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EXHIBIT 4.2
SHAREHOLDERS AGREEMENT
OF
GERIMED OF AMERICA, INC.
A COLORADO CORPORATION
THIS SHAREHOLDERS AGREEMENT (this "Agreement") is made as of December
23, 1997 by and between GERIMED OF AMERICA, INC., a Colorado corporation (the
"Corporation"), XXXXX X. XXXXXXXX, a resident of the State of Colorado
("Xxxxxxxx") and SPECTRUM HEALTHCARE SERVICES, INC., a Delaware corporation
("Spectrum"). Xxxxxxxx and Spectrum are hereinafter separately referred to as
"Shareholder" and collectively referred to as "Shareholders."
RECITALS
X. Xxxxxxxx owns 3,382,500 shares of the common stock, $.0001 par
value, of the Corporation (the "Common Stock") which as of the date hereof
constitutes 64.6% of the issued and outstanding capital stock of the Corporation
(the "Founder's Stock").
B. Pursuant to that certain Securities Purchase Agreement dated
December 22, 1997 between the Corporation and Spectrum (the "Purchase
Agreement"), Spectrum acquired 906,891 shares of Series A Convertible Preferred
Stock, $.0001 par value, of the Corporation ("Preferred Stock") and certain
rights to acquire additional shares of capital stock of the Corporation (such
shares, rights and shares acquired upon exercise of such rights, held by
Spectrum are hereinafter collectively referred to as the "Spectrum Stock").
C. The Corporation and the Shareholders desire to enter into this
Agreement to provide for certain rights and restrictions with respect to the
Founder's Stock and the Spectrum Stock (collectively, together with any other
capital stock of the Corporation and rights to acquire capital stock of the
Corporation acquired by either Shareholder, the "GeriMed Stock") for the
purposes, among others, of: (i) establishing the composition of the board of
directors of the Corporation; (ii) limiting the manner and terms by which the
GeriMed Stock may be transferred, and (iii) granting the Shareholders certain
rights to buy and sell GeriMed Stock.
D. The Corporation and the Shareholders desire to enter into this
Agreement knowing that it is in the Corporation's best interest and fair to each
of the Shareholders.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. NO ENCUMBRANCE. During the term of this Agreement, no Shareholder
shall pledge, hypothecate or otherwise encumber any of the GeriMed Stock or
contract to pledge, hypothecate or encumber such shares. Any attempted pledge,
hypothecation or encumbrance of
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GeriMed Stock by a Shareholder shall be void and of no force and effect, except
as permitted by paragraph 5 of this Agreement.
2. RESTRICTIONS ON TRANSFER OF GERIMED STOCK.
(a) Transfer of GeriMed Stock. No Shareholder shall sell for value
(a "Sale") any GeriMed Stock or interest therein, except pursuant to
the provisions of this paragraphs 2, 3 or 5 below.
(b) Right of First Refusal.
(i) At least thirty (30) days prior to making any Sale of any
GeriMed Stock (the "Election Period"), a Shareholder desiring to
sell GeriMed Stock (the "Transferring Shareholder") shall deliver a
written notice (the "Transfer Notice") to the Corporation and the
other Shareholder (the "Other Shareholder").
(ii) The Transfer Notice shall (1) disclose in reasonable detail
the proposed terms and conditions of the Sale, including, but not
limited to, the proposed transferee, the consideration to be paid
and the method of payment for the GeriMed Stock and (2) be
accompanied by a written bona fide offer from the proposed
transferee.
(iii) During the Election Period, the Other Shareholder may
elect (A) to purchase all, but not less than all, of the GeriMed
Stock specified in the Transfer Notice by delivering a written
notice of election (an "Election Notice") to the Transferring
Shareholder, or (B) if applicable, to exercise his or its rights
under paragraph 4 below.
(iv) If prior to the expiration of the Election Period, the
Other Shareholder has not elected to purchase all of the GeriMed
Stock which the Transferring Shareholder proposes to sell or if the
Other Shareholder fails to give the Transferring Shareholder written
notice within the Election Period, the Other Shareholder will be
deemed to have waived its election rights and the Transferring
Shareholder may sell such GeriMed Stock within ninety (90) days
after expiration of the Election Period, on terms no more favorable
than those terms specified in the Transfer Notice. If a sale of such
GeriMed Stock is not consummated within ninety (90) days after
expiration of the Election Period, such GeriMed Stock shall again be
subject to the provisions of this paragraph 2.
(v) Subject to subparagraph (iv) above, if the Other Shareholder
elects to purchase all of the GeriMed Stock from the Transferring
Shareholder: (1) the Other Shareholder shall purchase the GeriMed
Stock covered by the Transfer Notice at the price, and on the terms
specified in the Transfer Notice and (2) the transfer of GeriMed
Stock shall be consummated as soon as practical after delivery of
Election Notice, but in any event within thirty (30) days after the
expiration of the Election Period.
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3. PURCHASE OF SHAREHOLDER'S SHARES.
(a) Involuntary Transfers.
(i) If the GeriMed Stock held by either Shareholder shall be
levied upon, sequestered, administered by a receiver or a trustee in
bankruptcy, or transferred in any other involuntary transfer, or
otherwise transferred by operation of law, the Shareholder shall
give the Corporation prompt written notice of such occurrence.
(ii) The Corporation shall have, for a period of thirty (30)
days after receipt of the written notice, the right to elect to
purchase all (but not less than all) of such Shareholder's GeriMed
Stock at a purchase price equal to the Fair Market Value (as defined
by subparagraph 3(c) below) of such GeriMed Stock as of the date of
the event giving rise to the Corporation's rights under this
subparagraph 3(a) and on the terms provided herein. Such right shall
apply even though the GeriMed Stock may actually have been sold at
the time of exercise thereof. The Corporation may exercise its right
to purchase such GeriMed Stock by giving the Shareholder, bankruptcy
trustee, or other individual or entity then having legal title to
the GeriMed Stock (the "Title Holder") written notice of its
election to purchase such GeriMed Stock (the "Purchase Notice"). Any
GeriMed Stock which the Corporation does not elect to purchase
within the 30-day period may be transferred by the Title Holder;
provided that any GeriMed Stock transferred and any subsequent
transferee shall continue to be subject to all of the provisions of
this Agreement, including this subparagraph 3(a).
(b) Purchase Terms.
(i) The purchase and sale of GeriMed Stock under this paragraph
3 shall be closed within thirty (30) days after the determination of
such GeriMed Stock's Fair Market Value.
(ii) Payment for the GeriMed Stock purchased under this
paragraph 3 shall be made as follows: 10% cash at time of closing,
and, the remaining 90% pursuant to a ten (10) year note, executed by
the Corporation, which shall be payable in ten (10) equal
installments of principal, plus interest at the publicly announced
prime rate of Norwest Bank Denver, N.A. ("Prime"), adjusted on the
first day of each month.
(c) "Fair Market Value" shall mean the value assigned by the
following process to a Shareholder's GeriMed Stock:
(i) Where the Corporation elects to purchase GeriMed Stock under
this subparagraph 3, the Corporation shall include in its Purchase
Notice the Corporation's determination of the fair market value of
the GeriMed Stock elected to be purchased (the "Valuation").
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(ii) If the Title Holder accepts the Valuation or fails to
either (1) object to such Valuation within the 10-day period set
forth below or (2) deliver the Title Holder's Valuation (as defined
below) to the Corporation within the 30-day period set forth below,
the Valuation shall be deemed to be the "Fair Market Value" for
purposes of the applicable transaction.
(iii) If the Title Holder disagrees with the Valuation, such
Title Holder shall deliver a written notice of objection to the
Corporation within ten (10) days after the date of delivery of the
Valuation to the Title Holder and shall, within thirty (30) days
after delivery of such Valuation, deliver to the Corporation written
notice of the Title Holder's determination of the fair market value
of the GeriMed Stock covered by the Purchase Notice (the "Title
Holder's Valuation"). If the Corporation accepts the Title Holder's
Valuation, fails to deliver written notice of objection to such
value to the Corporation within the required 10-day period or fails
to contact JAG (as defined below) within the required 10-day period
set forth in subparagraph (iv) below, the Title Holder's Valuation
shall be deemed to be the "Fair Market Value" for purposes of the
applicable transaction.
(iv) If the Corporation disagrees with the Title Holder's
Valuation, the Corporation shall give the Title Holder written
notice of objection within ten (10) days after the date the Title
Holder's Valuation is delivered to the Corporation. Within ten (10)
days after delivery of the notice of objection to the Title Holder's
Valuation, the Corporation shall ask the Judicial Arbiter Group,
Inc. of Denver, Colorado ("JAG") to select a certified public
accounting firm with experience in valuing healthcare-related
businesses (the "Appraiser"). The Appraiser shall determine what in
its opinion is the fair market value of the Corporation's assets
(the "Asset Value"). The Asset Value shall be divided by the number
of outstanding shares of all classes of capital stock of the
Corporation to arrive at a per share valuation (the "Appraised
Value"). The "Fair Market Value" for the applicable transaction
shall then be deemed to be either the Valuation or the Title
Holder's Valuation, whichever is closest to the Appraised Value. The
decision of the Appraiser shall be binding upon the Corporation and
the Title Holder who shall each pay one-half (1/2) of the cost of
the fees charged by JAG and the Appraiser.
4. RIGHT OF CO-SALE.
(a) The Right. Subject to paragraph 2(b) above, if at any time a
Transferring Shareholder who owns a majority of the issued and
outstanding capital stock of the Company (on a fully diluted basis
assuming the exercise of all options which have an exercise price which
is less than the proposed sales price under this paragraph 4), warrants
and other rights and conversion of all convertible securities) proposes
to sell shares of GeriMed Stock pursuant to a bona fide offer from a
party or parties other than the Other Shareholder, then the Other
Shareholder shall be entitled to notify the Transferring Shareholder in
writing within thirty (30) days after receipt of the notification of
such proposed Sale that the Transferring Shareholder elects to sell a
pro rata portion of GeriMed Stock which the Transferring Shareholder
proposes to sell to such third party;
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whereupon the Transferring Shareholder shall assign so much of his
interest in the agreement of Sale as is proportionate to the Other
Shareholder's participation in the sale of such GeriMed Stock and the
Other Shareholder shall assume such part of the obligations of the
Transferring Shareholder under such agreement. For the purposes of this
paragraph 4 the "pro rata portion" which the Other Shareholder shall be
entitled to sell shall be an amount of Common Stock (assuming the
exercise of all warrants, then exercisable and conversion of all
convertible securities to Common Stock) proposed to be sold, the
numerator of which is the aggregate of all shares of Common Stock then
held by the Other Shareholder and the denominator is the aggregate of
all shares of GeriMed Stock then held by the Other Shareholder and the
Transferring Shareholder. The Other Shareholder shall notify the
Transferring Shareholder whether it elects to sell an amount equal to
or less than its pro rata share of the Common Stock so offered. The
Other Shareholder shall be entitled to apportion Common Stock to be
sold among its partners, affiliates and relatives, provided that the
Other Shareholder notifies the Transferring Shareholder of such
allocation.
(b) Failure to Notify. If within thirty (30) days after the
Transferring Shareholder gives the aforesaid notice to the Other
Shareholder, the Other Shareholder does not notify the Transferring
Shareholder that it desires to sell its pro rata portion of the Common
Stock described in such notice at the price and on the terms and
conditions set forth therein, then the Transferring Shareholder may
sell during the 90-day period after the Transferring Shareholder gives
the aforesaid notice to the Other Shareholder (the "Period") such
Common Stock as to which the Other Shareholder does not indicate a
desire to sell to other persons at the same price and upon the same
terms and conditions as those set forth in the notice. In the event the
Transferring Shareholder has not sold the Common Stock or entered into
an agreement to sell the Common Stock within the Period, the
Transferring Shareholder shall not thereafter sell any Common Stock
without first notifying the Other Shareholder in the manner provided
above.
5. LIMITATIONS TO RIGHT OF FIRST REFUSAL AND RIGHT OF CO-SALE. Without
regard and not subject to the provisions of paragraphs 2 and 4.
(a) Xxxxxxxx may sell or otherwise assign for consideration or gift
GeriMed Stock to any or all of his ancestors, descendants, spouse, or
to a custodian, trustee (including a trustee of a voting trust),
executor, or other fiduciary for the account of a trust for the benefit
of his ancestors, descendants or spouse, provided that each such
transferee or assignee, prior to the completion of the sale, transfer,
gift or assignment, shall have executed documents assuming the
obligations of such Shareholder under this Agreement with respect to
the transferred securities; and
(b) Spectrum may contribute, distribute, sell or otherwise assign,
with or without consideration, (a) all of its GeriMed Stock to any
entity controlling, controlled by or under common control with Spectrum
(a "Spectrum Affiliate"), and (b) if Spectrum owns of record more than
fifty percent or more of the outstanding common stock of the
Corporation, any portion of its GeriMed Stock to one or more Spectrum
Affiliates; provided in each case any recipient Spectrum Affiliate
shall have executed documents assuming the obligations of Spectrum
hereunder with respect to the transferred securities.
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(c) Each Shareholder may sell or transfer GeriMed Stock in a public
offering of securities of the Company registered under the Securities
Act of 1933, as amended (the "1933 Act").
6. CALL OPTION. The Company hereby grants to Spectrum the right and
option to purchase from the Company, that number of shares of common stock of
the Company equal to Three Million Two Hundred Fifty-Five Thousand (3,255,000)
shares, less that number of shares tendered by the shareholders of the Company
and Xxxxxxxx under subparagraphs 6 (a) and 6(b), respectively (the "Call
Option"), such Call Option to be exercisable by written notice from Spectrum to
the Company and Xxxxxxxx at any time within the ninety (90) day period preceding
a Semiannual Exercise Date (the "Notice of Exercise"). The term "Semiannual
Exercise Date" means any one of the dates which are, respectively, 30, 36, 42,
48, 54 and 60 months after January 1, 1998. The aggregate purchase price for
each of such shares shall be an amount equal to the EBIT Value (as defined
below) of the Company as of the last day of the calendar month preceding the
month in which notice of exercise of the Call Option is delivered (the
"Valuation Date"), divided by the number of outstanding common shares of the
Company as of the closing of the purchase and sale of shares pursuant to the
Call Option, expressed on a fully diluted basis as if all options, warrants and
other rights then currently exercisable (except Spectrum's right to make the
Additional Investment (as defined in the Purchase Agreement) if such right has
not been exercised as of the Valuation Date) had been exercised and all
convertible securities converted; provided, however, if the Share Price
calculation above results in a Share Price which is lower than the exercise
price of any outstanding options, the Share Price shall be recalculated
excluding the shares underlying such options from the number of outstanding
shares, and the recalculated price shall be the "Share Price." The term "EBIT
Value" shall mean the amount resulting from the following formula:
(2/3 times EBIT for the twelve month period ending on the Valuation
Date times 11), plus (1/3 times the target EBIT set forth in the
Company's annual forecast approved by the Board of Directors for the
year in which the Valuation Date occurs times 7), minus
interest-bearing debt of the Company (including capital leases), plus
cash and cash equivalents owned by the Company.
The "EBIT" of the Company for any period shall mean the Company's net income for
such period plus (i) all interest expense incurred by the Company during such
period, plus (ii) all income and franchise tax expense incurred by the Company
during such period, and disregarding all extraordinary gains and losses outside
of the ordinary course of the Company's business. The net income of the Company
for any period shall be determined in accordance with generally accepted
accounting principles, consistently applied. The closing of the purchase and
sale of shares pursuant to the Call Option ("Option Closing") shall be the
business day designated by Spectrum that is not less than 120 days after notice
of exercise of the Call Option, at which time (a) the Company shall deliver to
Spectrum original certificates evidencing the shares being purchased, and (b)
Spectrum shall deliver to the Company the purchase price for the shares
purchased pursuant to the Call Option. The number of shares which are the
subject of the Call Option shall be equitably adjusted for any intervening stock
splits, reverse stock splits, subdivisions, reclassifications and similar
capital transactions after the date of this Agreement and prior to the purchase
pursuant to the exercise of the Call Option.
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(a) Tender Offer. Upon delivery of the Notice of Exercise, the
Company, Xxxxxxxx and Spectrum shall use their reasonable efforts to
solicit the shareholders of the Company (excluding Spectrum) to tender
their outstanding shares of the Common Stock for sale to Spectrum at
the Option Closing for a price equal to the Share Price. Spectrum shall
purchase all of such shares of Common Stock which are tendered by the
shareholders of the Company.
(b) If and to the extent the shareholders of the Company fail to
tender in the aggregate 3,255,000 shares of Common Stock (the "Minimum
Shares"), Xxxxxxxx shall tender (and/or cause his permitted transferees
to tender) such number of Founders Stock as necessary to meet the
Minimum Shares, provided, however, that in no case shall Xxxxxxxx be
required to tender more than 2,536,875 shares of Founders Stock.
Notwithstanding the foregoing, Xxxxxxxx may, in his sole discretion,
tender more than 2,536,875 shares of Founders Stock under subparagraph
(a) above. Xxxxxxxx shall not sell or otherwise transfer the Founder's
Stock that is subject to this subparagraph 6(b), unless the transferee
of such shares agrees that the shares shall continue to be subject to
this subparagraph 6(b).
(c) Closing of the Tender Offer. The closing of the sale of the
Tendered Shares shall take place no later than 120 days after notice of
exercise of the Call Option is delivered to the Company and, if
applicable, shall close immediately prior to the closing of the Call
Option.
7. SHAREHOLDERS' REDEMPTION RIGHTS.
(a) Spectrum's Redemption Right. If after five (5) years following
the date of this Agreement, Spectrum owns less than fifty-one percent
(51%) of the issued and outstanding Common Stock (assuming conversion
of all of the Spectrum Stock), Spectrum may, in its sole and absolute
discretion, elect to cause the Company to repurchase all or any part of
the Spectrum Stock by giving written notice to the Company during the
one-year period commencing on the fifth anniversary of this Agreement.
The purchase price shall be calculated and paid as set forth in
subparagraph (c) below. If the Company does not have legally available
funds to purchase the Spectrum Stock, the Company may postpone such
purchase until and as funds are legally available for such purpose.
(b) Xxxxxxxx Redemption Right. If after five (5) years following the
date of this Agreement, Spectrum and/or its affiliates own more than
fifty percent (50%) of the issued and outstanding Common Stock
(assuming conversion of all of the Spectrum Stock), Xxxxxxxx may, in
his sole and absolute discretion, elect to cause the Company to
repurchase all or part of the Founder's Stock by giving written notice
to the Company during such one-year period. The purchase price shall be
calculated and paid as set forth in subparagraph (c) below. If the
Company does not have legally available funds to purchase the Founder's
Stock, the Company may postpone such purchase until and as funds are
legally available for such purpose.
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(c) Purchase Price. The per share purchase price for any shares
purchased by the Company under this paragraph 7 shall be equal to the
Share Price as of the last day of the calendar month preceding the
month in which the written notice was delivered under subparagraphs (a)
or (b) above (the "Election Notice"). The closing of a repurchase under
this paragraph 7 shall occur as soon as possible after delivery of the
Election Notice, but in no case later than ninety (90) days after
delivery of the Election Notice, unless postponed due to lack of
legally available funds. If such closing is postponed, the purchase
price shall be increased by a percentage equal to Prime, plus 2% per
annum until such purchase is closed.
8. XXXXXXXX MINORITY SHAREHOLDER RIGHTS. If and when Spectrum owns at
least 50% of the outstanding Common Stock (assuming conversion of all
outstanding Preferred Stock), the Company shall comply with the following
provisions:
(a) Insurance. The Company will maintain insurance coverage by
financially sound and reputable insurers in such forms, against such
risks and with limits of coverage at least equal to existing limits, as
are currently maintained by the Company.
(b) Financial Statements. The Company shall deliver to Xxxxxxxx:
(i) Within thirty (30) days after the end of each month, an
unaudited balance sheet and income statement for such month;
(ii) Within one-hundred (120) days after the end of each fiscal
year of the Company an income statement for such fiscal year, a
balance sheet of the Company as of the end of such year and a
statement of cash flows for such year, together with such notes
thereto as are appropriate, prepared in accordance with generally
accepted accounting principles consistently applied and setting
forth in each case in comparative form the figures for the previous
year, all in reasonable detail and certified by independent public
accountants of recognized national standing selected by the Company
and reasonably acceptable to Xxxxxxxx.
(iii) As soon as available, but in any event within ninety (90)
days after commencement of each new fiscal year, a business plan,
projected financial statements and cash flow projections for such
fiscal year as set forth in the Company's operating plan as approved
by the Company's Board of Directors, along with a capital
expenditures budget; and
(iv) Such other financial statements as Xxxxxxxx may reasonably
request to verify the financial condition of the Company and the
valuation of Xxxxxxxx'x investment therein. All such statements
shall be certified by the Chief Financial Officers of the Company as
being true, complete and in accordance with the Company's books and
records and regular accounting practices.
(c) Inspection. The Company shall permit Xxxxxxxx and his authorized
designees to visit and inspect the Company's properties, to examine the
Company's books of account and records and to discuss the Company's
affairs, finances and accounts with its employees, officers and
independent accountants, all at such reasonable times as
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may be requested by Xxxxxxxx (but limited to two examinations in any
calendar year) and upon reasonable advance notice given to the Company
but in no case more than two times in any calendar year.
(d) Extraordinary Corporate Acts. Unless the Company first obtains
the written consent of Xxxxxxxx, the Company shall not effect any
amendment to the Company's articles of incorporation, recapitalization,
merger or consolidation of the Company, unless such action affects the
Common Stock and the Preferred Stock in an identical manner.
9. TRANSFERS IN VIOLATION OF AGREEMENT. Any transfer or attempted
transfer of any GeriMed Stock in violation of any provision of this Agreement
shall be void, and the Corporation shall not record such transfer on its books
or treat any purported transferee of such GeriMed Stock as the owner of such
shares for any purpose.
10. LEGEND. Each certificate evidencing GeriMed Stock and each
certificate issued in exchange for or upon the transfer of any GeriMed Stock (if
such shares remain subject to this Agreement) shall be stamped or otherwise
imprinted with a legend in substantially the following form:
The shares represented by this Certificate and the transfer
thereof are subject to certain restrictions, call option, and
agreements set forth in the Shareholders Agreement dated as of
December 23, 1997 by and among GeriMed of America, Inc. (the
"Corporation"), Xxxxx X. Xxxxxxxx and Spectrum Healthcare
Services, Inc., a copy of which is on file with the Secretary
of the Corporation.
11. TRANSFER. Prior to transferring any GeriMed Stock to any person or
entity, the transferring Shareholder shall cause the prospective transferee to
execute and deliver to the Corporation and the Other Shareholder a counterpart
of this Agreement.
12. BOARD OF DIRECTORS. Each Shareholder of the Corporation shall vote
all of its voting securities of the Corporation over which it has voting
control, and shall take all other actions reasonably requested by the other
Shareholder (whether in the Shareholder's capacity as a shareholder, director or
officer of the Corporation or otherwise), (a) to nominate and elect one designee
of the other Shareholder to the Board of Directors of the Corporation and any
subsidiary of the Corporation, and, in the case of Spectrum's designee, a member
to the Corporation's compensation committee, (b) following the death,
resignation, removal or other inability of such designee to serve, to nominate
and elect a successor designated by the other Shareholder, and (c) upon written
request of the other Shareholder, to remove its designee and replace him or her
with a successor designated by other Shareholder. Except with the prior written
consent of the other Shareholder, each Shareholder shall vote all voting
securities of the Corporation over which he has voting control against any
resolution to remove the director designated by the other Shareholder.
Notwithstanding the foregoing, neither Shareholder shall be required to vote in
favor of a designee (a) described in Section 230.262(b) of Regulation A
promulgated under the 1933 Act, (b) who has been convicted of a crime involving
moral
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turpitude or (c) who such Shareholder reasonably believes would have a negative
impact on the reputation and business of the Corporation.
13. TERM. This Agreement shall terminate upon the occurrence of any of
the following events:
(a) Cessation of the Corporation's business;
(b) The bankruptcy, receivership or dissolution of the Corporation;
(c) At such time as either Shareholder owns less than five percent
(5%) of the issued and outstanding capital stock of the Corporation;
(d) Mutual written agreement of the Shareholders;
(e) The date on which any registration of GeriMed Stock under the
1933 Act becomes effective.
14. AMENDMENT AND WAIVER. Except as otherwise provided herein, no
modification, amendment or waiver of any provisions of this Agreement shall be
effective against the Corporation or the Shareholders unless such modification,
amendment or waiver is approved in writing by the Corporation and the
Shareholders. The failure of any party to enforce any of the provisions of this
Agreement shall in no way be construed as a waiver of such provisions and shall
not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
15. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality, or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
16. ENTIRE AGREEMENT. Except as otherwise expressly set forth herein,
this document embodies the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
17. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Corporation and its successors and assigns and the Shareholders and any
subsequent holders of GeriMed Stock and the respective successors and assigns of
each of them, so long as they hold GeriMed Stock.
18. COUNTERPARTS. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same
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agreement. Signatures on behalf of the parties that are transmitted by facsimile
shall be treated as original and binding signatures for all purposes.
19. REMEDIES. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that the Corporation and any Shareholder may in its sole
discretion apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive relief (without posting a bond or other
security) in order to enforce or prevent any violation of the provisions of this
Agreement, in addition to seeking damages for breach of this Agreement.
20. NOTICES. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, or mailed first class mail
(postage prepaid) or sent by reputable overnight courier service (charge
prepaid) to the Corporation at the address set forth below and to any other
recipient at such address as indicated by the Corporation's records, or to the
attention of such other person as the recipient party has specified by prior
written notice to the sending party. Notices will be deemed to have been
delivered hereunder when delivered personally, three (3) days after deposit in
the U.S. mail and one (1) day after deposit with a reputable overnight courier
service. The Corporation's address is:
GeriMed of America, Inc.
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
21. GOVERNING LAW. This Agreement and the rights of the parties hereto
shall be governed by and construed and enforced in accordance with the laws of
the State of Colorado.
22. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
23. GENDER. Whenever applicable, the pronouns designating the
"masculine" or the "neuter" shall equally apply to "feminine," "neuter" and
"masculine" genders. Furthermore, whenever applicable in this Agreement, the
"singular" shall include the "plural" and the reverse.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year first above written.
"CORPORATION"
GERIMED OF AMERICA, INC.,
a Colorado corporation
By:
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Name:
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Title:
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"SHAREHOLDERS"
"XXXXXXXX"
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Xxxxx X. Xxxxxxxx, individually
"SPECTRUM"
SPECTRUM HEALTHCARE SERVICES, INC.
a Delaware corporation
By:
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Name:
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Title:
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