Exhibit 10.21
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated as of August 17, 1999, by and among
Concentra Managed Care, Inc., a Delaware corporation (the "COMPANY"), the
several persons named in Schedule I hereto (each a "SCHEDULE I PURCHASER" and
collectively the "WCAS PURCHASERS") and the several persons named in Schedule II
hereto (each a "FFT PURCHASER" and collectively the "FFT PURCHASERS"). The
Schedule I Purchasers and the FFT Purchasers are herein sometimes referred to
collectively as the "STOCKHOLDERS."
WHEREAS, the Company and Yankee Acquisition Corp., a Delaware
corporation ("NEWCO"), have entered into an Amended and Restated Agreement and
Plan of Merger, dated as of March 24, 1999 (the "MERGER AGREEMENT");
WHEREAS, pursuant to the Merger Agreement, upon the terms and
subject to the conditions set forth therein, (i) Newco will merge with and into
the Company (the "MERGER"), (ii) each outstanding share of common stock, par
value $0.01 per share ("COMPANY COMMON STOCK"), of the Company outstanding
immediately prior to the Merger (other than shares of Company Common Stock owned
by Company or Newco or their Affiliates) will be converted into the right to
receive $16.50 per share in cash, without interest, (iii) each outstanding share
of common stock, par value $0.01 per share ("NEWCO COMMON STOCK"), of Newco will
be converted into one share of Company Common Stock and (iv) each outstanding
share of Class A common stock, par value $0.01 per share ("NEWCO CLASS A COMMON
STOCK"), of Newco will be converted into one share of Class A common stock, par
value $0.01 per share ("COMPANY CLASS A COMMON STOCK," and together with Company
Common Stock and including shares of Company Common Stock acquired by such
Stockholder pursuant to the exercise of any Warrants (as defined below) held by
such Stockholder, the "COMPANY CAPITAL STOCK"), of the Company;
WHEREAS, Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P., a Delaware
limited partnership ("WCAS") and the other persons set forth on Schedule I
hereto have entered into a Stock Subscription Agreement, dated as of August 17,
1999 (the "SCHEDULE I PURCHASER STOCK SUBSCRIPTION AGREEMENT"), pursuant to
which Newco has agreed to sell to the Schedule I Purchasers an aggregate
223,821,953 shares of Newco Common Stock;
WHEREAS, Xxxxxx Xxxxxxx Xxxxxxxx & Co., LLC, a Delaware limited
liability corporation ("FFT"), on behalf of Health Care Capital Partners L.P.
and as its general partner and on behalf of Health Care Executive Partners L.P.
and as its general partner has entered into a Stock Subscription Agreement,
dated as of March 27, 1999 (the "FFT STOCK SUBSCRIPTION AGREEMENT," and together
with the Schedule I Purchaser Stock Subscription Agreement, the "STOCK
SUBSCRIPTION AGREEMENTS"), pursuant to which Newco has agreed to sell to the FFT
Purchasers an aggregate 1,854,545 shares of Newco Class A Common Stock;
WHEREAS, the Company and the persons set forth on Schedule I
thereto have entered into a Purchase Agreement, dated as of August 17, 1999 (the
"UNIT PURCHASE AGREEMENT"), pursuant to which the Company has agreed to sell to
the purchasers set forth on Schedule I thereto an aggregate 110,000 units
consisting of $216,230,000 face amount of Senior Discount Debentures due 2010
(the "DEBENTURES") and warrants (the "WARRANTS") to acquire 1,595,406 shares of
Company Common Stock at an exercise price of $.01 per share;
WHEREAS, upon the consummation of all the transactions
contemplated by the Stock Subscription Agreements, the Unit Purchase Agreement
and the Merger Agreement, each Stockholder will own the number of shares of
Company Common Stock, Company Class A Common Stock or Warrants, as the case may
be, appearing opposite the name of such Stockholder on Schedule I, Schedule II
or Schedule III, as the case may be; and
WHEREAS, the Company and each of the Stockholders desire to
provide for certain matters relating to their respective holdings of Company
Capital Stock;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements herein contained, the parties hereto hereby
agree as follows:
SECTION I. INTRODUCTORY MATTERS.
(1) DEFINED TERMS. In addition to the terms defined elsewhere
herein, the following terms have the following meanings when used herein with
initial capital letters:
"AFFILIATE" shall have the meaning given to that term in Rule 405
promulgated under the Securities Act and shall include members of a Person's
immediate family or trusts for the benefit of members of the immediate family of
such Person; PROVIDED that officers, directors or employees of the Company will
not be deemed to be Affiliates of a stockholder of the Company for purposes
hereof solely by reason of being officers, directors or employees of the
Company.
"AGREEMENT" means this Agreement, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with the
terms hereof.
"ASSUMPTION AGREEMENT" means a writing reasonably satisfactory in
form and substance to the Company whereby a Permitted Transferee of shares of
Company Capital Stock becomes a party to, and agrees to be bound to the same
extent as its transferor, by the terms of this Agreement.
"BOARD" means the Board of Directors of the Company.
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"BUSINESS DAY" means a day other than a Saturday, Sunday, federal
or New York State holiday or other day on which commercial banks in New York
City are authorized or required by law to close.
"COMMISSION" shall mean the Securities and Exchange Commission,
or any other federal agency at the time administering the Securities Act.
"DESIGNATED AFFILIATE" means, in the case of any Stockholder (i)
any Affiliate of such Stockholder, (ii) any general or limited partner of any
Schedule I Purchaser or any FFT Purchaser, (iii) any managing director, general
partner, director, limited partner, officer or employee of any Schedule I
Purchaser or FFT Purchaser or of any Affiliate of WCAS or FFT, or the heirs,
executors, administrators, testamentary trustees, legatees or beneficiaries of
any of the foregoing persons referred to in this clause (iii) ("STOCKHOLDER
ASSOCIATES"), or (iv) a trust, the beneficiaries of which, or a corporation,
limited liability company or partnership, the stockholders, members of general
or limited partners of which, include only Stockholders, Affiliates of Schedule
I Purchasers or FFT Purchasers, Stockholder Associates, their spouses or their
lineal descendants.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as the same may
be amended from time to time.
"PERMITTED TRANSFEREE" means any Person to whom shares of Company
Capital Stock are Transferred in a Transfer in accordance with Section II(4) and
otherwise not in violation of this Agreement and who is required to, and does,
enter into an Assumption Agreement, and includes any Person to whom a Permitted
Transferee (or a Permitted Transferee of a Permitted Transferee) so further
Transfers shares of Company Capital Stock and who is required to, and does,
become bound by the terms of this Agreement, it being understood that the
Company or any of its subsidiaries shall not be considered to be Permitted
Transferees.
"PERSON" means any individual, corporation, limited liability
company, partnership, trust, joint stock company, business trust, unincorporated
association, joint venture, governmental authority or other legal entity of any
nature whatsoever.
"PUBLIC OFFERING" means the sale of shares of Company Common
Stock to the public pursuant to an effective registration statement (other than
a registration statement on Form S-4 or S-8 or any similar or successor form)
filed under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder, as the same may be amended
from time to time.
"TRANSFER" means a transfer, sale, assignment, pledge,
hypothecation or other disposition, whether directly or indirectly pursuant to
the creation of a derivative security, the
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grant of an option or other right, the imposition of a restriction on
disposition or voting or transfer by operation of law.
(2) CONSTRUCTION. (a) The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction will be applied against any party. Unless the
context otherwise requires: (i) "OR" is disjunctive but not exclusive, (ii)
words in the singular include the plural, and in the plural include the
singular, and (iii) the words "HEREOF", "HEREIN", and "HEREUNDER" and words of
similar import when used in this Agreement refer to this Agreement as a whole
and not to any particular provision of this Agreement, and Section references
are to this Agreement unless otherwise specified.
(b) The term "SCHEDULE I PURCHASERS," to the extent such entities
shall have transferred any of their shares of Company Capital Stock to
"Permitted Transferees", shall mean the Schedule I Purchasers and the Permitted
Transferees of the Schedule I Purchasers, taken together, and any right or
action that may be taken at the election of the Schedule I Purchasers may be
taken at the election of the Schedule I Purchasers and such Permitted
Transferees, subject to the requirements of Section XII(5).
(c) The term "FFT PURCHASERS," to the extent such entities shall
have transferred any of their shares of Company Capital Stock to "Permitted
Transferees", shall mean the FFT Purchasers and the Permitted Transferees of the
FFT Purchasers, taken together, and any right or action that may be taken at the
election of the FFT may be taken at the election of the FFT Purchasers and such
Permitted Transferees, subject to the requirements of Section XII(5).
SECTION II. RESTRICTIONS ON TRANSFERS.
(1) Until the fifth anniversary of the Effective Date, no
Schedule I Purchaser, FFT Purchaser or any of their Permitted Transferees may
Transfer any shares of Company Capital Stock or any Warrant other than (i) in
connection with a Public Offering, (ii) after a Public Offering, in a bona fide
sale to the public pursuant to Rule 144 (or any successor provision) under the
Securities Act or (iii) in accordance with Sections II(4), III, or IV; PROVIDED,
HOWEVER, that any Warrant held by a Stockholder may be Transferred in connection
with the sale of the Debentures as set forth in the Unit Purchase Agreement (the
"Debenture Sale") without requiring the transferee of such Warrants to enter
into an Assumption Agreement, PROVIDED, FURTHER, that any shares of Company
Capital Stock held by any employee, officer or director of the Company may be
repurchased by the Company from any such employee, officer or director.
(2) In the event of any purported Transfer by a Schedule I
Purchaser, a FFT Purchaser or any of their Permitted Transferees of any shares
of Company Capital Stock or any Warrant in violation of the provisions of this
Agreement, such purported Transfer will be void and of no effect and the Company
will not give effect to such Transfer.
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(3) Each certificate representing shares of Company Capital Stock
or any Warrant held by a Schedule I Purchaser, a FFT Purchaser, or any of their
Permitted Transferees will bear a legend substantially to the following effect
(with such additions thereto or changes therein as the Company may be advised by
counsel are required by law or necessary to give full effect to this Agreement,
the "LEGEND"):
"[THE SHARES OF] [COMMON STOCK][CLASS A COMMON STOCK][WARRANTS]
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A STOCKHOLDERS AGREEMENT,
DATED AS OF AUGUST 17, 1999, AMONG THE COMPANY AND THE OTHER PARTIES
THERETO, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE
MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH STOCKHOLDERS
AGREEMENT. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS
CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF SUCH
STOCKHOLDERS AGREEMENT."
The Legend will be removed by the Company by the delivery of substitute
certificates without such Legend in the event of (i) a Transfer permitted by
this Agreement and in which the Transferee is not required to enter into an
Assumption Agreement or (ii) the termination of Section II pursuant to the terms
hereof.
(4) TRANSFERS TO PERMITTED TRANSFEREES. The Stockholders and
their Permitted Transferees may Transfer, for no more than cost, any or all of
the shares of Company Capital Stock or, on or after the Debenture Sale, Warrants
held by any of them to any Designated Affiliate who duly executes and delivers
an Assumption Agreement; PROVIDED that in connection therewith the Company, if
it so requests promptly following its receipt of such Assumption Agreement (and,
in such event, such Assumption Agreement shall not be effective unless and until
this proviso has been satisfied), has been furnished with an opinion in form and
substance reasonably satisfactory to the Company of counsel reasonably
satisfactory to the Company that such Transfer is exempt from or not subject to
the provisions of Section 5 of the Securities Act and any other applicable
securities laws; and, PROVIDED, FURTHER, that no Transfer under this Section
II(4) shall be permitted if such Transfer would require the Company to register
a class of equity securities under Section 12 of the Exchange Act under
circumstances where the Company does not then have securities of any class
registered under Section 12 of the Exchange Act and such Transfer would cause
such registration to be required.
(5) WCAS shall give written notice to FFT not less than 10
Business Days nor more than 20 Business Days in advance of any distribution by
any Schedule I Purchaser to its limited partners or members if either (a) any
recipient of such distribution is not obligated to sign an Assumption Agreement,
or (b) upon consummation of such distribution this Agreement (other
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than the provisions of Section VIII(2), VIII (3), VIII (4) and VIII (5)) will
terminate in accordance with Section IX.
SECTION III. TAG-ALONG RIGHTS.
(1) So long as this Agreement remains in effect, with respect to
any proposed Transfer by WCAS or any of its Designated Affiliates (collectively,
the "SELLING STOCKHOLDER") of shares of Company Capital Stock and/or Warrants to
any Person who is not a Permitted Transferee, other than in a Public Offering,
pursuant to a bona fide sale to the public pursuant to Rule 144 under the
Securities Act or pursuant to any agreement or plan of merger or combination,
including any tender or exchange offer in respect thereof, that is approved by
the Board and that provides for equal treatment of all outstanding shares of
Company Capital Stock and Warrants (any such transaction, a "PROPOSED SALE"),
each Schedule I Purchaser (other than WCAS), FFT Purchaser and each of their
Permitted Transferees will have the right to require the proposed Transferee or
acquiring Person to purchase from each such Stockholder and each Permitted
Transferee who exercises its rights under this Section III(1) in accordance with
this Section III(1) (a "TAGGING STOCKHOLDER") a number of shares of Company
Capital Stock and Warrants up to the product (rounded up to the nearest whole
number) of (i) the quotient determined by dividing (A) the aggregate number of
shares of Company Capital Stock and Warrants owned by such Tagging Stockholders
by (B) the aggregate number of shares of Company Capital Stock and Warrants
owned by WCAS and its Designated Affiliates and the Tagging Stockholders and
(ii) the total number of shares of Company Capital Stock and Warrants proposed
to be directly or indirectly Transferred to the transferee or acquiring Person
in the Proposed Sale (a "PROPOSED TRANSFEREE"), at the same price per share of
Company Capital Stock and Warrants and upon the same terms and conditions
(including, without limitation, time of payment, form of consideration and
adjustments to purchase price) as the Selling Stockholder; PROVIDED that in
order to be entitled to exercise its right to sell shares of Company Capital
Stock and Warrants to the Proposed Transferee pursuant to this Section III(1),
each Tagging, Stockholder (x) shall agree to the same covenants with respect to
such Tagging Stockholders, as appropriate, as the Selling Stockholder agrees to
in connection with the Proposed Sale; PROVIDED, HOWEVER, that the aggregate
amount of liability of such Tagging Stockholder with respect to such covenants
shall not exceed the proceeds to such Tagging Stockholder in connection with the
Proposed Sale, and (y) shall make such representations and warranties concerning
its title to the shares of Company Capital Stock and Warrants to be sold in
connection with the Proposed Sale and its authority to enter into and consummate
the Proposed Sale as the Selling Stockholder makes, but shall not be required to
make any other representations and warranties or indemnities other than with
respect to its own representations and warranties.
(2) Each Tagging Stockholder will be responsible for funding its
proportionate share of any escrow arrangements in connection with the Proposed
Sale and for its proportionate share of any withdrawals therefrom, including
without limitation any such withdrawals that are made with respect to claims
arising out of agreements, covenants, representations, warranties or other
provisions relating the Proposed Sale that were made by the Tagging Stockholder.
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(3) Each Tagging Stockholder will be responsible for its
proportionate share of the reasonable fees, commissions and other out-of-pocket
expenses (collectively, "COSTS") of the Proposed Sale to the extent not paid or
reimbursed by the Company, the Proposed Transferee or another Person (other than
the Selling Stockholder); PROVIDED that the Proposed Sale is consummated and the
liability for such Costs shall not exceed the total purchase price received by
such stockholder for such shares. The Selling Stockholder shall be entitled to
estimate the Tagging Stockholders' proportionate share of such Costs and to
withhold such amounts from payments to be made to the Tagging Stockholder at the
time of closing of such Proposed Sale; PROVIDED that (i) such estimate shall not
preclude the Selling Stockholder from recovering additional amounts from the
Tagging Stockholder in respect of such Tagging Stockholder's proportionate share
of such Costs and (ii) the Selling Stockholder shall reimburse the Tagging
Stockholder to the extent actual amounts are ultimately less than the estimated
amounts or any such amounts are paid by the Company, the Proposed Transferee or
another Person (other than the Selling Stockholder).
(4) The Selling Stockholder will give notice to the Company of
each Proposed Sale not more than five days after the execution of the definitive
agreement relating to the Proposed Sale, setting forth the number of shares of
Company Capital Stock and Warrants proposed to be so Transferred, the name and
address of the Proposed Transferee, the proposed amount and form of
consideration (and if such consideration consists in part or in whole of
property other than cash, the Selling Stockholder will provide such information,
to the extent reasonably available to the Selling Stockholder, relating to such
non-cash consideration as each of the Tagging Stockholders, may reasonably
request in order to evaluate such non-cash consideration) and other terms and
conditions of payment offered by the Proposed Transferee. If any holders of
Company Capital Stock and Warrants are given an option as to the form and amount
of consideration to be received, all holders of Company Capital Stock and
Warrants shall be given the same option. In the event that any of the terms
and/or conditions set forth in the notice are thereafter amended in any respect,
the Selling Stockholder shall also give written notice of the amended terms and
conditions of the Proposed Sale to the Company, and each Tagging Stockholder
shall be permitted to cancel its exercise of its rights under this Section III
upon delivery of written notice to the Company to such effect and shall be
released from its obligation hereunder. Upon its receipt of any such notice or
amended notice, the Company shall promptly, but in all events within three (3)
Business Days of its receipt thereof, forward copies thereof to each of the
Tagging Stockholders. The Selling Stockholder will deliver or cause to be
delivered to each Tagging Stockholder copies of all transaction documents
relating to the Proposed Sale promptly as the same become available. The
tag-along rights provided by this Section III must be exercised by the Tagging
Stockholders within 10 Business Days following receipt of the notice required by
the preceding sentence by delivery of a written notice to the Selling
Stockholder indicating its desire to exercise its rights and specifying the
number of shares of Company Capital Stock and Warrants it desires to sell (the
"TAG-ALONG NOTICE"). The Tagging Stockholders will be entitled under this
Section III to Transfer to the Proposed
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Transferee the number of shares of Company Capital Stock and Warrants calculated
in accordance with Section III(1).
(5) Any Tagging Stockholder participating in the proposed
disposition shall deliver to the Company, as agent for such Tagging Stockholder,
for transfer to the Proposed Transferee one or more certificates, properly
endorsed for transfer and with all stock transfer taxes paid and stamps affixed,
which represent the number of shares of Company Capital Stock and Warrants that
such Tagging Stockholder elects to dispose of pursuant to paragraph 4 above. The
consummation of such proposed disposition shall be subject to the sole
discretion of the Selling Stockholder, who shall have no liability or obligation
whatsoever to any Tagging Stockholder participating therein other than to obtain
for such Tagging Stockholder the same terms and conditions as those of the
Selling Stockholder. Upon the consummation of any such sale, the Company (i)
shall transfer to the Proposed Transferee a stock certificate or certificates
representing the number of shares of Company Capital Stock and Warrants to be
disposed of by any Tagging Stockholders and (ii) shall promptly thereafter remit
to each Tagging Stockholder (i) that portion of the proceeds of the disposition
to which such Tagging Stockholder is entitled by reason of such participation
and (ii) a stock certificate representing any balance of shares of Company
Capital Stock and Warrants that were not so disposed of (or all shares of
Company Capital Stock and Warrants, in the event the proposed disposition is not
consummated).
(6) If any Tagging Stockholder exercises its rights under this
Section III, the closing of the purchase of the Company Capital Stock and
Warrants with respect to which such rights have been exercised will take place
concurrently with the closing of the sale of the Selling Stockholder's Company
Capital Stock and Warrants to the Proposed Transferee. If by the end of ninety
(90) days following the date of delivery of the notice of the Proposed Sale
provided by the Company pursuant to Section III(4), the Selling Stockholder and
the Proposed Transferee have not completed the Proposed Sale, each Tagging
Stockholder shall be released from its obligations under this Section III, and
the Tag-Along Notices shall be null and void, and it shall be necessary for the
terms of this Section III to be separately complied with in order to consummate
such Proposed Sale pursuant to this Section III.
SECTION IV. DRAG-ALONG RIGHTS.
(1) So long as this Agreement remains in effect, if WCAS or any
of its Designated Affiliates (collectively, the "DRAGGING STOCKHOLDER") receives
an offer from a Person other than any of their Designated Affiliates (a "THIRD
PARTY") to purchase (in a transaction of a type referred to in the first
sentence of Section III(1)) at least a majority of the shares of Company Capital
Stock then outstanding and such offer is accepted by the Dragging Stockholder,
then each Schedule I Purchaser (other than WCAS), FFT Purchaser and each of
their Permitted Transferees (collectively, the "DRAG-ALONG STOCKHOLDERS") hereby
agrees that, if requested by the Dragging Stockholder, it will Transfer to such
Third Party, subject to the other provisions of this Section IV, on the terms of
the offer so accepted by the Dragging Stockholder, including, without
limitation, time of payment, form and choice of consideration and adjustments to
purchase price,
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the number of shares of Company Capital Stock and Warrants equal to the number
of shares of Company Capital Stock and Warrants owned by it multiplied by the
percentage of the then outstanding shares of Company Capital Stock and Warrants
to which the Third Party offer is applicable.
(2) The Dragging Stockholder will give notice (the "DRAG-ALONG
NOTICE") to the Drag-Along Stockholders of any proposed Transfer giving rise to
the rights of the Dragging Stockholder set forth in Section IV(1) (a "SECTION IV
TRANSFER") within five (5) Business Days following the Dragging Stockholder's
acceptance of the offer referred to in Section IV(1) and, in any event, not less
than 10 Business Days prior to the proposed closing date for such Section IV
Transfer. The Drag-Along Notice will set forth the number of shares of Company
Capital Stock and Warrants proposed to be so Transferred, the name of the
proposed Transferee or acquiring Person, the proposed amount and form of
consideration (and if such consideration consists in part or in whole of
property other than cash, the Dragging Stockholder will provide such
information, to the extent reasonably available to the Dragging Stockholder,
relating to such non-cash consideration as the Drag-Along Stockholders together
may reasonably request in order to evaluate such non-cash consideration), the
number of shares of Company Capital Stock and Warrants sought and the other
terms and conditions of the offer. If any holders of Company Capital Stock
and/or Warrants are given an option as to the form and amount of consideration
to be received, all holders of Company Capital Stock and/or Warrants shall be
given the same option. Each Drag-Along Stockholder (x) shall agree to the same
covenants with respect to such Drag-Along Stockholders, as appropriate, as the
Dragging Stockholder agrees to in connection with the Section IV Transfer;
PROVIDED, HOWEVER, that the aggregate amount of liability of such Drag-Along
Stockholder with respect to such covenants shall not exceed the proceeds to such
Drag-Along Stockholder in connection with the Section IV Transfer and (y) shall
make such representations and warranties concerning its title to the shares of
Company Capital Stock and/or Warrants to be sold in connection with the Section
IV Transfer and its authority to enter into and consummate the Section IV
Transfer as the Dragging Stockholder makes, but shall not be required to make
any other representations and warranties or indemnities other than in respect of
its own representations and warranties. If a Dragging Stockholder does not
request that the Drag-Along Stockholders participate in a Section IV Transfer,
then each Stockholder shall have the right to participate in such proposed
transfer in accordance with its rights under Section III above.
(3) Each Drag-Along Stockholder will be responsible for funding
its proportionate share of any escrow arrangements in connection with the
Section IV Transfer and for its proportionate share of any withdrawals
therefrom, including without limitation any such withdrawals that are made with
respect to claims arising out of agreements, covenants, representations,
warranties or other provisions relating the Section IV Transfer that were made
by the Drag-Along Stockholder.
(4) Each Drag-Along Stockholder will be responsible for its
proportionate share of the Costs of the Section IV Transfer to the extent not
paid or reimbursed by the
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Company, the Third Party or another Person (other than the Dragging
Stockholder); PROVIDED that such Section IV Transfer is consummated and the
liability for such Costs shall not exceed the total purchase price received by
such Drag-Along Stockholder for such shares and/or Warrants. The Dragging
Stockholder shall be entitled to estimate the Drag-Along Stockholders'
proportionate share of such Costs and to withhold such amounts from payments to
be made to the Drag-Along Stockholder at the time of closing of the Section IV
Transfer; PROVIDED that (i) such estimate shall not preclude the Dragging
Stockholder from recovering additional amounts from the Drag-Along Stockholder
in respect of such Drag-Along Stockholder's proportionate share of such Costs
and (ii) the Dragging Stockholder shall reimburse the Drag-Along Stockholder to
the extent actual amounts are ultimately less than the estimated amounts or any
such amounts are paid by the Company, the Third Party or another Person (other
than the Dragging Stockholder). If the Section IV Transfer is not consummated
within 180 days from the date of the Drag-Along Notice, the Dragging Stockholder
must deliver another Drag-Along Notice in order to exercise its rights under
this Section IV with respect to such Section IV Transfer.
(5) At the closing of such Section IV Transfer, each of the
Dragging Stockholders shall deliver certificates evidencing the Company Capital
Stock and/or Warrants, as the case may be, then held by it and to be sold in
such sale, duly endorsed for transfer or accompanied by stock powers executed in
blank, against payment of the purchase price therefor by wire transfer to the
account or accounts specified by such Drag-Along Stockholder.
(6) The proceeds from such Section IV Transfer (and, in the case
of a sale of less than all of the outstanding shares of Company Capital Stock
and Warrants, the number of shares and Warrants to be sold by each Stockholder)
shall be allocated among the Stockholders on a PRO RATA basis, based on the
number of shares of Company Capital Stock and Warrants (treating all "in the
money" options and warrants as the number of shares of Company Common Stock
issuable upon the exercise thereof, less such number of shares of Company Common
Stock and Warrants the aggregate fair market value of which (based on the value
attributed in such sale) would be required to pay the aggregate exercise price
therefor, and treating any shares of convertible preferred stock or debt of the
Company on an "as-converted" basis) then held by each Stockholder.
SECTION V. CUSTODY AGREEMENT AND POWER OF ATTORNEY. Upon
delivering a Tag Along Notice or receiving a Drag-Along Notice, each Schedule I
Purchaser (other than WCAS), FFT Purchaser and each of their Permitted
Transferees will, if requested by the Selling Stockholder or the Dragging
Stockholder, as the case may be, execute and deliver a custody agreement and
power of attorney in form and substance reasonably satisfactory to the Selling
Stockholder or the Dragging Stockholder, as the case may be, and to such
Schedule I Purchaser, FFT Purchaser or their Permitted Transferees, as the case
may be, with respect to the shares of Company Capital Stock and/or Warrants that
are to be sold by such Stockholders and Permitted Transferees pursuant hereto (a
"CUSTODY AGREEMENT AND POWER OF ATTORNEY"). The Custody Agreement and Power of
Attorney will provide, among other things, that each such Stockholder and
Permitted Transferee will deliver to and deposit in custody with the custodian
and attorney-in-fact named therein a certificate or certificates representing
such shares of Company Capital Stock and Warrants (each duly endorsed in blank
by the registered owner or owners thereof) and irrevocably appoint said
custodian and attorney-in-fact as its agent and attorney-
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in-fact with full power and authority to act under the Custody Agreement and
Power of Attorney on its behalf with respect to (and subject to the terms and
conditions of) the matters specified in Section III or Section IV, as the case
may be.
SECTION VI. PREEMPTIVE RIGHTS.
(1) Until the later of (i) the fifth anniversary of the Effective
Date and (ii) the consummation of a Public Offering, the Company hereby grants
to each Stockholder the right to purchase such Stockholder's Proportionate
Percentage (as hereinafter defined) of any future Eligible Offering (as
hereinafter defined). For the purposes of this Section VI, the following terms
shall have the meanings set forth below:
"PROPORTIONATE PERCENTAGE" means, with respect to any Stockholder
as of any date, the result (expressed as a percentage) obtained by
dividing (i) the number of shares of Company Capital Stock owned by such
Stockholder as of such date by (ii) the total number of shares of
Company Capital Stock outstanding as of such date.
"ELIGIBLE OFFERING" means an offer by the Company to sell to any
person or persons (including any of the Stockholders) for cash, cash
equivalents, property or indebtedness any equity securities of the
Company, or any security convertible into or exchangeable for, or
carrying rights or options to purchase, equity securities of the
Company, other than an offering by the Company:
(i) of shares of Company Common Stock or options to
purchase shares of Company Common Stock in connection with or
pursuant to any stock option or stock purchase plan approved by
the Board to full-time employees, officers, directors,
consultants and/or advisors to the Company or its subsidiaries;
(ii) of securities (x) to the seller(s) of a business in
connection with an acquisition of such seller's business or (y)
to a joint venture, in connection with a joint venture project
(PROVIDED that such seller of joint venture is not an Affiliate
of the Company;
(iii) pursuant to the Unit Purchase Agreement;
(iv) of shares of Company Common Stock in a sale or sales
to officers and employees in an amount not to exceed, in the
aggregate, 242,424 shares of Company Common Stock; and
(v) in a Public Offering.
11
(2) The Company shall, before issuing any securities pursuant to
an Eligible Offering, give written notice thereof to each Stockholder. Such
notice shall specify the security or securities the Company proposes to issue,
the proposed date of issuance, the consideration that the Company intends to
receive therefor and all other material terms and conditions of such proposed
issuance. For a period of 15 days following the date of such notice, each
Stockholder shall be entitled, by written notice to the Company, to elect to
purchase all or any part of such Stockholder's Proportionate Percentage of the
securities being sold in the Eligible Offering; PROVIDED, HOWEVER, that if two
or more securities shall be proposed to be sold as a "unit" in an Eligible
Offering, any such election must relate to such unit of securities. To the
extent that elections pursuant to this Section VI(2) shall not be made with
respect to any securities included in an Eligible Offering within such 15-day
period, then the Company may issue such securities, but only for consideration
not less than, and otherwise on no less favorable terms to the Company than,
those set forth in the Company's notice and only within 60 days after the end of
such 15-day period. In the event that any such offer is accepted by a
Stockholder or Stockholders, the Company shall sell to such Stockholder or
Stockholders, and such Stockholder or Stockholders shall purchase from the
Company, for the consideration and on the terms set forth in the notice as
aforesaid, the securities that such Stockholder or Stockholders shall have
elected to purchase.
SECTION VII. RIGHT OF FIRST OFFER.
(1) If, after the lapse of restrictions on transfer contained in
Section II, any Schedule I Purchaser or FFT Purchaser or any of their Permitted
Transferees (for purposes of this Section VII, a "SELLER") desires to sell,
exchange or in any other manner dispose of (other than in a manner permitted by
Sections II(1), II(4), III or IV) any shares of Company Capital Stock held by
it, then such Seller shall give to the Company a written notice (a "NOTICE OF
DESIRE TO SELL") which shall set forth in reasonable detail the class and number
of shares of capital stock which it desires to sell (the "SUBJECT SHARES") and
may, if the Seller so chooses to specify, set forth any other terms and
conditions of the desired disposition. The Company shall deliver such Notice of
Desire to Sell to WCAS and FFT promptly upon receipt thereof. A Seller may
deliver a Notice of Desire to Sell whether or not such Seller has received an
offer from a third party to purchase such shares of Company Capital Stock.
(2) WCAS, FFT and their Designated Affiliates (the "OFFEREES")
shall have the right, exercisable upon written notice to the Seller within 15
days after receipt of any Notice of Desire to Sell (the "OFFER NOTICE"), to
offer to purchase any or all Subject Shares proposed to be sold by the Seller at
a purchase price equal to the proposed purchase price specified in the Notice of
Desire to Sell if so specified, or as proposed in the Offer Notice if not
specified in the Notice of Desire to Sell, and otherwise on the terms and
conditions specified in the Notice of Desire to Sell to the extent so specified
and any additional terms and conditions proposed in the Offer Notice
(collectively, including with respect to purchase price, the "OFFER TERMS").
Each Offer Notice shall state the number of shares to be purchased by the
Offerees delivering such Offer Notice (the "PURCHASING STOCKHOLDERS") and that
the Purchasing Stockholders will purchase such
12
shares within 45 days thereafter (or such longer period as is necessary to
obtain any necessary consents or approvals or to otherwise comply with
applicable law). In the event that more than one Person exercises its right to
offer to purchase pursuant to this paragraph (2), the allocation among such
Purchasing Stockholders of any shares actually sold pursuant to this paragraph
(2) shall be as agreed by such Purchasing Stockholders; PROVIDED, HOWEVER, if
the number of shares that the Purchasing Stockholders offer to purchase exceeds
the number of Subject Shares and the Purchasing Stockholders do not agree on the
allocation of the Subject Shares prior to the expiration of the 15-day period
specified in this paragraph (2) then the Subject Shares shall be allocated
ratably between Purchasing Stockholders based on the number of shares of Company
Capital Stock owned by such Purchasing Stockholder on the date of such Offer
Notice out of the total outstanding shares of Company Capital Stock on that date
owned by all of the Purchasing Stockholders; PROVIDED FURTHER that any such
Subject Shares allocated to the FFT Purchasers may be allocated among the FFT
Purchasers as such parties may agree.
(3) If the Offerees deliver, within the period specified in
paragraph (2) above, an Offer Notice with respect to Subject Shares, the Seller
shall sell such Subject Shares to such Purchasing Stockholders on the Offer
Terms within the 45-day period specified in paragraph (2) above (or such longer
period as is necessary to obtain any necessary consents or approvals or to
otherwise comply with applicable law). Following the period specified in
paragraph (2) above, the Seller may (subject to any other applicable
restrictions hereunder) transfer such Subject Shares with respect to which no
Offer Notice was received to any third party; PROVIDED that the Seller may not
sell such shares with respect to which no Offer Notice was received to such
third party on material terms that are the same as or more favorable, in the
aggregate, to such third party than the material terms set forth in the Offer
Terms, in the aggregate. Any such sale with respect to which definitive
documentation is not entered into within 60 days after the expiration of the
period specified in paragraph (2) above, or which is not consummated within 60
days of the execution of such definitive documentation (or such longer period as
is necessary to obtain any necessary consents or approvals or to otherwise
comply with applicable law) shall again be subject to the requirements of this
Section VII.
SECTION VIII. FINANCIAL AND OTHER INFORMATION; CONFIDENTIALITY.
(1) Until the earlier of (i) the date of the first occurrence of
a Public Offering and (ii) the date on which any Stockholder no longer holds at
least 25% of the Company Capital Stock (including for purposes hereof any shares
of Company Common Stock obtained through the conversion of such Stockholders'
shares of Company Class A Common Stock) held by such Stockholder as of the
Effective Date, the Company shall furnish to such Stockholder:
(a) within 95 days after the end of each fiscal year of the
Company, a consolidated balance sheet of the Company and its
subsidiaries as of the end of such fiscal year and the related
consolidated statements of operations, changes in stockholders' equity
and consolidated statement of cash flows of the Company and its
subsidiaries for the fiscal year then ended, together with supporting
notes thereto, certified without
13
qualification as to scope of audit by a firm of independent certified
public accountants of recognized national standing selected by the
Board;
(b) within 50 days after the end of each quarter in each fiscal
year (other than the last quarter in each fiscal year), a consolidated
balance sheet of the Company and its subsidiaries and the related
consolidated statements of operations, changes in stockholders' equity
and consolidated statement of cash flows of the Company and its
subsidiaries for the quarter then ended, unaudited but certified by the
principal financial officer of the Company, such balance sheet to be as
of the end of such quarter and such statements of operations, changes in
stockholders' equity and consolidated statement of cash flows to be for
such quarter and for the period from the beginning of the fiscal year to
the end of such quarter, in each case subject to normal year-end
adjustments;
(c) within 35 days after the end of each month in each fiscal
year, a consolidated balance sheet of the Company and its subsidiaries
and the related consolidated statement of operations for the month then
ended, unaudited but certified by the principal financial officer of the
Company, such balance sheet to be as of the end of such month and such
statement of operations to be for such month and for the period from the
beginning of the fiscal year to the end of such month, in each case
subject to normal year-end adjustments;
(d) as soon as practicable after the receipt thereof, the
Company's annual budget;
(e) as soon as practicable after the receipt thereof, a copy of
any other financial information contained in the Company's monthly
management reports to the extent such information is available;
(f) promptly upon filing, copies of all registration statements,
prospectuses, periodic reports and other documents filed by the Company
with the Commission;
(g) reasonable access during business hours to the books, records
and properties of the Company and a reasonable opportunity to discuss
the business and affairs of the Company with the Company's management;
and
(h) promptly, from time to time, such other information regarding
the operations, business, affairs and financial condition of the Company
or any subsidiary as such Stockholder may reasonably request;
PROVIDED that each such Stockholder shall cause all Confidential Information
relating to the Company to be held in strict confidence in accordance with the
provisions of this Section VIII. After any Stockholder no longer holds 25% of
the Company Capital Stock and or Warrants held by such Stockholder on the date
hereof, but before the first occurrence of a Public Offering, the
14
Company shall only be obligated pursuant to this Section VIII(1) to furnish to
such Stockholder one annual report per year containing at least the information
described in (a) above.
(2) Each Stockholder and Permitted Transferee agrees that it will
not use at any time any Confidential Information (as defined below) of which any
such Stockholder or any Permitted Transferee is or becomes aware except in
connection with its investment in the Company.
(3) Each Stockholder and Permitted Transferee further agrees that
the Confidential Information will be kept strictly confidential and will not be
disclosed by it or its Representatives (as defined below), except (i) as
required by applicable law, regulation or legal process or in response to any
inquiry from a regulatory authority having jurisdiction over such Stockholder,
and only after compliance with Section VIII(4); PROVIDED that this clause (i)
may not be relied upon to the extent any action is taken by a Stockholder or
Permitted Transferee which requires such disclosure and, but for such action,
such disclosure would not have been required) and (ii) that it may disclose the
Confidential Information or portions thereof to those of its officers,
employees, directors and representatives of its legal, accounting and financial
advisors (the persons to whom such disclosure is permissible being
"REPRESENTATIVES") who need to know such information in connection with the
investment by the Stockholder and the Permitted Transferees in the Company;
PROVIDED that such Representatives (x) are informed of the confidential and
proprietary nature of the Confidential Information and (y) agree to be bound by
and perform the provisions of this Section VIII. Each Stockholder agrees to be
responsible for any breach of this Section VIII by its Representatives other
than those Representatives who after the date hereof execute a separate
confidentiality agreement with the Company (it being understood that such
responsibility shall be in addition to and not by way of limitation of any right
or remedy the Company may have against such Representatives with respect to any
such breach).
(4) If any Stockholder, Permitted Transferee or Representative
becomes legally compelled (including by deposition, interrogatory, request for
documents, subpoena, civil investigative demand or similar process) to disclose
any of the Confidential Information, such Stockholder, Permitted Transferee or
Representative shall provide the Company with prompt and, if legally
permissible, prior written notice of such requirement to disclose such
Confidential Information. Upon receipt of such notice, the Company may seek a
protective order or other appropriate remedy. If such protective order or other
remedy is not obtained, such Stockholder, Permitted Transferee or Representative
agrees to disclose only that portion of the Confidential Information which is
legally required to be disclosed and to take all reasonable steps to preserve
the confidentiality of the Confidential Information; PROVIDED that the
Stockholder is not required to incur any costs in connection therewith. In
addition, such Stockholder, Permitted Transferee and Representative will not
oppose any action (and will, if and to the extent requested by the Company and
is legally permitted to do so, cooperate with and assist the Company, at the
Company's expense and on a reasonable basis, in any reasonable action) by the
Company to obtain an appropriate protective order or other reliable assurance
that confidential treatment will be accorded the Confidential Information.
15
(5) "CONFIDENTIAL INFORMATION" means oral and written information
concerning the Company and its subsidiaries furnished to any Stockholder or
Permitted Transferee by or on behalf of the Company (irrespective of the form of
communication and whether such information is so furnished before, on or after
the date hereof), and all analyses, compilations, data, studies, notes,
interpretations, memoranda or other documents prepared by any Stockholder or
Permitted Transferee or any Representative containing or based in whole or in
part on any such furnished information. The term "Confidential Information" does
not include any information which (i) at the time of disclosure or thereafter is
generally available to the public (other than as a result of a disclosure
directly or indirectly by any Stockholder, Permitted Transferee or
Representative in violation hereof), (ii) is or becomes available to any
Stockholder or Permitted Transferee on a nonconfidential basis from a source
other than the Company or its advisors, provided that such source was not known
by the Stockholders or Permitted Transferees to be prohibited from disclosing
such information to it by a legal, contractual or fiduciary obligation owed to
the Company or (iii) is already in the possession of any Stockholder or
Permitted Transferee (other than information furnished by or on behalf of the
Company).
(6) Until the earlier to occur of (i) the tenth anniversary of
the date of this Agreement and (ii) the date of first occurrence of a Public
Offering, the Company shall allow non-voting observers (the "BOARD OBSERVERS"
and each a "BOARD OBSERVER"), appointed as set forth in this Section VIII(6), to
attend each and every meeting of the Board. During such period, (i) A.S.F.
Co-Investment Partners, L.P. shall have the right to appoint one Board Observer
and (ii) each of California Public Employees' Retirement System, California
Teachers' Retirement System, Chase Equity Partners III, L.P., GS Private Equity
Partners III, L.P., on behalf of itself and the other Affiliates of Xxxxxxx,
Xxxxx & Co., and BT Capital Investors, L.P. shall have the right, on a rotating
annual basis, to appoint the other Board Observers for a one year term.
California Public Employees' Retirement System and California Teachers'
Retirement System shall appoint the first two of such Board Observers to serve
one-year terms. GS Private Equity Partners III, L.P., on behalf of itself and
the other Affiliates of Xxxxxxx, Sachs & Co. that are parties hereto, Chase
Capital Partners and BT Capital Investors, L.P. shall appoint the next three of
such Board Observers to serve one-year terms following the expiration of the
previous Board Observers' terms. It is understood that the number of Board
Observers appointed pursuant to clause (ii) above shall alternate between two
and three each year. The appointment and removal of each Board Observer shall be
by written notice from the appropriate Stockholder to the Company and shall take
effect upon the delivery of written notice thereof at the Company's registered
office. Each Board Observer and each Stockholder that has the right to appoint a
Board Observer shall receive copies of all notices, minutes, consents, and other
materials that the Company provides to the members of the Board, PROVIDED,
HOWEVER, that the Company reserves the right to exclude any of the Board
Observers from access to any meeting or any materials if it is reasonably
believed, upon advice of counsel, that such exclusion is necessary to preserve
any privilege or to protect confidential information. Except to the extent so
excluded, the Board Observers may participate in discussions of any and all
matters brought before any meeting it attends as a non-voting observer.
16
SECTION IX. DURATION OF AGREEMENT. This Agreement (other than the
provisions of Section VIII(2), VIII(3), VIII(4) and VIII(5)) shall terminate
upon the earlier to occur of (1) the tenth anniversary of the Effective Date and
(2) the consummation of (x) one or more Public Offerings by the Company of
Common Stock having an aggregate offering price to the public of not less than
$100,000,000, or (y) the sale, transfer or other disposition (including a
distribution by a limited partnership to its partners) by the Schedule I
Purchasers to persons or entities not required to become parties hereto of at
least 75% of the shares of Company Common Stock held by the Schedule I
Purchasers on the Effective Date.
SECTION X. REGULATORY COMPLIANCE.
(a) Regulatory Compliance Cooperation.
(i) In the event that a Regulated Holder reasonably
determines that it has a Regulatory Problem, the Company agrees to take
all such actions as are reasonably requested by such Regulated Holder in
order (A) to effectuate and facilitate any transfer by the Regulated
Holder of any securities of the Company then held by the Regulated
Holder to any Person designated by the Regulated Holder, (B) to permit
the Regulated Holder (or any of its Affiliates) to exchange all or any
portion of the voting Securities then held by such Person on a
share-for-share basis for shares of a class of non-voting Securities of
the Company, which non-voting Securities shall be identical in all
respects to such voting Securities, except that such new Securities
shall be non-voting and shall be convertible into voting Securities on
such terms as are requested by the Regulated Holder and reasonably
acceptable to the Company in light of regulatory considerations then
prevailing, and (C) to continue and preserve the respective allocation
of the voting interests with respect to the Company arising out of the
Regulated Holder's ownership of voting Securities and/or provided for in
this Agreement before the transfers and amendments referred to above
(including entering into such additional agreements as are requested by
the Regulated Holder to permit any Person(s) designated by the Regulated
Holder to exercise any voting power which is relinquished by the
Regulated Holder upon any exchange of voting Securities for non-voting
Securities of the Company). If the Regulated Holder elects to transfer
Securities of the Company to another Regulated Holder in order to avoid
a Regulatory Problem, the Company and such other Regulated Holder shall
enter into such mutually acceptable agreements as such other Regulated
Holder may reasonably request in order to assist such Regulated Holder
in complying with applicable laws and regulations to which it is
subject. Such agreements may include restrictions on the redemption,
repurchase or retirement of Securities of the Company that would result
or be reasonably expected to result in such Regulated Holder's holding
more voting securities or total securities (equity and debt) than it is
permitted to hold under such laws and regulations.
17
(ii) In the event a Regulated Holder has the right to
acquire any of the Company's securities from the Company or any other
Person (as the result of a preemptive offer, pro rata offer or
otherwise), and a Regulated Holder reasonably determines that it has a
Regulatory Problem, at the Regulated Holder's request the Company will
offer to sell to the Regulated Holder non-voting securities (or, if the
Company is not the proposed seller, will arrange for the exchange of any
voting securities for non-voting securities immediately prior to or
simultaneous with such sale) on the same terms as would have existed had
the Regulated Holder acquired the securities so offered and immediately
requested their exchange for non-voting securities pursuant to
subsection (i) above.
(iii) In the event that any Affiliate of the Company ever
offers to issue any of its Securities to the Regulated Holder, then the
Company will cause such Affiliate to enter into agreements with the
Regulated Holder substantially similar to this Section X.
(b) DEFINITIONS.
(i) "Regulated Holder" means any holder of the Company's
Securities that is (or that is a subsidiary of a bank holding company
that is) subject to the various provisions of Regulation Y of the Board
of Governors of the Federal Reserve Systems, 12 C.F.R., Part 225 (or any
successor to Regulation Y).
(ii) "Regulatory Problem" means (i) any set of facts or
circumstances wherein it has been asserted by any governmental
regulatory agency (or Investor believes that there is a significant risk
of such assertion) that such Person (or any bank holding company that
controls such Person) is not entitled to hold, or exercise any material
right with respect to, all or any portion of the Securities of the
Company which such Person holds or (ii) when such Person and its
Affiliates would own, control or have power (including voting rights)
over a greater quantity of Securities of the Company than is permitted
under any law or regulation or any requirement of any governmental
authority applicable to such Person or to which such Person is subject.
SECTION XI. REPRESENTATIONS AND WARRANTIES BY THE STOCKHOLDERS.
Each Stockholder, severally and not jointly, represents and warrants to the
Company and the other Stockholders as follows:
(a) The execution, delivery and performance of this Agreement by
such Stockholder will not violate any provision of applicable law, any order of
any court or other agency of government, or any provision of any indenture,
agreement or other instrument to which such Stockholder or any of his, her or
its properties or assets is bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument.
18
(b) This Agreement has been duly executed and delivered by such
Stockholder, and when executed by the other parties hereto will constitute the
legal, valid and binding obligation of such Stockholder, enforceable in
accordance with its terms.
SECTION XII. REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The
Company represents and warrants to each Stockholder as follows:
(a) The execution, delivery and performance of this Agreement by
the Company will not violate any provision of applicable law, any order of any
court or other agency of government, or any provision of any indenture,
agreement or other instrument to which the Company or any of its properties or
assets is bound, or conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument.
(b) This Agreement has been duly executed and delivered by the
Company, and when executed by the other parties hereto will constitute the
legal, valid and binding obligation of the Company, enforceable in accordance
with its terms.
SECTION XIII. MISCELLANEOUS.
(1) HEADINGS. Headings of articles, sections and paragraphs of
this Agreement are inserted for convenience of reference only and shall not
affect the interpretation or be deemed to constitute a part hereof.
(2) SEVERABILITY. In the event that any one or more of the
provisions contained in this Agreement or in any other instrument referred to
herein shall, for any reason, be held to be invalid, illegal or unenforceable,
such illegality, invalidity or unenforceability shall not affect any other
provisions of this Agreement.
(3) BENEFITS OF AGREEMENT. Nothing expressed by or mentioned in
this Agreement is intended or shall be construed to give any person other than
the parties hereto and their respective successors and permitted assigns any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of the parties hereto and their respective successors and permitted
assigns. Notwithstanding anything in this Section XIII(3) to the contrary,
subject to compliance with the terms of this Agreement, each Stockholder shall
have the right to assign its interests hereunder in whole or in part to any
transferee of the Company Capital Stock held by such Stockholder in compliance
with this Agreement. Any Stockholder may assign to any of its Affiliates that
are also Stockholders all or any part of its tag-along rights with respect to a
particular proposed sale pursuant to Section III or its rights to purchase
securities pursuant to Section VI; PROVIDED the aggregate number of shares of
Company Capital Stock to which such rights apply with respect to all such
affiliated Stockholders, taken as a whole, shall not be increased thereby.
Except as expressly permitted
19
hereby, each party's rights and obligations under this Agreement shall not be
subject to assignment or delegation by any party hereto, and any attempted
assignment or delegation in violation hereof shall be null and void AB INITIO.
(4) NOTICE OF TRANSFER. To the extent that any Stockholder shall
transfer any shares of Company Capital Stock, notice of which transfer is not
otherwise required to be delivered to the Stockholders hereunder, such
Stockholder shall, within three days following consummation of such transfer,
deliver notice thereof to the Company and the other Stockholders; PROVIDED,
HOWEVER, that no such notice shall be required to be delivered unless the
aggregate number of shares of Company Capital Stock transferred by such
Stockholder and its affiliates since the date of the last notice delivered by
such Stockholder pursuant to this Section XI(4) exceeds 1% of the outstanding
Company Capital Stock.
(5) NOTICES. Any notice or other communications required or
permitted hereunder shall be deemed to be sufficient and received if contained
in a written instrument delivered in person or by courier or duly sent by first
class certified mail, postage prepaid, or by facsimile addressed to such party
at the address or facsimile number set forth below:
(1) if to the Company, to it at:
0000 Xxxxxxxx Xxxxx
Xxxxx 000, Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Telecopy Number: (000) 000-0000
Attention: General Counsel
with a copy to:
Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
(2) if to any Stockholder, to the address of such Stockholder
appearing in Schedule I or Schedule II hereto;
or, in any case, at such other address or facsimile number as shall have been
furnished in writing by such party to the other parties hereto. In the case of
any notices, requests, claims, demands or other communications to more than one
FFT Purchaser and or their Permitted Transferee, delivery thereof in accordance
with the foregoing provisions of this Section XIII(5) to FFT shall be deemed to
be delivery to all such FFT Purchasers and their Permitted Transferees. All such
notices, requests, consents and other communications shall be deemed to have
been received
20
(a) in the case of personal or courier delivery, on the date of such delivery,
(b) in the case of mailing, on the fifth business day following the date of such
mailing and (c) in the case of facsimile, when received.
(6) ENTIRE AGREEMENT; MODIFICATION. This Agreement (including the
Schedules hereto) constitutes the entire agreement of the parties with respect
to the subject matter hereof and may not be amended or modified except by an
instrument in writing signed by the Company and (i) a majority in interest of
Company Capital Stock held by the Schedule I Purchasers, (ii) a majority in
interest of Company Capital Stock held by the FFT Purchasers and (iii) if
adversely affected thereby, each of the holders of Company Capital Stock so
adversely affected. Any waiver of any provision of this Agreement must be in a
writing signed by the party against whom enforcement of such waiver is sought.
(7 COVENANTS BIND SUCCESSORS AND ASSIGNS. All the covenants,
stipulations, promises and agreements in this Agreement contained by or on
behalf of any party shall bind its successors and permitted assigns, whether so
expressed or not.
(8 EFFECTIVENESS. This Agreement shall be of no force or effect
unless and until the consummation of the Merger (the "EFFECTIVE DATE"); upon
such consummation, this Agreement shall be in full force and effect.
(9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
(10 CHANGES IN COMPANY CAPITAL STOCK. If, and as often as, there
are any changes in Company Capital Stock by way of stock split, stock dividend,
combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof as may be required so that the
rights and privileges granted hereby shall continue with respect to the Company
Capital Stock as so changed.
(11 SPECIFIC PERFORMANCE. Each party hereto agrees that a remedy
at law for any breach or threatened breach by such party of this Agreement would
be inadequate and therefore agrees that any other party hereto shall be entitled
to pursue specific performance of this Agreement in addition to any other
available rights and remedies in case of any such breach or threatened breach.
(12 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
ENFORCEABLE UNDER, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
21
(13 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
22
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as a sealed instrument, all as of the day and year first above
written.
CONCENTRA MANAGED CARE, INC.
By:/s/ Xxxxxxx Xxxx II
---------------------------
Name: Xxxxxxx Xxxx II
Title: Executive Vice President and
General Counsel
WELSH, CARSON, XXXXXXXX & XXXXX VIII, L.P.
By: WCAS VIII Associates, L.L.C., General Partner
By:/s/ Xxxxxxxx X. Rather
-----------------------------
Managing Member
WCAS HEALTHCARE PARTNERS, L.P.
By: WCAS HC Partners, General Partner
By:/s/ Xxxxxxxx X. Rather
--------------------------
General Partner
WCAS CAPITAL PARTNERS III, L.P.
By: WCAS CP III Associates, L.L.C., General Partner
By:/s/ Xxxxxxxx X. Rather
-------------------------
Managing Member
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxx
Xxxxxx X. XxXxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. xxXxxxxx
Xxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
D. Xxxxx Xxxxxxx
Xxxxxxxxx X. Xxxxxx
Xxxxx X. XxxXxxxx
Xxxx X. Xxxxxxx
Xxxx Xxxxxxx, Xx.
Xxxxxxxx X. Rather
By:/s/ Xxxxxxxx X. Rather
-----------------------------
Xxxxxxxx X. Rather, Individually and
as Attorney-in-Fact
/s/ Xxxxxx X. Xxxxxx
----------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxxxx
----------------------
Xxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxx XX
----------------------
Xxxxxxx X. Xxxx XX
/s/ W. Xxx Xxxxxxx, M.D.
----------------------
W. Xxx Xxxxxxx, M.D.
/s/ Xxxx Xxxxxxxx
----------------------
Xxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxx
----------------------
Xxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxxx
----------------------
Xxxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxx
----------------------
Xxxxx Xxxxx
/s/ Xxxxxx Xxx
----------------------
Xxxxxx Xxx
/s/ Xxxxx Xxxxxx
----------------------
Xxxxx Xxxxxx
/s/ Xxxx Xxxxxxx
----------------------
Xxxx Xxxxxxx
/s/ Xxxxx Xxxxxx
----------------------
Xxxxx Xxxxxx
/s/ Xxxx Xxxxxxx, M.D.
----------------------
Xxxx Xxxxxxx, M.D.
/s/ Xxxxxx Xxxxxxx, M.D.
----------------------
Xxxxxx Xxxxxxx, M.D.
/s/ Xxxxx X. Xxxxxx
----------------------
Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxx
----------------------
Xxxxx X. Xxxx
/s/ Xxxxx X. Xxxxxx
----------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxxxx X. Xxxxxx
----------------------
Xxxxxxxx X. Xxxxxx
/s/ Xxxxxxxx X. Xxxx
----------------------
Xxxxxxxx X. Xxxx
/s/ Xxxxxxx X. Xxxxx
----------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxxx
----------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
----------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxx
----------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxxxxx
----------------------
Xxxxxxx X. Xxxxxxxxxx
/s/ Xxxxxxx DeGiamo
----------------------
Xxxxxxx DeGiamo
XX XXXXXX DIRECT CORPORATE FINANCE
INSTITUTIONAL INVESTORS, LLC
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President of X.X. Xxxxxx
Investment Management, Inc.,
as Investment Advisor
XX XXXXXX DIRECT CORPORATE FINANCE
PRIVATE INVESTORS, LLC
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President of X.X. Xxxxxx
Investment Management, Inc.,
as Investment Advisor
CALIFORNIA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM
By: /s/ Xxxxx X.X. Xxxxxxx
-------------------------------
Name: Xxxxx X. X. Xxxxxxx
Title: Principal Investment Officer
CALIFORNIA STATE TEACHERS'
RETIREMENT SYSTEM
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director of Investment
Administration
and External Relations
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners,
its General Partner
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title:
CMS CO-INVESTMENT SUBPARTNERSHIP II
By: CMS CO-INVESTMENT SUBPARTNERSHIP, a Delaware
general partnership
By: CMS Co-Investment Partners, L.P., a Delaware
limited partnership
By: CMS/Co-Investment Associates, L.P., a Delaware
limited partnership
By: MSPS/Co-Investment, Inc., a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------
Its: Vice President
By: CMS 1997 Investment Partners, L.P., a Delaware
limited partnership
By: CMS 1997, Inc., a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------
Its: Vice President
By: CMS Co-Investment Partners I-Q, L.P., a Delaware
limited partnership
By: CMS/Co-Investment Associates, L.P., a Delaware
limited partnership
By: MSPS/Co-Investment, Inc., a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------
Its: Vice President
By: CMS 1997 Investment Partners, L.P., a Delaware
limited partnership
By: CMS 1997, Inc., a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------
Its: Vice President
By: /s/ Xxx Xxxxx
----------------------------
Xxx Xxxxx
By: /s/ XXXXX XXXXXXX
----------------------------
Xxxxx Xxxxxxx
CMS DIVERSIFIED PARTNERS, L.P.
By: CMS/DP Associates, L.P, a general partner
By: MSPS/DP, Inc., its general partner
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------
Vice President
By: CMS 1995 Investment Partners, L.P, a general
partner
By: CMS 1995, Inc., its general
partner
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------
Vice President
BT CAPITAL INVESTORS, L.P.
By: /s/ Xxxxx Xxxxxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Director
FINANCIERE ET INDUSTRIELLE GAZ ET EAUX
By: /s/ Xxxxxxxx Soleil
-----------------------------
Name: Xxxxxxxx Soleil
Title:
GS PRIVATE EQUITY PARTNERS II, L.P.
By: GS PEP II Advisors, L.L.C.,
its General Partner
By: GSAM Gen-Par, L.L.C.,
its Managing Member
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
GS PRIVATE EQUITY PARTNERS II OFFSHORE, L.P.
By: GS PEP II Offshore Advisors, Inc., its
General Partner
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
GS PRIVATE EQUITY PARTNERS II -
DIRECT INVESTMENT FUND, L.P.
By: GS PEP II Direct Investment Advisors, L.L.C.,
its General Partner
By: GSAM Gen-Par, L.L.C.,
its Managing Member
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
GS PRIVATE EQUITY PARTNERS III, L.P.
By: GS PEP III Advisors, L.L.C., its
General Partner
By: GSAM Gen-Par, L.L.C., its Managing
Partner
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
GS PRIVATE EQUITY PARTNERS III OFFSHORE, L.P.
By: GS PEP III Offshore Advisors, Inc., its
General Partner
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
NBK/GS PRIVATE EQUITY PARTNERS, L.P.
By: GS PEP Offshore Advisors (NBK), Inc.
General Partner
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
XXXXXXXX XXXX PRIVATE EQUITY PARTNERS, L.P.
By: HLSP Investment Management, LLC
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------
Xxxxx X. Xxxxxxxx
Managing Member
XXXXXXXX XXXX PRIVATE EQUITY FUND, PLC
By: HLSP Investment Management, LLC
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------
Xxxxx X. Xxxxxxxx
Managing Member
A.S.F. CO-INVESTMENT PARTNERS, L.P.
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Member of Old Kings LLC, the
Sole Member of PAF 10/98, LLC, the
Sole General Partner of A.S.F.
Co-Investment Partners, L.P.
NASSAU CAPITAL PARTNERS III L.P.
By: Nassau Capital
L.L.C., its
General Partner
By: /s/ Xxxx X. Xxxxxxx
----------------------
Name: Xxxx X. Xxxxxxx
Title: Member
NAS PARTNERS LLC
By: /s/ Xxxx X. Xxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxx
Title: Member
NEW YORK LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
XXXXXX XXXXXXX XXXXXXXX & CO.
on behalf of HEALTH CARE CAPITAL
PARTNERS L.P. and as its General Partner
and
on behalf of HEALTH CARE EXECUTIVE
PARTNERS L.P. and as its General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Member, Xxxxxx Xxxxxxx Xxxxxxxx & Co.
General Partner
SCHEDULE I
SCHEDULE I PURCHASERS
Number of Shares
of Company
Name and Address of Purchaser Common Stock
----------------------------- ----------------
Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P. 16,318,141
WCAS Healthcare Partners, L.P. 60,606
Xxxxxxx X. Xxxxx 84,778
Xxxxxxx X. Xxxxxx 87,579
Xxxxx X. Xxxxxxxx 78,159
Xxxxxx X. Xxxx 66,276
Xxxxxx X. XxXxxxxxx 85,449
Xxxxxx X. Xxxxxxxxx 35,778
Xxxxxxx X. xxXxxxxx 12,523
Xxxx X. Xxxxxxx 20,923
Xxxxxxxx X. Xxxxxx 14,311
Xxxxxxx X. Xxxxxx 5,367
D. Xxxxx Xxxxxxx 10,733
Xxxxxxxxx X. Xxxxxx 2,719
Xxxxx X. XxxXxxxx 715
Xxxx Xxxxxxx 1,431
Xxxx Xxxxxxx 1,789
Xxxxxxxx X. Rather 1,789
Xxxxxx X. Xxxxxx 33,000
Xxxxx X. Xxxxxxxxx 8,250
Xxxxxxx X. Xxxx XX 15,000
W. Xxx Xxxxxxx, M.D. 50,000
Xxxx Xxxxxxxx 4,848
Xxxxx Xxxxxxx 3,750
Xxxxxxx Xxxxxxxx 3,750
Xxxxx Xxxxx 9,000
Xxxxxx Xxx 7,500
Xxxxx Xxxxxx 4,500
Xxxx Xxxxxxx 3,750
Number of Shares
of Company
Name and Address of Purchaser Common Stock
----------------------------- ----------------
Xxxxx Xxxxxx 18,182
Xxxx Xxxxxxx, M.D. 35,000
Xxxxxx Xxxxxxx, M.D. 50,000
Xxxxx X. Xxxxxx 12,121
Xxxxx X. Xxxx 6,060
Xxxxx X. Xxxxxx 6,060
Xxxxxxxx X. Xxxxxx 6,060
Xxxxxxxx X. Xxxx 6,060
Xxxxxxx X. Xxxxx 6,060
Xxxxxxx X. Xxxxxxxx 3,030
Xxxxxxx X. XxXxxxxx 3,030
Xxxxxxx X. Xxxxxx 3,030
Xxxxxxx X. Xxxxxxxxxx 3,030
Xxxxxxx XxXxxxxx 1,515
XX Xxxxxx Direct Corporate Finance 360,935
Institutional Investors, LLC
XX Xxxxxx Direct Corporate Finance Private 81,095
Investors, LLC
California Public Employees' Retirement System 798,059
California State Teachers' Retirement System 1,322,473
Chase Equity Associates, L.P. 909,091
CMS Co-Investment Subpartnership II 143,885
CMS Diversified Partners, L.P. 4,673
BT Capital Investors, L.P. 606,060
Financiere et Industrielle Gaz et Eaux 94,139
GS Private Equity Partners II, L.P. 225,609
GS Private Equity Partners II Offshore, L.P. 116,836
GS Private Equity Partners II -Direct Investment Fund, 93,469
L.P.
GS Private Equity Partners III, L.P. 236,470
GS Private Equity Partners III Offshore, L.P. 55,127
NBK/GS Private Equity Partners, L.P. 25,012
Number of Shares
of Company
Name and Address of Purchaser Common Stock
----------------------------- ----------------
Xxxxxxxx Xxxx Private Equity Partners, L.P. 18,316
Xxxxxxxx Xxxx Private Equity Fund, PLC 39,666
A.S.F. Co-Investment Partners, L.P. 872,967
Nassau Capital Partners III L.P. 371,097
NAS Partners LLC 2,867
New York Life Insurance Company 252,455
----------------
TOTAL: 23,821,953
x/x Xxxxx, Xxxxxx, Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Telecopy: (000) 000-0000
SCHEDULE II
FFT PURCHASERS
Number of Shares
of Company Class a
Name and Address of Purchaser Common Stock
----------------------------- ------------------
Health Care Capital Partners L.P. 1,780,870
Health Care Executive Partners L.P. 73,675
TOTAL: 1,854,545
x/x Xxxxxx Xxxxxxx Xxxxxxxx & Xx.
Xxx Xxxx
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telecopy: (000) 000-0000
SCHEDULE III
Warrants
--------
Name Warrants
---- --------
WCAS Capital Partners III, L.P. 619,356
XX Xxxxxx Director Corporate Finance Institutional 12,585
Investors, LLC
XX Xxxxxx Director Corporate Finance Private 2,827
Investors, LLC
California Public Employees' Retirement System 27,826
California State Teachers' Retirement System 46,110
Chase Capital Partners* 507,629
CMS Co-Investment Subpartnership II 5,017
CMS Diversified Partners, L.P. 163
BT Capital Investors, L.P. 290,074
Financiere et Industrielle Gaz et Eaux 3,282
GS Private Equity Partners II, L.P. 7,866
GS Private Equity Partners II Offshore, L.P. 4,074
GS Private Equity Partners II -Direct Investment 3,259
Fund, L.P.
GS Private Equity Partners III, L.P. 8,245
GS Private Equity Partners III Offshore, L.P. 1,922
NBK/GS Private Equity Partners, L.P. 872
Xxxxxxxx Xxxx Private Equity Partners, L.P. 639
Xxxxxxxx Xxxx Private Equity Fund, PLC 1,383
A.S.F. Co-Investment Partners, L.P. 30,437
Nassau Capital Partners III L.P. 12,939
NAS Partners LLC 100
New York Life Insurance Company 8,802
TOTAL: 1,595,406
------------------------------------------------------------------------
c/o Welsh, Carson, Xxxxxxxx & Xxxxx * Chase Capital Partners
000 Xxxx Xxxxxx, Xxxxx 0000 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10022 Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx Attention: Xxxx Xxxxx
Telecopy: (000) 000-0000 Telecopy: (000) 000-0000
------------------------------------------------------------------------
