Exhibit 10.9
OTHER SENIOR MANAGEMENT AGREEMENT
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THIS AGREEMENT is made as of June 2, 1997, between Select Medical
Corporation, a Delaware corporation (the "Company"), and Xxxxx Xxxxxxx (the
"Executive").
The Company and Executive desire to enter into an agreement (A)
pursuant to which Executive will purchase, and the Company will sell, (i) 61,150
shares of Common Stock, 41,150 shares of which shall constitute the "Executive
Stock" and 20,000 shares of which shall constitute the "Investor Common Stock"
and (ii) 95 shares of Class A Preferred and (B) to set forth Executive's terms
of employment with the Company. Certain definitions are set forth in Section 11
of this Agreement.
Golder, Thoma, Xxxxxxx, Xxxxxx Fund V, L.P. ("GTCR") and Welsh,
Carson, Xxxxxxxx & Xxxxx VII, L.P. and certain of its partners ("WCAS")
purchased shares of Common Stock and Class A Preferred and may purchase
additional shares of Class A Preferred, pursuant to a purchase agreement among
the Company and the Purchasers, dated as of February 5, 1997 (as amended and
supplemented from time to time, the "Purchase Agreement"). GTCR and WCAS are
collectively referred to herein as the "Purchasers" and individually as a
"Purchaser." Certain provisions of this Agreement are intended for the benefit
of, and will be enforceable by, the Purchasers.
The parties hereto agree as follows:
PROVISIONS RELATING TO STOCK
1. Purchase and Sale of Stock.
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(a)(i) Upon execution of this Agreement, Executive will purchase,
and the Company will sell, 41,150 shares of Executive Stock at a price of $0.25
per share. The Company will deliver to the Executive the certificate
representing such Executive Stock, and the Executive will deliver to the Company
a cashier's or certified check or wire transfer of funds in the aggregate amount
of $10,287.50.
(a)(ii) Upon execution of this Agreement, Executive will purchase,
and the Company will sell, 20,000 shares of Investor Common Stock at a price of
$0.25 per share. The Company will deliver to the Executive the certificate
representing such Investor Common Stock, and the Executive will deliver to the
Company a cashier's or certified check or wire transfer of funds in the
aggregate amount of $5,000.00.
(a)(iii) Upon execution of this Agreement, Executive will purchase,
and the Company will sell, 5.28 shares of Class A Preferred at a price of
$1,000.00 per share. The Company will deliver to the Executive the certificate
representing such Class A Preferred, and the Executive will deliver to the
Company a cashier's or certified check or wire transfer of funds in the
aggregate amount of $5,280.00.
(b) Upon the purchase from time to time by the Purchasers (a
"Purchaser Closing") of shares of Class A Preferred pursuant to Section 1B(c) of
the Purchase Agreement, Executive will purchase, and the Company will sell, up
to an aggregate of 89.72 shares of Class A Preferred at a price of $1,000.00 per
share (as adjusted from time to time as a result of stock dividends, stock
splits, recapitalization and similar events). The number of shares of Class A
Preferred to be sold by the Company and purchased by the Executive at any
Purchaser Closing shall equal 89.72 shares of Class A Preferred (as adjusted
from time to time as a result of stock dividends, stock splits, recapitalization
and similar events), multiplied by a fraction (A) the numerator of which will be
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the aggregate number of shares of Class A Preferred to be concurrently purchased
by the Purchasers and (B) the denominator of which will be 44,862 shares of
Class A Preferred (as adjusted from time to time as a result of stock dividends,
stock splits, recapitalization and similar events). The Company will deliver to
Executive the certificates representing such shares of Investor Stock purchased
by the Executive, and Executive will deliver to the Company a cashier's or
certified check or a wire transfer of funds in the aggregate amount of the price
per share of such Investor Stock multiplied by the number of shares so purchased
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by the Executive.
(c) Within 30 days after Executive purchases any Stock from the
Company, Executive will make an effective election with the Internal Revenue
Service under Section 83(b) of the Internal Revenue Code and the regulations
promulgated thereunder in the form of Exhibit A attached hereto.
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(d) Executive's commitment to purchase shares of Investor Stock
pursuant to this Agreement shall terminate upon a Qualified Public Offering.
(e) In connection with the purchase and sale of any class of
Stock hereunder, Executive represents and warrants to the Company that:
(i) The Stock to be acquired by Executive pursuant to this
Agreement will be acquired for Executive's own account and not with a view
to, or intention of, distribution thereof in violation of the Securities
Act, or any applicable state securities laws, and the Stock will not be
disposed of in contravention of the Securities Act or any applicable state
securities laws.
(ii) Executive is an "accredited investor" as such term is
defined in Rule 501(a)(5) of Regulation D under the Securities Act.
(iii) Executive is an executive officer of the Company, is
sophisticated in financial matters and is able to evaluate the risks and
benefits of the investment in the Stock.
(iv) Executive is able to bear the economic risk of his
investment in the Stock for an indefinite period of time because the Stock
has not been registered under the Securities Act and, therefore, cannot be
sold unless subsequently registered under the Securities Act or an
exemption from such registration is available.
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(v) Executive has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of
Stock and has had full access to such other information concerning the
Company as he has requested.
(vi) This Agreement constitutes the legal, valid and binding
obligation of Executive, enforceable in accordance with its terms, and the
execution, delivery and performance of this Agreement by Executive does not
and will not conflict with, violate or cause a breach of any agreement,
contract or instrument to which Executive is a party or any judgment, order
or decree to which Executive is subject.
(vii) Executive is a resident of the State of Pennsylvania.
(f) As an inducement to the Company to issue the Stock to Executive,
as a condition thereto, Executive acknowledges and agrees that:
(i) neither the issuance of the Stock to Executive nor any
provision contained herein shall entitle Executive to remain in the
employment of the Company and its Subsidiaries or affect the right of the
Company to terminate Executive's employment at any time for any reason; and
(ii) the Company shall have no duty or obligation to disclose to
Executive, and Executive shall have no right to be advised of, any material
information regarding the Company and its Subsidiaries at any time prior
to, upon or in connection with the repurchase of Stock upon the termination
of Executive's employment with the Company and its Subsidiaries.
2. Vesting of Executive Stock.
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(a) Except as otherwise provided in Section 2(b) below, the Executive
Stock will become vested in accordance with the following schedule, if as of
each such date Executive is still employed by the Company or any of its
Subsidiaries:
Cumulative Percentage of
Anniversary Date Executive Stock Vested
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June 2, 1998 20%
June 2, 1999 40%
June 2, 2000 60%
June 2, 2001 80%
June 2, 2002 100%
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(b) If Executive ceases to be employed by the Company and its
Subsidiaries on any date other than any anniversary date prior to June 2, 2002,
the cumulative percentage of Executive Stock to become vested will be determined
on a pro rata basis according to the number of days elapsed since the prior
anniversary date. Upon the occurrence of a Sale of the Company (while Executive
is employed by the Company), all shares of Executive Stock which have not yet
become vested shall become vested at the time of such event. Shares of Executive
Stock which have become vested are referred to herein as "Vested Shares," and
all other shares of Executive Stock are referred to herein as "Unvested Shares."
3. Repurchase Option.
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(a)(i) In the event Executive ceases to be employed by the
Company and its Subsidiaries for any reason (the "Termination"), the Executive
Stock and the Investor Stock (in each case, whether held by Executive or one or
more of Executive's transferees, other than the Company or the Purchasers) will
be subject to repurchase, in each case by the Company and the Purchasers
pursuant to the terms and conditions set forth in this Section 3; provided,
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however, that if Executive has purchased or, at Executive's option, purchases
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all of the shares of Investor Stock that Executive has committed to purchase
under Section 1(b) above at the time of Termination, then the Investor Stock
will not be subject to repurchase pursuant to this Section 3(a)(i); provided,
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further, that if the Investor Stock is subject to repurchase pursuant to this
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Section 3(a)(i) and the Repurchase Option has been consummated pursuant to this
Section 3, then Executive's commitment to purchase additional shares of Investor
Stock pursuant to Section 1(b) above shall terminate upon the consummation of
the Repurchase Option (as defined below).
(a)(ii) In the event Executive fails to purchase any shares of
the Investor Stock which he is required to purchase pursuant to this Agreement
(a "Triggering Event"), the Executive Stock and the Investor Stock (in each
case, whether held by Executive or one or more of Executive's transferees, other
than the Company or the Purchasers) will be subject to repurchase, in each case
by the Company and the Purchasers pursuant to the terms and conditions set forth
in this Section 3. The repurchase options set forth in Sections 3(a)(i) and
3(a)(ii) shall be referred to herein as the "Repurchase Option".
(b) In the event of Termination, (i) the purchase price for
each Unvested Share of Executive Stock will be Executive's Original Cost for
such share, (ii) the purchase price for each Vested Share of Executive Stock and
each share of Investor Common Stock will be the Fair Market Value for such share
and (iii) the purchase price for each share of Class A Preferred will be the
Liquidation Value (as defined in the Company's Restated Certificate of
Incorporation) of such share, plus all accrued and unpaid dividends thereon;
provided, however, that if Executive's employment is terminated with Cause, the
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price for each Vested Share of Executive Stock will be Executive's
Original Cost for such share. Upon a Triggering Event (even if there is also a
Termination), (i) the purchase price for each share of Executive Stock (whether
a Vested Share or an Unvested Share) and each share of Investor Common Stock
will be Executive's Original Cost for such share and (ii) the purchase price for
each share of
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Class A Preferred will be the Liquidation Value of such share, plus all accrued
and unpaid dividends thereon.
(c) The Board may elect to purchase all or any portion of any
class of the Executive Stock or the Investor Stock by delivering written notice
(the "Repurchase Notice") to the holder or holders of such Stock within one year
after the Termination or Triggering Event. The Repurchase Notice will set forth
the number of shares of Stock (including the number of Unvested Shares and
Vested Shares, if any) of each class to be acquired from each holder, the
aggregate consideration to be paid for such shares and the time and place for
the closing of the transaction. The number of shares to be repurchased by the
Company shall first be satisfied to the extent possible from the shares of Stock
held by Executive at the time of delivery of the Repurchase Notice. If the
number of shares of Stock then held by Executive is less than the total number
of shares of Stock which the Company has elected to purchase, the Company shall
purchase the remaining shares elected to be purchased from the other holder(s)
of Stock under this Agreement, pro rata according to the number of shares of
Stock held by such other holder(s) at the time of delivery of such Repurchase
Notice (determined as nearly as practicable to the nearest share). The number of
shares of each class of Stock to be repurchased hereunder will be allocated
among Executive and the other holders of Stock (if any) pro rata according to
the number of shares of Stock to be purchased from such person.
(d) If for any reason the Company does not elect to purchase
all of the Stock pursuant to the Repurchase Option, the Purchasers shall be
entitled to exercise the Repurchase Option for the shares of Stock the Company
has not elected to purchase (the "Available Shares"). As soon as practicable
after the Company has determined that there will be Available Shares, but in any
event within ten months after the Termination or Triggering Event, the Company
shall give written notice (the "Option Notice") to the Purchasers setting forth
the number of Available Shares and the purchase price for the Available Shares.
The Purchasers may elect to purchase any or all of the Available Shares by
giving written notice to the Company within one month after the Option Notice
has been given by the Company. As soon as practicable, and in any event within
ten days, after the expiration of the one-month period set forth above, the
Company shall notify each holder of Stock as to the number of shares being
purchased from such holder by the Purchasers (the "Supplemental Repurchase
Notice"). If the Purchasers elect to purchase an aggregate number of shares
greater than the Available Shares, the Available Shares will be allocated among
the Purchasers based upon the number of shares of Common Stock held by such
Purchaser on a fully-diluted basis. At the time the Company delivers the
Supplemental Repurchase Notice to the holder(s) of such Stock, the Company shall
also deliver written notice to each Purchaser setting forth the number of shares
such Purchaser is entitled to purchase, the aggregate purchase price and the
time and place of the closing of the transaction. The number of shares of each
class of Stock to be repurchased hereunder shall be allocated among the Company
and each Purchaser pro rata according to the number of shares of Stock to be
purchased by each of them.
(e) The closing of the purchase of the Stock pursuant to the
Repurchase Option shall take place on the date designated by the Company in the
Repurchase Notice or
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Supplemental Repurchase Notice, which date shall not be more than one month nor
less than five days after the delivery of the later of either such notice to be
delivered. The Company and/or the Purchasers will pay for the Stock to be
purchased pursuant to the Repurchase Option by delivery of a check or wire
transfer of funds in the aggregate amount of the purchase price for such shares.
In addition, the Company may pay the purchase price for such shares by
offsetting amounts outstanding under any bona fide debts owed by Executive to
the Company. The Company and the Purchasers will be entitled to receive
customary representations and warranties from the sellers regarding such sale
and to require all sellers signatures be guaranteed.
(f) Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of Stock by the Company shall be subject to
applicable restrictions contained in the Delaware General Corporation Law and in
the Company's and its Subsidiaries' debt and equity financing agreements. If any
such restrictions prohibit the repurchase of Stock hereunder which the Company
is otherwise entitled or required to make, the Company may make such repurchases
as soon as it is permitted to do so under such restrictions.
(g) Upon the occurrence of a Qualified Public Offering, the
Repurchase Option shall terminate with respect to Vested Shares of Executive
Stock and all shares of Investor Stock.
4. Restrictions on Transfer of Stock.
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(a) Retention of Executive Stock. Until the fifth anniversary
of the date of this Agreement, Executive shall not sell, transfer, assign,
pledge or otherwise dispose of any interest in any shares of Executive Stock,
except for Exempt Transfers (as defined in Section 4(b) below) other than sales
to the public pursuant to Rule 144 promulgated under the Securities Act or any
similar rule then in force.
(b) Transfer of Stock. Subject to Section 4(a) above, Executive
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shall not Transfer any interest in any shares of Stock, except pursuant to (i)
the provisions of Section 3 hereof, a Public Sale or a Sale of the Company
("Exempt Transfers") or (ii) the provisions of this Section 4; provided that in
no event shall any Transfer of Stock pursuant to this Section 4 be made for any
consideration other than cash payable upon consummation of such Transfer or in
installments over time. Prior to making any Transfer other than an Exempt
Transfer, Executive will give written notice (the "Sale Notice") to the Company
and the Purchasers. The Sale Notice will disclose in reasonable detail the
identity of the prospective transferee(s), the number of shares to be
transferred and the terms and conditions of the proposed transfer. Executive
will not consummate any Transfer until 110 days after the Sale Notice has been
given to the Company and to the Purchasers, unless the parties to the Transfer
have been finally determined pursuant to this Section 4 prior to the expiration
of such 110-day period. (The date of the first to occur of such events is
referred to herein as the "Authorization Date").
(c) First Refusal Rights. The Company may elect to purchase all
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(but not less than all) of the shares of Stock to be transferred upon the same
terms and conditions as those set forth in the Sale Notice by delivering a
written notice of such election to Executive and the
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Purchasers within 60 days after the Sale Notice has been given to the Company.
If the Company has not elected to purchase all of the Stock to be transferred,
the Purchasers may elect to purchase all (but not less than all) of the Stock to
be transferred upon the same terms and conditions as those set forth in the Sale
Notice by giving written notice of such election to Executive within 90 days
after the Sale Notice has been given to the Purchasers. If the Purchasers elect
to purchase an aggregate number of shares greater than the Stock to be
transferred, such Stock will be allocated among the Purchasers based upon the
number of shares of Stock held by such Purchaser on a fully-diluted basis. If
neither the Company nor the Purchasers elect to purchase all of the shares of
Stock specified in the Sale Notice, Executive may transfer the shares of Stock
specified in the Sale Notice, subject to the provisions of Section 4(d) below,
at a price and on terms no more favorable to the transferee(s) thereof than
specified in the Sale Notice during the 60-day period immediately following the
Authorization Date. Any shares of Stock not transferred within such 60-day
period will be subject to the provisions of this Section 4(c) upon subsequent
transfer. The Company may pay the purchase price for such shares by offsetting
amounts outstanding under any bona fide debts owed by Executive to the Company.
(d) Purchaser Participation Rights.
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(i) If neither the Company nor the Purchasers has elected
to purchase all of the Stock specified in the Sale Notice pursuant to
Section 4(c) above, the Purchasers may elect to participate in the
contemplated Transfer by delivering written notice to Executive and the
Company within 100 days after receipt by the Purchasers of the Sale Notice.
If the Purchasers have elected to participate in such sale, Executive and
the Purchasers will be entitled to sell in the contemplated sale, at the
same price and on the same terms, a number of shares of the Company's
Common Stock equal to the product of (i) the quotient determined by
dividing the percentage of the Company's Common Stock (on a fully-diluted
basis) held by such person, by the aggregate percentage of the Company's
Common Stock (on a fully-diluted basis) owned by Executive (including both
Vested and Unvested Shares) and each Purchaser participating in such sale
and (ii) the number of shares of Common Stock to be sold in the
contemplated sale. Any purchaser in a sale subject to this Section 4(d)
will be required to purchase from the Purchasers, at each Purchaser's
election, a portion of the Class A Preferred held by such Purchasers equal
to the greater of the percentage of (x) such Purchaser's Common Stock being
sold in such transaction and (y) the Executive's Class A Preferred, as the
case may be, being sold in such transaction.
For example, if:
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(1) the Sale Notice contemplated a sale of 100 shares
of Common Stock;
(2) Executive was at such time the owner of 120 shares
of Common Stock (which was equal to 30% of the Common Stock on a
fully-
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diluted basis); and
(3) each Purchaser elected to participate and each Purchaser
owned 40 shares of Common Stock (which was equal to 10% of Common
Stock on a fully-diluted basis) and 120 shares of Class A
Preferred;
then
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(A) Executive would be entitled to sell 60 shares of Common
Stock (30% / 50% x 100 shares); and
(B) each Purchaser would be entitled to sell 20 shares of
Common Stock (10% / 50% x 100 shares) and 60 shares of Class A
Preferred (the same percentage of the Purchaser's Class A
Preferred as the percentage of the Purchaser's Common Stock being
sold, i.e., 50%).
Executive will use his best efforts to obtain the agreement of the
prospective transferee(s) to the participation of the Purchasers
in the contemplated Transfer and will not transfer any Stock to
the prospective transferee(s) if such transferee(s) refuses to
allow the participation of the Purchasers.
(ii) Each holder transferring any class of Stock
pursuant to this Section 4(d) shall pay its pro rata share (based
on the number of such shares to be sold) of the expenses incurred
by the holders in connection with such Transfer and shall be
obligated to join on a pro rata basis (based on the number of such
shares to be sold) in any indemnification or other obligations
that the Executive agrees to provide in connection with such
Transfer (other than any such obligations that relate specifically
to a particular holder such as indemnification with respect to
representations and warranties given by a holder regarding such
holder's title to and ownership of such shares; provided that no
holder shall be obligated in connection with such Transfer to
agree to indemnify or hold harmless the transferees with respect
to an amount in excess of the net cash proceeds paid to such
holder in connection with such Transfer).
(e) Certain Permitted Transfers. The restrictions contained in this
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Section 4 will not apply with respect to (i) Transfers of shares of Stock
pursuant to applicable laws of descent and distribution or (ii) Transfers of
shares of Stock among Executive's Family Group; provided that such restrictions
will continue to be applicable to the Stock after any such Transfer and the
transferees of such Stock have agreed in writing to be bound by the provisions
of this Agreement.
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(f) Termination of Restrictions. The restrictions on the
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Transfer of shares of Stock set forth in this Section 4 will continue with
respect to each share of Stock until the date on which such Stock has been
transferred in a transaction permitted by this Section 4 (except in a
transaction contemplated by Section 4(e)); provided that in any event such
restrictions will terminate on the first to occur of a Sale of the Company or a
Public Offering.
5. Additional Restrictions on Transfer of Stock.
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(a) Legend. The certificates representing the Stock will bear
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the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE
ORIGINALLY ISSUED AS OF JUNE 2, 1997, HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN
EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN REPURCHASE
OPTIONS AND CERTAIN OTHER AGREEMENTS SET FORTH IN AN OTHER
SENIOR MANAGEMENT AGREEMENT BETWEEN THE COMPANY AND AN
EXECUTIVE OF THE COMPANY DATED AS OF JUNE 2, 1997, AS
AMENDED AND SUPPLEMENTED FROM TIME TO TIME. A COPY OF SUCH
AGREEMENT MAY BE OBTAINED BY THE HOLDER HEREOF AT THE
COMPANY'S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE."
(b) Opinion of Counsel. No holder of Stock may sell, transfer
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or dispose of any Stock (except pursuant to an effective registration statement
under the Securities Act) without first delivering to the Company an opinion of
counsel (reasonably acceptable in form and substance to the Company) that
neither registration nor qualification under the Securities Act and applicable
state securities laws is required in connection with such transfer.
6. Limited Preemptive Rights.
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(a) Except for the issuance of Common Stock (i) to the Other
Executives pursuant to the Other Senior Management Agreements, (ii) to the
Partnerships (as defined in the Senior Management Agreement), Xxxxx Xxxxxxxx and
Xxxxxx Xxxxxxxx pursuant to the Senior Management Agreement, (iii) to the
Purchasers pursuant to the Purchase Agreement, (iv) in connection with
acquisitions as contemplated by Section 1B(c) of the Purchase Agreement, (v) to
certain investors designated by the Board or (vi) pursuant to a public offering
registered under the Securities Act, if the Company at any time after the date
hereof authorizes the issuance or
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sale of any shares of Common Stock or any securities containing options or
rights to acquire any shares of Common Stock (other than as a dividend on the
outstanding Common Stock), the Company shall first offer to sell to each holder
of Stock a portion of such stock or securities equal to the quotient determined
by dividing (1) the number of shares of Common Stock held by such holder by (2)
the total number of shares of Common Stock outstanding on a fully-diluted basis
immediately prior to such issuance. Each holder of Stock (accepting such offer)
shall also purchase the same percentage of any other class of Company securities
(whether debt or equity) being sold with the Common Stock. Each holder of Stock
shall be entitled to purchase all or any portion of such stock or securities at
the most favorable price and on the most favorable terms as such stock or
securities are to be offered to any other Persons.
(b) In order to exercise its purchase rights hereunder, a holder
of Stock must within 15 days after receipt of written notice from the Company
describing in reasonable detail the stock or securities being offered, the
purchase price thereof, the payment terms and such holder's percentage
allotment, deliver a written notice to the Company describing its election
hereunder. If all of the stock and securities offered to the holders of Stock is
not fully subscribed by such holders, the remaining stock and securities shall
be reoffered by the Company to the holders purchasing their full allotment upon
the terms set forth in this paragraph, except that such holders must exercise
their purchase rights within five days after receipt of such reoffer.
(c) Upon the expiration of the offering periods described above,
the Company shall be entitled to sell such stock or securities which the holders
of Stock have not elected to purchase during the 90 days following such
expiration on terms and conditions no more favorable to the purchasers thereof
than those offered to such holders. Any stock or securities offered or sold by
the Company after such 90-day period must be reoffered to the holders of Stock
pursuant to the terms of this Section 6.
(d) Nothing contained in this Section 6 shall be deemed to
amend, modify or limit in any way the restrictions on the issuance of shares of
Common Stock set forth in the Purchase Agreement, in the Stockholders Agreement
or in any other agreement to which the Company is bound.
7. Holdback Agreements. Each holder of Stock shall not effect
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any public sale or distribution (including sales pursuant to Rule 144) of equity
securities of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and the 180-day
period beginning on the effective date of any underwritten Demand Registration
(as defined in the Registration Agreement) or any underwritten Piggyback
Registration (as defined in the Registration Agreement) in which any shares of
Stock are included (except as part of such underwritten registration), unless
the underwriters managing the registered public offering otherwise agree.
PROVISIONS RELATING TO EMPLOYMENT
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8. Employment. The Company agrees to employ Executive and
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Executive accepts such employment for the period beginning as of June 2, 1997
and ending upon termination pursuant to Section 8(c) hereof (the "Employment
Period").
(a) Position and Duties. During the Employment Period,
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Executive shall serve as the Vice President of Human Resources of the Company
and shall have the normal duties, responsibilities and authority of the Vice
President of Human Resources subject to the power of the Board and the Chairman
and Chief Executive Officer to expand or limit such duties, responsibilities and
authority. Executive shall report to the Chairman and Chief Executive Officer,
President and Chief Operating Officer or such other officer of the Company as
the Chairman and Chief Executive Officer may designate, and Executive shall
devote his best efforts and his full business time and attention (except for
permitted vacation periods and reasonable periods of illness or other
incapacity) to the business and affairs of the Company and its Subsidiaries.
Executive shall perform his duties and responsibilities to the best of his
abilities in a diligent, trustworthy, businesslike and efficient manner.
(b) Salary, Bonus and Benefits. During the Employment Period,
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the Company will pay Executive a base salary (the "Annual Base Salary") as set
forth in Schedule A attached hereto, which salary shall be payable in regular
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installments in accordance with the Company's general payroll practices and
shall be subject to customary withholding; provided however, that the Board
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from time to time may, in its sole discretion, increase the Annual Base Salary.
The Board may, in its sole discretion, award a bonus to Executive in an amount
not to exceed 40% of Executive's Annual Base Salary for such year, as determined
by the Board based upon the Company's achievement of budgetary and other
objectives set by the Board. Executive's Annual Base Salary for any partial year
will be prorated based upon the number of days elapsed in such year. In
addition, during the Employment Period, Executive will be entitled to 4 weeks
paid vacation each year (with the accrual of unused vacation days being in
accordance with the Company's applicable policies) and will be entitled to
participate in all of the Company's employee benefit programs for which senior
executive employees of the Company and its Subsidiaries are generally eligible.
The Company shall reimburse Executive for all reasonable business expenses
incurred by him in the course of performing his duties under this Agreement
which are consistent with the Company's policies in effect from time to time
with respect to travel and other expenses (i.e., professional dues and
publications), subject to the Company's requirements with respect to reporting
and documentation of such expenses.
(c) Termination.
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(i) The Employment Period will continue until Executive's
resignation, disability (as determined by the Board in its good faith
judgment) or death or until the Board determines in its good faith
judgment that termination of Executive's employment is in the best
interests of the Company.
(ii) Upon a termination of the Employment Period for any
reason, Executive shall not be entitled to receive his Annual Base
Salary or any fringe benefits or
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bonuses for periods after the termination of the Employment Period,
unless the Board, in its sole discretion, provides otherwise.
9. Confidential Information. Executive acknowledges that the
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information, observations and data obtained by him during the course of his
performance under this Agreement concerning the business and affairs of the
Company and its affiliates are the property of the Company. Therefore, Executive
agrees that he will not disclose to any unauthorized person or use for his own
account any of such information, observations or data without the Board's
written consent, unless and to the extent that the aforementioned matters become
generally known to and available for use by the public other than as a result of
Executive's acts or omissions to act. Executive agrees to deliver to the Company
at the termination of his employment, or at any other time the Company may
request in writing, all memoranda, notes, plans, records, reports and other
documents (and copies thereof) relating to the business of the Company and its
affiliates (including, without limitation, all acquisition prospects, lists and
contact information) which he may then possess or have under his control.
10. Noncompetition and Nonsolicitation.
----------------------------------
(a) Noncompetition. Executive acknowledges that in the course
--------------
of his employment with the Company he will become familiar with the Company's
trade secrets and with other confidential information concerning the Company and
that his services will be of special, unique and extraordinary value to the
Company. Therefore, Executive agrees that, during the Employment Period and for
two years thereafter, he shall not directly or indirectly own, manage, control,
participate in, consult with, render services for, or in any manner engage in
any business competing with the businesses of the Company or its Subsidiaries or
any businesses in which the Company or any of its Subsidiaries has entertained
discussions or has requested and received information relating to the
acquisition of such business by the Company or its Subsidiaries prior to the
termination of the Executive's employment with the Company in the United States.
(b) Nonsolicitation. During the two years following the date of
---------------
termination of Executive's employment, Executive shall not directly or
indirectly through another entity (i) induce or attempt to induce any employee
of the Company or any Subsidiary to leave the employ of the Company or such
Subsidiary, or in any way interfere with the relationship between the Company or
any Subsidiary and any employee thereof, (ii) hire any person who was an
employee of the Company or any Subsidiary on the date of termination of
Executive's employment, or (iii) induce or attempt to induce any customer,
supplier, licensee or other business relation of the Company or any Subsidiary
to cease doing business with the Company or such Subsidiary, or in any way
interfere with the relationship between any such customer, supplier, licensee or
business relation and the Company or any Subsidiary.
(c) Enforcement. If, at the time of enforcement of Section 9 or
-----------
10 of this Agreement, a court holds that the restrictions stated herein are
unreasonable under circumstances then existing, the parties hereto agree that
the maximum duration, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area and
-12-
that the court shall be allowed to revise the restrictions contained herein to
cover the maximum duration, scope and area permitted by law. Because Executive's
services are unique and because Executive has access to confidential
information, the parties hereto agree that money damages would be an inadequate
remedy for any breach of this Agreement. Therefore, in the event a breach or
threatened breach of this Agreement, the Company or its successors or assigns
may, in addition to other rights and remedies existing in their favor, apply to
any court of competent jurisdiction for specific performance and/or injunctive
or other relief in order to enforce, or prevent any violations of, the
provisions hereof (without posting a bond or other security).
(d) Submission to Jurisdiction. Each of the parties (i) submits
--------------------------
to the jurisdiction of any state or federal court sitting in Chicago, Illinois
in any action or proceeding arising out of or relating to this Agreement
(including this Section 10), (ii) agrees that all claims in respect of such
action or proceeding may be heard or determined in any such court and (iii)
agrees not to bring any action or proceeding arising out of or relating to this
Agreement in any other court. Each of the parties waives any defense of
inconvenient forum to the maintenance of any action or proceeding so brought and
waives any bond, surety or other security that might be required of any other
party with respect thereto. Each party agrees that a final judgment in any
action or proceeding so brought shall be conclusive and may be enforced by suit
on the judgment or in any other manner provided by law.
GENERAL PROVISIONS
11. Definitions.
-----------
"Affiliate" of each Purchaser means any direct or indirect
---------
general or limited partner of such Purchaser, or any employee or owner thereof,
or any other person, entity or investment fund controlling, controlled by or
under common control with such Purchaser, and will include, without limitation,
Golder, Thoma, Cressey, Rauner, Inc. and its owners and employees, in the case
of GTCR, and WCA Management Corporation and its owners and employees, in the
case of WCAS.
"Board" means the Company's Board of Directors.
-----
"Cause" means (i) the commission of a felony or a crime involving
-----
moral turpitude or the commission of any other act or omission involving
dishonesty, disloyalty or fraud with respect to the Company or any of its
Subsidiaries or any of their customers or suppliers, (ii) conduct tending to
bring the Company or any of its Subsidiaries into substantial public disgrace or
disrepute, (iii) substantial and repeated failure to perform duties as
reasonably directed by the Board, (iv) gross negligence or willful misconduct
with respect to the Company or any of its Subsidiaries or (v) any other material
breach of this Agreement.
"Class A Preferred" means the Company's Class A Preferred Stock,
-----------------
par value $.01 per share.
-13-
"Common Stock" means the Company's Common Stock, par value $.01
------------
per share.
"Executive's Family Group" means Executive's spouse and
------------------------
descendants (whether natural or adopted) and any trust solely for the benefit of
Executive and/or Executive's spouse and/or descendants.
"Executive Stock" will continue to be Executive Stock in the
---------------
hands of any holder other than Executive (except for the Company and the
Purchasers and except for transferees in a Public Sale), and except as otherwise
provided herein, each such other holder of Executive Stock will succeed to all
rights and obligations attributable to Executive as a holder of Executive Stock
hereunder. Executive Stock will also include shares of the Company's capital
stock issued with respect to Executive Stock by way of a stock split, stock
dividend or other recapitalization. Notwithstanding the foregoing, all Unvested
Shares shall remain Executive Stock after any Transfer thereof.
"Fair Market Value" of each share of Common Stock means the
-----------------
average of the closing prices of the sales of the class of Common Stock on all
securities exchanges on which such Common Stock may at the time be listed, or,
if there have been no sales on any such exchange on any day, the average of the
highest bid and lowest asked prices on all such exchanges at the end of such
day, or, if on any day such Common Stock is not so listed, the average of the
representative bid and asked prices quoted in the NASDAQ System as of 4:00 P.M.,
New York time, or, if on any day such Common Stock is not quoted in the NASDAQ
System, of the average of the highest bid and lowest asked prices on such day in
the domestic over-the-counter market as reported by the National Quotation
Bureau Incorporated, or any similar successor organization, in each such case
averaged over a period of 2l days consisting of the day as of which the Fair
Market Value is being determined and the 20 consecutive business days prior to
such day. If at any time such Common Stock is not listed on any securities
exchange or quoted in the NASDAQ System or the over-the-counter market, the Fair
Market Value will be the fair value of such Common Stock determined in good
faith by the Board.
"Investor Common Stock" means all shares of Investor Common Stock
---------------------
acquired or to be acquired pursuant to this Agreement by the Executive. Investor
Common Stock will continue to be Investor Common Stock in the hands of any
holder other than the Executive (except for the Company and the Purchasers and
except for transferees in a Public Sale), and except as otherwise provided
herein, each such other holder of Investor Common Stock will succeed to all
rights and obligations attributable to the Executive as a holder of Investor
Common Stock hereunder. Investor Common Stock will also include shares of the
Company's capital stock issued with respect to Investor Common Stock by way of a
stock split, stock dividend or other recapitalization.
"Investor Stock" means all shares of Class A Preferred and
--------------
Investor Common Stock acquired or to be acquired pursuant to this Agreement by
the Executive. Investor Stock will continue to be Investor Stock in the hands of
any holder other than the Executive (except for the Company and the Purchasers
and except for transferees in a Public Sale), and except as
-14-
otherwise provided herein, each such other holder of Investor Stock will succeed
to all rights and obligations attributable to the Executive as a holder of
Investor Stock hereunder. Investor Stock will also include shares of the
Company's capital stock issued with respect to Investor Stock by way of a stock
split, stock dividend or other recapitalization.
"Original Cost" means with respect to each share of Common Stock
-------------
purchased hereunder, $0.25 (as proportionately adjusted for all subsequent stock
splits, stock dividends and other recapitalization).
"Other Executives" means those certain members of the Company's
----------------
senior management who enter or have entered into an Other Senior Management
Agreement.
"Other Senior Management Agreements" means the Other Senior
----------------------------------
Management Agreements entered into by the Company which provides for, among
other things, the sale of stock to the Other Executives, as such agreements are
amended and supplemented from time to time.
"Person" means an individual, a partnership, a limited liability
------
company, a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Public Offering" means the sale in an underwritten public
---------------
offering registered under the Securities Act of shares of the Company's Common
Stock approved by the Board.
"Public Sale" means any sale pursuant to a registered public
-----------
offering under the Securities Act or any sale to the public pursuant to Rule 144
promulgated under the Securities Act effected through a broker, dealer or market
maker.
"Qualified Public Offering" means a Public Offering having an
-------------------------
aggregate offering price of at least $20,000,000.
"Registration Agreement" means that certain Registration
----------------------
Agreement dated as of February 5, 1997 among the Company, the Purchasers and
certain other parties, as such agreement is amended and supplemented from time
to time.
"Sale of the Company" means any transaction or series of
-------------------
transactions pursuant to which any person(s) or entity(ies) (including any
Affiliates of the Purchasers) other than the Purchasers in the aggregate
acquire(s) (i) capital stock of the Company possessing the voting power (other
than voting rights accruing only in the event of a default, breach or event of
noncompliance) to elect a majority of the Company's board of directors (whether
by merger, consolidation, reorganization, combination, sale or transfer of the
Company's capital stock, shareholder or voting agreement, proxy, power of
attorney or otherwise) or (ii) all or substantially all of the Company's assets
determined on a consolidated basis; provided that the
-15-
term "Sale of the Company" shall not include any sale of equity securities by
the Company in a private or public offering to other investors selected by the
Purchasers.
"Securities Act" means the Securities Act of 1933, as amended
--------------
from time to time.
"Senior Management Agreement" means the Amended and Restated
---------------------------
Senior Management Agreement dated as of May 7, 1997 among the Company, Xxxx
Xxxxxxxx, Xxxxxx Xxxxxxxx, Select Investments II, Select Partners, L.P. and each
of Xxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxxx, as such agreements are amended and
supplemented from time to time.
"Stock" means collectively, the Executive Stock and the Investor
-----
Stock.
"Stockholders Agreement" means that certain Stockholders
----------------------
Agreement dated as of February 5, 1997 among the Company, the Purchasers and
certain other parties, to which the Executive has become a party to as of the
date hereof, as such agreement is amended and supplemented from time to time.
"Subsidiary" means, with respect to any Person, any corporation,
----------
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the partnership or other similar ownership interest thereof is at the time
owned or controlled, directly or indirectly, by any Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association or other business entity if
such Person or Persons shall be allocated a majority of limited liability
company, partnership, association or other business entity gains or losses or
shall be or control any managing director or general partner of such limited
liability company, partnership, association or other business entity.
"Transfer" means to sell, transfer, assign, pledge or otherwise
--------
dispose of (whether with or without consideration and whether voluntarily or
involuntarily or by operation of law).
12. Notices. Any notice provided for in this Agreement must be
-------
in writing and must be either personally delivered, mailed by first class mail
(postage prepaid and return receipt requested) or sent by reputable overnight
courier service (charges prepaid) to the recipient at the address below
indicated:
If to the Company:
-----------------
Select Medical Corporation
0000 Xxx Xxxxxxxxxx Xxxx
X.X. Xxx 0000
-00-
Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chairman and Chief Executive Officer
If to the Executive:
-------------------
c/o Select Medical Corporation
(At the address as set forth above)
If to the Purchasers:
--------------------
Golder, Thoma, Xxxxxxx Fund V, L.P.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
with a copy to:
--------------
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxx
Welsh, Carson, Xxxxxxxx & Xxxxx VII, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
with a copy to:
--------------
Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
13. General Provisions.
------------------
(a) Expenses. The Executive will bear his own costs and expenses
--------
(including legal expenses) incurred in connection with the negotiation and
execution of this Agreement and the consummation of the transactions
contemplated by this Agreement.
-17-
(b) Transfers in Violation of Agreement. Any Transfer or attempted
-----------------------------------
Transfer of any Stock in violation of any provision of this Agreement shall be
void, and the Company shall not record such Transfer on its books or treat any
purported transferee of such Stock as the owner of such stock for any purpose.
(c) Severability. Whenever possible, each provision of this
------------
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(d) Complete Agreement. This Agreement, those documents expressly
------------------
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way
(including any employment letters).
(e) Counterparts. This Agreement may be executed in separate
------------
counterparts (including by means of telecopied signature pages), each of which
is deemed to be an original and all of which taken together constitute one and
the same agreement.
(f) Successors and Assigns. Except as otherwise provided herein,
----------------------
this Agreement shall bind and inure to the benefit of and be enforceable by
Executive, the Company, the Purchasers and their respective successors and
assigns (including subsequent holders of Stock); provided that the rights and
obligations of Executive under this Agreement shall not be assignable except in
connection with a permitted Transfer of Stock hereunder.
(g) Choice of Law. The corporate law of the State of Delaware will
-------------
govern all questions concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity and
interpretation of this Agreement and the exhibits hereto will be governed by and
construed in accordance with the internal laws of the State of Illinois, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of Illinois or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Illinois.
(h) Remedies. Each of the parties to this Agreement (including the
--------
Purchasers) will be entitled to enforce its rights under this Agreement
specifically, to recover damages and costs (including attorneys' fees) caused by
any breach of any provision of this Agreement and to exercise all other rights
existing in its favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party may in its sole discretion apply to any court of
law or equity of competent jurisdiction (without posting any bond or deposit)
for specific
-18-
performance and/or other injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
(i) Amendment and Waiver. The provisions of this Agreement may be
--------------------
amended and waived only with the prior written consent of the Company, Executive
and each of the Purchasers.
(j) Business Days. If any time period for giving notice or taking
-------------
action hereunder expires on a day which is a Saturday, Sunday or holiday in the
state in which the Company's chief executive office is located, the time period
shall be automatically extended to the business day immediately following such
Saturday, Sunday or holiday.
(k) Termination. This Agreement (except for the provisions of
-----------
Section 8) shall survive the termination of Executive's employment with the
Company and shall remain in full force and effect after such termination.
* * * * *
-19-
IN WITNESS WHEREOF, the parties hereto have executed this Other Senior
Management Agreement on the date first written above.
SELECT MEDICAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Its:
---------------------------
/s/ Xxxxx Xxxxxxx
-------------------------------
Xxxxx Xxxxxxx
Agreed and Accepted:
GOLDER, THOMA, XXXXXXX, XXXXXX FUND V, L.P.
By: GTCR V, L.P.
Its: General Partner
By: Golder, Thoma, Cressey, Rauner, Inc.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Its: Principal
WELSH, CARSON, XXXXXXXX & XXXXX VII, L.P.
By: Illegible
-------------------------------------------
Its: General Partner
WELSH, CARSON, XXXXXXXX & XXXXX
HEALTHCARE PARTNERS, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Its: General Partner
SCHEDULE A
Period Annual Base Salary
------ ------------------
From June 1, 1997 to August 1, 1997 $104,000
Starting August 1, 1997 $130,000
EXHIBIT A
_____________, 1997
ELECTION TO INCLUDE STOCK IN GROSS
INCOME PURSUANT TO SECTION 83(b) OF THE
INTERNAL REVENUE CODE
The undersigned purchased shares of Common Stock, par value $.01 per
share (the "Shares"), of Select Medical Corporation (the "Company") on
_________, 1997. Under certain circumstances, the Company has the right to
repurchase certain of the Shares at cost from the undersigned (or from the
holder of the Shares, if different from the undersigned) should the undersigned
cease to be employed by the Company and its subsidiaries or upon certain other
events. Hence, the Shares are subject to a substantial risk of forfeiture that
may not be avoided by a transfer of the Shares to another person. The
undersigned desires to make an election to have the Shares taxed under the
provision of Section 83(b) of the Internal Revenue Code of 1986, as amended (the
"Code") at the time he purchased the Shares.
Therefore, pursuant to Code (S)83(b) and Treasury Regulation (S)1.83-2
promulgated thereunder, the undersigned hereby makes an election, with respect
to the Shares (described below), to report as taxable income for calendar year
1997 the excess (if any) of the Shares' fair market value on __________, 1997
over the purchase price thereof.
The following information is supplied in accordance with Treasury
Regulation (S)1.83-2(e):
1. The name, address and social security number of the undersigned:
Xxxxx Xxxxxxx
c/o Select Medical Corporation
0000 Xxx Xxxxxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxxxxxxx, XX 00000
Social Security Number: ###-##-####
2. A description of the property with respect to which the election
is being made: ______ shares of Common Stock, par value $.01 per share, and
____ shares of Class A Preferred Stock, par value $.01 per share, of the
Company.
3. The date on which the property was transferred: _________, 1997.
The taxable year for which such election is made: calendar 1997.
4. The restrictions to which the property is subject: If the
undersigned does not purchase certain shares of the Company's capital stock, the
Shares will be subject to repurchase by the Company at cost. If the undersigned
ceases to be employed by the Company or any of its subsidiaries prior to June 2,
2002, the unvested portion of the Shares will be subject to repurchase by the
Company at cost. Twenty percent of the Shares become vested shares on each of
June 2. 1998, June 2, 1999, June 2, 2000, June 2, 2001 and June 2, 2002.
5. The fair market value on ___________, 1997 of the property with
respect to which the election is being made, determined without regard to any
lapse restrictions: $____ per share of Common Stock and $____ per share of Class
A Preferred Stock.
6. The amount paid for such property: $0.25 per share of Common
Stock and $1,000.00 per share of Class A Preferred Stock.
A copy of this election has been furnished to the Secretary of the
Company pursuant to Treasury Regulations (S)1.83-2(d).
Dated: /s/ Xxxxx Xxxxxxx
---------------- ---------------------------------------
Xxxxx Xxxxxxx
ADDITIONAL STOCKHOLDER'S SIGNATURE PAGE
TO STOCKHOLDERS AGREEMENT
-------------------------
Pursuant to the Other Senior Management Agreement, dated as of June 2, 1997, by
and between the undersigned and Select Medical Corporation, a Delaware
corporation (the "Company"), the undersigned will purchase shares of the
Company's Common Stock, par value $.01 per share, and shares of the Company's
Class A Preferred Stock, par value $.01 per share.
Pursuant to Section 9 of the Stockholders Agreement, dated as of February 5,
1997, by and among the Company and certain other stockholders listed therein
(the "Stockholders Agreement"), the Company has permitted the undersigned to
become a party to the Stockholders Agreement and to succeed to all of the rights
and obligations of a "Stockholder" under the Stockholders Agreement. The
undersigned hereby agrees to be bound by all of the terms and conditions of the
Stockholders Agreement.
All notices to the undersigned should be sent to the following address:
00 Xxxxxxxxxx Xxxx
--------------------------
Mechanicsburg, PA
--------------------------
17055
--------------------------
Date: June 2, 1997
------------------ /s/ Xxxxx Xxxxxxx
-----------------------------
Xxxxx Xxxxxxx
Acknowledged and Agreed:
SELECT MEDICAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------
Its:
----------------------
