Exhibit 4.05
RECAPITALIZATION CONFIRMATION AGREEMENT
This Recapitalization Confirmation Agreement ("Agreement") is dated and
effective as of June 15, 1999 and is by and among RealMed Corporation (the
"Company"), Newcourt Financial USA Inc. ("Newcourt"), Candel & Partners, Gemplus
Corp., Gemplus, SCA, West Plains Investment, Inc., Jefferson Consulting Group,
LLC, Jefferson Government Relations, Inc., Finno SCA, Xxxxx Xxxxx, JLT, LP,
Xxxxxx X. Xxxxxxxx, Xxxx X. Xxxxxx, Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx
Trempont, Xxxxxx Xxxxxx, Xxxxxx Xxxxxxxx, Xxxx Xxxx and Xxxxxx Xxxxxxxxx
(collectively the "Existing Shareholders").
RECITALS
A. Contemporaneously with the execution and delivery of this Agreement,
the Company and Newcourt are entering into a Loan Agreement pursuant to which,
among other things, Newcourt will commit, subject to certain terms and
conditions, to loan up to $17,500,000 to the Company.
B. In connection with the Loan Agreement and the transactions
contemplated thereby, Newcourt and the other parties to this Agreement desire to
establish with certainty the share holdings of the Company as they exist
immediately prior to the closing (the "Effective Time") of the Loan Agreement
and the related transactions which are being consummated contemporaneously
therewith (collectively, the "Transactions").
C. Newcourt will not execute and deliver the Loan Agreement or
consummate the Transaction unless, among other things, this Agreement is
executed and delivered by the parties hereto.
D. The parties hereto believe it is desirable for the Company and
Newcourt to enter into the Loan Agreement and are, therefore, willing to enter
into this Agreement in order to induce Newcourt to enter into the Loan
Agreement. Each of the parties also believes it is in its best interest to enter
into this Agreement in order to establish with certainty the matters set forth
in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, the parties agree as follows:
1. Each of the parties acknowledges and agrees that effective
as of the Effective Time, (a) the information regarding the ownership of the
capital stock of the Company (and rights to acquire same) which is set forth
opposite such party's name on Exhibit A is true, accurate and complete, (b)
except as set forth on Exhibit A, such party does not own, beneficially or of
record, any capital stock of the Company, or any options, warrants, puts, calls
or other rights with respect to any securities of the Company, and (c) to the
best of such party's knowledge, no persons other than those identified on
Exhibit A own, beneficially or of record, any capital stock of the Company or
any options, warrants, puts, calls, or other rights with respect to any
securities of the Company.
2. If, notwithstanding the provisions of paragraph 1 of this
Agreement, any Existing Shareholder shall be deemed or determined to have owned
(beneficially or of record), as of the Effective Time, any capital stock of the
Company, or any options, warrants, puts, calls or other rights with respect to
the capital stock of the Company not set forth on Exhibit A, such Existing
Shareholder hereby disclaims and renounces such capital stock, options,
warrants, puts, calls or other rights and all of same are hereby terminated and
rendered null and void.
3. Each party agrees that, from time to time, it will execute
and deliver, or cause to be executed and delivered, such additional agreements,
instruments, certificates and documents and take all such actions as any other
party to this Agreement may reasonably request for purposes of implementing or
effectuating the provisions of this Agreement.
4. This Agreement shall be binding upon and shall inure to the
benefit of all of the parties to this Agreement and their respective heirs,
executors, administrators, assigns and successors in interest.
5. The parties affirm that this Agreement has been entered
into in the State of Indiana and shall be governed by and construed in
accordance with the substantive laws of the State of Indiana, notwithstanding
any state's choice of law rules to the contrary.
6. If any term or provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms and provisions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
each of the parties shall use its reasonable best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term or provision.
7. No change, amendment, modification or supplement to this
Agreement shall be valid or effective unless it is in writing and is duly
executed by each party to this Agreement or its duly authorized successor or
assign.
8. The failure of any party to this Agreement to enforce at
any time any provision of this Agreement shall not be construed to be a waiver
of such provision, nor in any way to affect the validity of this Agreement or
any part of it or the right of such party to enforce each and every provision of
this Agreement. Any waiver of any breach or provision of this Agreement must be
in a writing signed by the waiving party in order to be effective and, except as
otherwise clearly expressed in such a writing, no waiver of any breach or
provision of this Agreement shall constitute a waiver of any other breach or
provision or a continuing waiver. The performance by any party to this Agreement
of any act not required of it by the terms of this Agreement shall not
constitute either an agreement that such act is required or a waiver of the
scope of, or limitations on, its obligations under this Agreement and no such
performance shall estop such party from denying any obligation to perform such
act or asserting such scope or limitations with respect to any further or future
acts or failures to act.
9. When used in this Agreement, words denoting the singular
include the plural and vice versa and words of any gender include all genders.
10. This Agreement constitutes a complete and total
integration of the understanding of the parties with respect to the subject
matter of this Agreement and it supersedes all prior and all contemporaneous
agreements and understandings (whether written, oral or implied) of the parties,
or their respective agents, with respect to such subject matter.
11. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute but one agreement. Any facsimile transmission of a
signed counterpart of this Agreement shall be deemed to be an original
counterpart and all signatures appearing thereon shall be deemed to be
originals.
12. This Agreement shall not be strictly construed against any
party.
13. In the event of any litigation among any of the parties to
this Agreement regarding the matters governed hereby or the enforcement hereof,
the losing party shall pay to the prevailing party all reasonable expenses and
costs, including reasonably attorneys' fees, incurred by the prevailing party in
connection with such litigation.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date set forth at the beginning of this Agreement.
NEWCOURT FINANCIAL USA INC. REALMED CORPORATION
By: By:
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Printed Name, Title Printed Name, Title
(Signatures continued on next page)
(Signatures continued from preceding page)
Gemplus, SCA JLT, LP
By: By:
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Printed Name, Title Printed Name, Title
---------------------------- ------------------------------
Xxxxxx X. Xxxxxxxx Xxxx X. Xxxxxx
---------------------------- ------------------------------
Xxxxxx Xxxxxx Xxxxxx Xxxx
---------------------------- ------------------------------
Xxxxxxxx Trempont Xxxxxx Xxxxxx
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Xxxxxx Xxxxxxxx Xxxx Xxxx
----------------------------
Xxxxxx Xxxxxxxxx
(Signatures continued on next page)
(Signatures continued from preceding page)
Candel & Partners Gemplus Corp
By: By:
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Printed Name, Title Printed Name, Title
West Plains Investment, Inc. Jefferson Consulting Group, LLC
By: By:
---------------------------- ------------------------------
Printed Name, Title Printed Name, Title
Jefferson Government Relations, Inc. Finno SCA
By: By:
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Printed Name, Title Printed Name, Title
Xxxxx Xxxxx
