EXHIBIT 10.15A
EMAGEON, INC.
FIRST AMENDMENT AND JOINDER TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THIS FIRST AMENDMENT AND JOINDER ("Amendment") to the Amended and
Restated Stockholders Agreement of Emageon, Inc., dated October 2, 2001 (the
"Agreement"), is made as of May 30, 2003, by and among EMAGEON, INC., a Delaware
corporation (the "Company") and the undersigned holders of the Company's Common
Stock, Series A Preferred Stock, Series B Preferred Stock, Series B-1 Preferred
Stock, and Series C Preferred Stock that are parties to the Agreement, and the
undersigned parties holding all of the Company's outstanding shares of Series D
Preferred Stock. Capitalized terms used herein but not otherwise defined shall
have the meanings given to such terms in the Agreement.
WITNESSETH:
WHEREAS, the Common Stockholders, Series A Investors, Series B
Investors, Series B-1 Investors, and Series C Investors (collectively, the
"Existing Parties") are parties to the Agreement;
WHEREAS, pursuant to Section 15(e) of the Agreement, any term of the
Agreement may be amended with the written consent of (i) the Company, (ii) the
Investors (or their transferees) holding a majority of the outstanding shares of
Preferred Stock (voting together as a single class) and (iii) the Common
Stockholders (or their transferees) holding a majority of the outstanding shares
of Common Stock, and any amendment effected in accordance with such Section
15(e) of the Agreement shall be binding upon the Company, the Common
Stockholders, and the Investors and each of their future transferees;
WHEREAS, the Company desires to amend the Agreement;
WHEREAS, the undersigned Existing Parties, which hold a majority of the
outstanding shares of Preferred Stock and a majority of the outstanding shares
of Common Stock, desire to amend the Agreement; and
WHEREAS, the undersigned holders of all of the outstanding shares of
the Company's Series D Preferred Stock desire to become parties to the
Agreement, as amended by this Amendment.
NOW, THEREFORE, in consideration of the premises, and the mutual terms
and conditions set forth herein, it is hereby agreed by and among the Company,
the Common Stockholders, the Series A Investors, Series B Investors, Series B-1
Investors, and Series C Investors that the Agreement is hereby amended in
accordance with this Amendment, and the undersigned holders of all of the
outstanding shares of the Company's Series D Preferred Stock shall become
parties to the Agreement, as amended by this Amendment:
1. AMENDMENTS.
(A) The initial paragraph of the Agreement is hereby deleted in
its entirety and replaced with the following:
"THIS AMENDED AND RESTATED STOCKHOLDERS AGREEMENT ("Agreement"), made
this 2nd day of October, 2001, by and among EMAGEON, INC., a Delaware
corporation (the "Company"); those holders of the Company's Common
Stock listed on Schedule 1 attached hereto (the "Common Stockholders");
those holders of the Company's Series A Preferred Stock listed on
Schedule 2 attached hereto (the "Series A Investors"); those holders of
the Company's Series B Preferred Stock listed on Schedule 3 attached
hereto (the "Series B Investors"); those holders of the Company's
Series B-1 Preferred Stock listed on Schedule 4 attached hereto (the
"Series B-1 Investors"); those holders of the Company's Series C
Preferred Stock listed on Schedule 5 attached hereto (the "Series C
Investors"); and those holders of the Company's Series D Preferred
Stock listed on Schedule 6 attached hereto (the "Series D Investors",
and together with the Series A Investors, the Series B Investors, the
Series B-1 Investors and the Series C Investors collectively, the
"Investors")."
(B) The third "WHEREAS" clause of the Agreement is hereby deleted
in its entirety and replaced with the following:
"WHEREAS, the Series A Investors are the holders of all of the issued
and outstanding shares of the Company's Series A Preferred Stock,
$0.001 par value (the "Series A Preferred"), the Series B Investors are
the holders of all of the issued and outstanding shares of the
Company's Series B Preferred Stock, $0.001 par value (the "Series B
Preferred"), the Series B-1 Investors are the holders of all of the
issued and outstanding shares of the Company's Series B-1 Preferred
Stock, $0.001 par value (the "Series B-1 Preferred"), the Series C
Investors are the holders of all of the issued and outstanding shares
of the Company's Series C Preferred Stock, $0.001 par value (the
"Series C Preferred"), and the Series D Investors are the holders of
all of the issued and outstanding shares of the Company's Series D
Preferred Stock, $0.001 par value (the "Series D Preferred", and
together with the Series A Preferred, Series B Preferred, Series B-1
Preferred and Series C Preferred, collectively, the "Preferred
Stock")."
(C) Section 2(d) of the Agreement is hereby deleted in its
entirety and replaced with the following:
"(D) OFFER TO SERIES B INVESTORS, SERIES B-1 INVESTORS, SERIES C
INVESTORS AND SERIES D INVESTORS. In the event the Company shall decide
not to purchase all the Offered Shares, Company shall notify each of
the Series B Investors, Series B-1 Investors, Series C Investors and
Series D Investors of such decision within thirty (30) days after
receipt of the Notice. The Series B Investors, Series B-1 Investors,
Series C Investors and Series D Investors shall have the right to
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purchase all (or any portion) of the Offered Shares in accordance with
the terms set forth in the Notice on a pro rata basis determined by
each such party's proportionate ownership interest of all outstanding
Shares held by the Series B Investors, Series B-1 Investors, Series C
Investors and Series D Investors. In the event a Series B Investor,
Series B-1 Investor, Series C Investor or Series D Investor elects not
to acquire its (or their) entire proportionate interest, the remaining
Series B Investors, Series B-1 Investors, Series C Investors and Series
D Investors shall be entitled to acquire the remainder of such interest
on a pro rata basis as described above; provided, however, that such
Investors must notify the Selling Stockholder (and the Company) of
their intention to purchase such shares within thirty (30) days from
the date the Notice was delivered to the Company and the Series B
Investors, Series B-1 Investors, Series C Investors and Series D
Investors. Investors holding a majority of the issued and outstanding
Series B Preferred, Series B-1 Preferred, Series C Preferred and Series
D Preferred (voting together as a single class) may waive for such
Investors the rights of first refusal contained herein if such
Investors deem the transfer of the Shares of the Selling Stockholder to
the person named in the Notice to be in the best interest of the
Investors and/or Company."
(D) The first sentence of Section 2(e) of the Agreement is hereby
deleted in its entirety and replaced with the following:
"In the event the Company, the Series B Investors, Series B-1
Investors, Series C Investors and Series D Investors shall decide not
to purchase all the Offered Shares, Company shall notify each of the
Series A Investors and Common Stockholders of such decision within
thirty (30) days after receipt of the Notice."
(E) The first sentence of Section 3(a) of the Agreement is hereby
deleted in its entirety and replaced with the following:
"In the event of a Sale of the Company, as hereinafter defined, which
is approved by the holders of at least 60% of the then-outstanding
Series B Preferred, Series B-1 Preferred, Series C Preferred and Series
D Preferred (voting together as a single class on an as-converted
basis), each Investor and each Common Stockholder shall vote all shares
of Preferred Stock and/or Common Stock (including Shares of Common
Stock issued upon conversion of Preferred Stock) held by him or it in
favor of the Sale of the Company."
(F) Section 5 of the Agreement is hereby deleted in its entirety
and replaced with the following:
"5. PROHIBITION AGAINST PLEDGE OF STOCK. No Common Stockholder or
Investor shall pledge, hypothecate or grant a security interest in all
or any part of the Shares (other than pledges, hypothecations or
security interests granted to lenders in connection with loans to
purchase Shares) without the consent of the
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holders of at least 60% of the Series B Preferred, Series B-1
Preferred, Series C Preferred and Series D Preferred (voting together
as a single class)."
(G) Section 6 of the Agreement is hereby amended by adding the
phrase "as amended" after the phrase "October 2, 2001".
(H) Section 7(a) of the Agreement is hereby deleted and replaced
with the following:
"(A) CONSTITUENCY OF BOARD OF DIRECTORS; QUORUM. Pursuant to the
Amended and Restated Certificate of Incorporation of the Company (the
"Certificate"), the Common Stockholders and Investors shall vote their
shares of capital stock of Company for a Board of Directors consisting
of nine (9) directors. For so long as the outstanding Shares of Series
A Preferred constitute five percent (5%) or more of the Company's
outstanding capital stock (on a fully diluted basis), the Series A
Investors, voting separately as a class, shall have the right to elect
one (1) director (the "Series A Director") (and to fill any vacancies
with respect thereto) by a vote of a majority of the then outstanding
shares of Series A Preferred. In connection therewith, the Series A
Investors shall designate one person as nominee for director and such
Series A Investors agree to designate and vote their Shares in favor of
such nominee. For so long as the outstanding Shares of Series B
Preferred and Series B-1 Preferred, collectively, constitute five
percent (5%) or more of the Company's outstanding capital stock (on a
fully diluted basis), the Series B Investors and the Series B-1
Investors, voting together and separately as a class, shall have the
right to elect one (1) director (the "Series B Director"). In
connection therewith, the Series B Investors and Series B-1 Investors
shall designate one person as nominee for director and such Series B
Investors and Series B-1 Investors agree to designate and vote their
Shares in favor of such nominee. The initial Series B Director shall be
designated by STF Institutional Partners II, L.P. For so long as the
outstanding Shares of Series C Preferred constitute five percent (5%)
or more of the Company's outstanding capital stock (on a fully diluted
basis), the Series C Investors, voting separately as a class, shall
have the right to elect two (2) directors (the "Series C Directors")
(and to fill any vacancies with respect thereto) by a vote of a
majority of the then outstanding shares of Series C Preferred. One (1)
Series C Director initially shall be designated by Investors holding a
majority of the Shares of Series C Preferred and the other Series C
Director shall be Xxxx Xxxxxx. Each of the Series C Investors shall
vote their Series C Shares in favor of such designee and such nominee.
For so long as the outstanding Shares of Series D Preferred constitute
two and one-half percent (2.5%) or more of the Company's outstanding
capital stock (on a fully diluted basis), the Series D Investors,
voting separately as a class, shall have the right to elect one (1)
director (the "Series D Director") (and to fill any vacancies with
respect thereto) by a vote of a majority of the then outstanding shares
of Series D Preferred. The Series D Director initially shall be Xxxx
Xxxxxxxx. In addition, each party shall vote such party's shares of
capital stock of the Company to elect (i) Xxxx as a director while Xxxx
remains an employee of Company and (ii) Xxxx Xxxxxxx as a director
until the earlier of (A) May 30,
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2005, or (B) the date on which the Company files an effective
registration statement for a Qualifying IPO (as such term is defined in
the Certificate). Any other members of the Board of Directors
authorized by the Company's Bylaws shall be elected by the Common
Stockholders and Investors voting together as a single class. A
majority of the number of directors then constituting the Board of
Directors shall constitute a quorum for the transaction of business of
the Board of Directors.
(I) Section 8(a)(i) is hereby deleted in its entirety and replaced
with the following:
"(i) Reports and Notifications to Be Delivered by Company. Unless
waived, Company shall furnish to each Investor the following reports
and notices so long as such holder continues to hold at least 40,000
Shares (as adjusted for stock dividends, combinations, or splits) of
Preferred Stock; provided, that, in the case of affiliated Series A
Investors, Series B Investors, Series B-1 Investors, Series C Investors
or Series D Investors, Company shall only be obligated to furnish the
following reports and notices to one representative of such affiliated
Series A Investors, Series B Investors, Series B-1 Investors, Series C
Investors or Series D Investors."
(J) Section 8(b)(v)(B) is hereby deleted in its entirety and
replaced with the following:
"(B) Maintain or cause to be maintained a policy or policies of
directors' and officers' liability insurance with responsible and
reputable insurance companies or associations, covering the directors
and officers of Company and its subsidiaries in such amounts and
against such risks as is customarily carried by companies engaged in
similar businesses to that of Company, and on such terms and conditions
as shall be reasonably acceptable to each of the Series A Director, the
Series B Director, the Series C Director and each Series D Director."
(K) Section 8(b)(xv) is hereby deleted in its entirety and
replaced with the following:
"(xv) Option Plans and Option Shares. The Board of Directors of Company
shall reserve up to 18,325,000 shares of Common Stock, subject to
adjustment for stock splits, stock dividends and other changes
affecting the Common Stock (collectively, the "Option Shares") for
issuance to Company's directors, officers, employees, advisors and
consultants pursuant to one or more stock option or other equity
compensation plans established by Company (each an "Option Plan")
provided that any such Option Plan which shall be adopted after the
date hereof shall be adopted only with the approval of the Board of
Directors, including the approval of the Series B Director, the Series
D Director and at least one Series C Director. All grants of Option
Shares by Company to directors, officers, employees, advisors and
consultants of Company made after the date of this Agreement shall be
subject to approval of the Compensation Committee of the Board of
Directors. The number of Option Shares available for issuance may be
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increased with the approval of the Board of Directors (including the
approval of the Series B Director, the Series D Director and one (1)
Series C Director) or the Compensation Committee."
(L) Section 15(d) is hereby amended by adding the following new
clause (v) after clause (iv):
"(v) if to a Series D Investor, at such Series D Investor's address as
set forth on Schedule 6 attached hereto, or at such other address as
such Series D Investor shall have furnished to the other parties hereto
in writing."
(M) Schedule 1 is hereby amended by adding those Common
Stockholders listed on EXHIBIT A hereto.
(N) A new Schedule 6 is hereby added to the Agreement in the form
attached as EXHIBIT B hereto.
2. JOINDER. Each undersigned holder of Series D Preferred Shares hereby
agrees that upon execution of this Amendment by such person or entity, such
person or entity shall become a party to the Agreement, as amended by this
Amendment, and shall be fully bound by, and subject to, all of the covenants,
terms and conditions of the Agreement, as amended by this Amendment, as though
such person or entity were an original party thereto and shall be deemed a
Series D Investor for all purposes thereof.
3. GENERAL PROVISIONS.
(A) NO OTHER AMENDMENTS. Except for the amendments contained in
SECTION 1 of this Amendment, the Agreement shall remain in full force and
effect.
(B) AUTHORIZATION. Each Common Stockholder and Investor (which
term shall include the undersigned holders of the Series D Preferred Shares)
hereby represents and warrants to the Company and to each other that (i) such
Common Stockholder or Investor has full power and authority to execute, to
deliver and to perform such Common Stockholder's or Investor's obligations under
this Amendment; and (ii) the execution and delivery of this Amendment has been
duly and validly authorized, and all necessary action has been taken to make
this Amendment a valid and binding obligation of such Common Stockholder or
Investor, enforceable in accordance with its terms, except that the enforcement
thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and to general principles of equity (regardless of whether such
enforcement is considered a proceeding in equity or at law).
(C) GOVERNING LAW. This Amendment shall be governed by and
construed under the laws of the State of Delaware, as applied to agreements
among Delaware residents made and to be performed entirely within the State of
Delaware, and without regard to the conflicts of law principles as may otherwise
be applicable.
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(D) BINDING ON SUCCESSORS. This Amendment shall bind and inure to
the benefit of the parties hereto, their respective heirs, executors,
administrators, successors and permitted assigns.
(E) COUNTERPARTS AND SIGNATURE BY FACSIMILE. This Amendment may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. The
facsimile signature of any party to this Amendment for purposes of execution or
otherwise is to be considered as an original signature, and the document
transmitted is to be considered to have the same binding effect as an original
signature on an original document. At the request of any party, any facsimile or
telecopy document is to be re-executed in original form by the parties who
executed the facsimile or telecopy document. No party may raise the use of a
facsimile machine or telecopier or the fact that any signature was transmitted
through the use of a facsimile or telecopier machine as a defense to the
enforcement of this Amendment or any notice required thereof.
[Signatures begin on the following page.]
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IN WITNESS WHEREOF, the parties have executed this Amendment under seal
as of the day and year first above written.
COMPANY:
EMAGEON, INC.
By: /s/ Xxxxxxx X. Xxxx, Xx.
---------------------------------
Xxxxxxx X. Xxxx, Xx., President
[Individual Signature Pages of Stockholders Omitted]
EXHIBIT A
Xxxx Xxxxxxx
Xxxx X. Xxxxxxxx
Xxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Xxxx Xxxxxxx
Xxx Xxxxx
Xxxx X. Xxxxx
Xxxxxxxx Xxxxxxxx Trust
Xxxxxx & Xxxx Xxxxxxx Foundation
Xxxxx X. Xxxxx
Xxxxxx X. Xxxx
Xxxxxx Xxxxx
Xxxx Xxxxx
GEFUltravisual
Xxxxx Xxxxxxx III Declaration of Trust
J. Xxxxxxx Xxxxx XXX
Xxxxx and Xxx Xxxxxx
MBF Investments (2000) LLC
Xxxxxx X. Xxxxx
M&I Trust Co., (FBO Xxx X. Xxxxxxxxx)
Xxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx Xxxxxxxx
Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx CLU, Ltd. Pension Plan
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxxx
X. Xxxx Xxxxxx, M.D.
Xxxx and Xxxxx Xxxxxxx
Xxxx Xxxxx
Xxxxxxx X. Xxxxx & Xxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxx 1972 Trust
Xxxxxxx Xxxxxxx 1972 Trust
Xxxx Xxxxxxxxx 1972 Trust
Xxxxxxx Revocable Trust Xxxxx & Xxxxxx Xxxxxxx
Xxx Xxxxx
Xxxx Reneicke
Xxxxxxx Xxxxxx
Xxxxx and Xxxxx Xxxxx
Xxxxx X. Xxxxxxxxx
Xxxx Xxxxxx
Xxxxx Revocable Trust
Xxxxx Xxxx
Xxxx X. Xxxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxxx Xxxx
Xxxxxx Xxxxx
Xxxxxxx X. Xxxxx, Xx.
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Case
Xxxxx Xxxxxx
Xxxxxxx X. Xxxxxxx or Xxxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxx
Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxx and Xxxxxx Xxxxxxxxxxx Family Trust
Xxxxx Sivesand
Xxx X'Xxxxx
Xxx Xxxxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxxx
Xxxxxxx Xxxxx
Xxxxx X Xxxx
The Mendota Group
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxx X. Xxxxxxxx
Xxx Xxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxxxxx
EXHIBIT B
SCHEDULE 6
SERIES D INVESTORS
Xxxx Xxxxxxx
Xxxx X. Xxxxxxxx
Xxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Xxxx Xxxxxxx
Xxx Xxxxx
Xxxx X. Xxxxx
Xxxxxxxx Xxxxxxxx Trust
Xxxxxx & Xxxx Xxxxxxx Foundation
Xxxxx X. Xxxxx
Xxxxxx X. Xxxx
Xxxxxx Xxxxx
Xxxx Xxxxx
GEFUltravisual
Xxxxx Xxxxxxx III Declaration of Trust
J. Xxxxxxx Xxxxx XXX
Xxxxx and Xxx Xxxxxx
MBF Investments (2000) LLC
Xxxxxx X. Xxxxx
M&I Trust Co., (FBO Xxx X. Xxxxxxxxx)
Xxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx Xxxxxxxx
Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx CLU, Ltd. Pension Plan
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxxx
X. Xxxx Xxxxxx, M.D.
Xxxx and Xxxxx Xxxxxxx
Xxxx Xxxxx
Xxxxxxx X. Xxxxx & Xxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxx 1972 Trust
Xxxxxxx Xxxxxxx 1972 Trust
Xxxx Xxxxxxxxx 1972 Trust
Xxxxxxx Revocable Trust Xxxxx & Xxxxxx Xxxxxxx
Xxx Xxxxx
Xxxx Reneicke
Xxxxxxx Xxxxxx
Xxxxx and Xxxxx Xxxxx
Xxxxx X. Xxxxxxxxx
Xxxx Xxxxxx
Xxxxx Revocable Trust
Xxxxx Xxxx
Xxxx X. Xxxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxxx Xxxx
Xxxxxx Xxxxx
Xxxxxxx X. Xxxxx, Xx.
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Case
Xxxxx Xxxxxx
Xxxxxxx X. Xxxxxxx or Xxxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxx
Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxx and Xxxxxx Xxxxxxxxxxx Family Trust
Xxxxx Sivesand
Xxx X'Xxxxx
Xxx Xxxxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxxx
Xxxxxxx Xxxxx
Xxxxx X Xxxx
The Mendota Group
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxx X. Xxxxxxxx
Xxx Xxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxxxxx
