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EXHIBIT 4.4
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THIS AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this "Agreement")
is
made as of __________, 2006 by and among (i) HealthSpring, Inc., a
Delaware
corporation (formerly known as NewQuest Holdings, Inc.) (the
"Company"), (ii)
GTCR Fund VIII, L.P., a Delaware limited partnership ("Fund VIII"),
GTCR Fund
VIII/B, L.P., a Delaware limited partnership ("Fund VIII/B"), GTCR
Co-Invest II,
L.P., a Delaware limited partnership ("GTCR Co-Invest"), and
certain other
Stockholders. Capitalized terms used but not otherwise defined
herein are
defined in Section 5 hereof.
WHEREAS, Section 17 of the Stockholders Agreement dated March 1,
2005
by and among the above mentioned parties to this Agreement and the
other Persons
listed on the Schedule of Stockholders thereto (the "Original
Agreement")
provides that the Original Agreement may be amended by the Company,
the Investor
Majority, and the holders of a majority of the Common Stock held by
the
Executives and the Other Stockholders, collectively;
WHEREAS, in connection with the proposed initial Public Offering
of
Common Stock of the Company (the "IPO"), the Company and the
parties hereto
desire to amend and restate the Original Agreement and enter into
this
Agreement, subject to and effective upon the consummation of the
IPO (the
"Effective Time");
WHEREAS, this Agreement has been executed by the Company, the
Investor
Majority, and the holders of a majority of the Common Stock held by
the
Executives and the Other Stockholders, collectively; and
WHEREAS, this Agreement is therefore, upon the Effective Time,
intended
to be binding upon the parties hereto, and the Persons listed on
the attached
Schedule of Stockholders.
NOW, THEREFORE, in consideration of the mutual covenants
contained
herein and other good and valuable consideration, the receipt and
sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby
amend and
restate the Original Agreement in its entirety, subject to and
effective upon
the consummation of the IPO as of the Effective Time, as
follows:
1. Board of Directors; Approval of Equity Awards.
(a) Investor Directors. From and after the Effective Time and
until
the provisions of this Section 1 cease to be effective, each holder
of
Stockholder Shares shall vote all of his, her or its Stockholder
Shares which
are voting shares and any other voting securities of the Company
over which such
holder has voting control, and shall take all other necessary or
desirable
actions within his, her or its control as a stockholder (including,
without
limitation, attendance at meetings in person or by proxy for
purposes of
obtaining a quorum and execution of written consents in lieu of
meetings), and
the Company shall take all necessary and desirable actions within
its control
(including, without limitation, calling special board and
stockholder meetings),
so that the following persons shall be elected to the Board of
Directors of the
Company (the "Board"):
(i) for such time as the Investors collectively
beneficially own at least 10% of the outstanding shares of
Common Stock of the Company, one representative designated by
Fund VIII, who shall initially be Joseph P. Nolan (the "Fund
VIII Director"); and
(ii) for such time as the Investors collectively
beneficially own at least 15% of the outstanding shares of
Common Stock of the Company, one representative designated by
Fund VIII/B, who shall initially be Daniel L. Timm (the "Fund
VIII/B Director" and, collectively with the Fund VIII
Director, the "Investor Directors").
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(b) The removal from the Board of any Fund VIII Director shall
be
upon (and only upon) the written request of Fund VIII, and the
removal from the
Board of any Fund VIII/B Director shall be upon (and only upon) the
written
request of Fund VIII/B, such removal being effective, in each case,
as of the
date specified in such written request and without any further
action required
by the Board or the Stockholders; and
(c) Mr. Nolan shall initially be designated as a Class I director
of
the Company and Mr. Timm shall initially be designated as a Class
II director of
the Company. The Company agrees to cause the nomination of the
aforementioned
designees (and each successor or replacement designated by Fund
VIII or Fund
VIII/B, as applicable) for election by the stockholders of the
Company at each
applicable meeting called for the purposes of electing such
designees to the
Board upon the expiration of their then-current term. In the event
a vacancy is
created on the Board by the retirement, resignation or other
removal of an
Investor Director, the Company agrees to cause the Board to elect a
successor
designated by Fund VIII or Fund VIII/B, as applicable, to fill such
vacancy and
to serve the remainder of such initial director's then-current
term.
(d) Board Committees. For such time as the Investors
collectively
beneficially own at least 15% of the outstanding shares of Common
Stock of the
Company:
(i) Fund VIII will have the right to designate, and the
Company agrees to cause the Board to elect, one of the Investor
Directors to serve on each of the Audit Committee, the
Compensation
Committee, the Nominating and Corporate Governance Committee, and
each
of the other committees of the Board, except to the extent
prohibited
by applicable law or the rules of the New York Stock Exchange
or
another applicable self-regulatory body;
(ii) the removal from any such committee (except as may be
required to comply with applicable law or the rules of the New
York
Stock Exchange or other applicable self-regulatory body) of any
Investor Director shall be upon (and only upon)
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the written request of Fund VIII and such Director shall be
removed
effective as of the date specified in such written request and
without
any further action required by the Board or the Stockholders;
(iii) in the event a vacancy is created on any such committee
by the retirement, resignation or other removal of an Investor
Director, the Company agrees to cause such committee to elect a
successor designated by Fund VIII to fill such vacancy and to serve
the
remainder of such initial director's then-current term (except as
may
be
required to comply with applicable law or the rules of the New
York
Stock Exchange or other applicable self-regulatory body).
(e) Fund VIII Consent to Equity Issuances. For such time as the
Investors collectively beneficially own at least 15% of the
outstanding shares
of Common Stock of the Company, the consent of Fund VIII will be
required prior
to the issuance of any equity or equity-based awards to any of the
Company's
Section 16 Officers; provided, that such consent shall be deemed to
have been
given if such award has been approved by any Investor Director who
is also a
member of the Compensation Committee of the Board unless Fund VIII
delivers
notice to the Company that its consent is withheld prior to the end
of the
meeting at which such issuance is being considered.
(f) Automatic Termination. The provisions of this Section 1
shall
terminate automatically and be of no further force and effect upon
the
consummation of a sale of the Company.
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2. Restrictions on Transfer.
(a) Transfer of Stockholder Shares. No holder of Stockholder
Shares
other than an Investor shall Transfer any interest in Stockholder
Shares prior
to March 1, 2010, without the prior written consent of the Investor
Majority,
except Transfers to a Permitted Transferee in accordance with
Section 2(b) or
pursuant to a Public Sale or a Sale of the Company approved by the
Board (an
"Approved Sale") in accordance with this Agreement.
(b) Permitted Transfers. The restrictions set forth in Section
2(a)
shall not apply to (i) any Transfer of Stockholder Shares by any
Stockholder to
or among its Affiliates or Family Group, (ii) a Public Sale by any
of the
Executives or any of their Permitted Transferees after the
Executives
Restriction Termination Date, (iii) a Public Sale by any of the
Other
Stockholders or any of their Permitted Transferees after the Other
Stockholders
Restriction Termination Date, or (iv) an Approved Sale; provided
that the
restrictions contained in this Agreement will continue to be
applicable to the
Stockholder Shares after any Transfer pursuant to clause (i) above
and the
transferee of such Stockholder Shares shall agree in writing to be
bound by the
provisions of this Agreement. Upon the Transfer of Stockholder
Shares pursuant
to clause (i) of the previous sentence, the transferees will
deliver a written
notice to the Company, which notice will disclose in reasonable
detail the
identity of such transferee. A transferee permitted pursuant to
this Section
2(b) who receives a transfer of Stockholder Shares in accordance
with this
Agreement shall be referred to herein as a "Permitted
Transferee."
Notwithstanding the foregoing, no party hereto shall avoid the
provisions of
this Agreement by (i) making one or more transfers to one or more
Permitted
Transferees and then disposing of all or any portion of such
party's interest in
any such Permitted Transferee or (ii) by Transferring the
securities of any
entity holding (directly or indirectly) Stockholder Shares.
(c) Termination of Restrictions. The restrictions on the Transfer
of
Stockholder Shares set forth in this Section 2 shall continue with
respect to
each Stockholder Share until the earlier of: (i) with respect to an
Executive,
the Executives Restriction Termination Date, or, with respect to an
Other
Stockholder, the Other Stockholders Restriction Termination Date,
and (ii) the
date on which such Stockholder Share has been transferred in a
Public Sale or
pursuant to an Approved Sale.
3. Holdback Agreement. To the extent not inconsistent with
applicable
law, each holder of Stockholder Shares shall not effect any public
sale or
distribution (including sales pursuant to Rule 144) of equity
securities of the
Company, or any securities, options or rights 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 the IPO or any
underwritten
Demand Registration or any underwritten Piggyback Registration in
which
Registrable Securities are included (except as part of such
underwritten
registration or pursuant to registrations on Form S-4 or Form S-8
or any
successor form), except to the extent the underwriters managing the
registered
public offering otherwise agree with respect to all
Stockholders.
Notwithstanding any provision to the contrary in this Agreement,
(i) none of the
Other Stockholders shall effect any public sale or distribution
(including sales
pursuant to Rule 144) of equity securities of the Company, or any
securities,
options or rights convertible into or exchangeable or exercisable
for such
securities until the Other Stockholders Restriction Termination
Date, and (ii)
none of the Executives shall effect any public sale or distribution
(including
sales pursuant to Rule 144) of
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equity securities of the Company, or any securities, options or
rights
convertible into or exchangeable or exercisable for such securities
until the
Executives Restriction Termination Date.
4. Legend. Each certificate evidencing Stockholder Shares and
each
certificate issued in exchange for or upon the transfer of any
Stockholder
Shares (if such securities remain Stockholder Shares as defined
herein after
such transfer) shall be stamped or otherwise imprinted with a
legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN TRANSFER
AND
VOTING AND OTHER RESTRICTIONS PURSUANT TO AN AMENDED AND
RESTATED
STOCKHOLDERS AGREEMENT DATED AS OF ____________, 2005 AMONG THE
ISSUER
OF SUCH SECURITIES (THE "COMPANY") AND CERTAIN OF THE COMPANY'S
STOCKHOLDERS. A COPY OF SUCH STOCKHOLDERS AGREEMENT WILL BE
FURNISHED
WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN
REQUEST."
The Company shall imprint such legend on certificates evidencing
Stockholder
Shares outstanding prior to the date hereof. The legend set forth
above shall be
removed from the certificates evidencing any securities which cease
to be
Stockholder Shares.
5. Definitions.
"Affiliate" means, (i) with respect to any Person, any Person
that
controls, is controlled by or is under common control with such
Person or an
Affiliate of such Person, and (ii) with respect to any Investor,
any general or
limited partner of such Investor, any employee or owner of any such
partner, or
any other Person controlling, controlled by or under common control
with such
Investor. For purposes of this definition, "control" (including the
terms
"controlling," "controlled by" and "under common control with")
means the
possession, direct or indirect, of the power to direct or cause the
direction of
the management and policies of a Person, whether through the
ownership of voting
securities, by contract or otherwise, and such "control" will be
presumed if any
Person owns 20% or more of the voting capital stock or other
ownership
interests, directly or indirectly, of any other P
