-Along
Seller in such sale, (ii) a Tag-Along Seller shall not be obligated to enter
into any non-compete or other post-closing covenant that restricts its
activities in any way and (iii) a Tag-Along Seller shall not be responsible for
the fraud of any other seller or for any indemnification obligations and
liabilities for breaches of representations and warranties made by any other
seller with respect to such other seller's (A) ownership of and title to shares
of capital stock of the Company, (B) organization, (C) authority and (D)
conflicts and consents.
(c) No Liability. Notwithstanding any other provision contained in
this Section 2.5.3, there shall be no liability on the part of the Company or
the Initiator in the event that the sale pursuant to this Section 2.5.3 is not
consummated for any reason whatsoever. The decision whether to effect a
Transfer pursuant to this Section 2.5.3 shall be in the sole and absolute
discretion of the Initiator.
2.6 Drag-Along Right.
2.6.1 Exercise. If, prior to an IPO, FPC proposes to make a sale,
in a bona fide arm's-length transaction or series of related transactions to a
Person not controlled by Fox Xxxxx & Company, LLC, of at least 50% of its
shares of Common Stock to a Proposed Transferee, including pursuant to a stock
sale, merger, business combination, recapitalization, consolidation,
reorganization, restructuring or similar transaction, FPC shall have the right
(a "Drag-Along Right"), exercisable upon 15 days' prior written notice to the
other Stockholders, to require the other Stockholders to sell their shares of
Common Stock and, at the election of FPC, Options or Warrants (in each case,
whether vested or unvested) equal to (a) the total number of shares of Common
Stock owned by such Stockholder, plus the total number of shares of Common
Stock then issuable upon the exercise of Options or Warrants (in each case,
whether vested or unvested), multiplied by (b) a fraction (i) the numerator of
which is the number of shares of Common Stock FPC proposes to sell to the
Proposed Transferee and (ii) the denominator of which is the total number of
shares of Common Stock held by FPC plus the total number of shares then
issuable upon exercise or conversion of any convertible securities, if
applicable, then exercisable or convertible by FPC, to the Proposed Transferee
on the same terms and conditions and at the same price (in the case of Options
or Warrants the purchase price of each Option or Warrant, respectively, shall
be equal to the purchase price attributable to the number of
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shares of Common Stock issuable upon exercise of such Option or Warrant less
the exercise price thereof) as FPC would receive in connection with such
transaction.
2.6.2 Sale Agreement. Each Stockholder selling shares of Common
Stock pursuant to a transaction contemplated by this Section 2.6 (a "Drag-Along
Seller") agrees to cooperate in consummating such a sale, including, without
limitation, by becoming a party to the sales agreement and all other
appropriate related agreements, delivering, at the consummation of such sale,
stock certificates and other instruments for such shares of Common Stock duly
endorsed for transfer, free and clear of all liens and encumbrances, and voting
or consenting in favor of such transaction (to the extent a vote or consent is
required) and taking any other necessary or appropriate action in furtherance
thereof, including the execution and delivery of any other appropriate
agreements, certificates, instruments and other documents. The foregoing
notwithstanding, in connection with such sale, a Drag-Along Seller, as such,
shall not be required to make any representations and warranties with respect
to the Company or the Company's business or with respect to any other seller.
In addition, each Drag-Along Seller shall be severally responsible for its
proportionate share of the third-party expenses of sale incurred by FPC in
connection with such sale. Such monetary obligations and liabilities shall
include (to the extent such obligations are incurred) monetary obligations and
liabilities for indemnification (including for (a) breaches of representations
and warranties made in connection with such sale by the Company or any other
seller with respect to the Company or the Company's business and (b) breaches
of covenants in effect prior to closing), and shall also include amounts paid
into escrow or subject to holdbacks, and amounts subject to post-closing
purchase price adjustments, provided that all such obligations are equally
applicable on a several and not joint basis to each Drag-Along Seller based on
the consideration received by such Drag-Along Seller. The foregoing
notwithstanding, (a) without the written consent of a Drag-Along Seller, the
amount of such obligations and liabilities for which such Drag-Along Seller
shall be responsible shall not exceed the gross proceeds received by such
Drag-Along Seller in such sale, (b) a Drag-Along Seller shall not be obligated
to enter into any non-compete or other post-closing covenant that restricts its
activities in any way and (c) a Drag-Along Seller shall not be responsible for
the fraud of any other seller or any indemnification obligations and
liabilities for breaches of representations and warranties made by any other
seller with respect to such other seller's (i) ownership of and title to shares
of capital stock of the Company, (ii) organization, (iii) authority and (iv)
conflicts and consents.
2.6.3 No Liability. Notwithstanding any other provision contained
in this Section 2.6, there shall be no liability on the part of the Company or
FPC in the event that the sale pursuant to this Section 2.6 is not consummated
for any reason whatsoever. The decision whether to effect a Transfer pursuant
to this Section 2.6 shall be in the sole and absolute discretion of FPC.
2.7 Additional Provisions Relating to Restrictions on Transfers.
2.7.1 Legends. Each of the Stockholders hereby agrees that each
outstanding certificate representing shares of Common Stock held or owned by
such Stockholder or its Transferee, including any certificate representing
shares of Common Stock acquired in accordance with the provisions of this
Agreement or the Employment Agreements, any certificates representing shares of
Common Stock issued upon exercise of the Options or
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Warrants and any Options or Warrants, in any case, subject to the provisions of
this Agreement and issued prior to the date when the applicable restrictions
are terminated pursuant to Section 2.7.3, shall bear endorsements reading
substantially as follows:
(a) The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or under the
securities laws of any state and may not be transferred, sold or
otherwise disposed of except while such a registration is in effect or
pursuant to an exemption from registration under said Act and
applicable state securities laws.
(b) The securities represented by this certificate are subject to
the terms and conditions set forth in a Stockholders' Agreement, dated
as of November 12, 1999, as amended from time to time, copies of which
may be obtained from the issuer or from the holder of this security.
No transfer of such securities will be made on the books of the issuer
unless accompanied by evidence of compliance with the terms of such
agreement.
Each outstanding certificate representing shares of Common Stock
shall also bear any legend required by the terms of any subscription agreement,
the Employment Agreements, the Stock Incentive Plan, the Warrant Agreement, the
Mezzanine Warrant Agreement or as the Company may otherwise deem appropriate.
2.7.2 Copy of Agreement. A copy of this Agreement shall be filed
with the corporate secretary of the Company, and kept with the records of the
Company, and shall be made available for inspection by any Stockholder at the
principal executive offices of the Company.
2.7.3 Termination of Restrictions. The restriction referred to in
the endorsement required pursuant to Section 2.7.1(a) shall cease and terminate
as to any particular shares of Common Stock when, in the reasonable opinion of
counsel for the Company, such restriction is no longer required in order to
assure compliance with the Securities Act and the state securities or "blue
sky" laws. The Company or the Company's counsel, at their election, may request
from any Stockholder a certificate or an opinion of such Stockholder's counsel
with respect to any relevant matters in connection with the removal of the
endorsement set forth in Section 2.7.1(a) from such Stockholder's stock
certificates, any such certificate or opinion of counsel to be reasonably
satisfactory to the Company and its counsel. The restrictions referred to in
Section 2.7.1(b) shall cease and terminate as to any particular shares of
Common Stock when, in the reasonable opinion of counsel for the Company, the
provisions of this Agreement are no longer applicable to such shares or this
Agreement shall have terminated in accordance with its terms. Any other
restrictions referred to in any other legends required pursuant to Section
2.7.1 shall cease and terminate when, in the reasonable opinion of counsel for
the Company, such restrictions are no longer applicable. Whenever such
restrictions shall cease and terminate as to any shares of Common Stock,
Options or Warrants, the Stockholder holding such shares shall be entitled to
receive from the Company, without expense (other than applicable transfer
taxes, if any, if such unlegended shares are being delivered and transferred to
any Person other than the registered holder thereof), new certificates for a
like number of shares of Common Stock or like number of Options or Warrants not
bearing the relevant legend(s) set forth or referred to in Section 2.7.1.
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ARTICLE III
REGISTRATION RIGHTS
3.1 Piggyback and Demand Registrations.
3.1.1 Piggyback Registrations. If at any time following an IPO
(or, if FPC is selling shares in such IPO, beginning with an IPO), the Company
proposes to register for sale by the Company under the Securities Act any of
its equity securities (other than a registration on Form S4 or Form S8, or any
successor or similar forms), or any shares of Common Stock of an Initiating
Party pursuant to a Demand Registration under Section 3.1.2, in a manner that
would permit registration of Registrable Securities for sale to the public
under the Securities Act, the Company will each such time promptly give written
notice to all Stockholders who beneficially own any Registrable Securities of
its intention to do so, of the registration form of the SEC that has been
selected by the Company and of such holders' rights under this Section 3.1 (the
"Piggyback Notice"). The Company will use its reasonable best efforts to
include, and to cause the underwriter or underwriters, if applicable, to
include, in the proposed offering, on the same terms and conditions as the
securities of the Company included in such offering, all Registrable Securities
that the Company has been requested in writing, within 15 calendar days after
the Piggyback Notice is given, to register by the Stockholders thereof (each
such registration pursuant to this Section 3.1.1, a "Piggyback Registration");
provided, however, that (a) if, at any time after giving a Piggyback Notice and
prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
register its equity securities (or, in the case of a Demand Registration, the
Initiating Party thereof so determines), the Company may, at its election (or,
in the case of a Demand Registration, where the Initiating Party thereof so
determines, the Company shall), give written notice of such determination to
all Stockholders who beneficially own any Registrable Securities and,
thereupon, shall be relieved of its obligation to register any Registrable
Securities in connection with such abandoned registration, and (b) in case of a
determination by the Company to delay registration of its equity securities
(or, in the case of a Demand Registration, the Initiating Party thereof so
determines) the Company shall be permitted to (or, in the case of a Demand
Registration where the Initiating Party thereof so determines, the Company, for
a period not to exceed 60 days, shall) delay the registration of such
Registrable Securities for the same period as the delay in registering such
other equity securities (provided that clauses (a) and (b) above shall not
relieve the Company of its obligations under Section 3.1.2). In the case of any
registration of Registrable Securities in an underwritten offering pursuant to
this Section 3.1.1, all Stockholders proposing to distribute their securities
pursuant to this Section 3.1.1 shall, at the request of the Company (or, in the
case of a Demand Registration, the Initiating Party thereof), enter into an
agreement in customary form with the underwriter or underwriters selected by
the Company (or, in the case of a Demand Registration, selected in accordance
with Section 3.1.2). Notwithstanding the foregoing, following an IPO, the
Company shall not be obligated to effect registration of Registrable Securities
for which Piggyback Registration is requested by an Other Investor if, at the
time of such request, all such Registrable Securities are eligible for sale to
the public by the requesting Other Investor without registration under Rule
144, with such sale not being limited by the volume restrictions thereunder.
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3.1.2 Demand Registrations. The Company, following the
consummation of an IPO, upon the request of (a) FPC, (b) the Mezzanine Investor
(holding at least a majority of the shares of Common Stock issued or issuable
upon exercise of the Mezzanine Warrants), (c) the Discount Note Purchasers (by
the holders of at least 25% of the shares of Common Stock issued or issuable
upon exercise of the Note Purchaser Warrants or (d) the Rollover Investors (by
the holders of at least 25% of the total number of shares of Common Stock held
by all of the Rollover Investors) (each such party being an "Initiating
Party"), shall use its reasonable best efforts to register under the Securities
Act Registrable Securities held by the Initiating Party (including, at the
election of such Initiating Party, in an underwritten offering) and any other
Stockholders participating in such Demand Registration (provided, however that
the aggregate expected market value of all such Registrable Securities,
included in such registration is greater than or equal to $2 million) and bear
all expenses in connection with such offering in a manner consistent with
Section 3.1.3 and shall enter into such other agreements in furtherance thereof
(each such registration pursuant to this Section 3.1.2, a "Demand
Registration"), and the Company shall provide customary indemnifications in
such instances (in a manner consistent with the indemnification provision of
this Article III) to the Initiating Party, other Stockholders included in such
registration and any such underwriters. FPC shall have the right to initiate up
to five Demand Registrations pursuant to this Section 3.1.2. The Rollover
Investors, as a group, shall have the right to initiate two Demand
Registrations pursuant to this Section 3.1.2, the Discount Note Purchasers, as
a group, shall have the right to initiate one Demand Registration pursuant to
this Section 3.12 and the Mezzanine Investor shall have the right to initiate
one (1) Demand Registration pursuant to this Section 3.1.2; provided, however,
that the Company shall not be obligated to effect a Demand Registration on
behalf of any Other Investor or group thereof within nine months of the
effectiveness of another registration under this Section 3.1. A registration
shall not count as a Demand Registration unless and until the registration
statement relating thereto has been declared effective by the SEC and not
withdrawn. If any Demand Registration requested by FPC is in the form of an
underwritten offering, FPC shall designate the underwriter or underwriters to
be utilized in connection such offering. If the Demand Registration requested
by the Rollover Investors, the Discount Note Purchasers or the Mezzanine
Investor is in the form of an underwritten offering, the Company shall
designate an underwriter or underwriters to be utilized in connection such
offering, which selection shall be reasonably acceptable to the Initiating
Party.
3.1.3 Expenses. The Company shall pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 3.1; provided, however, that each Stockholder shall pay all
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Stockholder's Registrable Securities pursuant
to a registration statement effected pursuant to this Section 3.1.
3.1.4 Priority in Piggyback and Demand Registrations. If the
managing underwriter for a registration pursuant to this Section 3.1 shall
advise the Company in writing that, in its opinion, the number of securities
requested to be included in such registration exceeds the number (the "Section
3.1 Sale Number") that can be sold in an orderly manner in such offering within
a price range acceptable to the Company (or, in the case of a Demand
Registration, to the Initiating Party thereof), the Company shall include in
such offering (a) first, all the securities the Company proposes to register
for its own sale, and (b) second, to the extent that the securities the Company
proposes to register are less than the Section 3.1 Sale Number,
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all Registrable Securities requested to be included by all Stockholders;
provided, however, that, if the number of such Registrable Securities exceeds
(i) the Section 3.1 Sale Number less (ii) the number of securities included
pursuant to clause (a) above, then the number of such Registrable Securities
included in such registration shall be allocated pro rata among all requesting
Stockholders, on the basis of the relative number of shares of such Registrable
Securities each such Stockholder then holds. If there is any reduction or
exclusion of Registrable Securities pursuant to this Section 3.1.4 in
connection with a Demand Registration, such registration shall not be deemed to
be a Demand Registration for purposes of determining the maximum number of
Demand Registrations the Company is obligated to effect for an Initiating Party
pursuant to Section 3.1.2.
3.1.5 Underwriting Requirements. In connection with any offering
involving any underwriting of securities in a Piggyback Registration, the
Company shall not be required to include any Stockholder's Registrable
Securities in such underwriting unless such Stockholder accepts the terms of
the underwriting as agreed upon between the Company and the underwriters in
such quantities and on such terms as set forth in Section 3.1.1, and such
Stockholder agrees to sell such Stockholder's securities on the basis provided
therein and completes and/or executes all questionnaires, indemnities,
lock-ups, underwriting agreements and other documents (including powers of
attorney and custody arrangements) customarily required generally of all
selling Stockholders, in each case, in customary form and substance, which are
requested to be executed in connection therewith.
3.2 Registration Procedures. If and whenever the Company is required
to use its reasonable best efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this Article
III, the Company will, as soon as practicable:
(a) prepare and file with the SEC the requisite registration
statement with respect to such Registrable Securities and use its
reasonable best efforts to cause such registration statement to become
and remain effective;
(b) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective for such period as the Company shall deem appropriate and to
comply with the provisions of the Securities Act with respect to the
sale or other disposition of all securities covered by such
registration statement during such period;
(c) furnish to each seller of such Registrable Securities and each
underwriter such number of copies of such registration statement and
of each amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus included in such
registration statement (including each preliminary prospectus and
summary prospectus), in conformity with the requirements of the
Securities Act, and such other documents as such seller may reasonably
request;
(d) promptly notify each Stockholder that holds Registrable
Securities covered by such registration statement, (i) when such
registration statement or any post-effective amendment or supplement
thereto becomes effective, (ii) of the issuance by the
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SEC or any state securities authority of any stop order, injunction or
other order or requirement suspending the effectiveness of such
registration statement (and take all reasonable action to prevent the
entry of such stop order or to remove it if entered, or the initiation
of any proceedings for that purpose), or (iii) of the happening of any
event as a result of which the registration statement, as then in
effect, the prospectus related thereto or any document included
therein by reference includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light
of the circumstances under which they were made and promptly file such
amendments and supplements which may be required on account of such
event and use its reasonable best efforts to cause each such amendment
and supplement to become effective;
(e) promptly furnish counsel for each underwriter, if any, and for
the selling Stockholders of Registrable Securities copies of any
written request by the SEC or any state securities authority for
amendments or supplements to a registration statement and prospectus
or for additional information;
(f) use reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a registration statement at the
earliest possible time;
(g) use its best efforts to cause all such Registrable Securities
covered by such registration statement to be listed on the principal
securities exchange or authorized for quotation on Nasdaq, if any, on
which similar equity securities issued by the Company are then listed
or authorized for quotation, or eligible for listing or quotation, if
the listing or authorization for quotation of such securities is then
permitted under the rules of such exchange or the NASD;
(h) enter into an underwriting agreement with the underwriter of
such offering in the form customary for such underwriter for similar
offerings, including such representations and warranties by the
Company, provisions regarding the delivery of opinions of counsel for
the Company and accountants' letters, provisions regarding
indemnification and contribution, and such other terms and conditions
as are at the time customarily contained in such underwriter's
underwriting agreements for similar offerings (the sellers of
Registrable Securities that are to be distributed by such
underwriter(s) may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the
part of, the Company to and for the benefit of such underwriter(s)
shall also be made to and for the benefit of such sellers of
Registrable Securities);
(i) make available for inspection by representatives of the
selling Stockholders who hold Registrable Securities and any
underwriters participating in any disposition pursuant hereto and any
counsel or accountant retained by such Stockholders or underwriters,
all relevant financial and other records, pertinent corporate
documents and properties of the Company and cause the respective
officers, directors and employees of the Company to supply all
information reasonably requested by any such representative,
underwriter, counsel or accountant in connection with a registration
pursuant hereto; provided, however, that, with respect to records,
documents or
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information which the Company determines, in good faith, to be
confidential and as to which the Company notifies such
representatives, underwriters, counsel or accountants in writing of
such confidentiality, such representatives, underwriters, counsel or
accountants shall not disclose such records, documents or information
unless (i) the release of such records, documents or information is
ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, (ii) such records, documents or information
have previously been generally made available to the public, or (iii)
the disclosure of such records, documents or information is necessary,
in the written opinion of outside legal counsel, to avoid or correct a
material misstatement or omission in the registration statement and
then only after reasonable request has been made to the Company to
make such disclosure and the Company has denied such request. Each
selling Stockholder of such Registrable Securities agrees that
information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Company or its Affiliates
(or for such Stockholder's business purposes or for any reason other
than in connection with a registration hereunder) unless and until
such information is made generally available (other than by such
Stockholder or where such Stockholder knows that such information
became publicly available as a result of a breach of any
confidentiality arrangement) to the public. Each selling Stockholder
of such Registrable Securities further agrees that it will, upon
learning that disclosure of such records is sought, give notice to the
Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of the records deemed
confidential;
(j) permit any beneficial owner of Registrable Securities who, in
the sole judgment, exercised in good faith, of such holder, might be
deemed to be a controlling Person of the Company, to participate in
the preparation of such registration or comparable statement and to
require the insertion therein of material, furnished to the Company in
writing, that in the judgment of such holder, as aforesaid, should be
included; and
(k) make reasonably available its employees and personnel and
otherwise provide reasonable assistance to the underwriters (taking
into account the needs of the Company's businesses and the
requirements of the marketing process) in the marketing of Registrable
Securities in any underwritten offering.
The Company may require each seller of Registrable Securities as
to which any registration is being effected to furnish the Company such
information regarding such seller and the distribution of such securities as
the Company may from time to time reasonably request in writing. The Company
shall not be required to register or qualify any Registrable Securities covered
by such registration statement under any state securities or "blue sky" laws of
such jurisdictions other than as it deems necessary in connection with the
chosen method of distribution or to take any other actions or do any other
things other than those it reasonably deems necessary or advisable to
consummate such distribution, and the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not otherwise be obligated to be so qualified, to
subject itself to taxation in any such jurisdiction or to consent to general
service of process in any such jurisdiction.
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Each beneficial owner of Registrable Securities agrees that, upon
receipt of any notice from the Company of the happening of any event of the
kind described in clauses (d)(ii) and (d)(iii) above, such beneficial owner
will forthwith discontinue disposition of Registrable Securities pursuant to
the registration statement covering such Registrable Securities until such
beneficial owner's receipt of the copies of the supplemented or amended
prospectus contemplated by clause (d) above, and, if so directed by the
Company, such beneficial owner will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies then in such beneficial
owner's possession, of the prospectus covering such Registrable Securities that
was in effect prior to such amendment or supplement.
3.3 Indemnification. (a) In the event of any registration of any
Registrable Securities pursuant to this Article III, the Company will, and
hereby does, indemnify and hold harmless, to the fullest extent permitted by
law, the seller of any Registrable Securities covered by such registration
statement, its directors, officers, fiduciaries, employees and stockholders or
members or general and limited partners (and the directors, officers,
fiduciaries, employees and stockholders or members or general and limited
partners thereof), each other Person who participates as an underwriter or a
qualified independent underwriter, if any, in the offering or sale of such
securities, each director, officer, fiduciary, employee and stockholder or
general and limited partner of such underwriter or qualified independent
underwriter, and each other Person (including any such Person's directors,
officers, fiduciaries, employees and stockholders or members or general and
limited partners), if any, who controls such seller or any such underwriter or
qualified independent underwriter, within the meaning of the Securities Act,
against any and all Claims in respect thereof and expenses (including
reasonable fees and expenses of counsel and any amounts paid in any settlement
effected with the Company's consent, which consent shall not be unreasonably
withheld or delayed) to which each such indemnified party may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such Claims
or expenses arise out of or are based upon any of the following actual or
alleged statements, omissions or violations (each, a "Violation"): (i) any
untrue statement or alleged untrue statement of a material fact contained in
any registration statement under which such securities were registered pursuant
to this Agreement under the Securities Act or the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary, final or summary
prospectus or any amendment or supplement thereto, together with the documents
incorporated by reference therein, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading, or (iii) any violation by the Company of any
federal, state or common law rule or regulation applicable to the Company and
relating to action required of or inaction by the Company in connection with
any such registration, and the Company will reimburse any such indemnified
party for any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such Claim as such
expenses are incurred; provided, however, that the Company shall not be liable
to any such indemnified party in any such case to the extent such Claim or
expense arises out of or is based upon any Violation that occurs in reliance
upon and in conformity with written information furnished to the Company or its
representatives by or on behalf of such indemnified party expressly stating
that such information is for use therein.
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(b) Each holder of Registrable Securities that are included in the
securities as to which any Demand Registration or Piggyback Registration is
being effected (and, if the Company requires as a condition to including any
Registrable Securities in any registration statement filed in connection with
any Demand Registration or Piggyback Registration, any underwriter and
qualified independent underwriter, if any) shall, severally and not jointly,
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 3.3 (a)), to the fullest extent permitted by law, the Company,
its directors, officers, fiduciaries, employees and stockholders (and the
directors, officers, fiduciaries, employees and stockholders or members or
general and limited partners thereof) and each Person (including any such
Person's directors, officers, fiduciaries, employees and stockholders or
members or general and limited partners), if any, controlling the Company
within the meaning of the Securities Act and all other prospective sellers and
their directors, officers, fiduciaries, employees and stockholders or general
and limited partners and respective controlling Persons (including any such
Person's directors, officers, fiduciaries, employees and stockholders or
members or general and limited partners) against any and all Claims and
expenses (including reasonable fees and expenses of counsel and any amounts
paid in any settlement effected with the consent of the indemnifying party,
which consent shall not be unreasonably withheld or delayed) to which each such
indemnified party may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such Claims or expenses arise out of or are based upon
any Violation which occurs in reliance upon and in conformity with written
information furnished to the Company or its representatives by or on behalf of
such holder or underwriter or qualified independent underwriter, if any,
expressly stating that such information is for use in connection with any
registration statement, preliminary, final or summary prospectus or amendment
or supplement or document incorporated by reference into any of the foregoing;
provided, however, that the aggregate amount that any such holder, underwriter
or qualified independent underwriter shall be required to pay pursuant to this
Section 3.3(b) and Sections 3.3(c) and 3.3(e) shall be limited to (i) in the
case of any such holder, the amount of the gross proceeds received by such
holder upon the sale of the Registrable Securities pursuant to the registration
statement giving rise to such claim and (ii) in the case of any such
underwriter or qualified independent underwriter, the amount of the total sales
price of the Registrable Securities sold through or by it pursuant to the
registration statement giving rise to such claim.
(c) Indemnification similar to that specified in Sections 3.3(a)
and 3.3(b) (with appropriate modifications) shall be given by the Company and
each seller of Registrable Securities (and, if the Company requires as a
condition to including any Registrable Securities in any registration statement
filed in connection with any Demand Registration or Piggyback Registration, any
underwriter and qualified independent underwriter, if any) with respect to any
required registration or other qualification of securities under any state
securities and "blue sky" laws.
(d) Any Person entitled to indemnification under this Agreement
shall notify promptly the indemnifying party in writing of the commencement of
any action or proceeding with respect to which a claim for indemnification may
be made pursuant to this Section 3.3, but the failure of any indemnified party
to provide such notice shall not relieve the indemnifying party of its
obligations under the preceding paragraphs of this Section 3.3, except to the
extent the indemnifying party is prejudiced thereby and shall not relieve the
indemnifying party from any liability that it may have to any indemnified party
otherwise than under this Section 3.3. In
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case any action or proceeding is brought against an indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, unless in the
reasonable opinion of outside counsel to the indemnified party a conflict of
interest between such indemnified and indemnifying parties may exist in respect
of such claim, to assume the defense thereof jointly with any other
indemnifying party similarly notified, to the extent that it chooses, with
counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party that it so chooses, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation;
provided, however, that (i) if the indemnifying party fails to take reasonable
steps necessary to defend diligently the action or proceeding within 20 days
after receiving notice from such indemnified party that the indemnified party
believes it has failed to do so; or (ii) if such indemnified party who is a
defendant in any action or proceeding that is also brought against the
indemnifying party reasonably shall have concluded that there may be one or
more legal defenses available to such indemnified party that are not available
to the indemnifying party; or (iii) if representation of both parties by the
same counsel is otherwise inappropriate under applicable standards of
professional conduct, then, in any such case, the indemnified party shall have
the right to assume or continue its own defense as set forth above (but with no
more than one firm of counsel for all indemnified parties in each jurisdiction,
except to the extent any indemnified party or parties reasonably shall have
concluded that there may be legal defenses available to such party or parties
which are not available to the other indemnified parties or to the extent
representation of all indemnified parties by the same counsel is otherwise
inappropriate under applicable standards of professional conduct) and the
indemnifying party shall be liable for any expenses therefor. No indemnifying
party shall, without the written consent of the indemnified party, which
consent shall not be unreasonably withheld, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (A) includes an unconditional release of the indemnified party from
all liability arising out of such action or claim and (B) does not include a
statement as to or an admission of fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(e) If for any reason the foregoing indemnity is unavailable or is
insufficient to hold harmless an indemnified party under Sections 3.3(a),
3.3(b) or 3.3(c), then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of any Claim in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and the indemnified party on the other hand from the
relevant offering of securities. If, however, the allocation provided in the
immediately preceding sentence is not permitted by applicable law, or if the
indemnified party failed to give the notice required by Section 3.3(d) above
and the indemnifying party is prejudiced thereby, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative fault of
but also the relative benefits received by the indemnifying party, on the one
hand, and the indemnified party, on the other hand, as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the Violation relates to information
supplied by the indemnifying party or the indemnified party and the parties'
relative intent,
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knowledge, access to information and opportunity to correct or prevent such
Violation. The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 3.3(e) were to be determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the preceding sentences of this
Section 3.3(e). The amount paid or payable in respect of any Claim shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such Claim.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation. Notwithstanding
anything in this Section 3.3(e) to the contrary, no indemnifying party (other
than the Company) shall be required pursuant to this Section 3.3(e) to
contribute any amount in excess of (i) in the case of an indemnifying party
that is a holder of Registrable Securities, the gross proceeds received by such
indemnifying party from the sale of Registrable Securities in the offering to
which the losses, claims, damages or liabilities of the indemnified parties
relate, or (ii) in the case of an indemnifying party that is an underwriter or
a qualified independent underwriter, the amount of the total sales price of the
Registrable Securities sold through or by it in the offering to which the
losses, claims, damages or liabilities of the indemnified parties relate, less,
in any such case referred to in clauses (i) and (ii) above, the amount of all
indemnification and contribution payments made pursuant to Sections 3.3(b) and
(c) and this Section 3.3(e), as the case may be, in connection with such
offering.
(f) The indemnity agreements contained herein shall be in addition
to any other rights to indemnification or contribution that any indemnified
party may have pursuant to law or contract and shall remain operative and in
full force and effect regardless of any investigation made or omitted by or on
behalf of any indemnified party and shall survive the transfer of the
Registrable Securities by any such party.
(g) The indemnification and contribution required by this Section
3.3 shall be made by periodic payments of the amount thereof during the course
of the investigation or defense, as and when bills are received or expense,
loss, damage or liability is incurred.
(h) In connection with underwritten offerings, the Company will
use reasonable best efforts to negotiate terms of indemnification that are
reasonably favorable to the various sellers pursuant thereto, as appropriate
under the circumstances.
3.4 Holdback Agreement. (a) If requested in writing by the Company or
the underwriter of any underwritten offering affording Stockholders
registration rights pursuant to Section 3.1 (whether or not some or all of such
Stockholder's Registrable Securities are subject to a cutback pursuant to
Section 3.1.4), including, without limitation, an IPO, each Stockholder agrees
not to effect any public sale or distribution, including any sale pursuant to
Rule 144, of any Registrable Securities or any other equity security of the
Company or of any security convertible into or exchangeable or exercisable for
any equity security of the Company (in each case, other than as part of such
underwritten public offering) within 14 days before or 180 days after the
effective date of a registration statement affording Stockholders registration
rights pursuant to Section 3.1 (including where subject to a cutback pursuant
to Section 3.1.4), or for such shorter period as the sole or lead managing
underwriter or the Company shall request, in any such case, unless consented to
by such underwriter or the Company, as applicable; the
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foregoing notwithstanding, to the extent a Discount Note Purchaser is a passive
institutional investor that does not hold Registrable Securities representing
in excess of 0.6% of the outstanding shares of Common Stock prior to an
offering, this Section 3.4(a) shall apply to such Discount Note Purchaser only
with respect to such Discount Note Purchaser's Registrable Securities.
(b) If requested in writing by the underwriter of any offering in
connection with an underwritten Demand Registration, the Company agrees not to
effect any public sale or distribution (other than public sales or
distributions solely by and for the account of the Company of securities issued
(i) pursuant to any employee or director benefit or similar plan or any
dividend reinvestment plan or (ii) in any acquisition by the Company) of any
Registrable Securities or any other equity security of the Company or of any
security convertible into or exchangeable or exercisable for any equity
security of the Company (in each case, other than as part of such underwritten
public offering), within 14 days before or 180 days after the effective date of
a registration statement filed in connection with a Demand Registration, or for
such shorter period as the sole or lead managing underwriter shall request, in
any such case, unless consented to by such underwriter.
3.5 Deferral. Notwithstanding anything to the contrary contained
herein, the Company shall not be obligated to prepare and file, or cause to
become effective, any registration statement pursuant to Section 3.1.2 at any
time when, in the good faith judgment of the Board of Directors of the Company,
the filing thereof at the time requested or the effectiveness thereof after
filing should be delayed to permit the Company to include in the registration
statement the Company's financial statements (and any required audit opinion
thereon) for the then immediately preceding fiscal year or fiscal quarter, as
the case may be. The filing of a registration statement by the Company cannot
be deferred pursuant to the provisions of the immediately preceding sentence
beyond the time that such financial statements (or any required audit opinion
thereon) would be required to be filed with the SEC as part of the Company's
Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may
be, if the Company were then obligated to file such reports. Notwithstanding
anything to the contrary contained herein, the Company shall not be obligated
to file a registration statement, or cause a registration statement previously
filed pursuant to Section 3.1 to become effective, and may suspend sales by the
holders of Registrable Securities under any registration that has previously
become effective, at any time when, in the good faith judgment of the Board of
Directors of the Company, it reasonably believes that the effectiveness of such
registration statement or the offering of securities pursuant thereto would
materially adversely affect a pending or proposed acquisition, merger,
recapitalization, consolidation, reorganization or similar transaction or
negotiations, discussions or pending proposals with respect thereto; provided,
however, that deferrals pursuant to this sentence shall not exceed, in the
aggregate, 180 days in any calendar year. The filing of a registration
statement, or any amendment or supplement thereto, by the Company cannot be
deferred, and the rights of holders of Registrable Securities to make sales
pursuant to an effective registration statement cannot be suspended, pursuant
to the provisions of the immediately preceding sentence for more than 30 days
after the abandonment or the consummation of any of the foregoing proposals or
transactions, unless invoked under new circumstances.
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ARTICLE IV
EXECUTIVE MANAGEMENT INVESTORS' PUT RIGHTS
4.1 Put Rights. If, prior to the consummation of an IPO, an Executive
Management Investor dies or the Executive Management Investor's employment by
Maxxim (or its successor under the Employment Agreement, if any) is terminated
by Maxxim (or its successor under the Employment Agreement, if any), without
Cause (as (a) defined in such Executive Management Investor's Employment
Agreement or in any analogous provision of any employment, compensation or
benefit agreement or arrangement, if any, and if not so defined, upon the good
faith determination of the Board of Directors of the Company), (b) by such
Executive Management Investor for Good Reason (as defined in such Executive
Management Investor's Employment Agreement or in any analogous provision of any
employment, compensation or benefit agreement or arrangement, if any, and, if
not so defined, upon the good faith determination of the Board of Directors of
the Company), or (c) due to a Disability (as defined in such Executive
Management Investor's Employment Agreement or, if such Executive Management
Investor does not have an Employment Agreement, in any analogous provision of
any employment, compensation or benefit agreement or arrangement, if any, and
if not so defined, upon the good faith determination of the Board of Directors
of the Company), the Executive Management Investor or the Executive Management
Investor's legal representative or trustee, as the case may be, shall have the
right, within six months after such termination is effective (or one year after
the date of death in the case of the Executive Management Investor's death), to
require the Company to purchase all (but not less than all) of the Executive
Management Investor's shares of Common Stock (including any shares held by its
Permitted Transferees) that (i) are Reinvestment Shares or (ii) were acquired
in excess of six months prior thereto (A) upon the exercise of Options (less
the number of shares used to exercise such Options) or upon the lapse of
restrictions on an award of Restricted Stock at a price equal to the aggregate
Fair Market Value of such shares of Common Stock determined as of the date of
the exercise of the Put Right (the "Put Right"). The Company shall pay the
purchase price in cash to the extent that subsidiaries of the Company are
permitted to dividend the funds for purchases to the Company (a "Subsidiary
Dividend") (under both applicable law and the indebtedness of the Company and
its subsidiaries and such funds are available and the Company is permitted to
purchase such shares for cash (under both applicable law and such
indebtedness). Any amount not permitted to be funded through a Subsidiary
Dividend or to be used to purchase such shares shall be a continuing obligation
of the Company and such amount shall be paid by the Company before the payment
of any dividends or distributions to Stockholders and shall accrue interest at
the Applicable Federal Rate. The Board of Directors of the Company may, in its
discretion, assign the rights and obligations of the Company under this Section
4 to any other Person, but no such assignment shall relieve the Company of its
obligations hereunder to the extent not satisfied by such assignee.
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ARTICLE V
MISCELLANEOUS
5.1 Effectiveness; Term.
5.1.1 This Agreement shall become effective (the "Effective Date")
simultaneously with the closing of the transactions under the Merger Agreement,
and shall terminate without liability or penalty on the part of any party or
its directors, officers, fiduciaries, employees and stockholders or members or
general and limited partners (and the directors, officers, fiduciaries,
employees and stockholders or members or general and limited partners thereof)
to any other party or such other party's Affiliates upon the termination of the
Merger Agreement pursuant to its terms.
5.1.2 Unless theretofore terminated pursuant to Section 5.1.1, the
rights and obligations of, and restrictions on, the Stockholders under Article
II shall terminate when FPC and its Affiliates no longer hold in the aggregate
at least 25% of the fully diluted shares of Common Stock then outstanding
(subject, however, to all obligations of the parties hereto which must be
fulfilled prior to such event). Notwithstanding the foregoing, in the event the
Company enters into any agreement to merge with or into any other Person or
adopts any other plan of recapitalization, consolidation, reorganization or
other restructuring transaction as a result of which the Stockholders and their
respective Permitted Transferees (including FPC and any Affiliates thereof)
shall own less than a majority of the outstanding voting power of the entity
surviving such transaction, this Agreement shall terminate.
5.1.3 Unless theretofore terminated pursuant to Section 5.1.1, and
notwithstanding anything in Section 5.1.2 to the contrary, the provisions
contained in Article III shall continue to remain in full force and effect
until the earlier to occur of the 20th anniversary of the date hereof and the
date on which there are no longer any Registrable Securities outstanding or
issuable or thereafter available for or subject to issuance to any Stockholder
upon exercise or conversion of any Options, Warrants, rights or other
convertible securities; provided, however, that the provisions of Section 3.3
shall survive termination pursuant to Section 5.1.2 or this Section 5.1.3.
5.2 No Voting or Conflicting Agreements. Prior to an IPO, no Other
Investor shall grant any proxy or enter into or agree to be bound by any voting
trust with respect to the Common Stock nor, at any time, shall any Stockholder
enter into any stockholder agreements or arrangements of any kind with any
Person with respect to the Common Stock inconsistent with the provisions of
this Agreement (whether or not such agreements and arrangements are with other
Investors or holders of Common Stock that are not parties to this Agreement).
The foregoing prohibition includes, but is not limited to, agreements or
arrangements with respect to the acquisition, disposition or voting of shares
of Common Stock inconsistent with the provisions of this Agreement. No
Stockholder shall act, at any time, for any reason, as a member of a group or
in concert with any other Persons in connection with the acquisition,
disposition or voting of shares of Common Stock in any manner that is
inconsistent with the provisions of this Agreement.
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5.3 Composition of the Board of Directors. Following the Effective
Date, the Board of Directors of the Company shall consist of seven members. The
Rollover Investors shall have the right to designate three members of the Board
of Directors of the Company, as described herein, which initially shall include
Xxxxxxx X. Xxxxxxxx (Chairman of the Board of Directors of the Company), Xxxxxx
X. Xxxxxx, Ph.D., and one other member to be designated by the Rollover
Investors. The remaining four initial directors shall be designated by FPC.
While Xx. Xxxxxxxx is Chief Executive Officer or Chairman of the Board of
Directors of the Company, all three members of the Board of Directors of the
Company that may be designated by the Rollover Investors shall be selected by
Xx. Xxxxxxxx, and, thereafter, by a plurality vote of the total number of
shares of Common Stock held by the Rollover Investors. FPC shall have the right
to designate at least four members of the Board of Directors of the Company. So
long as the Mezzanine Investor own at least 25% of the original principal
amount of the Holdco Notes, GS Mezzanine Partners, L.P. shall, in accordance
with the purchase agreement relating to the Holdco Notes, have the right to
appoint one observer to the Board of Directors of the Company. The parties
recognize that, following the Effective Date, as owner of more than a majority
of the Common Stock, FPC has the power to alter the composition of the Board of
Directors of the Company in accordance with the Bylaws of the Company,
including, without limitation, to increase the size of the Board and to add
additional designees without prejudice to the rights of the Rollover Investors
and Mezzanine Investor hereunder. Each of the Stockholders entitled to vote in
the election of directors to the Board of Directors of the Company agrees that
it shall vote its Common Stock or execute consents, as the case may be, and
take all other necessary action (including causing the Company to call a
special meeting of Stockholders) in order to ensure that the designees that
each of the Rollover Investors and FPC are entitled to designate to the Board
of Directors of the Company as set forth in this Section 5.3 are so elected.
The rights pursuant to this Section 5.3 to designate members of the Board of
Directors of the Company, but not the observation right of GS Mezzanine
Partners, L.P., shall terminate upon an IPO (except that, as long as FPC owns
at least 1% of the fully diluted shares of Common Stock, FPC shall be entitled
to designate one director). In addition, if the Rollover Investors hold less
than: (a) 15% of the fully diluted shares of Common Stock, the number of
directors they are entitled to designate shall be reduced to two; (b) 7.5% of
the fully diluted shares of Common Stock, the number of directors they shall be
entitled to designate shall be reduced to one; and (c) 2.5% of the fully
diluted shares they shall not be entitled to designate any directors; provided,
however, that neither this Agreement, nor any provision hereunder shall, in any
way, limit, reduce or otherwise affect the rights of any Management Investor
under the terms of his or her Employment Agreement.
5.4 Approval of Stock Incentive Plan by Stockholders. The
Stockholders, by their execution of this Agreement, hereby approve the Stock
Incentive Plan, a copy of which is attached to this Agreement as Exhibit A.
5.5 Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and, accordingly, agree that each party, in addition to
any other remedy to which it may be entitled at law or in equity, shall be
entitled to compel specific performance of the obligations of any other party
under this Agreement in accordance with the terms and conditions of this
Agreement. Any remedy under this Section 5.5 is subject to certain equitable
defenses and to the discretion of the court before which any proceedings
therefor may be brought.
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5.6 Notices. All notices, statements, instructions or other documents
required to be given hereunder shall be in writing and shall be given either
personally or by mailing the same in a sealed envelope, by overnight courier or
by telecopy, addressed to the Company at its principal offices and to the other
parties at their addresses reflected on the signature pages hereto. Each party
hereto, by written notice given to the other parties hereto in accordance with
this Section 5.6, may change the address to which notices, statements,
instructions or other documents are to be sent to such party. All notices,
statements, instructions and other documents hereunder that are mailed or
telecopied shall be deemed to have been given on the date of mailing or, in the
case of telecopying, upon confirmation of receipt.
5.7 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties, and their respective permitted
successors and assigns. If any Stockholder or any Transferee of any Stockholder
shall acquire any shares of Common Stock in any manner, whether by operation of
law or otherwise, such shares shall be held subject to all of the terms of this
Agreement, and, by taking and holding such shares, such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement.
5.8 Recapitalizations and Exchanges Affecting Common Stock. The
provisions of this Agreement shall apply, to the full extent set forth herein
with respect to Common Stock, to any and all shares of capital stock or equity
securities of the Company or any successor or assign of the Company (whether by
merger, consolidation, sale of assets or otherwise) that may be issued in
respect of, in exchange for, or in substitution of, Common Stock, or that may
be issued by reason of any stock dividend, stock split, reverse stock split,
combination, recapitalization, reclassification or otherwise. Upon the
occurrence of any of such events, numbers of shares and amounts hereunder and
any other appropriate terms shall be appropriately adjusted, as determined in
good faith by the Board of Directors of the Company.
5.9 Governing Law. This Agreement shall be governed and construed and
enforced in accordance with the laws of the State of Delaware, without regard
to the principles of conflicts of law thereof.
5.10 Descriptive Headings, Etc. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein. Unless the context of this Agreement
otherwise requires, references to "hereof," "herein," "hereby," "hereunder" and
similar terms shall refer to this entire Agreement.
5.11 Amendment. This Agreement may not be amended or supplemented,
except by an instrument in writing signed by the Company and by Stockholders
holding a majority of the then-outstanding shares of Common Stock held by all
Stockholders; provided, however, that any amendment, supplement or modification
of this Agreement that adversely affects the rights and obligations of the
Stockholders generally under Section 2.5 shall also require the approval of FPC
and a majority of the outstanding shares of Common Stock held by the Other
Investors; and provided, further, that any amendment, supplement or
modification of this Agreement that adversely affects the rights and
obligations of any Stockholder (an "Affected Holder") or group thereof, as a
class, differently than those of the other Stockholders shall also require the
approval of Affected Holders holding a majority of the outstanding shares of
Common Stock held by all
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such Affected Holders. The foregoing notwithstanding, the Company, without the
consent of any other party hereto, may amend Schedule I and the signature pages
hereto, in order to add any Executive Management Investor or Other Investor or
any other party that becomes a holder of Common Stock or securities convertible
into or exercisable for Common Stock.
5.12 Severability. If any term or provision of this Agreement shall to
any extent be invalid or unenforceable, the remainder of this Agreement shall
not be affected thereby, and each term and provision of this Agreement shall be
valid and enforceable to the fullest extent permitted by law. Upon the
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties shall negotiate in good faith to modify this
Agreement so as to effect their original intent as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are
fulfilled to the extent possible.
5.13 Further Assurances. The parties hereto shall from time to time
execute and deliver all such further documents and do all acts and things as
the other parties may reasonably require to effectively carry out or better
evidence or perfect the full intent and meaning of this Agreement, including,
to the extent necessary or appropriate, using all reasonable efforts to cause
the amendment of the Certificate or the Bylaws of the Company in order to
provide for the enforcement of this Agreement in accordance with its terms. In
furtherance and not in limitation of the foregoing, in the event of any
amendment, modification or termination of this Agreement in accordance with its
terms, the Stockholders shall cause the Board of Directors of the Company to
meet within 30 days following such amendment, modification or termination or as
soon thereafter as is practicable for the purpose of amending the Certificate
and Bylaws of the Company, as may be required as a result of such amendment,
modification or termination, and, to the extent required by law, proposing such
amendments to the Stockholders of the Company entitled to vote thereon, and
such action shall be the first action to be taken at such meeting.
5.14 Complete Agreement; Counterparts. This Agreement (together with
the Merger Agreement, the Voting Agreements, dated as of June 13, 1999, as
amended, by and between Fox Xxxxx Medic and each of the Rollover Investors, the
Investor Participation Agreement, dated June 13, 1999, as amended, by and among
Fox Xxxxx Medic and the Rollover Investors, the Stock Incentive Plan, the
Employment Agreements and the other agreements referred to herein and therein)
constitutes the entire agreement and supersedes all other agreements and
understandings, both written and oral, among the parties or any of them, with
respect to the subject matter hereof. This Agreement may be executed by any one
or more of the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
5.15 Certain Transactions. The parties hereto agree that Fox Xxxxx &
Company, LLC shall have the exclusive right to perform all consulting,
financing, investment banking and similar services for the Company and its
subsidiaries, for customary compensation and on other terms that are customary
for similar engagements with unaffiliated third parties, and neither the
Company nor its subsidiaries shall engage any other Person to perform such
services during the term of this Agreement, except to the extent Fox Xxxxx &
Company, LLC shall consent thereto or shall decline, at its sole election, to
perform such services; in any such case, so long as FPC holds at least 10% of
the outstanding shares of Common Stock.
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5.16 No Third-Party Beneficiaries. The provisions of this Agreement
shall be only for the benefit of the parties to this Agreement, and no other
Person (other than any indemnified party with respect to Section 3.3) shall
have any third party beneficiary or other right hereunder.
-33-
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed on the date first written above.
MAXXIM MEDICAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman, President and Chief
Financial Officer
FOX XXXXX CAPITAL FUND, L.P.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
Address: 000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
FPC INVESTORS, L.P.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
Address: 000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
MAXXIM COINVESTMENT FUND I, LLC
By: Fox Xxxxx Capital Fund, LLC, its Manager
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
Address: 000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
MAXXIM COINVESTMENT FUND II, LLC
By: Fox Xxxxx Capital Fund, LLC, its Manager
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
Address: 000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
[SIGNATURE PAGE TO MAXXIM STOCKHOLDERS' AGREEMENT]
39
MAXXIM COINVESTMENT FUND III, LLC
By: Fox Xxxxx Capital Fund, LLC, its Manager
By: /s/ W. Xxxxxx Xxxxx
----------------------------------------
Name: W. Xxxxxx Xxxxx
Title: Director
Address: 000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
[SIGNATURE PAGE TO MAXXIM STOCKHOLDERS' AGREEMENT]
40
MAXXIM COINVESTMENT FUND IV, LLC
By: Fox Xxxxx Capital Fund, LLC, its Manager
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
Address: 000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
MAXXIM COINVESTMENT FUND V, LLC
By: Fox Xxxxx Capital Fund, LLC, its Manager
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
Address: 000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
GS MEZZANINE PARTNERS, L.P.
By: GS Mezzanine Advisors, L.P.,
its general partner
By: GS Mezzanine Advisors, Inc.,
its general partner
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney-in-fact
GS MEZZANINE PARTNERS OFFSHORE, L.P.
By: GS Mezzanine Advisors (Cayman), L.P.,
its general partner
By: GS Mezzanine Advisors, Inc.,
its general partner
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney-in-fact
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners,
its general partners
By: /s/ Xxxx X'Xxxxxx
-----------------------------------------
Name: Xxxx X' Xxxxxx
Title: General Partner
Address: 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
[SIGNATURE PAGE TO MAXXIM STOCKHOLDERS' AGREEMENT]
41
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
Address: Xxx Xxxxxxxxxx Xxxxx (0-00-00)
Xxxxxxxx, XX 00000-0000
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Investment Officer
Address: 000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
XXXX XXXXXXX VARIABLE LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Investment Officer
Address: 000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
SIGNATURE 3 LIMITED
by XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY, as Portfolio Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Investment Officer
Address: 000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
XXXXXXX XXXXX INTERNATIONAL
by XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY, as Manager
under that certain Bond Purchase
and Asset Management Agreement
dated as of June 22, 1999
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Investment Officer
Address: 000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
[SIGNATURE PAGE TO MAXXIM STOCKHOLDERS' AGREEMENT]
42
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Its Authorized Representative
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By: /s/ Xxxxxxxxxxx X. Stunt
-----------------------------------------
Name: Xxxxxxxxxxx X. Stunt
Title: Director
Address: World Financial Center -
Xxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
DEUTSCHE BANK AG, NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
Address: 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
CIBC WMC, INC.
By: /s/ Xxx Xxxxxxx
-----------------------------------------
Name: Xxx Xxxxxxx
Title: Managing Director
Address: 000 Xxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0 XXXXXX
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
Address: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[SIGNATURE PAGE TO MAXXIM STOCKHOLDERS' AGREEMENT]
43
DAVIDSON MANAGEMENT
INTERNATIONAL LIMITED PARTNERSHIP
By: Davidson Management, Inc.,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
Address:
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Address:
/s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Address:
/s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Address:
/s/ Xxxxx X. XxXxxx
---------------------------------------------
Name: Xxxxx X. XxXxxx
Address:
/s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Address:
/s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Address:
/s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Address:
/s/ Xxxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxx
Address:
/s/ Xxxxxx X. Xxxxxx, Ph.D.
---------------------------------------------
Name: Xxxxxx X. Xxxxxx, Ph.D.
Address: 00 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
/s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Address:
[SIGNATURE PAGE TO MAXXIM STOCKHOLDERS' AGREEMENT]
44
Schedule I
The individual holdings of Common Stock of each Stockholder
immediately after the closing of the transactions contemplated in the Merger
Agreement (not assuming the exercise of any Options) will be as follows:
Number of Shares
of Common Stock
Name Held After Closing
---- ------------------
Davidson Management International Limited Partnership 184,514
Xxxxx X. Xxxxxx 75,365
Xxxxx X. Xxxxxx 59,917
Xxxxx X. XxXxxx 36,736
Xxxx X. Xxxxxx 39,661
Xxxx X. Xxxxxx 46,520
Xxxxxx X. Xxxxxx 24,320
Xxxxxxx X. Xxxxx 5,024
Xxxxxx X. Xxxxxx, Ph.D. 143,385
Xxxxx X. Xxxxxx 86,031
Fox Xxxxx Capital Fund, L.P. 3,930,217
FPC Investors, L.P. 58,317
GS Mezzanine Partners, L.P. 142,101
GS Mezzanine Partners Offshore, L.P. 76,306
MAXXIM COINVESTMENT FUND I 97,864
MAXXIM COINVESTMENT FUND II 109,204
MAXXIM COINVESTMENT FUND III 109,204
MAXXIM COINVESTMENT FUND IV 218,407
MAXXIM COINVESTMENT FUND V 327,611
---------
Total 5,770,704
The individual holdings of Options to purchase shares of Common Stock
of each Stockholder immediately after the closing of the transactions
contemplated in the Merger Agreement are as set forth as follows:
45
Name Number of Shares of Common
---- Stock Subject to Options
Held After Closing
--------------------------
Xxxxxxx X. Xxxxxxxx 386,892
Xxxxx X. Xxxxxx 209,747
Xxxxx X. Xxxxxx 161,812
Xxxxx X. XxXxxx 100,007
Xxxx X. Xxxxxx 101,385
Xxxx X. Xxxxxx 141,725
Xxxxxx X. Xxxxxx 59,489
Xxxxxxx X. Xxxxx 11,818
---------
Total 1,172,875
Number of Shares of Common
Stock Subject to Warrants
Name Held After Closing
---- --------------------------
GS Mezzanine Partners, L.P. 114,875
GS Mezzanine Partners Offshore, L.P. 61,686
Chase Equity Associates, L.P. 10,809
Nationwide Life Insurance Company 5,405
Xxxx Xxxxxxx Mutual Life Insurance Company 17,836
Xxxx Xxxxxxx Variable Life Insurance Company 1,081
Signature 3 Limited 540
Xxxxxxx Xxxxx International 7,567
The Northwestern Mutual Life Insurance Company 27,024
Merrill, Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated 5,405
Deutsche Bank AG, New York Branch 2,703
CIBC WMC, Inc. 5,406
Credit Suisse First Boston Corporation 2,703
-------
Total 263,040
46
Schedule II
REINVESTMENT SHARES
NAME NUMBER OF SHARES
---- OF COMMON STOCK
----------------
Davidson Management 46,080
International Limited
Partnership
Xxxxx X. Xxxxxx 34,930
Xxxxx X. Xxxxxx 27,082
Xxxxx X. XxXxxx 13,852
Xxxx X. Xxxxxx 14,425
Xxxx X. Xxxxxx 24,152
Xxxxxx Xxxxxx 8,089
Xxxxxxx Xxxxx 1,009
-------
TOTAL 169,619
47
Schedule 2.3.7(a)
Xxxxxxx Xxxxx International, which is acquiring the securities at the
direction of Xxxx Xxxxxxx Mutual Life Insurance Company ("Xxxxxxx") under that
certain Bond Purchase and Asset Management Agreement, dated as of June 22,
1999, may transfer the securities that it acquires to Signature 4 Limited, a
Cayman islands corporation for which Xxxxxxx will act as portfolio advisor,
with the reasonable consent of the Board of Directors of the Company.
