STOCKHOLDERS' AGREEMENT
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AGREEMENT made this 9th day of August, 1996, between Physicians Quality
Care, Inc., a Delaware corporation (the "Company"), and the Stockholders of the
Company named on the signature page of this Agreement (the "Physicians").
WHEREAS, the Company and the Physicians are parties to either (i) a merger
agreement or (ii) an asset purchase agreement and an affiliation agreement (the
"Agreements") that, among other things, provide for the issuance of shares of
common stock, par value $0.01 per share (the "Common Stock"), of the Company
(any Common Stock beneficially owned by such Physicians whether now or
hereinafter acquired being referred to herein as the "Shares").
WHEREAS, the Company and the Physicians agree that the Shares shall be
subject to the restrictions on transfer set forth herein.
NOW THEREFORE, for valuable consideration, receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Restrictions on Transfer.
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(a) Until August 9, 1998, no Physician shall, directly or indirectly,
offer, sell, assign, transfer, grant a participation in, pledge, or otherwise
dispose of, or encumber any of the Shares, or any interest therein (each, a
"Transfer"); unless and until such Transfer has been approved by the Company (it
being understood that the Company intends to consent to such Transfer (subject
to the Company's rights under Sections 2 and 3 hereof) unless the Company
reasonable concludes that the Transfer, together with the Transfers by other
shareholders of the Company, may cause any merger pursuant to which such
Physician becomes a stockholder of the Company not to qualify as a tax-free
reorganization pursuant to Section 365 of the Internal Revenue Code of 1986, as
amended).
(b) Subject to Section 1(a), a Physician may Transfer Shares (i) only
in accordance with Section 2 below or (ii) to (A) an individual, partnership,
joint venture, corporation, company, trust, estate, unincorporated association
or other entity of whatever nature which is directly or indirectly controlled by
such Physician, (B) any family member of such Physician or such Physician's
family members, and (C) a third party granted an interest in the Shares in the
will of such Physician or by the laws of descent or distribution (each
transferee as set forth in clauses (A)-(C), a "Permitted Transferee"); provided
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that, such Shares shall remain subject to this Agreement (including without
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limitation the restrictions on transfer set forth in this Section 1) and such
Permitted Transferee shall, as a condition to such Transfer, deliver to the
Company a written instrument confirming that such Permitted Transferee shall be
bound by all of the terms and conditions of this Agreement.
2. Right of First Refusal.
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(a) If a Physician proposes to Transfer any Shares other than as set
forth in paragraph 2(d) below, then the Physician shall first give written
notice of the proposed transfer (the "Transfer Notice") to the Company. The
Transfer Notice shall name the proposed transferee and state the number of such
Shares the Physician proposes to transfer the ("Offered Shares"), the price per
share and all other material terms and conditions of the Transfer.
(b) For sixty (60) days following its receipt of such Transfer Notice,
the Company shall have the option to purchase all (but not less than all) of the
Offered Shares at the price and upon the terms set forth in the Transfer Notice.
In the event the Company elects to purchase all of the Offered Shares, it shall
give written notice of such election to the Physician within such sixty (60) day
period. Within ten (10) days after receipt of such notice, the Physician shall
tender to the Company at its principal offices the certificate or certificates
representing the Offered Shares, duly endorsed in blank by the Physician or with
duly endorsed stock powers attached thereto, all in form suitable for transfer
of the Offered Shares to the Company. Upon receipt of such certificate or
certificates, the Company shall deliver or mail to the Physician a check in
payment of the purchase price for the Offered Shares; provided that if the terms
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of payment set forth in the Transfer Notice were other than cash against
delivery, the Company may pay for the Offered Shares on the same terms and
conditions as were set forth in the Transfer Notice.
(c) If the Company does not elect to acquire all of the Offered Shares,
the Physician may, within the sixty (60) day period following the expiration of
the rights granted to the Company under subsection (b) above, transfer the
Offered Shares to the proposed transferee or any other transferee, provided that
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such transfer shall not be on terms and conditions more favorable to the
transferee than those contained in the Transfer Notice. Notwithstanding any of
the above, all Offered Shares transferred pursuant to this Section 2 shall
remain subject to this Agreement (including without limitation the restrictions
on transfer set forth in Section 1 and the right of first refusal set forth in
this Section 2) and such transferee shall, as a condition to such transfer,
deliver to the Company a written instrument confirming that such transferee
shall be bound by all of the terms and conditions of this Agreement.
(d) The following transactions shall be exempt from the provisions of
this Section 2:
(i) A Transfer of Shares to or for the benefit of a Permitted
Transferee;
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(ii) Any Transfer pursuant to an effective registration statement
filed by the Company under the Securities Act of 1933, as amended (the
"Securities Act"); and
(iii) The sale of all or substantially all of the shares of capital
stock of the Company (including pursuant to a merger or consolidation);
provided, however, that in any such case, unless the provisions of this Section
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2 shall be thereby terminated pursuant to subsection (f) below, such Shares
shall remain subject to this Agreement (including without limitation the
restrictions on transfer set forth in Section 1 and the right of first refusal
set forth in this Section 2) and such transferee shall, as a condition to such
Transfer, deliver to the Company a written instrument confirming that such
transferee shall be bound by all of the terms and conditions of this Agreement.
(e) The Company may assign its rights to purchase Shares in any
particular transaction under this Section 2 to one or more persons or entities.
(f) The provisions of this Section 2 shall terminate upon the earlier
of the following events:
(i) The closing of the sale of shares of Common Stock in a public
offering pursuant to an effective registration statement filed by the Company
under the Securities Act; or
(ii) upon the sale of all or substantially all of the capital
stock, assets or business of the Company, by merger, consolidation, sale of
assets or otherwise.
3. Right of the Company to Reacquire The Shares. In the event that a
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Physician ceases to be an employee of Medical Care Partners, P.C. or another
professional corporation affiliated with the Company at any time prior to August
9, 1999, the Company shall have the right, exercisable within 30 days of such
termination, to require such Physician to sell all Shares then held by such
Physician to the Company at their Fair Market Value. For purposes of the
foregoing, the Fair Market Value of the Shares shall mean: (a) if the Shares are
listed on a national securities exchange or the National Association of
Securities Dealers, Inc.'s National Market System, the last sales price on the
date of termination and (b) if the Shares are not listed on a national
securities exchange or the National Market System at the fair value thereof as
determined by an independent financial advisor reasonably satisfactory to the
Company and the Physician based upon recent sale of shares of the Company's
Common Stock, or in the absence of any such sale, sales of the equity securities
of comparable companies. The Company's rights pursuant to this Section 3
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shall not otherwise restrict the Physician's ability to Transfer the Share and
shall not be binding upon any subsequent holder of the Shares.
4. Effect of Prohibited Transfer. The Company shall not be required (a)
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to transfer on its books any of the Shares which shall have been sold or
transferred in violation of any of the provisions set forth in this Agreement,
or (b) to treat as owner of such Shares or to pay dividends to any transferee to
whom any such Shares shall have been so sold or transferred.
5. Restrictive Legend.
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(a) All certificates representing Shares shall have affixed thereto a
legend in substantially the following form, in addition to any other legends
that may be required under federal or state securities laws:
"The shares of stock represented by this certificate are subject to
restrictions on transfer and an option to purchase set forth in a
certain Stock Restriction Agreement between the corporation and the
registered owner of these shares (or his predecessor in interest), and
such Agreement is available for inspection without charge at the office
of the Secretary of the corporation."
(b) An original copy of this Agreement, duly executed by each of the
parties hereto, shall be delivered to the Secretary of the Company and
maintained at the principal executive office of the Company and made available
for inspection by any person requesting it.
6. Escrow. Each Physician shall, upon the execution of this Agreement,
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execute Joint Escrow Instructions in the form appended hereto as Exhibit A. The
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Joint Escrow Instructions shall be delivered to the Secretary of the Company, as
escrow agent thereunder. Each Physician shall deliver to such escrow agent a
stock assignment duly endorsed in blank and hereby instructs the Company to
deliver to such escrow agent, on behalf of such Physician, the certificate(s)
evidencing the Shares. Such materials shall be held by such escrow agent
pursuant to the terms of such Joint Escrow Instructions.
7. Severability. The invalidity or unenforceability of any provision of
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this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, and each other provision of this Agreement shall be
severable and enforceable to the extent permitted by law.
8. Waiver. Any provision contained in this Agreement may be waived,
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either generally or in any particular instance, by the Board of Directors of the
Company.
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9. Binding Effect. This Agreement shall be binding upon and inure to the
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benefit of the Company and the Physician and their respective heirs, executors,
administrators, legal representatives, successors and assigns, subject to the
restrictions on transfer set forth in Section 1 of this Agreement.
10. Termination. This Agreement shall terminate upon the later to occur
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of the following: (a) August 9, 1999 or (b) the termination of the provisions of
Section 2 pursuant to Section 2(f).
11. Notice. All notices, requests, demands, claims, and other
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communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly delivered two
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or one business day after it is sent via a reputable
nationwide overnight courier service, in each case to the intended recipient as
set forth below:
If to the Company, at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, or
at such other address or addresses as may have been furnished in writing by the
Company to the Physician; or
If to a Physician, at such Physician's address set forth on Exhibit B
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attached hereto, or at such other address or addresses as may have been
furnished to the Company in writing by such Physician.
Any party hereto may give any notice, request, demand, claim, or other
communication hereunder using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary mail, or
electronic mail), but no such notice, request, demand, claim, or other
communication shall be deemed to
12. Pronouns. Whenever the context may require, any pronouns used in this
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Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural, and vice
versa.
13. Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties, and supersedes all prior agreements and understandings,
relating to the subject matter of this Agreement.
14. Amendment. This Agreement may be amended or modified only by a
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written instrument executed by both the Company and the Physician.
15. Governing Law. This Agreement shall be construed, interpreted and
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enforced in accordance with the laws of the Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
PHYSICIANS QUALITY CARE, INC.
By:/s/ Xxxxxxx Xxxxx
---------------------------------------------
Name:
Title:
PHYSICIANS:
/s/ Xxxxx Xxxx
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Xxxxx Xxxx, M.D.
/s/ Xxxxxxxx Xxxxxxxxx
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Xxxxxxxx Xxxxxxxxx, M.D.
/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx, M.D.
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, M.D.
/s/ Xxx Xxxxx
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Xxx Xxxxx, M.D.
/s/ Xxxx Xxxxxxx
by Xxxx Xxxxxx, Attorney in Fact
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Xxxx Xxxxxxx, M.D.
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, M.D.
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, M.D.
/s/ X.X. Xxxxxxxxx
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X.X. Xxxxxxxxx, M.D.
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/s/ Xxx Xxxxxx
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Xxx Xxxxxx, D.D.
/s/ Xxxxxxxx Xxxxxxx
------------------------------------------------
Xxxxxxxx Xxxxxxx, M.D.
/s/ Xxxxxxxx Xxxx
------------------------------------------------
Xxxxxxxx Xxxx, M.D.
/s/ Xxxxxxx Xxxxxxx
------------------------------------------------
Xxxxxxx Xxxxxxx, M.D.
/s/ Xxxx Xxxxxx
------------------------------------------------
Xxxx Xxxxxx, M.D.
/s/ Xxxxxx Xxxxxxx
------------------------------------------------
Xxxxxx Xxxxxxx, M.D.
/s/ Xxxxxx Xxxxxx
------------------------------------------------
Xxxxxx Xxxxxx, M.D.
/s/ Xxxxx Meth
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Xxxxx Meth, M.D.
/s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx, M.D.
/s/ Xxxxx Xxxxxxxxxx
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Xxxxx Xxxxxxxxxx, M.D.
/s/ Xxxxx Xxxxx MD
by Xxxx Xxxxxx, Attorney in Fact
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Xxxxx Xxxxx, M.D.
/s/ Xxxxxx Race MD
by Xxxx Xxxxxx, Attorney in Fact
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Xxxxxx Race, M.D.
/s/ Xxxxxxx Xxxxx MD
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Xxxxxxx Xxxxx, M.D.
/s/ Xxx Xxxxxxxxxx MD
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Xxx Xxxxxxxxxx, M.D.
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/s/ Xxxx Xxxxxxxxx, MD
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Xxxx Xxxxxxxxx, M.D.
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx, M.D.
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx, M.D.
/s/ Xxxxxxx Xxxx MD
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Xxxxxxx Xxxx, M.D.
/s/ Xxxxxxx Xxxxx, by ___ Attorney in Fact
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Xxxxxxx Xxxxx, M.D.
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Exhibit A
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PHYSICIANS QUALITY CARE, INC.
JOINT ESCROW INSTRUCTIONS
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_____________, 1996
Physicians Quality Care, Inc.
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Secretary
Ladies and Gentlemen:
As Escrow Agent for Physicians Quality Care, Inc., a Delaware corporation
(the "Corporation"), and the undersigned physician ("Holder"), you are hereby
authorized and directed to hold the documents delivered to you pursuant to the
terms of that certain Stockholders' Agreement (the "Agreement") of even date
herewith, to which a copy of these Joint Escrow Instructions is attached, in
accordance with the following instructions:
1. Holder irrevocably authorizes the Corporation to deposit with you any
certificates evidencing Shares (as defined in the Agreement) to be held by you
hereunder and any additions and substitutions to said Shares. Holder does
hereby irrevocably constitute and appoint you as the Holder's attorney-in-fact
and agent for the term of this escrow to execute with respect to such Shares all
documents necessary or appropriate to make such Shares negotiable and to
complete any transaction herein contemplated. Subject to the provisions of this
paragraph 1 and the terms of the Agreement, Holder shall exercise all rights and
privileges of a stockholder of the Corporation while the Shares are held by you.
2. Upon any purchase by the Corporation of the Shares pursuant to Section
2 of the Agreement, the Corporation shall give to Holder and you a written
notice specifying the purchase price for the Shares, as determined pursuant to
the Agreement, and the time for a closing hereunder (the "Closing") at the
principal office of the Corporation. Holder and the Corporation hereby
irrevocably authorize and direct you to close the transaction contemplated by
such notice in accordance with the terms of said notice.
3. At the Closing, you are directed (a) to date the stock assignment form
or forms necessary for the transfer of the Shares, (b) to fill in on such form
or forms the
number of Shares being transferred, and (c) to deliver same, together with the
certificate or certificates evidencing the Shares to be transferred, to the
Corporation against the simultaneous delivery to you of the purchase price for
the Shares being purchased pursuant to the Agreement.
4. The Holder shall have the right to withdraw from this escrow any Shares
upon the termination of the Corporation's right of first refusal pursuant to
Section 2 of the Agreement or in connection with a transfer permitted by Section
1 of the Agreement.
5. Your duties hereunder may be altered, amended, modified or revoked only
by a writing signed by all of the parties hereto.
6. You shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or
refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties.
You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact of Holder while acting in good
faith and in the exercise of your own good judgment, and any act done or omitted
by you pursuant to the advice of your own attorneys shall be conclusive evidence
of such good faith.
7. You are hereby expressly authorized to disregard any and all warnings
given by any of the parties hereto or by any other person or corporation,
excepting only orders or process of courts of law, and are hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court.
In case you obey or comply with any such order, judgment or decree of any court,
you shall not be liable to any of the parties hereto or to any other person,
firm or corporation by reason of such compliance, notwithstanding any such
order, judgment or decree being subsequently reversed, modified, annulled, set
aside, vacated or found to have been entered without jurisdiction.
8. You shall not be liable in any respect on account of the identity,
authority or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or called
for hereunder.
9. You shall be entitled to employ such legal counsel and other experts as
you may deem necessary properly to advise you in connection with your
obligations hereunder and may rely upon the advice of such counsel.
10. Your responsibilities as Escrow Agent hereunder shall terminate if you
shall cease to be Secretary of the Corporation or if you shall resign by written
notice to each party. In the event of any such termination, the Corporation
shall appoint any officer of the Corporation as successor Escrow Agent.
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11. If you reasonably require other or further instruments in connection
with these Joint Escrow Instructions or obligations in respect hereto, the
necessary parties hereto shall join in furnishing such instruments.
12. It is understood and agreed that should any dispute arise with respect
to the delivery and/or ownership or right of possession of the securities held
by you hereunder, you are authorized and directed to retain in your possession
without liability to anyone all or any part of said securities until such
dispute shall have been settled either by mutual written agreement of the
parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
13. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery or upon deposit in
the United States Post Office, by registered or certified mail with postage and
fees prepaid, addressed to each of the other parties thereunto entitled at the
following addresses, or at such other addresses as a party may designate by ten
days' advance written notice to each of the other parties hereto.
CORPORATION: Physicians Quality Care, Inc.
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
HOLDER: Notices to Holder shall be sent to the address set
forth below Holder's signature below.
ESCROW AGENT: Physicians Quality Care, Inc.
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
14. By signing these Joint Escrow Instructions, you become a party hereto
only for the purpose of said Joint Escrow Instructions, and you do not become a
party to the Agreement.
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15. This instrument shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Very truly yours,
PHYSICIANS QUALITY CARE, INC.
By:_________________________________
Name:
Title:
HOLDER:
____________________________________
(Signature)
____________________________________
Name
Address:
Date Signed:
ESCROW AGENT:
________________________________
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Exhibit B
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Xxxxx Xxxx, M.D.
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Xxxxxxxx Xxxxxxxxx, M.D.
000 Xxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxxxx Xxxxxxxxx, M.D.
00 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxx Xxxxxx, M.D.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxx Xxxxx, M.D.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Xxxx Xxxxxxx, M.D.
000 Xxxxxxxxx Xxxx xxxx
Xxxxxxxxxx, XX 00000
Xxxx Xxxxxx, M.D.
00 Xxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Xxxxxxx Xxxxxx, M.D.
000 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
X. X. Xxxxxxxxx, M.D.
00 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxx Xxxxxx, O.D.
000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
-5-
Xxxxxxxx Xxxxxxx, M.D.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Xxxxxxxx Xxxx, M.D.
000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxxxx Xxxxxxx, M.D.
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Xxxx Xxxxxx, M.D.
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Xxxxxx Xxxxxxx, M.D.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxx, M.D.
0 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Xxxxx Meth, M.D.
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxxxxx, M.D.
00 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Xxxxxxx Xxxx, M.D.
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Xxxxx Xxxxxxxxxx, M.D.
00 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxx Xxxxx, M.D.
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
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Xxxxxx Race, M.D.
0 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxx, M.D.
000 Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Xxxxxxx Xxxxx, M.D.
000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxx Xxxxxxxxxx, M.D.
000 Xxxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Xxxxxxxxx Xxxxxxx
00 Xxxxx Xxxx
Xxxxxx, XX 00000
Xxxx Xxxxxxxxx, M.D.
Xxxxxxx Xxxxxxx, Xxx. 0000
Xxxxxxx, XX 00000
Xxxxxxx Xxxxxxxx, M.D.
00 Xxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxxxx, M.D.
000 Xxxxxx Xxxx Xxxxxx
Xxxx Xxxxxxxxxxx, XX 00000
Xxxxxxx Xxxx, M.D.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxx, M.D.
00 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
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Xxxxxx Xxxxxxxx
Ayco Company
Executive Xxxxx, Suite 120
000 Xxxxx 000
Xxxxxxx Xxxx, XX 00000
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