EXHIBIT 4.9
AMENDMENT NO. 2
TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED INVESTORS' RIGHTS
AGREEMENT ("Amendment") is made and entered into as of April 1, 2002, by and
among SYMBION, INC., a Tennessee corporation formerly named "UniPhy Healthcare,
Inc." (the "Company"), X.X. XXXXXXX III, L.P. ("JHW III"), X.X. XXXXXXX XX, L.P.
("JHW IV"), WHITNEY STRATEGIC PARTNERS III, L.P. ("WSP" and together with JHW
III and JHW IV, the "Whitney Shareholders"), those persons holding five percent
(5%) or more of the outstanding capital stock of Physicians Surgical Care, Inc.,
a Delaware corporation ("PSC"), immediately prior to the closing of the Merger
(defined herein) as identified on Exhibit A attached hereto (the "PSC
Shareholders") and the other persons identified on Exhibit A (collectively, the
"Original Investors" and each individually, an "Original Investor"). The Whitney
Shareholders, the PSC Shareholders and the Original Investors are referred to
herein collectively as the "Investors."
R E C I T A L S:
WHEREAS, the Company and the Original Investors are parties to that
certain Amended and Restated Investors' Rights Agreement, dated as of June 25,
1999 as amended by the Amendment No. 1 to Amended and Restated Investors' Rights
Agreement, dated as of August 11, 1999 (the "Investors' Rights Agreement");
WHEREAS, the Company, PSC and Symbion Acquisition Sub, Inc. ("SAS") are
parties to that certain Agreement and Plan of Merger, dated as of March 7, 2002
(the "Merger Agreement") which provides, among other things, for SAS to be
merged with and into PSC (the "Merger");
WHEREAS, it is a condition of PSC's obligations under the Merger
Agreement that the Company and the Original Investors amend the Investors'
Rights Agreement to add the Whitney Shareholders as parties thereto and to
provide the Whitney Shareholders with rights and obligations that are pari passu
with those of the ARC Key Shareholders and the UniPhy Preferred Shareholders as
well as all of the other rights of the Investors and the Anti-Dilution Investors
thereunder and to provide to the PSC Shareholders the rights and obligations of
an "Investor" solely for the purposes of Sections 2.3, 2.5, 2.6, 2.7, 2.8; 2.9,
2.10, 2.11, 2.12, 2.13, 2.14 and 3.1(b) of the Investors' Rights Agreement;
WHEREAS, the Company and the Investors desire to amend the Investors'
Rights Agreement as set forth in this Amendment, pursuant to Section 6.5 of the
Investors' Rights Agreement; and
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants and agreements contained herein, the sufficiency of which is hereby
acknowledged, the parties hereby agree and consent to the following:
1. Definitions.
(a) Capitalized terms used herein without definition shall have
the same meanings ascribed to such terms in the Investors' Rights Agreement.
(b) The Investors' Rights Agreement is hereby amended by adding
the following as part of Section 1 in appropriate alphabetical order:
"Affiliate" shall mean (i) in the case of an entity, any
Person who or which, directly or indirectly, through one or more
intermediaries, controls or is controlled by, or is under common
control with, any specified Person or (ii) in the case of an
individual, such individual's spouse, children, grandchildren or
parents or a trust primarily for the benefit of any of the foregoing.
"Preferred Stock" means the Series A Preferred Stock and the
Series B Preferred Stock.
"Series A Preferred Stock" means the Series A Convertible
Preferred Stock, par value $.01 per share, of the Company.
"Series B Preferred Stock" means the Series B Convertible
Preferred Stock, par value $.01 per share, of the Company.
(c) The definition of "Registerable Securities" contained in
Section 1.1 of the Investors' Rights Agreement is hereby deleted in its entirety
and the following is hereby substituted therefor for all purposes:
"Registerable Securities" means (i) any and all shares of
Common Stock of the Company held by the Investors or issued or issuable
upon conversion of shares of Preferred Stock and any shares of Common
Stock issued or issuable upon conversion of any shares of preferred
stock; (ii) any other shares of Common Stock acquired or owned by any
of the Investors prior to the Initial Offering if such Investor is an
Affiliate of the Company; (iii) any Common Stock of the Company issued
as (or issuable upon the conversion or exercise of any warrant, right
or other security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, such
above-described securities; and (iv) any Common Stock of the Company
issued upon conversion of any warrant, right or other security held by
the Investors.
2. Restrictions on Transfer. The Investors' Rights Agreement is hereby
further amended by adding and appending the following sentence at the end of
Section 2.1(b):
In addition, notwithstanding the provisions of paragraphs
(a)(i) and (a)(ii) above, no such registration statement or opinion of
counsel shall be necessary for a transfer by a Whitney Shareholder,
UniPhy Preferred Shareholder or ARC Key Shareholder to any of its
Affiliates if such transfer does not constitute a sale, provided the
transferee will be subject to this Agreement to the same extent as if
he were an original Investor hereunder.
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3. Demand Registration Rights. Section 2.2(a) of the Investors' Rights
Agreement is hereby deleted in its entirety and the following is hereby
substituted therefor for all purposes:
(a) Subject to the conditions of this Section 2.2, if the
Company shall receive at any time a written request from any UniPhy
Preferred Shareholders, ARC Key Shareholders or Whitney Shareholders
(for purposes of this Section 2.2, the "Demand Registration Investors")
holding ten percent (10%) or more of the Registrable Securities then
outstanding which are held by the Demand Registration Investors (the
"Initiating Investors") that the Company file a registration statement
under the Securities Act covering the registration of the Registrable
Securities having an aggregate offering price to the public of not less
than $1,000,000, then the Company shall, within thirty (30) days of the
receipt thereof, give written notice of such request to all of the
Demand Registration Investors, and subject to the limitations of this
Section 2.2, use its best efforts to effect, as soon as practicable,
the registration under the Securities Act of all Registrable Securities
that the Demand Registration Investors request to be registered.
4. Piggyback Registration Rights.
(a) Section 2.3(a)(i) of the Investor' Rights Agreement
is hereby deleted in its entirety and the following is hereby
substituted therefor for all purposes:
(i) In the case of the Initial Offering, no such
reduction shall reduce the securities being offered by the
Company for its own account to be included in the registration
and underwriting, and in no event shall the amount of
securities of the selling Investors included in the
registration be reduced below fifteen percent (15%) of the
total amount of securities included in such registration,
unless such offering is the Initial Offering and such
registration does not include shares of any other selling
shareholders, in which event any or all of the Registrable
Securities of the Investors may be excluded and in no event
will shares of any other selling shareholders be included in
such registration which would reduce the number of shares
which may be included by Investors without the written consent
of Investors holding not less than seventy-five percent (75%)
of the Registrable Securities held collectively by the UniPhy
Preferred Shareholders, the ARC Key Shareholders and the
Whitney Shareholders, and seventy-five (75%) of the
Registrable Securities by the UniPhy Founders proposed to be
sold in the offering.
(b) Section 2.3(a)(ii) of the Investors' Rights Agreement
is hereby deleted in its entirety and the following is hereby
substituted therefor for all purposes:
(ii) In the case of an underwritten primary
registration on behalf of the Company, the number of shares
that may be included in the underwriting shall be allocated,
first, to the Company; second to the UniPhy Preferred
Shareholders, the ARC Key Shareholders and the Whitney
Shareholders on a pro rata basis based on the total number of
Registrable Securities held by such UniPhy Preferred
Shareholders, ARC Key Shareholders and Whitney Shareholders;
third, to the UniPhy Founders on a pro rata basis based on the
total number of Registrable Securities held by the UniPhy
Founders; and fourth, to any shareholder of the Company (other
than an Investor) on a pro rata basis;
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5. Indemnification. The last proviso in Section 2.9(b) of the Investors'
Rights Agreement is hereby deleted in its entirety and the following is hereby
substituted therefor for all purposes:
provided further, that in no event shall any indemnity under
this Section 2.9(b) exceed the proceeds from the offering received by
such Investor.
6. Assignment of Registration Rights. The term "affiliate" in Section 2.10
of the Investors' Rights Agreement is hereby deleted and the term "Affiliate" is
hereby substituted therefor for all purposes.
7. Amendment of Registration Rights. The first sentence of Section 2.11 of
the Investors' Rights Agreement is hereby deleted in its entirety and the
following is hereby substituted therefor for all purposes:
Any provision of this Section 2 may be amended and the
observance thereof may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the
written consent of the Company and the Investors owning at least
two-thirds of the Registerable Securities then outstanding and, to the
extent that any such amendment would adversely effect the UniPhy
Founders, the written consent of the Investors' holding at least
two-thirds of the Registerable Securities held by the UniPhy Founders;
provided, however, that if any such amendment, waiver, discharge or
termination shall in any way have an adverse or deleterious effect on
the Whitney Shareholders, such amendment, waiver, discharge or
termination shall require the Whitney Shareholders' prior written
consent.
8. Covenants of the Company. Section 3.1(c) of the Investors' Rights
Agreement is hereby deleted in its entirety and the following is hereby
substituted therefor for all purposes:
(c) So long as a UniPhy Preferred Shareholder, ARC Key
Shareholder (with its affiliates) or the Whitney Shareholders shall own
not fewer than 110,000 shares of Registrable Securities (as adjusted
for splits and combinations) (a "Major Investor") the Company will
furnish each such Major Investor, as soon as practicable after the end
of the first, second and third quarterly accounting periods in each
fiscal year of the Company, and in any event within forty-five (45)
days thereafter, a consolidated balance sheet of the Company as of the
end of each such quarterly period, and a consolidated statement of
income and a consolidated statement of cash flows of the Company for
such period and for the current fiscal year to date, prepared in
accordance with generally accepted accounting principles, with the
exception that no notes need be attached to such statements and
year-end audit adjustments may not have been made.
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9. Issuance of Additional Shares on Certain Dilutive Issues. The first
paragraph of Section 4.1 of the Investors' Rights Agreement is hereby deleted in
its entirety and the following is hereby substituted therefor for all purposes:
4.1. Issuance of Additional Shares on Certain Dilutive
Issues. In the event that, at any time prior to the closing of the
Initial Offering, the consideration per share (determined pursuant to
Section 4.1.4 below) for any Additional Share of Common Stock (as
defined below) issued or deemed to be issued by the Company (the
"Anti-Dilution Price") is less than the average price per share of the
shares of Common Stock (or Preferred Stock that was converted to Common
Stock) or Preferred Stock owned by each Investor identified on Exhibit
A hereto as an anti-dilution Investor (the "Anti-Dilution Investors")
at the time of the issuance giving rise to the issuance of additional
shares pursuant to this Section 4.1 (the "Average Original Price"),
then the Company shall issue to the Anti-Dilution Investors additional
shares of Common Stock subject to the following provisions;
10. Issuance of Additional Shares of Common Stock to Anti-Dilution
Investors upon Issuance of Additional Shares of Common Stock. Section 4.1.3 of
the Investors' Rights Agreement is hereby deleted in its entirety and the
following is hereby substituted therefor for all purposes:
4.1.3. Issuance of Additional Shares of Common Stock to
Anti-Dilution Investors Upon Issuance of Additional Shares of Common
Stock. In the event that the Company at any time after the date hereof
shall issue Additional Shares of Common Stock (including Additional
Shares of Common Stock deemed to be issued pursuant to Subsection 4.1.2
above), without consideration or for a consideration per share less
than the Average Original Price, the Company shall issue to each
Anti-Dilution Investor without further consideration, that number of
Additional Shares of Common Stock equal to the result obtained by (a)
dividing (i) the number of shares of Common Stock held by such
Anti-Dilution Investor or Common Stock that an Anti-Dilution Investor
could acquire upon conversion of any convertible preferred stock held
by such Anti-Dilution Investor immediately prior to the issuance giving
rise to the issuance of additional shares pursuant to this Section 4.1
multiplied by its Average Original Price by (ii) the Anti-Dilution
Price per share consideration received (or deemed to have been received
pursuant to Section 4.1.2 above) by the Company for the Additional
Shares of Common Stock and (b) subtracting from the quotient the number
of shares of Common Stock held by each Anti-Dilution Investor and
Common Stock that an Anti-Dilution Investor could acquire upon
conversion of any convertible preferred stock held by such
Anti-Dilution Investor immediately prior to the issuance giving rise to
the issuance of additional shares pursuant to this Section 4.1.
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11. Rights of First Refusal. Section 4.2.1 of the Investors' Rights
Agreement is hereby deleted in its entirety and the following is hereby
substituted therefor for all purposes:
4.2.1 Subsequent Offerings. Each UniPhy Preferred
Shareholder, ARC Key Shareholder and Whitney Shareholder (for purposes
of this Section 4.2, the "First Refusal Investors") shall have a right
of first refusal to purchase its pro rata share of all Equity
Securities, as defined below, that the Company may, from time to time,
propose to sell and issue after the date of this Amended and Restated
Agreement, other than the Equity Securities excluded by Section 4.5
hereof. Each First Refusal Investor's pro rata share is equal to the
ratio of (A) the number of shares of the Company's Common Stock
(assuming conversion of all Preferred Stock owned by such First Refusal
Investor) of which such First Refusal Investor is deemed to be a holder
immediately prior to the issuance of such Equity Securities to (B) the
total number of shares of the Company's outstanding Common Stock
(assuming conversion of all outstanding Preferred Stock) immediately
prior to the issuance of the Equity Securities. The term "Equity
Securities" shall mean (i) any Common Stock, preferred stock or other
security of the Company, (ii) any security convertible, with or without
consideration, into any Common Stock, preferred stock or other security
(including any option to purchase such a convertible security), (iii)
any security carrying any warrant or right to subscribe to or purchase
any Common Stock, preferred stock or other security or (iv) any such
warrant or right.
12. Issuance of Equity Securities to Other Persons. The first sentence of
Section 4.2.3 is hereby deleted in its entirety and the following is hereby
substituted therefor for all purposes:
If not all of the First Refusal Investors elect to purchase
their pro rata share of the Equity Securities then the Company shall
promptly notify in writing the First Refusal Investors who do elect and
shall offer such First Refusal Investors the right to acquire such
unsubscribed shares.
13. Amendment and Waiver. Section 6.5 of the Investors' Rights Agreement is
hereby deleted in its entirety and the following is hereby substituted therefor
for all purposes:
6.5 Amendment and Waiver.
(a) Except as otherwise expressly provided, this Amended
and Restated Agreement may be amended or modified only upon the written
consent of the Company and (i) the Investors holding at least
seventy-five percent (75%) of the Registrable Securities held by the
UniPhy Preferred Shareholders and the ARC Key Shareholders, (ii) the
Investors holding at least seventy-five percent (75%) of the
Registrable Securities held by the UniPhy Founders and (iii) the
Investors holding at least seventy-five percent (75%) of the
Registrable Securities held by the Whitney Shareholders; provided,
however, (i) with respect to provisions of this Amended and Restated
Agreement applicable only to the UniPhy Preferred Shareholders, the ARC
Key Shareholders and the Whitney Shareholders, such provisions may be
amended and modified solely upon the written consent of the Company and
(x) the holders of at least seventy-five percent (75%) of the
Registrable Securities held by the UniPhy Preferred Shareholders and
the ARC Key Shareholders and (y) the holders of at least seventy-five
percent (75%) of the Registrable Securities held by the Whitney
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Shareholders and (ii) with respect to provisions of this Amended and
Restated Agreement applicable only to UniPhy Founders, such provisions
may be amended and modified solely upon the written consent of the
Company and the holders of at least seventy-five percent (75%) of the
Registrable Securities held by the UniPhy Founders.
(b) Except as otherwise expressly provided, the obligations of
the Company and the rights of the Investors under this Amended and
Restated Agreement may be waived only with the written consent of (i)
the Investors holding at least seventy-five percent (75%) of the
Registrable Securities held by the UniPhy Preferred Shareholders and
the ARC Key Shareholders, (ii) the Investors holding at least
seventy-five percent (75%) of the Registrable Securities held by the
UniPhy Founders and (iii) the Investors holding at least seventy-five
percent (75%) of the Registrable Securities held by the Whitney
Shareholders; provided, however, (i) with respect to the rights held
only by the UniPhy Preferred Shareholders, the ARC Key Shareholders and
the Whitney Shareholders, such rights may be waived solely upon the
written consent of (x) the holders of at least seventy-five percent
(75%) of the Registrable Securities held by the UniPhy Preferred
Shareholders and the ARC Key Shareholders and (y) the holders of at
least seventy-five percent (75%) of the Registrable Securities held by
the Whitney Shareholders, and (ii) with respect to the rights held only
by the UniPhy Founders, such rights may be waived solely upon the
written consent of the holders of at least seventy-five percent (75%)
of the Registrable Securities held by the UniPhy Founders.
14. Whitney Amendment. The Investors' Rights Agreement is hereby amended by
adding and appending the following as Section 10 of the Investors' Rights
Agreement:
10. Addition of each of the Whitney Shareholders as a Party.
Notwithstanding the provisions of Section 6.5 or any other Section
hereof, upon the closing of the Merger:
(a) Each of the Whitney Shareholders shall be a party to
this Amended and Restated Agreement; and
(b) Exhibit A attached to this Amended and Restated
Agreement shall be amended to add each of the Whitney Shareholders as a
person identified thereon, and each of the Whitney Shareholders shall
be, and shall be included within the definition of, an "Investor" for
purposes of this Amended and Restated Agreement; and
(c) Exhibit A attached to this Amended and Restated
Agreement shall be amended to identify each of the Whitney Shareholders
as an "Anti-Dilution Investor," and each of the Whitney Shareholders
shall be, and shall be included within the definition of, an
"Anti-Dilution Investor" for purposes of this Amended and Restated
Agreement; and
(d) Exhibit A attached to this Amended and Restated
Agreement shall be appended to identify each of JHW III, JHW IV and WSP
as the "Whitney Shareholders," for purposes of this Amended and
Restated Agreement; and
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(e) Whitney shall have, and be entitled and subject to,
all of the rights, benefits, duties and obligations of an "Investor,"
and an "Anti-Dilution Investor" under this Amended and Restated
Agreement, subject to the terms hereof.
15. Addition of the PSC Shareholders as Parties. The Investors' Rights
Agreement is hereby further amended by adding and appending the following as
Section 11, thereunder, of the Investors' Rights Agreement:
11. Addition of the PSC Shareholders as Parties. Notwithstanding
the provisions of Section 6.5 or any other Section hereof, upon the
closing of the Merger:
(a) the PSC Shareholders shall be a party to this Amended
and Restated Agreement; and
(b) Exhibit A attached to this Amended and Restated
Agreement shall be amended to add the PSC Shareholders as persons
identified thereon, and the PSC Shareholders shall be, and shall be
included within the definition of, an "Investor" solely for purposes
Sections 2.3, 2.5, 2.6, 2.7, 2.8; 2.9, 2.10, 2.11, 2.12, 2.13, 2.14 and
3.1(b) of this Amended and Restated Agreement; and
(c) the PSC Shareholders shall have, and shall be
entitled and subject to, all of the rights, benefits, duties and
obligations of an "Investor" as provided only under Sections 2.3, 2.5,
2.6, 2.7, 2.8; 2.9, 2.10, 2.11, 2.12, 2.13, 2.14 and 3.1(b) of this
Amended and Restated Agreement, subject to the terms hereof.
16. Notices. All notices to the Whitney Shareholders shall be delivered to
the following:
c/o Whitney & Co.
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxx, M.D.
or such other address as the Whitney Shareholders may designate by ten (10) days
advance written notice to the other parties hereto.
17. Requisite Approval. Upon execution and delivery of this Amendment by
the Company and Investors representing the requisite percentage of Registrable
Shares set forth in Section 6.5 of the Investors' Rights Agreement, this
Amendment shall constitute and be deemed to be an amendment to and part of the
Investors' Rights Agreement for all purposes.
18. No Other Changes. Except as expressly set forth or contemplated in this
Amendment, the terms and conditions of the Investors' Rights Agreement shall
remain in place and shall not be altered, amended or changed in any manner
whatsoever, except by any further amendment to the Investors' Rights Agreement
made in accordance with the terms of the Investors' Rights Agreement, as hereby
amended.
19. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when executed
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and delivered shall be deemed an original effective for binding the parties
hereto, but all of which shall together constitute one and the same instrument.
20. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of California, without regard to the
principles of conflicts of law thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
2 to the Amended and Restated Investors' Rights Agreement, and hereby consent to
the amendment and modification of the Investors' Rights Agreement provided
herein, as of the date first above written.
THE COMPANY:
SYMBION, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
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Title: President and Chief Executive Officer
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INVESTORS:
UNIPHY PREFERRED SHAREHOLDERS:
ABS Capital Partners, L.P.
By: /s/ Xxxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
---------------------------------------
Title:
-------------------------------------
/s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
--------------------------------------------
Xxxxx X. Xxxx
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Xxxx Xxxxx
/s/ Xxxxxxx X. Xxxxxxx, Xx.
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Xxxxxxx X. Xxxxxxx, Xx.
/s/ R. Xxxx Xxxxxxx
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R. Xxxx Xxxxxxx
10
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Xxx Xxxxxxx
THE XXXXXX COMPANIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------------
Title:
--------------------------------------
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Pacific Venture Group, L.P.
By: PVG Equity Partner, L.L.C.,
its General Partner
/s/ Xxx X. Xxxxxx
--------------------------------------------
By: Xxx X. Xxxxxx
Title: Member
PVG Associates, L.P.
By: PVG Equity Partner, L.L.C.,
its General Partner
/s/ Xxx X. Xxxxxx
--------------------------------------------
By: Xxx X. Xxxxxx
Title: Member
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxx Xxxxxxx
--------------------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
00
ARC KEY SHAREHOLDERS:
XXXXXX X. XXXXXX FOUNDATION
By:
----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
FIRST AVENUE PARTNERS, L.P.
By:
----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
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Xxxxxxx X. Xxxxxxx
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J. Xxxxxxx Xxxxx
HEALTH TECH AFFILIATES, INC.
By:
----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
HLM/CB Fund, L.P.
By:
----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
HLM Partners VII, L.P.
By:
----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
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--------------------------------------------
W. Xxxxxxxx Xxxxx
Xxxxx Xxxxxxx, Inc.
By:
----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
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B. Max Lauderdale
/s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------------------------
Xxxxxxx X. Xxxxxx, Xx.
/s/ Xxxxxxx X. Xxxx
--------------------------------------------
Xxxxxxx X. Xxxx
--------------------------------------------
Xxxxxx Xxxxxx
--------------------------------------------
Xxxxx X. Xxxxx
--------------------------------------------
Xxxx X. Xxxxxxxxxx
13
RICHLAND VENTURES II, L.P.
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Partner
RICHLAND VENTURES III, L.P.
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Partner
--------------------------------------------
Xxx X. Xxxxxx
SOUTH ATLANTIC PRIVATE EQUITY FUND IV (QP),
LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: Managing Director
-------------------------------------
SOUTH ATLANTIC PRIVATE EQUITY FUND IV, L.P.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: Managing Director
-------------------------------------
--------------------------------------------
Xxx Xxxxxx, Xx.
/s/ Xxxxxxx X.X. Xxxx
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Xxxxxxx V.B. Xxxx
XX TWO, L.P.
By:
----------------------------------------
Name:
---------------------------------------
Title:
-------------------------------------
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Xxxxx X. Xxxx, III
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WHITNEY SHAREHOLDERS:
X.X. XXXXXXX III, L.P.
By: X. X. Xxxxxxx Equity Partners III, L.L.C.,
Its General Partner
By: /s/ Xxxxxx X. X'Xxxxx
-------------------------------------------
Name: Xxxxxx X. X'Xxxxx
-----------------------------------------
Title: Managing Member
--------------------------------------
X.X. XXXXXXX XX, L.P.
By: X.X. Xxxxxxx Equity Partners IV, L.L.C.,
Its General Partner
By: /s/ Xxxxxx X. X'Xxxxx
------------------------------------------
Name: Xxxxxx X. X'Xxxxx
-----------------------------------------
Title: Managing Member
--------------------------------------
WHITNEY STRATEGIC PARTNERS III, L.P.
By: X. X. Xxxxxxx Equity Partners III, L.L.C.,
Its General Partner
By: /s/ Xxxxxx X. X'Xxxxx
------------------------------------------
Name: Xxxxxx X. X'Xxxxx
-----------------------------------------
Title: Managing Member
--------------------------------------
UNIPHY FOUNDERS:
-----------------------------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxxxx X. Xxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxx
THE XXXXXXX IRREVOCABLE TRUST, XXX XXXXXXX,
TRUSTEE
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
------------------------------------------
Title: Executor
----------------------------------------
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--------------------------------------------
Xxxxxx Xxxxxxxxxx
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ H. Xxxxxx Xxxxxx III
--------------------------------------------
H. Xxxxxx Xxxxxx III
/s/ Xxxxxxx Xxxxx
--------------------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxxxx Xxxxx
--------------------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxx
PSC SHAREHOLDERS
/s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------------------------
Xxxxxx X. Xxxxxxx, Xx.
/s/ Xxxxxx Xxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxx
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ADDITIONAL UNIPHY PREFERRED SHAREHOLDERS:
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Xxxxx X. Xxxxxx
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Xxx Xxxxxx and Xxxx Xxxxxx, as joint tenants
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Xxx Xxxxxx and Xxxx Xxxxxx, as Custodians
for Xxxxx X. Xxxxxx
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Xxx Xxxxxx and Xxxx Xxxxxx, as Custodians
for Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxx
--------------------------------------------
Xxxxxxx X. Xxxxx
--------------------------------------------
Xxxxxx X. Xxxxx
--------------------------------------------
Xxxx X. Xxxxx
--------------------------------------------
Xxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxxx X. Xxx
17
--------------------------------------------
Xxxx X. Xxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxx, as Custodian
for Xxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxx, as Custodian
for Xxxx X. Xxxxxxx
18
EXHIBIT A
SCHEDULE OF INVESTORS
UNIPHY PREFERRED SHAREHOLDERS
ABS Capital Partners, L.P.*
Xxxxxxxx X. Xxxxxx*
Xxxxx X. Xxxxxx*
Xxxxx X. Xxxx*
Xxxx Xxxxx*
Xxx Xxxxxx and Xxxx Xxxxxx, as joint tenants*
Xxx Xxxxxx and Xxxx Xxxxxx, as Custodians for Xxxxx X. Xxxxxx*
Xxx Xxxxxx and Xxxx Xxxxxx, as Custodians for Xxxxxx X. Xxxxxx*
Xxxxxxx X. Xxxxxxx, Xx.*
Xxxxxx X. Xxxxxxxx*
Xxxxxxx X. Xxxxx*
W. Xxxxxxxx Xxxxx*
R. Xxxx Xxxxxxx*
Xxx Xxxxxxx
Xxxxxxx X. Xxxxxxxx*
Xxxxxxx X. Xxxxx*
Xxxxxx X. Xxxxx*
Xxxx X. Xxxxx*
Xxxxx X. Xxxxxxx*
Pacific Venture Group, L.P.*
Xxxxx X. Xxxxx*
PVG Associates, L.P.*
Xxxxxxx X. Xxx*
Xxxxxxx X. Xxxxxx*
Xxxxxx X. Xxxxxx*
Xxxxx Xxxxxxx*
Xxxxxxx Xxxxxx*
The Xxxxxx Companies, Inc.*
Xxxx X. Xxxxxx*
Xxxxxx X. Xxxxxxx*
Xxxxxx X. Xxxxxxx, as Custodian for Xxxxx X. Xxxxxxx*
Xxxxxx X. Xxxxxxx, as Custodian for Xxxx X. Xxxxxxx*
Xxxxxxx X.X. Xxxx*
ARC KEY SHAREHOLDERS
Xxxxxx X. Xxxxxx Foundation*
Xxxxx X. Xxxxx*
First Avenue Partners, L.P.*
Xxxxxxx X. Xxxxxxx
J. Xxxxxxx Xxxxx
Health Tech Affiliates, Inc.
HLM/CB Fund, L.P.*
HLM Partners VII, L.P.*
W. Xxxxxxxx Xxxxx*
* ANTI-DILUTION INVESTOR
19
Xxxxx Xxxxxxx, Inc.*
B. Max Lauderdale
Xxxxxxx X. Xxxxxx, Xx.*
Xxxxxxx X. Xxxx*
Xxxxxx Xxxxxx
Xxxxx X. Xxxxx*
Xxxx X. Xxxxxxxxxx
Richland Ventures II, L.P.*
Richland Ventures III, L.P.*
Xxx X. Xxxxxx
South Atlantic Private Equity Fund IV (QP)*
South Atlantic Private Equity Fund
IV, L.P.*
Xxx Xxxxxx, Xx.*
Xxxxxxx X.X. Xxxx*
WW Two, L.P.*
Xxxxx X. Xxxx, III
WHITNEY SHAREHOLDERS
X.X. Xxxxxxx III, L.P.*
X.X. Xxxxxxx XX, L.P.*
Whitney Strategic Partners III, L.P.*
UNIPHY FOUNDERS
Xxxxx Xxxxxxxx
Xxxxxxx X. Xxxxx
The Xxxxxxx Irrevocable Trust, Xxx Xxxxxxx, Trustee*
Xxxxxx Xxxxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
H. Xxxxxx Xxxxxx III
Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxxx X. Xxxxxx
PSC SHAREHOLDERS
Xxxxxx X. Xxxxxxx, Xx.
Xxxxxx Xxxxxxx
* ANTI-DILUTION INVESTOR
20
