EXHIBIT 10.1
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CHRONIC CARE SOLUTIONS HOLDING, INC.
STOCKHOLDERS' AGREEMENT
Dated as of September 30, 2005
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TABLE OF CONTENTS
Page
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1. Additional Offerings................................................. 1
1.1. Additional Offerings; Generally............................... 1
1.2. Exercise of Purchase Rights................................... 2
1.3. Sale of Unpurchased Securities................................ 2
1.4. Future Additional Offerings................................... 3
2. Restrictions on Transfers of Shares Held by the Employee
Stockholders......................................................... 3
2.1. General Restrictions on Transfer.............................. 3
2.2. Permitted Transferees......................................... 3
3. Tag-Along Rights..................................................... 3
4. Drag-Along Right..................................................... 4
5. Rights to Purchase Shares from the Employee Stockholders............. 6
5.1. Repurchase Rights............................................. 6
5.2. Notice........................................................ 6
5.3. Payment and Delivery of Certificates.......................... 7
6. Election of Directors; Committees.................................... 7
6.1. Board Make-up................................................. 7
6.2. Post Qualified Public Offering Board Seats.................... 7
6.3. Replacement Directors......................................... 8
6.4. Committees.................................................... 8
6.5. Directors of Subsidiaries..................................... 8
6.6. Voting Rights................................................. 8
7. Legends.............................................................. 9
8. Covenants, Representations and Warranties............................ 10
8.1. Information Rights............................................ 10
8.2. No Other Arrangements or Agreements........................... 10
9. Amendment, Modification, Supplement and Waiver....................... 11
10. Termination of Rights and Obligations Under Certain Sections......... 11
11. Parties.............................................................. 11
11.1. Assignment Generally.......................................... 11
11.2. Termination................................................... 11
11.3. Agreements to Be Bound........................................ 11
12. Recapitalizations, Exchanges, etc. Affecting the Shares.............. 12
13. Further Assurances................................................... 12
14. Governing Law........................................................ 12
15. Invalidity of Provision.............................................. 12
16. Notices.............................................................. 12
17. Headings; Execution in Counterparts.................................. 13
18. Entire Agreement..................................................... 13
19. Injunctive Relief.................................................... 13
20. Defined Terms........................................................ 14
20.1. Affiliate..................................................... 14
20.2. Awards........................................................ 14
20.3. Change in Control............................................. 14
20.4. Closing Date.................................................. 14
20.5. Common Stock.................................................. 14
20.6. Convertible Securities........................................ 14
20.7. Equity Securities............................................. 14
20.8. Exchange Act.................................................. 14
20.9. Fair Market Value............................................. 14
20.10. Investors..................................................... 15
20.11. Majority Employee Stockholders................................ 15
20.12. Mandatory Conversion.......................................... 15
20.13. Other Shares.................................................. 15
20.14. Owns, Own or Owned............................................ 15
20.15. Permitted Assignee............................................ 15
20.16. Person........................................................ 15
20.17. Prime Rate.................................................... 15
20.18. Promissory Note............................................... 15
20.19. Qualified Public Offering..................................... 16
20.20. Registration Rights Agreement................................. 16
20.21. Repurchase Price.............................................. 16
20.22. Requisite Institutional Investors............................. 16
20.23. Stock Incentive Plan.......................................... 16
20.24. Securities Act................................................ 16
20.25. Shares........................................................ 16
20.26. SPA Shares.................................................... 16
20.27. Transfer...................................................... 16
20.28. Warburg Pincus................................................ 17
21. Grant of Irrevocable Proxy........................................... 17
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STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' AGREEMENT (this "Agreement") is dated as of September
30, 2005 and is entered into by and among Chronic Care Solutions Holding, Inc.,
a Delaware corporation (the "Company"), the institutional investor(s) whose
name(s) and address(es) are set forth from time to time on Schedule I hereto
(the "Institutional Investors") and those employees of the Company and certain
of its subsidiaries whose names and addresses are set forth on Schedule II
hereto (such employees and each of their respective Permitted Transferees are
hereinafter collectively referred to as the "Employee Stockholders").
Capitalized terms used herein without definition elsewhere in this Agreement are
defined in Section 20 hereof.
RECITALS
WHEREAS, on August 12, 2005, CCS Acquisition, Inc., a Delaware corporation
and an indirect wholly owned subsidiary of the Company ("CCSA"), entered into an
Agreement and Plan of Merger (the "MPTC Agreement") with MPTC Merger Sub, Inc.,
a Florida corporation ("MPTC Merger Sub"), and MPTC Holdings, Inc., a Florida
corporation ("MPTC"), pursuant to which MPTC Merger Sub will merge with and into
MPTC, with MPTC being the surviving corporation and a wholly owned subsidiary of
CCSA;
WHEREAS, on August 30, 2005, CCSA entered into an Agreement and Plan of
Merger (the "CCS Agreement") with CCS Merger Sub, Inc., a Delaware corporation
("CCS Merger Sub"), and Chronic Care Solutions, Inc., a Delaware corporation
("CCS"), pursuant to which CCS Merger Sub will merge with and into CCS, with CCS
being the surviving corporation and a wholly owned subsidiary of CCSA;
WHEREAS, in connection with the consummation of the transactions
contemplated by the MPTC Agreement and the CCS Agreement, the Investors have
entered into a Securities Purchase Agreement with the Company (the "Purchase
Agreement"), pursuant to which the Company has issued and sold to each Investor
and each Investor has purchased from the Company shares of Series A Convertible
Preferred Stock of the Company (the "Preferred Stock");
WHEREAS, the powers, rights and preferences, restrictions and other matters
relating to the Common Stock and Preferred Stock are set forth in the Restated
Certificate of Incorporation of the Company (the "Restated Certificate"); and
WHEREAS, the Investors and the Company desire to promote their mutual
interests by agreeing to certain matters relating to the operations of the
Company, the disposition and voting of the capital stock of the Company and
certain other matters set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth in this Agreement, and to implement the foregoing, the parties hereto
agree as follows:
1. Additional Offerings.
1.1. Additional Offerings; Generally. If at any time after the date hereof,
the Company or any direct or indirect subsidiary of the Company (each a
"Subsidiary") proposes to
issue any Equity Securities (other than the issuance of any Equity Securities
(i) pursuant to the public in a firm commitment underwriting pursuant to a
registration statement filed under the Securities Act, (ii) pursuant to the
acquisition of another Person by the Company or any Subsidiary (as consideration
for the acquisition and not for the purpose of financing an acquisition),
whether by purchase of stock, merger, consolidation, purchase of all or
substantially all of the assets of such Person or otherwise, (iii) pursuant to
an employee stock option plan, stock bonus plan, stock purchase plan or other
management equity program, including without limitation the Stock Incentive
Plan, approved by a majority of the members of the Board of Directors of the
Company (the "Board") (which majority shall include at least two (2) Warburg
Directors), (iv) by a Subsidiary to the Company or any other Subsidiary of the
Company or (v) in the form of warrants to purchase Common Stock issued to
lessors of property and/or equipment or to financial institutions or related
entities in connection with commercial credit or debt financing or other similar
arrangements which are approved by a majority of the members of the Board),
then, as to each Institutional Investor that Owns at least five percent (5%) of
the Common Stock (each such Person is hereinafter referred to, for purposes of
this Section 1, as a "Participating Investor" and collectively, such Persons are
referred to in this Section 1 as the "Participating Investors"), the Company
shall:
(a) give written notice (the "Subscription Right Notice") setting
forth in reasonable detail (i) the designation and all of the terms and
provisions of the Equity Securities proposed to be issued (the "Proposed
Securities"), including, where applicable, the voting powers, preferences
and relative participating, optional or other special rights, and the
qualification, limitations or restrictions thereof and interest rate and
maturity; (ii) the price and other terms of the proposed sale of such
Proposed Securities; and (iii) the amount of such Proposed Securities
proposed to be issued; and
(b) offer to issue to each Participating Investor that number of
Proposed Securities equal to the number of Proposed Securities multiplied
by such Participating Investor's Percentage Interest. For purposes hereof,
"Percentage Interest" shall mean, in respect of any Participating Investor,
the percentage determined by dividing (x) the number of shares of Common
Stock Owned by such Participating Investor, by (y) the total number of
shares of Common Stock Owned by the Investors.
1.2. Exercise of Purchase Rights. Each Participating Investor may exercise
its purchase rights hereunder within twenty (20) business days after receipt of
the Subscription Right Notice. If all of the Proposed Securities offered to the
Participating Investors are not fully subscribed by such Participating
Investors, the remaining Proposed Securities will be reoffered to the
Participating Investors upon the terms set forth in this Section 1, until all
such Proposed Securities are fully subscribed for or until all such
Participating Investors have subscribed for all such Proposed Securities which
they desire to purchase, except that such Participating Investors must exercise
their purchase rights within ten (10) business days after receipt of all such
reoffers. To the extent that the Company or any Subsidiary, as the case may be,
offers two or more securities in units, the Participating Investor must purchase
such units as a whole and will not be given the opportunity to purchase only one
of the securities making up such unit.
1.3. Sale of Unpurchased Securities. Upon the expiration of the offering
periods described above, the Company or any Subsidiary, as the case may be, will
be free to sell such
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Proposed Securities that the Participating Investors have not elected to
purchase during the ninety (90) calendar day period immediately following such
expiration on terms and conditions no more favorable to the purchasers thereof
than those offered to the Participating Investors. Any Proposed Securities
offered or sold by the Company or any Subsidiary, as the case may be, after such
ninety (90) calendar day period must be reoffered to the Participating Investor
pursuant to this Section 1.
1.4. Future Additional Offerings. The election by the Participating
Investor not to exercise its subscription rights under this Section 1 in any one
instance shall not affect its right (other than in respect of a reduction in its
percentage holdings) as to any subsequent proposed issuance.
2. Restrictions on Transfers of Shares Held by the Employee Stockholders.
2.1. General Restrictions on Transfer. No Shares owned by any Employee
Stockholder nor any interest therein nor any rights relating thereto may be
Transferred by such Employee Stockholder, except for Transfers of Shares (i) to
a Permitted Transferee or (ii) pursuant to Section 3, Section 4 or Section 5 of
this Agreement.
2.2. Permitted Transferees. Subject to this Section 2 and Section 11, an
Employee Stockholder may Transfer any Shares owned by him or her or any interest
therein (i) for estate-planning purposes of such Employee Stockholder and with
the prior written consent of the Board, which consent shall not be unreasonably
withheld, to (w) a trust under which the distribution of the Shares Transferred
thereto may be made only to beneficiaries who are such Employee Stockholder, his
or her spouse, his or her parents, members of his or her immediate family or his
or her lineal descendants (collectively, "Permitted Family Members"), (x) a
corporation the stockholders of which are only such Employee Stockholder or
Permitted Family Members, (y) a limited liability company the members of which
are only such Employee Stockholder or Permitted Family Members or (z) a
partnership, or a limited liability partnership, the partners of which are only
such Employee Stockholder or Permitted Family Members or (ii) in case of the
death of an Employee Stockholder, by will or by the laws of intestate
succession, to his or her executors, administrators, testamentary trustees,
legatees or beneficiaries (each such Person to which a Transfer is permitted
pursuant to clauses (i) and (ii) immediately above is hereinafter referred to as
a "Permitted Transferee" and collectively, as the "Permitted Transferees");
provided, however, that in each such case, the Shares so Transferred shall be
subject to all provisions of this Agreement as though the transferring Employee
Stockholder were still the holder of such Shares; provided further, however,
that if a Permitted Transferee ceases to meet the foregoing definition of
Permitted Transferee, it shall immediately transfer any Shares held by it to the
Employee Stockholder that made the Transfer of such Shares or to another
Permitted Transferee designated by such Employee Stockholder.
3. Tag-Along Rights.
3.1. Subject to the other terms of this Section 3, no Investor shall be
permitted to Transfer any Shares to one or more third parties unless each other
Investor is offered a right to participate in such Transfer for a purchase price
per Share equal to the purchase price to be received by such Investor then
proposing to sell the Shares (the "Selling Investor") and on other
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terms and conditions not less favorable to such other Investor than those
applicable to the Selling Investor. Any Investor who, in accordance with the
terms of Section 3.2 below, notifies the Selling Investor that it desires to
participate in any sale of Shares shall have the right to include in such sale
an amount of Shares equal to the amount of Shares the third party actually
proposes to purchase multiplied by the percentage obtained by dividing the
number of Shares (including shares of vested restricted Common Stock and
restricted Common Stock that would vest upon such sale) owned by such
participating Investor by the aggregate number of Shares (including shares of
vested restricted Common Stock and restricted Common Stock that would vest upon
such sale) owned by the Selling Investor and each other Investor exercising its
right to participate in such sale pursuant hereto. For the purposes of this
Section 3.1, a sale to a "third party" shall not include a sale to any Permitted
Transferee or Permitted Assignee or a sale pursuant to an effective registration
statement (a "Registration Statement"). Notwithstanding the foregoing, in the
event the Selling Investor is selling only shares of Preferred Stock, holders of
Common Stock shall not have the right to sell shares of Common Stock pursuant to
this Section 3.1. In calculating the percentage used to calculate the number of
shares of Stock that such holders are entitled to sell, the percentages for
Preferred Stock and Common Stock shall be separately calculated.
3.2 In the event a Selling Investor is proposing to sell any Shares and,
pursuant to this Section 3, the Investors are entitled to participate in such
sale, such Selling Investor shall notify each Investor entitled to participate
therein in writing of such proposed sale and its terms and conditions (and shall
provide any other information regarding the proposed transfer that such other
Investor may reasonably request). Within fifteen (15) business days of the date
of such notice, each Investor entitled to participate therein shall notify such
Selling Investor if it elects to participate in such sale. Any Investor that
fails to notify the Selling Investor within such fifteen (15) business day
period shall be deemed to have waived its rights hereunder with respect to such
sale. Notwithstanding anything contained in this Section 3 to the contrary, in
the event that all or a portion of the purchase price for the Shares being
purchased consists of securities and the sale of such securities to any Investor
entitled to participate therein would, by virtue of the fact that such Investor
is not an "accredited investor" (within the meaning of Rule 501(a) under the
Securities Act), require either a registration under the Securities Act or the
preparation of a disclosure document pursuant to Regulation D under the
Securities Act (or any successor regulation) or a similar provision of any state
securities law, then, at the option of the Selling Investor, any one or more of
such Investors may receive, in lieu of such securities, the fair market value of
such securities in cash, as determined in good faith by the Board.
4. Drag-Along Right.
4.1 If the Institutional Investors are proposing to sell to one or more
third parties in excess of fifty percent (50%) of the number of Shares owned by
them, the Institutional Investors shall have the right, but not the obligation,
to require each other Investor to sell, in accordance with the immediately
following sentence hereof, all or a portion of such other Investor's Shares
(including shares of vested restricted Common Stock and restricted Common Stock
that would vest upon such sale) in such sale. In the event the Institutional
Investors require the other Investors to sell all or a portion of their Shares
(including shares of vested restricted Common Stock and restricted Common Stock
that would vest upon such sale) pursuant to this Section 4.1 such other
Investors shall be required to include in such sale an amount of Shares
(including
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shares of vested restricted Common Stock and restricted Common Stock that would
vest upon such sale) equal to the aggregate number of Shares (including shares
of vested restricted Common Stock and restricted Common Stock that would vest
upon such sale) owned by such other Investor as of the date of the proposed sale
multiplied by a fraction, the numerator of which shall be the number of Shares
that the Institutional Investors are proposing to sell in such sale, and the
denominator of which is the aggregate number of Shares owned by the
Institutional Investors, in each case, as of the date of the proposed sale. An
Investor required to sell any Shares pursuant to this Section 4.1, shall be
entitled to receive in exchange therefor an amount per share equal to the
purchase price received per share of Common Stock Owned by the Institutional
Investors in connection with such sale; provided, however that, if the
Institutional Investors own Preferred Stock, such per share amount shall be
calculated after giving effect to the payment of the Liquidation Preference (as
defined in the Restated Charter) to all holders of Preferred Stock. Such
Investors shall otherwise participate in such transaction on other terms and
conditions not less favorable to such Investors than those applicable to the
Institutional Investors and, subject to Section 4.3 below, shall receive the
same type of consideration received by the Institutional Investors in such
transaction. In the event that any such transaction involves the merger of the
Company with or into a third party or, in the event that in lieu of the sale of
Shares, the transaction involves the sale by the Company of all or substantially
all of the Company's assets to any third party, or if such transaction otherwise
requires the vote of the Company's stockholders, each Investor hereby agrees to
vote all Shares then owned by such Investor in favor of such transaction, waive
any dissenter or appraisal right he, she or it may have in respect of such
transaction and to otherwise to take all steps necessary (including delivery of
certificates or other instruments evidencing the shares to be conveyed, duly
endorsed and in negotiable form with all the requisite documentary stamps
affixed thereto) to enable him, her or it to comply with the provisions of this
Section 4.1 to facilitate any such transaction. For the purposes of this Section
4, a sale to a "third party" shall not include a sale to any Permitted Assignee
or a sale pursuant to a Registration Statement.
4.2. To exercise the rights granted under Section 4.1, the Institutional
Investors shall give each other Investor a written notice, not less than fifteen
(15) days prior to the proposed sale, containing (i) the name and address of the
proposed transferee(s) and (ii) the proposed purchase price with respect to the
Shares, terms of payment and other material terms and conditions of the offer of
the proposed transferee(s). Each Investor shall thereafter be obligated to sell
its Shares to the proposed transferee(s) or vote its Shares in favor of the
proposed transaction, as the case may be, in accordance with Section 4.1.
4.3 Notwithstanding anything contained in this Section 4 to the contrary,
in the event that all or a portion of the purchase price for the Shares being
purchased consists of securities and the sale of such securities to an Investor
entitled to participate therein would, by virtue of the fact that such Investor
is not an "accredited investor" (within the meaning of Rule 501(a) under the
Securities Act), require either a registration under the Securities Act or the
preparation of a disclosure document pursuant to Regulation D under the
Securities Act (or any successor regulation) or a similar provision of any state
securities law, then, at the option of the Institutional Investors, any one or
more of such Investors may receive, in lieu of such securities, the fair market
value of such securities in cash, as determined in good faith by the Board.
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5. Rights to Purchase Shares from the Employee Stockholders.
5.1. Repurchase Rights. Subject to Section 5.2, if, prior to the time that
the Company completes a Qualified Public Offering, an Employee Stockholder's
employment or service with the Company or any Subsidiary terminates for any
reason, during the period commencing on the date of such termination and ending
on the date that the Company completes a Qualified Public Offering, in addition
to any repurchase right of the Company or the Institutional Investors, as the
case may be, with respect to unvested shares of Restricted Stock (as defined in
the Stock Inventive Plan) as provided in the Stock Incentive Plan, the Company
and, to the extent the Company does not exercise such right, the Institutional
Investors, shall have the right, but not the obligation, to purchase from such
Employee Stockholder, and such Employee Stockholder shall have the obligation to
sell to the Company or the Institutional Investors, as the case may be, all, but
not less than all of the Shares (including Shares acquired pursuant to a stock
or option grant) owned by such Employee Stockholder as of the date of repurchase
at a per share price equal to the Repurchase Price (such right, the "Repurchase
Right").
(a) If the Company or the Institutional Investors, as the case may be,
exercises the Repurchase Right following such Employee Stockholder's
termination of employment or service, as applicable, (i) by the Company or
any Subsidiary without Cause (as defined in the Stock Incentive Plan) or
(ii) as a result of death or permanent disability of the Employee
Stockholder, the aggregate Repurchase Price for all SPA Shares and Other
Shares so repurchased shall be paid in a lump-sum at the time of
repurchase.
(b) If the Company or the Institutional Investors, as the case may be,
exercises the Repurchase Right following an Employee Stockholder's
termination of employment or service, as applicable, by the Company or any
Subsidiary for Cause (as defined in the Stock Incentive Plan), the
aggregate Repurchase Price for such SPA Shares and Other Shares repurchased
shall be paid in a lump-sum at the time of repurchase, or, in the sole
discretion of the Company or the Institutional Investors, as the case may
be, in the form of the Promissory Note.
(c) If the Company or the Institutional Investors, as the case may be,
exercises the Repurchase Right following an Employee Stockholder's
termination of employment or service, as applicable, by the Employee
Stockholder for any other reason, (i) the aggregate Repurchase Price for
such SPA Shares repurchased shall be paid in a lump-sum at the time of
repurchase, and (ii) the aggregate Repurchase Price for such Other Shares
repurchased shall be paid in a lump-sum at the time of repurchase, or, in
the sole discretion of the Company or the Institutional Investors, as the
case may be, in the form of the Promissory Note.
5.2. Notice. If the Company or the Institutional Investors, as the case may
be, desires to purchase any Shares from an Employee Stockholder pursuant to
Section 5.1, it shall notify such Employee Stockholder (or his or her a
Permitted Transferee) in writing at any time prior to the later of the 183rd day
following such termination and the date on which all non-competition covenants
applicable to such Employee Stockholder in respect of the Company or any
Subsidiary
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(including without limitation such restrictive covenants contained in an
Employee Stockholder's employment agreement) expire or otherwise terminate.
5.3. Payment and Delivery of Certificates. Payment for any Shares purchased
by the Company or the Institutional Investors, as the case may be, by reason of
an event described in Section 5 shall be made on or prior to the date that is
thirty (30) days following the date of the receipt by the Employee Stockholder
or his or her Permitted Transferee, as the case may be, of the Company's or the
Institutional Investors', as the case may be, notice pursuant to Section 5.2. At
the closing, the Employee Stockholder or his or her Permitted Transferee, as the
case may be, shall deliver to the Company or the Institutional Investors, as the
case may be, the certificates or other instruments evidencing the Shares to be
conveyed, duly endorsed and in negotiable form with all the requisite
documentary stamps affixed thereto, and free and clear of any lien or other
encumbrance.
6. Election of Directors; Committees.
6.1. Board Make-up. As of the date hereof (after giving effect to the
transactions contemplated by the Purchase Agreement), the Board shall consist of
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Deutsch, and ▇▇▇▇▇▇ ▇▇▇▇▇▇. From and after
the date hereof, and until the time that the Company completes a Qualified
Public Offering, the Investors and the Company shall take all action within
their respective power, including, but not limited to, the voting of all Shares
Owned by them, required to cause the Board to consist of up to six (6) members
or such other number of members as requested from time to time by the
Institutional Investors, and at all times throughout the term of this Agreement,
to include:
(a) for as long as the Institutional Investors Own at least twenty
percent (20%) of the Common Stock Owned by Investors, four (4) members
designated by Warburg Pincus and, for as long as the Institutional
Investors Own at least five percent (5%) but less than twenty percent (20%)
of the Common Stock Owned by Investors, one (1) member designated by
Warburg Pincus (such members referred to herein as "Warburg Directors" and
each a "Warburg Director"); and
(b) two (2) other directors reasonably acceptable to the Institutional
Investors (the "Other Directors").
The parties hereto acknowledge that the four (4) representatives to be
designated by Warburg Pincus are initially the directors that the holders of
Preferred Stock are entitled to elect under the Restated Certificate. The
parties hereto further acknowledge that two of the initial Warburg Directors
shall be ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and the initial Other Directors shall
be ▇▇▇▇▇▇ Deutsch, as Executive Chairman, and ▇▇▇▇▇▇ ▇▇▇▇▇▇, as Chief Executive
Officer. The parties hereto further acknowledge that Warburg Pincus may
designate the other Warburg Directors at anytime as contemplated hereby.
6.2. Post Qualified Public Offering Board Seats. From the date on which the
Company completes a Qualified Public Offering, and (x) for as long as the
Institutional Investors together with any Affiliate thereof beneficially own
(within the meaning of Rule 13d-3 under the Exchange Act) at least ten percent
(10%) of the outstanding shares of Common Stock, the
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Company will nominate and use its best efforts to have elected to the Board two
(2) individuals designated by Warburg Pincus and (y) for as long as the
Institutional Investors together with any Affiliate thereof beneficially own
(within the meaning of Rule 13d-3 under the Exchange Act) at least five percent
(5%) but less than ten percent (10%) of the outstanding shares of Common Stock,
the Company will nominate and use its best efforts to have elected to the Board
one (1) individual designated by Warburg Pincus (it being understood that the
foregoing is not a limitation on the number of directors that the Institutional
Investors may have the right to nominate to the Board).
6.3. Replacement Directors. In the event that any Warburg Director (each, a
"Withdrawing Director") designated in the manner set forth in Section 6.1 hereof
is unable to serve, or once having commenced to serve, is removed or withdraws
from the Board, such Withdrawing Director's replacement (the "Substitute
Director") will be designated by Warburg Pincus. The Investors and the Company
agree to take all action within their respective power, including, but not
limited to, the voting of all Shares Owned by them (i) to cause the election of
such Substitute Director promptly following his or her nomination pursuant to
this Section 6.3 and (ii) upon the written request of Warburg Pincus to remove,
with or without cause, any of the Warburg Directors.
6.4. Committees. Subject to applicable law and any rules or regulations of
any stock exchange or automated dealer quotation system on which the Common
Stock is listed, in the event the Board shall at any time create a committee of
the Board, any such committee shall have at least one (1) Warburg Director so
long as Warburg Pincus is entitled to elect at least one (1) member of the
Board; provided, however, that the foregoing shall not apply to any committee
formed to consider a transaction between the Company and Warburg Pincus or its
Affiliates.
6.5. Directors of Subsidiaries. Subject to applicable law and any rules or
regulations of any stock exchange or automated dealer quotation system on which
the Common Stock is listed, for so long as Warburg Pincus is entitled to elect
at least one (1) member of the Board, Warburg Pincus shall be entitled to
designate one (1) director (which director shall be one of the Warburg
Directors) to the board of directors of each Subsidiary. In the event that
Warburg Pincus exercises its right pursuant to this Section 6.5, the Company
shall take all action within its power to cause such designee to be appointed to
such boards.
6.6. Voting Rights. Without the approval of the Board, which approval must
include the affirmative vote of at least two (2) Warburg Directors (or in the
event that there is only one (1) Warburg Director, the affirmative vote of such
Warburg Director), the Company will not, and will not permit any Subsidiary to:
(a) sell, lease, or dispose of assets in excess of $2,000,000 outside
of the ordinary course of business;
(b) incur indebtedness for borrowed money in excess of $10,000,000 in
any fiscal year;
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(c) make capital expenditures in any fiscal year in excess of an
amount equal to 110% of the capital expenditures described in the operating
plan of the Company approved by the Board (the "Operating Plan") for such
fiscal year;
(d) engage in any material business or activity other than that
described in the Operating Plan;
(e) materially change its accounting methods or policies or change its
auditors;
(f) hire or terminate, or materially amend or modify the employment
term (including compensation) of the executive chairman, chief executive
officer or chief financial officer of the Company;
(g) enter into any transaction, other than employment agreements on a
basis consistent with past practice, with any officer, director or
beneficial owner of five percent (5%) or more of the Common Stock or any
affiliate of any of the foregoing other than on terms and conditions not
less favorable to the Company than could be obtained on an arm's-length
basis from unrelated third parties;
(h) increase the compensation of its senior executives other than as
described in the Operating Plan;
(i) approve the Operating Plan; or
(j) take, agree to take or resolve to take any actions in furtherance
of any of the foregoing.
7. Legends. A copy of this Agreement shall be filed with the Secretary of the
Company and kept with the records of the Company. Each certificate or other
instrument representing Shares owned by any Investor shall bear upon its face
the following legends, as appropriate:
(i) THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW AND MAY NOT BE
OFFERED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
UNLESS AND UNTIL REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS UNLESS, IN THE OPINION OF COUNSEL TO THE HOLDER OF SUCH
SECURITIES, WHICH COUNSEL MUST BE, AND THE FORM AND SUBSTANCE OF WHICH
OPINION ARE, REASONABLY SATISFACTORY TO CHRONIC CARE SOLUTIONS HOLDING,
INC. (THE "COMPANY"), SUCH OFFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION,
TRANSFER OR OTHER DISPOSITION IS EXEMPT FROM REGISTRATION OR IS OTHERWISE
IN COMPLIANCE WITH THE ACT, SUCH LAWS AND THE STOCKHOLDERS' AGREEMENT DATED
AS OF SEPTEMBER 30, 2005, BY AND AMONG THE COMPANY, WARBURG PINCUS PRIVATE
EQUITY IX, L.P. AND THOSE OTHER PARTIES NAMED THEREIN (THE "STOCKHOLDERS'
AGREEMENT").
9
(ii) THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND OTHER CONDITIONS, AS SPECIFIED IN THE
STOCKHOLDERS' AGREEMENT, COPIES OF WHICH ARE ON FILE AT THE OFFICE OF THE
COMPANY AND WILL BE FURNISHED WITHOUT CHARGE TO THE HOLDER OF SUCH
SECURITIES UPON WRITTEN REQUEST.
In addition, certificates representing Shares shall bear any legends required by
the applicable laws of any states.
8. Covenants, Representations and Warranties.
8.1. Information Rights. At any time that the Company is not required to
file periodic reports pursuant to the Exchange Act, or, if required and the
Company fails to file such required periodic reports with the Securities and
Exchange Commission (the "SEC") for any reason whatsoever, the Company shall
provide to each Investor that Owns at least fifteen percent (15%) of the
outstanding shares of Common Stock by electronic means or otherwise, essentially
the same financial statements that would be contained in Annual Reports on Form
10-K and in Quarterly Reports on Form 10-Q, if the Company were required to
file, or did not fail to file, such periodic reports, it being understood and
agreed that such information shall (a) be provided to the Investors no later
than the date on which the Company would have been required to file such report
with the SEC and (b) include, without limitation, annual audited financial
statements and unaudited quarterly financial statements, each prepared in
accordance with generally accepted accounting principles. Without limiting the
foregoing, from and after the date hereof, on reasonable prior written notice,
the Company and any Subsidiary shall make their respective representatives
reasonably available to each Investor that Owns at least 15% of the Common Stock
Owned by all Investors to discuss the business, results of operations and other
matters pertaining to the Company and any Subsidiary. Any and all information
provided to any Investor pursuant to the terms of this Agreement (other than any
information that is generally available to the public through no breach of the
terms of this Agreement) shall be treated as confidential information by such
Investor and such Investor shall use its reasonable best efforts to ensure that
such information is not disclosed or otherwise divulged to any third party
(other than such Investor's counsel, accountants and other professional advisors
in connection with services being performed by any such professional for such
Investor and to the members, partners and limited partners of the Investors
entitled to information under this Section 8.1).
8.2. No Other Arrangements or Agreements. Each Employee Stockholder hereby
represents and warrants to the Company and each other Investor that, except as
set forth in this Agreement and except for (a) the Registration Rights
Agreement, (b) any written agreement between such Employee Stockholder and the
Company or any Subsidiary, and (c) any Award Agreement between such Employee
Stockholder and the Company, each as amended from time to time, he or she has
not entered into or agreed to be bound by any other arrangements or agreements
of any kind with any other party with respect to any Shares of the Company,
including, but not limited to, arrangements or agreements with respect to the
acquisition, disposition or voting of any Shares of the Company or any interest
therein (whether or not such arrangements and agreements are with the Company,
any Subsidiary, other Investors or holders of capital stock of the Company that
are not parties to this Agreement).
10
9. Amendment, Modification, Supplement and Waiver. This Agreement may be
amended, modified or supplemented, and the enforcement of any provision hereof
may be waived, with, and only with, the prior written consent of the Company and
the Requisite Institutional Investors; provided, however, that the terms of
Sections 2.2, 3, 5 and 10 hereof and the terms of this proviso may be amended,
modified, supplemented or waived with, and only with, the prior written consent
of the Company, the Requisite Institutional Investors and the Majority Employee
Stockholders. Subject to the terms of the proviso contained in the immediately
preceding sentence hereof, if the Company and the Requisite Institutional
Investors shall have so agreed, any such amendment, modification, supplement or
waiver shall be effective with respect to all of the Investors hereunder,
whether or not such Investor shall have agreed to such amendment, modification,
supplement or waiver, and the Company shall promptly notify all other Investors
who have not so agreed of the material terms of such amendment, modification,
supplement or waiver and the effective date thereof.
10. Termination of Rights and Obligations Under Certain Sections. All rights and
obligations pursuant to Sections 1, 2, 3, 4, 5, 6.1, 6.3, 6.4, 6.5, 6.6, 11, 12
and 21 of this Agreement shall terminate upon the earlier of the closing of a
Qualified Public Offering and a Change in Control. Without limiting the
foregoing, this Agreement or any portion thereof shall terminate upon the
written consent of the Company and the Requisite Institutional Investors;
provided, however, that except as contemplated by the first sentence of this
Section 10, the written consent of the Company, the Requisite Institutional
Investors and the Majority Employee Stockholders shall be required to terminate
or otherwise eliminate any of the terms of Sections 2, 3 or 5 hereof or this
proviso of this Section 10.
11. Parties.
11.1. Assignment Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, legal representatives, successors and assigns; provided, that no Investor
shall be permitted to assign any of his, her or its obligations pursuant to this
Agreement without the prior written consent of the Company and the Institutional
Investors, unless such assignment is in connection with a Transfer explicitly
permitted by this Agreement and, prior to such assignment, such assignee
complies with the requirements of Section 11.3 hereof.
11.2. Termination. Any party to, or Person who is subject to, this
Agreement that ceases to Own any Shares shall cease to be a party to, or Person
who is subject to, this Agreement and thereafter shall have no rights or
obligations hereunder; provided, however, that a Transfer of Shares not
explicitly permitted under this Agreement shall not relieve any Investor of any
of his, her or its obligations hereunder.
11.3. Agreements to Be Bound.
(a) Notwithstanding anything to the contrary contained in this
Agreement, any Transfer (other than pursuant to Section 3, Section 4 or Section
5 of this Agreement) of Shares by an Employee Stockholder shall be permitted
under the terms of this Agreement only if the transferee (i) shall agree in
writing to be bound by the terms and conditions of this Agreement and shall
evidence such agreement by executing a joinder agreement, the form of which is
11
attached as Exhibit A hereto (the "Joinder Agreement") and (ii) shall cause his
or her spouse, if any, to execute a spousal waiver in form and substance
satisfactory to the Board, if such transferee is an individual who resides in a
state with a community property system. Upon the execution of the joinder
agreement and, if applicable, the spousal waiver by the spouse of such
transferee, such transferee shall be deemed to be an Employee Stockholder, and
all Shares so Transferred shall be deemed Shares for all purposes of this
Agreement, except as otherwise provided in the joinder agreement.
(b) Notwithstanding anything to the contrary contained in this
Agreement, as a condition precedent to the effectiveness of any Transfer of
Shares by any Institutional Investor, the transferee thereof shall be required
to agree in writing to be bound by the terms and conditions of this Agreement
pursuant to an instrument of assumption reasonably satisfactory in substance and
form to the Board.
12. Recapitalizations, Exchanges, etc. Affecting the Shares. Except as otherwise
provided herein, the provisions of this Agreement shall apply to the fullest
extent set forth herein with respect to (a) the Shares and (b) any and all
Equity Securities of the Company or any successor or assign of the Company
(whether by merger, consolidation, sale of assets or otherwise) which may be
issued in respect of, in exchange for, or in substitution for the Shares, by
reason of any stock dividend, split, reverse split, combination,
recapitalization, reclassification, merger, consolidation or otherwise. Except
as otherwise expressly provided herein, this Agreement is not intended to
confer, and does not confer, upon any Person, except for the parties hereto, any
rights or remedies hereunder.
13. Further Assurances. Each party hereto or Person subject hereto shall do and
perform or cause to be done and performed all such further acts and things and
shall execute and deliver all such other agreements, certificates, instruments
and documents as any other party hereto or Person subject hereto may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated hereby.
14. Governing Law. This Agreement and the rights and obligations of the parties
hereunder and the Persons subject hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of Delaware, without
giving effect to the choice of law principles thereof.
15. Invalidity of Provision. The invalidity or unenforceability of any provision
of this Agreement in any jurisdiction shall not affect the validity or
enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of this Agreement, including that provision, in any
other jurisdiction.
16. Notices. All notices, requests, demands, waivers and other communications
required or permitted to be given under this Agreement shall be in writing and
shall be deemed to have been duly given if (a) delivered personally, (b) mailed,
certified or registered mail with postage prepaid, (c) sent by next-day or
overnight mail or delivery or (d) sent by telecopy (including facsimile), as
follows:
(i) If to the Company, to it at:
12
c/o Warburg Pincus Private Equity IX, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(ii) If to any Institutional Investor or any Employee Stockholder, to
such Institutional Investor or Employee Stockholder, as the case may be, at
the address or facsimile number listed on Schedule I and Schedule II
hereto, respectively, or as such Institutional Investor or Employee
Stockholder shall designate to the Company in writing in accordance with
the terms hereof, with a copy to the Company and the Investors at their
respective addresses indicated herein;
or, in each case, to such other Person or address as any party shall specify by
notice in writing to the Company and the Investors. Any notice so addressed
shall be deemed to be given: if delivered personally or by telecopy (including
facsimile), on the date of such delivery, if a business day, otherwise on the
first business day thereafter; if mailed by certified or registered mail with
postage prepaid, on the third business day after the date of such mailing; and
if sent by next-day or overnight mail or delivery, on the first business day
following the date of such mailing or delivery.
17. Headings; Execution in Counterparts. The headings and captions contained
herein are for convenience only and shall not control or affect the meaning or
construction of any provision hereof. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and
which together shall constitute one and the same instrument.
18. Entire Agreement. This Agreement, together with the Purchase Agreement, the
Registration Rights Agreement, the Stock Incentive Plan, any employment
agreement between the Company or any Subsidiary and any party hereto and the
other agreements and documents referenced herein, including in the recitals
hereto (collectively, the "Other Agreements"), embodies the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, representations, warranties,
covenants or undertakings relating to the Shares, other than those expressly set
forth or referred to herein and other than those set forth in the Other
Agreements. This Agreement and the Other Agreements supersede all prior
agreements and understandings among the parties with respect to such subject
matter, and it is the understanding of all parties hereto that any such prior
agreement is hereby terminated, null and void as of the Closing Date.
19. Injunctive Relief. The Shares cannot readily be purchased or sold in the
open market, and for that reason, among others, the Company and the Investors
will be irreparably damaged in the event this Agreement is not specifically
enforced. Each of the parties therefore agrees that in the event of a breach of
any provision of this Agreement, the aggrieved party may elect to institute and
prosecute proceedings in any court of competent jurisdiction to enforce specific
performance or to enjoin the continuing breach of this Agreement. Such remedies
shall, however, be cumulative and not exclusive, and shall be in addition to any
other remedy which the Company or the Investors may have. Each party hereto
hereby irrevocably submits to the non-exclusive jurisdiction of the state and
federal courts in New York, New York for the
13
purposes of any suit, action or other proceeding arising out of or based upon
this Agreement or the subject matter hereof. Each party hereto hereby consents
to service of process by mail made in accordance with Section 16 hereof.
20. Defined Terms. As used in this Agreement, the following terms shall have the
meanings ascribed to them below:
20.1. Affiliate. "Affiliate" shall mean, with respect to any Person, a
Person directly or indirectly, through one or more intermediaries, controlling,
controlled by, or under common control with, such Person.
20.2. Awards. "Awards" shall have the meaning ascribed to such term in the
Stock Incentive Plan.
20.3. Change in Control. "Change in Control" shall mean (i) the sale or
disposition, in one or a series of related transactions, of all or substantially
all of the assets of the Company to any "person" or "group" (as such terms are
defined in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) other than the
Institutional Investors or their Affiliates; (ii) any person or group (together
with their Affiliates), other than the Institutional Investors or their
Affiliates, is or becomes the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of more than fifty
percent (50%) of the total voting power of the voting stock of the Company and
the Institutional Investors or their Affiliates cease to control the Board; or
(iii) any merger, consolidation or similar transaction pursuant to which the
stockholders of the Company immediately prior to such merger, consolidation or
similar transaction own, in the aggregate, less than fifty percent (50%) of the
voting securities of the Company outstanding immediately after such merger,
consolidation or similar transaction and the Institutional Investors or their
Affiliates cease to control the Board.
20.4. Closing Date. The "Closing Date" shall mean the date on which the
transactions contemplated by the Purchase Agreement close.
20.5. Common Stock. "Common Stock" shall mean common stock, par value $0.01
per share, of the Company.
20.6. Convertible Securities. "Convertible Securities" shall mean any
warrants, options or other rights to acquire, and any equity and debt securities
convertible into, capital stock of the Company or any Subsidiary.
20.7. Equity Securities. "Equity Securities" shall mean any equity
securities of any kind of the Company or any Subsidiary, including any
Convertible Securities.
20.8. Exchange Act. "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
20.9. Fair Market Value. "Fair Market Value", for purposes of the
Repurchase Rights set forth in Section 5 of this Agreement, shall mean, at any
time, the amount per Share of
14
Common Stock or Preferred Stock, as the case may be, that the holder thereof
would be entitled to receive if the Company were sold or liquidated at such
time, based on the fair market value of the Company at such time, which amount
and fair market value shall be determined in good faith by the Board without
regard to a minority discount or discount due to any transfer restrictions.
20.10. Investors. "Investors" shall mean the Institutional Investors, the
Employee Stockholders and their respective transferees and assigns that become
parties to this Agreement pursuant to Section 11.3 hereof.
20.11. Majority Employee Stockholders. "Majority Employee Stockholders" as
of any date of determination shall mean those Employee Stockholders who Own a
majority of the total combined voting power of all Shares then held by the
Employee Stockholders.
20.12. Mandatory Conversion. "Mandatory Conversion" shall have the meaning
ascribed to such term in the Restated Certificate.
20.13. Other Shares. "Other Shares" shall mean Shares (including Shares
acquired pursuant to an Award) other than the SPA Shares.
20.14. Owns, Own or Owned. "Owns," "Own," or "Owned" shall mean beneficial
ownership within the meaning of Rule 13d-3 under the Exchange Act, assuming the
conversion (whether or not then convertible) of all outstanding Preferred Stock
(which for purposes hereof shall mean assuming the conversion (whether or not
then convertible) of all outstanding Preferred Stock into the number of shares
of Common Stock into which such Preferred Stock is convertible at the then
applicable Conversion Rate in accordance with, and as adjusted from time to time
by, the Restated Certificate without giving effect to Article IV, Section 5,
subclauses (a)(i)(B)(2) and (a)(ii)(B)(2) of the Restated Certificate).
20.15. Permitted Assignee. A "Permitted Assignee" shall mean, with respect
to each Investor, any Affiliate of such Investor and any member, general partner
or limited partner of such Investor (or any Person holding an equity interest in
any such member, general partner or limited partner); provided, that in each
instance, any such transferee agrees to be bound by the provisions of this
Agreement in accordance with the terms of Section 11.3 hereof.
20.16. Person. "Person" shall mean an individual, partnership, corporation,
limited liability company, limited liability partnership, business trust, joint
stock company, trust, unincorporated association, joint venture, governmental
authority or other entity of whatever nature.
20.17. Prime Rate. "Prime Rate" shall mean the rate from time to time
published in the "Money Rates" section of The Wall Street Journal as being the
"Prime Rate" (or, if more than one rate is published as the Prime Rate, then the
highest of such rates).
20.18. Promissory Note. "Promissory Note" shall mean a promissory note in a
form reasonably acceptable to the Company with a maturity date that does not
exceed three (3) years from the date of such repurchase, bearing simple interest
of not less than the Prime Rate in effect on the date of such repurchase, and
payable as to interest in equal monthly installments during the term of the note
and as to principal on the maturity date.
15
20.19. Qualified Public Offering. "Qualified Public Offering" shall have
the meaning ascribed to such term in the Restated Certificate.
20.20. Registration Rights Agreement. "Registration Rights Agreement" shall
mean that certain Registration Rights Agreement, dated as of the date hereof, by
and among the Company and the investors ascribed thereto.
20.21. Repurchase Price. "Repurchase Price" mean shall:
(a) on or following an Employee Stockholder's termination of
employment or service, as applicable, other than (i) by the Company or any
Subsidiary for Cause (as defined in the Stock Incentive Plan) or (ii) in
the event such Employee Stockholder materially violates any non-competition
or similar restrictive covenant with the Company or any Subsidiary
(including without limitation such restrictive covenants contained in an
Employee Stockholder's employment agreement) prior to the date of
repurchase, an amount equal to the Fair Market Value of the Shares on the
date of repurchase;
(b) on or following an Employee Stockholder's termination of
employment or service, as applicable, by the Company or any Subsidiary for
Cause (as defined in the Stock Incentive Plan), the lesser of (i) the
original purchase price paid for such Shares, and (ii) the Fair Market
Value of the Shares on the date of repurchase; or
(c) in the event such Employee Stockholder materially violates any
non-competition or similar restrictive covenant with the Company or any
Subsidiary (including without limitation any such restrictive covenants
contained in an Employee Stockholder's employment agreement) prior to the
date of repurchase, the lesser of (i) the original purchase price paid for
such Shares, and (ii) the Fair Market Value of the Shares on the date of
repurchase.
20.22. Requisite Institutional Investors. "Requisite Institutional
Investors" shall mean the Institutional Investors who Own a majority of the
total combined voting power of all Shares then held by the Institutional
Investors.
20.23. Stock Incentive Plan. "Stock Incentive Plan" shall mean the Chronic
Care Solutions Holding, Inc. Stock Incentive Plan.
20.24. Securities Act. "Securities Act" shall mean the Securities Act of
1933, as amended.
20.25. Shares. "Shares" shall mean shares of Common Stock and Convertible
Securities (including Preferred Stock) convertible into Common Stock.
20.26. SPA Shares. "SPA Shares" shall mean Shares acquired pursuant to the
Purchase Agreement.
20.27. Transfer. "Transfer" (or any variation thereof used herein) shall
mean any direct or indirect sale, assignment, mortgage, transfer, pledge,
hypothecation or other disposal.
16
20.28. Warburg Pincus. "Warburg Pincus" shall mean Warburg Pincus Private
Equity IX, L.P.
21. Grant of Irrevocable Proxy. Notwithstanding anything to the contrary in
Section 6, each Employee Stockholder hereby grants to Warburg Pincus such
Employee Stockholder's proxy, and appoints Warburg Pincus as such Employee
Stockholder's attorney-in-fact (with full power of substitution and
resubstitition), for and in its name, place and stead, to (i) vote or act by
written consent with respect to the Shares now or hereafter owned by such
Employee Stockholder (including the right to sign its name to any consent,
certificate or other document relating to the Company that Delaware law may
require) in connection with any and all matters, including, without limitation,
matters set forth hereunder as to which any vote or actions may be requested or
required (other than with respect to the consents required by Section 9 or 10
hereof), (ii) if requested by the underwriters managing any public offering of
securities of the Company, execute a lock-up agreement containing terms
consistent with those contained in any such lock-up agreement entered into by
the Institutional Investors with such underwriter and (iii) take any and all
action necessary to sell or otherwise Transfer such Employee Stockholder's
Shares as contemplated by Section 4 hereof. This proxy is coupled with an
interest and shall be irrevocable, and each Employee Stockholder will take such
further action or execute such other instruments as may be reasonably necessary
to effectuate the intent of this proxy and hereby revokes any proxy previously
granted by him with respect to his or her Shares.
[signature pages follow]
17
IN WITNESS WHEREOF, the undersigned has executed this Stockholders'
Agreement as of the date first above written.
CHRONIC CARE SOLUTIONS HOLDING, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
[Stockholders' Agreement Signature Page]
IN WITNESS WHEREOF, the undersigned has executed this Stockholders'
Agreement as of the date first above written.
WARBURG PINCUS PRIVATE EQUITY IX, L.P.
By: Warburg Pincus IX LLC, General
Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
[Stockholders' Agreement Signature Page]
IN WITNESS WHEREOF, the undersigned has executed this Stockholders'
Agreement as of the date first set forth above.
/s/ ▇▇▇▇▇▇ Deutsch
----------------------------------------
Name: ▇▇▇▇▇▇ Deutsch
Title: Executive Chairman
[Stockholders' Agreement Signature Page]
IN WITNESS WHEREOF, the undersigned has executed this Stockholders'
Agreement as of the date first above written.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
[Stockholders' Agreement Signature Page]
IN WITNESS WHEREOF, the undersigned has executed this Stockholders'
Agreement as of the date first set forth above.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
[Stockholders' Agreement Signature Page]
IN WITNESS WHEREOF, the undersigned has executed this Stockholders'
Agreement as of the date first set forth above.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Operating Officer
[Stockholders' Agreement Signature Page]
IN WITNESS WHEREOF, the undersigned has executed this Stockholders'
Agreement as of the date first set forth above.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Chief Information Officer
[Stockholders' Agreement Signature Page]
IN WITNESS WHEREOF, the undersigned has executed this Stockholders'
Agreement as of the date first set forth above.
/s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President,
Sales and Marketing
[Stockholders' Agreement Signature Page]
SCHEDULE I
INSTITUTIONAL INVESTORS
WARBURG PINCUS PRIVATE EQUITY IX, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
SCHEDULE II
EMPLOYEE STOCKHOLDERS
▇▇▇▇▇▇ DEUTSCH
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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EXHIBIT A
FORM OF
JOINDER AGREEMENT
THIS JOINDER AGREEMENT (the "Agreement") is made as of the ____ day of
____________ by _________________, having an address at
____________________________ (the "Joining Party").
WITNESSETH
WHEREAS, Chronic Care Solutions Holding, Inc., a Delaware corporation (the
"Company"), is a party to that certain Stockholders' Agreement, dated as of
September 30, 2005 (as the same may be amended from time to time, the
"Stockholders' Agreement") (Capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Stockholders' Agreement);
WHEREAS, the Stockholders' Agreement provides that as a condition to
becoming an Investor, a Person must execute and deliver to the Company a Joinder
Agreement pursuant to which such Person agrees to be bound by the terms and
conditions of the Stockholders' Agreement;
WHEREAS, the Joining Party desires to become an Employee Stockholder of the
Company by executing a copy of this Agreement; and
WHEREAS, the Joining Party has determined that it is desirable and in the
Joining Party's best interests to execute this Joinder Agreement.
NOW, THEREFORE, the Joining Party hereby agrees as follows:
1. Joinder of Operating Agreement. By executing this Joinder Agreement, the
Joining Party accepts and agrees to be bound by all of the terms and provisions
of the Stockholders' Agreement as if he, she or it were an original signatory
thereto and shall be deemed to be, and entitled to all of the rights and subject
to all of the obligations of, an Employee Stockholder thereunder, such Joining
Party hereby acknowledges its grant of an irrevocable proxy pursuant to Section
21 of the Stockholders' Agreement and such Joining Party shall be added to
Schedule I of the Stockholders' Agreement.
2. Full Force and Effect. Except as expressly modified by this Agreement,
all of the terms, covenants, agreements, conditions and other provisions of the
Stockholders' Agreement shall remain in full force and effect in accordance with
its terms.
3. Notices. All notices provided to the Joining Party shall be sent or
delivered to the Joining Party at the address set forth on the signature page
hereto unless and until the Company and the Institutional Investor have received
written notice from the Joining Party of a changed address.
4. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed entirely within such state.
[Signature page follows]
-2-
IN WITNESS WHEREOF, the Joining Party has executed and delivered this
Agreement as of the date first above written.
JOINING PARTY
----------------------------------------
Name:
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[Signature Page to Joinder Agreement]
