EXHIBIT 4.4
UNIPHY HEALTHCARE, INC.
AMENDED AND RESTATED VOTING AGREEMENT
This AMENDED AND RESTATED VOTING AGREEMENT (the "Amended and Restated
Voting Agreement") is made and entered into this 25th day of June, 1999, by and
among UNIPHY HEALTHCARE, INC., a Tennessee corporation (the "Company"), and
those Persons identified on Exhibit A attached hereto (collectively, the
"Investors" and each individually an "Investor").
RECITALS
WHEREAS, those Investors so identified on Exhibit A attached hereto are
common shareholders of the Company who either (1) formerly held shares of
preferred stock of the Company (the "UniPhy Preferred Shareholders") or (2) key
employees of the Company who received founders common stock of the Company (the
"UniPhy Founders") and who are parties to the Voting Agreement, dated April 16,
1998 (the "Voting Agreement"); and
WHEREAS, those Investors so identified on Exhibit A attached hereto are
current key shareholders (the "ARC Key Shareholders") of Ambulatory Resource
Centres, Inc., a Tennessee corporation ("ARC"), who, following the Merger (as
defined below), will become common shareholders of the Company; and
WHEREAS, the Company, UniPhy Acquisition Sub, Inc., a Tennessee
corporation and a wholly-owned subsidiary of the Company ("UniPhy Sub"), and ARC
are parties to an Agreement and Plan of Merger, dated June 8, 1999 (the "Merger
Agreement"), whereby UniPhy Sub shall merge with and into ARC, each outstanding
share of common stock of ARC shall be converted into the right to receive 6.54
shares of common stock of the Company and ARC shall become a wholly-owned
subsidiary of the Company (the "Merger"); and
WHEREAS, it is a condition to the closing of the Merger pursuant to the
Merger Agreement that each of the parties hereto enter into this Amended and
Restated Voting Agreement; and
WHEREAS, each of the parties hereto shall receive a substantial benefit
from the closing of the Merger; and
WHEREAS, the UniPhy Preferred Shareholders and the UniPhy Founders
desire to amend and restate and to supersede in its entirety the Voting
Agreement in the manner set forth herein; and
WHEREAS, the ARC Key Shareholders desire to join and be entitled to the
rights and subject to the obligations provided in the Voting Agreement, as
amended and restated in this Amended and Restated Voting Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. VOTING.
1.1 Investor Shares. The Investors each agree to vote all shares of
voting capital stock of the Company registered in their respective names or
beneficially owned by them as of the date hereof and any and all other
securities of the Company legally or beneficially acquired by each of the
Investors after the date hereof (hereinafter collectively referred to as the
"Investor Shares"), subject to, and in accordance with, the provisions of this
Amended and Restated Voting Agreement.
1.2 Agreement to Vote. At each election of directors during the term
of this Amended and Restated Voting Agreement, each Investor shall vote all of
such person's Investor Shares for the election as directors: (i) one
representative of Pacific Venture Group; (ii) one representative of The ▇▇▇▇▇▇
Investment Partnership or its subsidiary; (iii) one representative of ABS
Capital Partners, L.P.; (iv) the person from time to time designated as the
Chief Executive Officer of the Company; (v) the person from time to time
designated as the Chief Operating Officer of the Company; (vi) one (1) person
nominated by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.; (vii) one (1) person nominated by Richland
Ventures II, L.P. and (viii) two (2) persons nominated by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Foundation, ▇▇▇ ▇▇▇▇▇▇, ▇▇., First Avenue Partners, L.P., HLM/CB Fund, L.P., HLM
Partners VII, L.P., ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc. South Atlantic Private Equity Fund IV
(QP), South Atlantic Private Equity Fund IV, L.P. and WW Two, L.P. Any vote
taken to remove any director elected pursuant to this Section 1.2, or to fill
any vacancy created by the resignation of a director elected pursuant to this
Section 1.2, shall also be subject to the provisions of this Section 1.2.
1.3 Legend.
(a) Concurrently with the execution of this Amended and Restated
Voting Agreement, there shall be imprinted or otherwise placed, on certificates
representing the Investor Shares the following restrictive legend (the
"Legend"):
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS OF AN AMENDED AND RESTATED VOTING AGREEMENT,
DATED JUNE 25, 1999, WHICH PLACES CERTAIN RESTRICTIONS ON THE
VOTING OF THE SHARES REPRESENTED HEREBY. ANY PERSON ACCEPTING ANY
INTEREST IN SUCH SHARES SHALL BE DEEMED TO AGREE TO AND SHALL
BECOME BOUND BY ALL THE PROVISIONS OF SUCH AGREEMENT. A COPY OF
SUCH VOTING AGREEMENT WILL BE FURNISHED TO THE RECORD HOLDER OF
THIS CERTIFICATE WITHOUT
Signature page to Amended and Restated Voting Agreement
CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE
OF BUSINESS."
(b) The Company agrees that, during the term of this Amended and
Restated Voting Agreement, it will not remove, and will not permit to be removed
(upon registration of transfer, reissuance or otherwise), the Legend from any
such certificate and will place or cause to be placed the Legend on any new
certificate issued to represent Investor Shares theretofore represented by a
certificate carrying the Legend.
1.4 Successors. The provisions of this Amended and Restated Voting
Agreement shall be binding upon the successors in interest to any of the
Investor Shares. The Company shall not permit the transfer of any of the
Investor Shares on its books or issue a new certificate representing any of the
Investor Shares unless and until the person to whom such security is to be
transferred shall have executed a written Agreement, pursuant to which such
person becomes a party to this Agreement or otherwise agrees to be bound by all
the provisions hereof as if such person were an Investor, as applicable.
1.5 Other Rights. Except as provided by this Amended and Restated
Voting Agreement, each Investor shall exercise the full rights of a shareholder
with respect to the Investor Shares, respectively.
1.6 Termination. This Amended and Restated Voting Agreement shall
terminate in its entirety on the earlier of (a) ten years following the date of
this Agreement or (b) the date of the closing of a firmly underwritten public
offering of the common stock of the Company pursuant to an effective
registration statement under the Securities Act of 1933, as amended, at a price
per share of not less than $7.00 per share (as adjusted for any stock dividends,
combinations or splits with respect to such shares effected after the date of
this Amended and Restated Voting Agreement) and aggregate gross proceeds of not
less than $20,000,000.
2. MISCELLANEOUS.
2.1 Specific Performance. The parties hereto hereby declare that it is
impossible to measure in money the damages which will accrue to a party hereto
or to their heirs, personal representatives, or assigns by reason of a failure
to perform any of the obligations under this Amended and Restated Voting
Agreement and agree that the terms of this Amended and Restated Voting Agreement
shall be specifically enforceable. If any party hereto or his heirs, personal
representatives, or assigns institutes any action or proceeding to specifically
enforce the provisions hereof, any person against whom such action or proceeding
is brought hereby waives the claim or defense therein that such party or such
personal representative has an adequate remedy at law, and such person shall not
offer in any such action or proceeding the claim or defense that such remedy at
law exists.
SIGNATURE PAGE TO AMENDED AND RESTATED VOTING AGREEMENT
2.2 Governing Law. This Amended and Restated Voting Agreement, and
the rights of the parties hereto, shall be governed by and construed in
accordance with the laws of the State of California.
2.3 Amendment. This Amended and Restated Voting Agreement may be
amended and any term hereof may be waived only by an instrument in writing
signed by the Company and the holders of at least seventy-five percent (75%) of
the Investor Shares.
2.4 Severability. If any provision of this Amended and Restated Voting
Agreement is held to be invalid or unenforceable, the validity and
enforceability of the remaining provisions of this Amended and Restated Voting
Agreement shall not be affected thereby.
2.5 Successors. This Amended and Restated Voting Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
heirs, successors, assigns, administrators, executors and other legal
representatives.
2.6 Additional Shares. In the event that subsequent to the date of
this Amended and Restated Voting Agreement any shares or other securities (other
than any shares or securities of another corporation issued to the Company's
shareholders pursuant to a plan of merger) are issued on, or in exchange for,
any of the Investor Shares by reason of any stock dividend, stock split,
consolidation of shares, reclassification or consolidation involving the
Company, such shares or securities shall be deemed to be Investor Shares for
purposes of this Amended and Restated Voting Agreement.
2.7 Waivers. No waivers of any breach of this Amended and Restated
Voting Agreement extended by any party hereto to any other party shall be
construed as a waiver of any rights or remedies of any other party hereto or
with respect to any subsequent breach.
2.8 Attorneys' Fees. In the event that any suit or action is
instituted to enforce any provision in this Amended and Restated Voting
Agreement, the prevailing party shall be entitled to all costs and expenses of
maintaining such suit or action, including reasonable attorneys' fees.
2.9 Counterparts. This Amended and Restated Voting Agreement may be
executed in one or more counterparts, each of which will be deemed an original
but all of which together shall constitute one and the same agreement.
2.10 Entire Agreement. This Amended and Restated Voting Agreement
constitutes the entire agreement among the parties hereto with respect to the
matters set forth herein, and it supersedes all prior oral or written
agreements, commitments or understandings with respect to the matters provided
for herein, including, without limitation, the Voting Agreement among the
Company and the parties named therein dated April 16, 1998.
SIGNATURE PAGE TO AMENDED AND RESTATED VOTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Voting Agreement as of the date first above written.
COMPANY:
UNIPHY HEALTHCARE, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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Its: President and Chief Executive Officer
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INVESTORS:
UnIPhY PREFERRED SHAREHOLDERS:
ABS CAPITAL PARTNERS, L.P.
/s/ ABS Partners, L.P.
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By: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: General Partner
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/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
/s/ R. ▇▇▇▇ ▇▇▇▇▇▇▇
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R. ▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇
SIGNATURE PAGE TO AMENDED AND RESTATED VOTING AGREEMENT
▇▇▇▇▇▇ INVESTMENT PARTNERSHIP II
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Title:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Pacific Venture Group, L.P.
By: PVG Equity Partner, L.L.C.,
its General Partner
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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By: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Member
PVG ASSOCIATES, L.P.
By: PVG Equity Partner, L.L.C.,
its General Partner
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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By: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Member
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SIGNATURE PAGE TO AMENDED AND RESTATED VOTING AGREEMENT
ARC KEY SHAREHOLDERS:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ FOUNDATION
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
FIRST AVENUE PARTNERS, L.P.
/s/ Front Street, LLC, General Partner
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Managing Member
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
HEALTH TECH AFFILIATES, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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HLM/CB Fund, L.P.
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By:
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Title:
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HLM PARTNERS VII, L.P.
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By:
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Title:
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SIGNATURE PAGE TO AMENDED AND RESTATED VOTING AGREEMENT
/s/ W. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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W. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.
By:
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Title:
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/s/ B. Max Lauderdale
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B. Max Lauderdale
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
RICHLAND VENTURES II, L.P.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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By: ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Managing Partner
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/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇
SIGNATURE PAGE TO AMENDED AND RESTATED VOTING AGREEMENT
SOUTH ATLANTIC PRIVATE EQUITY FUND IV (QP), LIMITED PARTNERSHIP
By: South Atlantic Private Equity Partners IV, Limited Partnership,
its general partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Partner
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SOUTH ATLANTIC PRIVATE EQUITY FUND IV, L.P.
By: South Atlantic Private Equity Partners IV, Limited Partnership,
its general partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Partner
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/s/ ▇▇▇ ▇▇▇▇▇▇, ▇▇.
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▇▇▇ ▇▇▇▇▇▇, ▇▇.
/w/ ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇
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▇▇▇▇▇▇▇ V.B. ▇▇▇▇
▇▇ TWO, L.P.
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By:
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Title:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇, III
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▇▇▇▇▇ ▇. ▇▇▇▇, III
UnIPhY FOUNDERS:
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
SIGNATURE PAGE TO AMENDED AND RESTATED VOTING AGREEMENT
THE ▇▇▇▇▇▇▇ IRREVOCABLE TRUST, ▇▇▇ ▇▇▇▇▇▇▇, TRUSTEE
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By:
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Title:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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H. ▇▇▇▇▇▇ ▇▇▇▇▇▇ III
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
SIGNATURE PAGE TO AMENDED AND RESTATED VOTING AGREEMENT
EXHIBIT A
LIST OF INVESTORS
UNIPHY PREFERRED SHAREHOLDERS
ABS Capital Partners, L.P.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
R. ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Investment Partnership II
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Pacific Venture Group, L.P.
PVG Associates, L.P.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
ARC KEY SHAREHOLDERS
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Foundation
▇▇▇▇▇ ▇. ▇▇▇▇▇
First Avenue Partners, L.P.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Health Tech Affiliates, Inc.
HLM/CB Fund, L.P.
HLM Partners VII, L.P.
W. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
B. Max Lauderdale
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Richland Ventures II, L.P.
▇▇▇ ▇. ▇▇▇▇▇▇
South Atlantic Private Equity Fund IV (QP)
South Atlantic Private Equity Fund IV, L.P.
▇▇▇ ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ V.B. ▇▇▇▇
▇▇ Two, L.P.
▇▇▇▇▇ ▇. ▇▇▇▇, III
UnIPhY FOUNDERS
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
The ▇▇▇▇▇▇▇ Irrevocable Trust, ▇▇▇ ▇▇▇▇▇▇▇, Trustee
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
H. ▇▇▇▇▇▇ ▇▇▇▇▇▇ III
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
