EXHIBIT 10.28
MANAGEMENT STOCKHOLDERS' AGREEMENT
MANAGEMENT STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as of June
22, 2004, between IASIS Healthcare Corporation (the "Company"), IASIS Investment
LLC, a Delaware limited liability company (the "Majority Stockholder") and
___________________ (the "Management Stockholder").
WHEREAS, the Management Stockholder is an employee or service provider
of the Company or an affiliate of the Company and in such capacity has rolled
over certain options to purchase common stock into an option (the "Rollover
Option") to purchase shares of common stock of the Company, $0.01 par value per
share ("Common Stock") and shares of preferred stock of the Company, $0.01 par
value per share ("Preferred Stock" and together with the Common Stock, referred
to herein as the "Shares"), pursuant to the IASIS Healthcare Corporation 2000
Stock Option Plan and will also be granted an option (the "New Option") to
purchase shares of common stock pursuant to the IASIS Healthcare Corporation
2004 Stock Option Plan (the 2000 Stock Option Plan and the 2004 Stock Option
Plan collectively referred to herein as the "Plan"). The Rollover Option and the
New Option are collectively referred to herein as the "Option";
WHEREAS, as a condition to the issuance of shares of Common or
Preferred Stock pursuant to the exercise of any portion of the Option, the
Management Stockholder is required under the Plan to execute this Agreement; and
WHEREAS, the Management Stockholder, the Majority Stockholder and the
Company desire to enter into this Agreement and to have this Agreement apply to
the Shares to be purchased pursuant to the Plan and to any other Shares acquired
after the date hereof by the Management Stockholder from whatever source,
subject to any future agreement between the Company and the Management
Stockholder to the contrary.
NOW THEREFORE, in consideration of the premises hereinafter set forth,
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows.
1. Investment. The Management Stockholder represents that the
Shares are being acquired for investment and not with a view toward the
distribution thereof.
2. Issuance of Shares. The Management Stockholder acknowledges
and agrees that the certificate for the Shares shall bear the following legends
(except that the second paragraph of this legend shall not be required after the
Shares have been registered and except that the first paragraph of this legend
shall not be required after the termination of this Agreement):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF A MANAGEMENT STOCKHOLDERS' AGREEMENT DATED AS OF JUNE 22,
2004 AND MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED, ASSIGNED OR
ENCUMBERED, EXCEPT AS MAY BE PERMITTED BY THE AFORESAID AGREEMENT. A
COPY OF THE
MANAGEMENT STOCKHOLDERS' AGREEMENT MAY BE OBTAINED FROM THE SECRETARY
OF THE COMPANY.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. THE SHARES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER
THE SECURITIES ACT OF 1933 OR AN OPINION OF COUNSEL FOR THE COMPANY
THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
Upon the termination of this Agreement, or upon registration of the
Shares under the Securities Act of 1933 (the "Securities Act"), the Management
Stockholder shall have the right to exchange any Shares containing the above
legend (i) in the case of the registration of the Shares, for Shares legended
only with the first paragraph described above and (ii) in the case of the
termination of this Agreement, for Shares legended only with the second
paragraph described above.
3. Transfer of Shares. The Management Stockholder agrees that he
will not cause or permit the Shares or his interest in the Shares to be sold,
transferred, hypothecated, assigned or encumbered except as expressly permitted
by this Section 3; provided, however, that the Shares or any such interest may
be Transferred (i) on the Management Stockholder's death by bequest or
inheritance to the Management Stockholder's executors, administrators,
testamentary trustees, legatees or beneficiaries or (ii) to a trust or
partnership or LLC or custodianship the beneficiaries or partners or members of
which may include only the Management Stockholder, the Management Stockholder's
spouse or the Management Stockholder's lineal descendants (by blood or adoption)
and (iii) in accordance with Section 4 of this Agreement, subject in any such
case to the agreement by each transferee (other than the Company or as otherwise
permitted by the Company) in writing to be bound by the terms of this Agreement
as if such transferee had been an original signatory hereto and provided in any
such case that no such transfer that would cause the Company to be required to
register the Common Stock or Preferred Stock under Section 12(g) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), shall be
permitted.
4. Certain Rights.
(a) Drag Along Rights. If the Majority Stockholder desires to sell
all or substantially all of its shares of Common Stock or Preferred Stock, as
applicable, to a good faith independent purchaser (a "Purchaser") (other than
any other investment partnership, limited liability company or other entity
established for investment purposes and controlled by one or more of the members
or the principals of the Majority Stockholder or any of its affiliates and other
than any employees of the Majority Stockholder hereinafter referred to as a
"Permitted Transferee") and said Purchaser desires to acquire all or
substantially all of the issued and outstanding shares of Common Stock or
Preferred Stock, as applicable, (or all or substantially all of the assets of
the Company) upon such terms and conditions as agreed to with the Majority
Stockholder, the Management Stockholder agrees to sell all of his shares of
Common Stock or Preferred Stock, as applicable, to said Purchaser (or to vote
all of his Shares in favor of any
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merger or other transaction which would effect a sale of such shares of Common
or Preferred Stock or assets of the Company) at the same price per share of
Common Stock or Preferred Stock, as applicable, and pursuant to the same terms
and conditions with respect to payment for the shares of Common Stock or
Preferred Stock, as applicable, as agreed to by the Majority Stockholder. In
such case, the Majority Stockholder shall give written notice of such sale to
the Management Stockholder at least fifteen (15) days prior to the consummation
of such sale, setting forth (i) the consideration to be received by the holders
of shares of Common Stock or Preferred Stock, as applicable, (ii) the identity
of the Purchaser, (iii) any other material items and conditions of the proposed
transfer and (iv) the date of the proposed transfer. The Majority Stockholder
and the Management Stockholder who exercises similar drag-along rights shall be
responsible for their proportionate share of the costs of the proposed Transfer
to the extent not paid or reimbursed by the proposed Purchaser or the Company.
(b) Tag Along Rights. (i) Subject to paragraph (iv) of this
Section 4(b), if the Majority Stockholder or its Permitted Transferee proposes
to transfer any of its shares of Common Stock or Preferred Stock, as applicable,
to a Purchaser (other than a Permitted Transferee), then the Majority
Stockholder or his Permitted Transferee (hereinafter referred to as a "Selling
Stockholder") shall give written notice of such proposed transfer to the
Management Stockholder (the "Selling Stockholder's Notice") at least fifteen
(15) days prior to the consummation of such proposed transfer, and shall provide
notice to all other stockholders of the Company to whom the Majority Stockholder
has granted similar "tag-along" rights (such stockholders together with the
Management Stockholder, referred to herein as the "Other Stockholders") setting
forth (A) the number of shares of Common Stock or Preferred Stock, as
applicable, offered, (B) the consideration to be received by such Selling
Stockholder, (C) the identity of the Purchaser, (D) any other material items and
conditions of the proposed transfer and (E) the date of the proposed transfer.
(ii) Upon delivery of the Selling Stockholder's Notice,
the Management Stockholder shall have the right to require the Selling
Stockholders to cause the proposed Purchaser to purchase up to the number of
such Management Stockholder's shares of Common Stock or Preferred Stock, as
applicable, (determined on a fully diluted basis taking into account options on
Common Stock or Preferred Stock, as applicable) equal to the product of (x) the
number of shares of Common Stock or Preferred Stock, as applicable, held by the
Management Stockholder multiplied by (y) a fraction, the numerator of which is
the number of shares of Common Stock or Preferred Stock, as applicable proposed
to be transferred by the Selling Stockholder to the proposed Purchaser and the
denominator which is the total number of shares of Common Stock or Preferred
Stock, as applicable, of the Selling Stockholder. In the event that the Selling
Stockholder is unable to cause the proposed Purchaser to purchase the number of
shares of Common Stock or Preferred Stock, as applicable, equal to the sum of
the number of shares of Common Stock or Preferred Stock, as applicable, proposed
to be transferred by the Selling Stockholder and the number of the Management
Stockholder's shares of Common Stock or Preferred Stock, as applicable,
calculated pursuant to the preceding sentence, then the Management Stockholder
shall be entitled to sell up to its pro rata portion of the shares of Common
Stock or Preferred Stock, as applicable actually purchased by the proposed
Purchaser, based on the relative number of shares of Common
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Stock or Preferred Stock, as applicable held by the Selling Stockholder and all
Other Stockholders exercising similar tag-along rights. If the Management
Stockholder exercises his right under this Section, the Selling Stockholder
shall deliver or cause to be delivered to the Management Stockholder copies of
all transaction documents related to the proposed Transfer as the same become
available.
(iii) Any Transfer of Shares by the Management Stockholder
shall be at the same price per share of Common Stock or Preferred Stock, as
applicable, and pursuant to the same terms and conditions with respect to
payment for the shares of Common Stock or Preferred Stock, as applicable, as
agreed to by the Selling Stockholder, by sending written notice to the Selling
Stockholder within fifteen (15) days after the date of the Selling Stockholder's
Notice, indicating its desire to exercise its rights and specifying the number
of shares of Common Stock or Preferred Stock, as applicable, it desires to
transfer; provided that such number of Shares does not exceed the number of
Shares determined pursuant to Section 4(b)(ii) and, provided, further, that in
order to be entitled to exercise its tag-along rights pursuant to this Section
4(b), the Management Stockholder must agree to make to the proposed Purchaser,
representations, warranties, covenants, indemnities and agreements comparable to
those made by the Selling Stockholder in connection with the proposed transfer
and agree to the same conditions to the proposed transfer as the Selling
Stockholder agrees, it being understood that all such representation,
warranties, covenants, indemnities and agreements shall be made by the Selling
Stockholder, the Management Stockholder and any Other Stockholder exercising
similar tag-along rights severally and not jointly. The Selling Stockholder, the
Management Stockholder and any Other Stockholder who exercises similar tag-along
rights shall be responsible for their proportionate share of the costs of the
proposed Transfer to the extent not paid or reimbursed by the proposed Purchaser
or the Company.
(iv) Notwithstanding anything to the contrary contained
herein, the provisions of this Section 4(b) shall not apply to any sale or
transfer by the Majority Stockholder of shares of Common Stock unless and until
the Majority Stockholder, after giving effect to the proposed sale or transfer,
shall have sold or transferred in the aggregate (other than to Permitted
Transferees) shares of Common Stock, representing 5.0% of shares of Common Stock
owned by the Majority Stockholder on the date hereof.
(c) In the event the beneficial owners of the Majority Stockholder
intend to dispose of their interests in the Majority Stockholder (other than to
a Permitted Transferee), the Majority Stockholder shall take such actions as is
necessary to effectuate the provisions of Sections 4(a) and 4(b) so that the
Management Stockholder may be required to participate in such disposition in the
same manner as provided in Section 4(a) or may elect to participate in the
transaction in the same manner as provided in Section 4(b) herein, in each case,
to the extent the Majority Stockholder's operating agreement (or similar
agreement) provides similar rights to members of the Majority Stockholder.
5. Termination. This Agreement shall terminate with respect to
the Common Stock immediately following the existence of a Public Market for the
Common Stock and with respect to the Preferred Stock immediately following the
existence of a Public Market for the Preferred Stock except that (i) the
requirements contained in Section 2 hereof shall survive the
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termination of this Agreement and (ii) the provisions contained in Section 3
hereof shall continue with respect to each Share during such period of time, if
any, as the Management Stockholder is precluded from selling such Shares
pursuant to Rule 144 of the Securities Act. For this purpose, a "Public Market"
for the Common Stock or the Preferred Stock, as applicable, shall be deemed to
exist if at least 20% of the total outstanding Common Stock or Preferred Stock,
as applicable, is registered under Section 12(b) or 12(g) of the Exchange Act
and trading regularly occurs in such Common Stock or Preferred Stock, as
applicable, in, on or through the facilities of securities exchanges and/or
inter-dealer quotation systems in the United States (within the meaning of
Section 902(n) of the Securities Act) or any designated offshore securities
market (within the meaning of Rule 902(a) of the Securities Act).
6. Distributions With Respect To Shares. As used herein, the term
"Shares" includes securities of any kind whatsoever distributed with respect to
the Common Stock or Preferred Stock, as applicable, acquired by the Management
Stockholder pursuant to the Plan or any such securities resulting from a stock
split or consolidation involving such Common Stock or Preferred Stock.
7. Amendment; Assignment. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by authorized representatives of the parties
or, in the case of a waiver, by an authorized representative of the party
waiving compliance. No such written instrument shall be effective unless it
expressly recites that it is intended to amend, supersede, cancel, renew or
extend this Agreement or to waive compliance with one or more of the terms
hereof, as the case may be. Except for the Management Stockholder's right to
assign his or her rights under Section 3(a), no party to this Agreement may
assign any of its rights or obligations under this Agreement without the prior
written consent of the other parties hereto.
8. Notices. Each notice and other communication hereunder shall
be in writing and shall be given and shall be deemed to have been duly given on
the date it is delivered in person, on the next business day if delivered by
overnight mail or other reputable overnight courier, or the third business day
if sent by registered mail, return receipt requested, to the parties as follows:
If to the Management Stockholder, to his most recent address shown on
records of the Company or its Affiliate;
If to the Company:
IASIS Healthcare Corporation
Dover Centre
000 Xxxxxxxx Xxxx, Xxxxx X000
Xxxxxxxx, XX 00000
Attention: Board of Directors and Secretary
If to the Majority Stockholder, to its most recent address shown on
records of the Company or its Affiliate;
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or to such other address as any party may have furnished to the others
in writing in accordance herewith, except that notices of change of address
shall only be effective upon receipt.
9. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but each of which
together shall constitute one and the same document.
10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without
reference to its principles of conflicts of law.
11. Binding Effect. This Agreement shall be binding upon, inure to
the benefit of, and be enforceable by the heirs, personal representatives,
successors and permitted assigns of the parties hereto. Nothing expressed or
referred to in this Agreement is intended or shall be construed to give any
person other than the parties to this Agreement, or their respective heirs,
personal representatives, successors or assigns, any legal or equitable rights,
remedy or claim under or in respect of this Agreement or any provision contained
herein.
12. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof.
13. Severability. If any term, provision, covenant or restriction
of this Agreement, is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
14. Miscellaneous. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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* * * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
---------------------------------
[Management Stockholder]
IASIS Healthcare Corporation
---------------------------------
By:
Title:
IASIS Investment LLC
By: TPG IASIS IV, LLC,
as managing member
-----------------------------
By:
Title:
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