Exhibit 10.15
COMPHEALTH GROUP,
INC.
SECOND AMENDED AND
RESTATED
STOCKHOLDERS
AGREEMENT
THIS SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT (this “ Agreement ”), is
entered into as of March 25, 2003, by and among CompHealth
Group, Inc., a Delaware corporation formerly known as CMS Capital
Ventures, Inc. (the “ Company ”). HEALTHSOUTH
Corporation, a Delaware corporation (“ HEALTHSOUTH
”), each of the investors from time to time listed on the
Schedule of Investors attached hereto (collectively, the
“ Investors ” and each individually, an “
Investor ”), each of the Executives listed from time
to time on the Schedule of Executives attached hereto
(collectively, the “ Executives ” and each
individually, an “ Executive ”), and each of the
warrantholders listed from time to time on the Schedule of
Warrantholders attached hereto (collectively, the “
Warrantholders ” and each individually, a “
Warrantholder ”). The Investors, the Executives and
the Warrantholders are collectively referred to herein as the
“ Stockholders ” and each individually as a
“ Stockholder .” Capitalized terms used but not
otherwise defined herein are defined in Section 11
hereof.
Certain of the Investors and
HEALTHSOUTH (collectively, the “Prior Investors”) hold
shares of the Company’s common stock, par value $.01 per
share (the “Common Stock”), and the Company’s
preferred stock, par value $.01 per share (the “Preferred
Stock”). The Executives will purchase shares of Common Stock
from time to time upon exercise of options issued to such
Executives pursuant to the 1998 Stock Option Plan or any successor
stock option plan (the “Stock Option Plan”).
Certain of the Investors are
purchasing shares of the Common Stock and Preferred Stock
(i) from HEALTHSOUTH pursuant to that certain Stock Purchase
Agreement dated as of the date hereof, (ii) from Nassau
Capital Partners II L.P. and NAS Partners I L.L.C. pursuant to that
certain Stock Purchase Agreement dated as of the date hereof or
(iii) from the Company pursuant to that certain Stock Purchase
Agreement dated as of the date hereof (collectively, the “
Purchase Agreements ”), and the obligations in the
Purchase Agreements are conditioned upon the execution and delivery
of this Agreement.
The Company, the Prior Investors,
the Executives and the Warrantholders (collectively, the “
Prior Stockholders ”) are parties to an Amended and
Restated Stockholders Agreement made as of December 31, 1998
and amended and restated as of March 23, 2000 (the “
Prior Agreement ”). The parties to the Prior Agreement
desire to amend and restate the Prior Agreement and accept the
rights and covenants hereof in lieu of their rights and covenants
under the Prior Agreement.
1.
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, intending to be
legally bound, hereby agree as follows:
1. Board of Directors
.
(a) From and after the date hereof
and until the provisions of this Section 1 cease to be effective,
each Stockholder shall vote all of his or its Stockholder Shares
and any other voting securities of the Company over which such
Stockholder has voting control and shall take all other necessary
or desirable actions within his or its control (whether in the
capacity as a stockholder, director, member of a board committee or
officer of the Company or otherwise, and 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:
(i) the authorized number of
directors on the Company’s board of directors (the “
Board ”) shall be established at seven (7) directors,
or such greater number as is approved by a Supermajority Vote of
the Stockholders;
(ii) the following persons shall be
elected to the Board:
(A) (1) one
(1) representative designated by Stockholders holding a
majority of the shares of Common Stock within the Nassau Group (so
long as such group is a Qualifying Investor Group); (2) one
(1) representative designated by Stockholders holding a
majority of the shares of Common Stock within the Acacia Group (so
long as such group is a Qualifying Investor Group); (3) one
(1) representative designated by Stockholders holding a
majority of the shares of Common Stock within the Frazier Group (so
long as such group is a Qualifying Investor Group); (4) one
(1) representative designated by Stockholders holding a
majority of the shares of Common Stock within the NEA Group (so
long as such group is a Qualifying Investor Group); and
(5) one (1) representative (in addition to the
representative designated pursuant to the preceding clause
(4)) designated by Stockholders holding a majority of the
shares of Common Stock within the NEA Group so long as the NEA
Group holds collectively at least 25% of the aggregate Common Stock
(on a fully diluted basis) (collectively, the “ Investor
Directors ”);
(B) the Company’s chief
executive officer (the “ Executive Director ”)
(who shall initially be Michael Weinholtz);
(C) one (1) representative that
is designated by a Supermajority Vote of the Stockholders and
approved by the Executive Director (the “ Outside
Director ”); provided that no such Outside
Director shall be a member of the Company’s or any
Investor’s management or an employee or officer of the
Company, any Investor or any of their respective Affiliates;
and
(D) if the authorized number of
directors on the Board is increased to a number greater than seven
(7) in accordance with
2.
subsection (i) above, any
additional directors shall be representatives that are designated
by a Supermajority Vote of the Stockholders (each, a “
Non-Investor Director ”); provided that no such
Non-Investor Director shall be a member of any Investor’s
management or an employee or officer of any Investor or any
Affiliate of an Investor;
(iii) except with respect to CHG
Marketing and Technologies Corp., the composition of the board of
directors of each of the Company’s subsidiaries (each, a
“ Sub Board ”) shall be the same as that of the
Board;
(iv) if the Board or any Sub Board
forms one or more committees of the Board or such Sub Board, such
committee shall, in each case, include at least one Investor
Director;
(v) the removal from the Board or a
Sub Board (with or without cause) of any Investor Director, the
Executive Director, any Outside Director or any Non-Investor
Director shall be only upon the written request of the Person or
Persons originally entitled to designate such director pursuant to
Section 1(a)(ii) above; provided that if the Executive
Director ceases to be an employee of the Company and its
subsidiaries, he shall be removed as a director promptly after his
employment ceases on a date specified by the Supermajority Vote of
the Stockholders; provided further that, if any
Person or Persons entitled to designate a director pursuant to
Section 1(a)(ii) above ceases to have the right to designate such
director, such director shall be removed promptly after such Person
or Persons cease to have the right to designate such director;
and
(vi) in the event that any
representative designated hereunder for any reason ceases to serve
as a member of the Board or a Sub Board during his or her term of
office, the resulting vacancy on the Board or the Sub Board shall
be filled by a representative designated by the Person or Persons
originally entitled to designate such director pursuant to Section
1(a)(ii) above (so long as such Person or Persons continue to be
entitled to designate a director pursuant to Section 1(a)(ii)
above); provided that, if such Person or Persons are no
longer entitled to designate a director pursuant to
Section 1(a)(ii) above, such vacancy shall be filled by a
representative designated by a Supermajority Vote of the
Stockholders.
(b) There shall be at least four
(4) meetings of the Board during every fiscal year, and at
least one meeting shall be held in each calendar quarter during the
Company’s fiscal year. The Company shall pay all
out-of-pocket expenses incurred by each director in connection with
attending regular and special meetings of the Board, any Sub Board
and any committee thereof.
(c) If any party fails (but is
otherwise entitled) to designate a representative to fill a
directorship pursuant to the terms of this Section 1, such
directorship shall not be filled and the number of directors shall
be reduced accordingly; provided that the parties shall take
all necessary actions to increase the Board and elect such
representative if the party or parties which failed (and are
otherwise entitled) to designate such a representative so
directs.
3.
(d) The provisions of this
Section 1 shall terminate automatically and be of no further
force and effect upon a Qualified Public Offering.
(e) Notwithstanding anything herein
to the contrary, no Warrantholder (except, in the case of any
Warrantholder, with respect to any shares of Common Stock issued
upon the exercise of the Warrants, and only so long as such shares
in the aggregate represent 5% or more of any class of outstanding
Stockholder Shares on a fully diluted basis) shall be required to
vote its Stockholder Shares or any other voting securities of the
Company over which it has voting control in accordance with this
Section 1 and no Warrantholder (except to the extent provided
in the immediately preceding parenthetical) shall be a party to
this Section 1 for purposes of voting such shares in
accordance with Section 1(a)(ii).
2. Irrevocable Proxy; Conflicting
Agreements .
(a) In order to secure each
Executive’s obligation to vote his or her Stockholder Shares
and other voting securities of the Company in accordance with the
provisions of Sections 1, 7 and 8 hereof, each Executive hereby
appoints a representative to be elected from time to time by the
Investors holding at least 66 2/3% of the Common Stock held by all
Investors (which shall initially be Thomas C. Barnds) as his or her
true and lawful proxy and attorney-in-fact, with full power of
substitution, to vote all of his or her Stockholder Shares and
other voting securities of the Company for the election and/or
removal of directors and all such other matters as expressly
provided for in Sections 1, 7 and 8 hereof. Such representative may
exercise the irrevocable proxy granted to him hereunder at any time
such Executive fails to comply with the provisions of this
Agreement, and shall vote all securities with respect to which he
is exercising his proxy in the same manner and in the same
proportion as the Investors. The proxies and powers granted by each
Executive pursuant to this Section 2 are coupled with an
interest and are given to secure the performance of such
Executive’s obligations to the Investors under this
Agreement. Such proxies and powers will be irrevocable for the term
of this Agreement and will survive the death, incompetency or
disability of such Executive and the respective holders of his or
her Stockholder Shares and other voting securities of the
Company.
(b) Each Stockholder represents that
he or it has not granted and is not a party to any proxy, voting
trust or other agreement which is inconsistent with or conflicts
with the provisions of this Agreement, and no holder of Stockholder
Shares shall grant any proxy or become party to any voting trust or
other agreement which is inconsistent with or conflicts with the
provisions of this Agreement.
3. Financial Statements And Other
Information . The Company shall deliver the following to the
Stockholder of each Investor Group which holds the largest number
of Stockholder Shares (so long as such Investor Group holds any
Stockholder Shares), to each holder of at least 10% of the
outstanding Stockholder Shares of any class (on a fully-diluted
basis) and to the designee of the Warrantholders; provided ,
however, that the Company shall have no obligation to make any such
delivery if the Stockholders waive such delivery requirements by
Supermajority Vote:
(a) as soon as available but in any
event within 30 days after the end of each monthly accounting
period in each fiscal year, unaudited consolidated statements
of
4.
income and cash flows of the Company
and its subsidiaries for such monthly period and for the period
from the beginning of the fiscal year to the end of such month, and
an unaudited consolidated balance sheet of the Company and its
subsidiaries as of the end of such monthly period, setting forth in
each case comparisons to the Company’s annual budget and to
the corresponding period in the preceding fiscal year, and all such
statements shall be prepared in accordance with generally accepted
accounting principles, consistently applied, subject to the absence
of footnote disclosures and to normal year-end adjustments for
recurring accruals, and shall be certified by the Company’s
chief financial officer;
(b) within 90 days after the end of
each fiscal year, consolidated statements of income and cash flows
of the Company and its subsidiaries for such fiscal year, and
consolidated balance sheets of the Company and its subsidiaries as
of the end of such fiscal year, setting forth in each case
comparisons to the Company’s annual budget and to the
preceding fiscal year, all prepared in accordance with generally
accepted accounting principles, consistently applied, and
accompanied by (a) an opinion containing no exceptions or
qualifications (except for qualifications regarding specified
contingent liabilities) of an independent accounting firm of
recognized national standing, (b) a certificate from such
accounting firm, addressed to the Company’s board of
directors, stating that in the course of its examination nothing
came to its attention that caused it to believe that there was any
default by the Company or any subsidiary thereof in the fulfillment
of or compliance with any of the terms, covenants, provisions or
conditions of any other material agreement to which the Company or
any subsidiary is a party or, if such accountants have reason to
believe any default by the Company or any subsidiary thereof
exists, a certificate specifying the nature and period of existence
thereof, and (c) a copy of such firm’s annual management
letter to the Board;
(c) promptly upon receipt thereof,
any additional reports, management letters or other detailed
information concerning significant aspects of the Company’s
operations or financial affairs given to the Company by its
independent accountants (and not otherwise contained in other
materials provided hereunder);
(d) at least 30 days but not more
than 90 days prior to the beginning of each fiscal year, an annual
budget prepared on a monthly basis for the Company and its
subsidiaries for such fiscal year (displaying anticipated
statements of income and cash flows and balance sheets), and
promptly upon preparation thereof any other significant budgets
prepared by the Company and any revisions of such annual or other
budgets, within 30 days after any monthly period in which there is
a material adverse deviation from the annual budget, a letter from
the Company’s chief executive officer or chief financial
officer explaining the deviation and what actions the Company has
taken and proposes to take with respect thereto;
(e) promptly (but in any event
within five (5) business days) after the discovery or receipt
of notice of any default under any material agreement to which it
or any of its subsidiaries is a party or any other material adverse
change, event or circumstance affecting the Company or any
subsidiary thereof (including, without limitation, the filing of
any material litigation against the Company or any subsidiary
thereof or the existence of any dispute with any Person which
involves a reasonable likelihood of such litigation being
commenced), a letter from the Company’s chief executive
officer or chief financial officer specifying the nature and
period
5.
of existence thereof and what
actions the Company and its subsidiaries have taken and propose to
take with respect thereto;
(f) within ten (10) days after
transmission thereof, copies of all financial statements, proxy
statements, reports and any other general written communications
which the Company sends to its stockholders and copies of all
registration statements and all regular, special or periodic
reports which it files, or any of its officers or directors file
with respect to the Company, with the Securities and Exchange
Commission or with any securities exchange on which any of its
securities are then listed, and copies of all press releases and
other statements made available generally by the Company to the
public concerning material developments in the Company’s and
its subsidiaries’ businesses; and
(g) with reasonable promptness, such
other information and financial data concerning the Company and its
subsidiaries as any Person entitled to receive information under
this Section 3 may reasonably request.
Each of the financial statements
referred to in Section 3(a) and 3(b) above shall fairly
present the financial condition and results of operation of the
Company as of the dates and for the periods stated therein, subject
in the case of the unaudited financial statements to changes
resulting from normal year-end adjustments for recurring accruals
(none of which would, alone or in the aggregate, be a materially
adverse to the financial condition, operating results, assets,
operations or business prospects of the Company and its
subsidiaries taken as a whole).
Except as otherwise required by law
or judicial order or decree or by any governmental agency or
authority, each Person entitled to receive information regarding
the Company and its subsidiaries under this Section 3 or under
Section 4 shall use its best efforts to maintain the
confidentiality of all nonpublic information obtained by it
hereunder which the Company has reasonably designated as
proprietary or confidential in nature; provided that each
such Person may, to the extent necessary, disclose such information
in connection with the sale or transfer of any Stockholder Shares,
if such Person’s transferee agrees in writing to be bound by
the provisions hereof.
4. Inspection of Property .
The Company shall permit any representatives designated by any
Investor Group (so long as such Investor Group holds any
Stockholder Shares) or any holder of at least 10% of the
outstanding Stockholder Shares of any class upon reasonable notice
and during normal business hours to (i) visit and inspect any
of the properties of the Company and its subsidiaries,
(ii) examine the corporate and financial records of the
Company and its subsidiaries and make copies thereof or extracts
therefrom and (iii) discuss the affairs, finances and accounts
of any such corporations with the directors, officers, key
employees and independent accountants of the Company and its
subsidiaries. The presentation of an executed copy of this
Agreement by any member of an Investor Group or any such holder of
Stockholder Shares to the Company’s independent accountants
shall constitute the Company’s permission to its independent
accountants to participate in discussions with such
Persons.
5. Restrictions on Transfer
.
(a) [Reserved]
6.
(b) Transfer of Stockholder
Shares . No Stockholder shall Transfer any interest in any
Stockholder Shares or any Warrants, except pursuant to
(i) Section 5(e), (ii) Section 7 below, or
(iii) a Public Sale (each, an “ Exempt Transfer
”) without first complying with this Section 5(b) and
Sections 5(c) and 5(d) below to the extent that such sections apply
to sales by such Stockholder. Prior to making any Transfer (other
than an Exempt Transfer), the transferring Stockholder (the “
Transferring Stockholder ”) shall deliver written
notice of the proposed Transfer (the “ Offer Notice
”) to the Company and each of the Investors and other
Tag-Along Stockholders. The Offer Notice shall disclose in
reasonable detail the proposed class and number of Stockholder
Shares to be transferred or, in the case of a Transfer of Warrants,
the class and number of Stockholder Shares issuable upon exercise
of such Warrants, the proposed terms and conditions of the Transfer
and the identity of the prospective transferree(s) (if known). No
Stockholder shall consummate any Transfer until forty
(40) days after the Offer Notice has been given to the Company
and to each of the Investors, unless the parties to the Transfer
have been finally determined pursuant to this Section 5 prior
to the expiration of such 40-day period (the “ Election
Period ”). The date of the first to occur of such events
is referred to herein as the “ Authorization Date
”.
(c) First Offer Rights .
First, the Company may elect to purchase all (but not less than
all) of the Stockholder Shares or Warrants, as the case may be,
specified in the Offer Notice at the price and on the same terms
and conditions as those set forth in the Offer Notice by delivering
a written notice of such election to the Transferring Stockholder
and each Investor Group within twenty (20) days after the
Offer Notice has been delivered to the Company. If the Company has
not elected to purchase all Stockholder Shares or Warrants to be
transferred within such twenty-day period, the Investor Groups may
elect to purchase in the aggregate all (but not less than all) of
the Stockholder Shares or Warrants, as the case may be, to be
transferred (as applicable, the “ Available Shares
” or “ Available Warrants ”) at the price
and on the same terms and conditions as those set forth in the
Offer Notice by delivering written notice of such election to the
Transferring Stockholder within thirty (30) days after the
Offer Notice has been delivered to the Investor Groups. In the
event that the Investor Groups in the aggregate elect to purchase
more than the Available Shares or Available Warrants, as the case
may be, then the number of Available Shares or Available Warrants
to be purchased by each Investor Group that has elected to purchase
more than its pro rata share of Available Shares or Available
Warrants (based upon the number of Stockholder Shares (excluding
Preferred Stock) held by all such Investor Groups) shall be reduced
on a pro rata basis in proportion to the number of Stockholder
Shares (excluding Preferred Stock) held by all Investor Groups that
have elected to purchase more than their pro rata share that are
not owned by such holder. Each Investor Group shall allocate the
Stockholder Shares or Warrants so purchased among the Stockholders
comprising such Investor Group pro rata according to the aggregate
number of shares of such class of Stockholder Shares, or, in the
case Warrants are purchased, according to the aggregate number of
shares of the class of Stockholder Shares into which such Warrants
are exercisable, held by each such Stockholder (on a fully diluted
basis) or in such other manner as the Stockholders comprising such
Investor Group shall from time to time agree. To the extent that
the Company or the Investor Groups have not elected to purchase in
the aggregate all of the Stockholder Shares or Warrants specified
in the Offer Notice, the Transferring Stockholder may Transfer such
Stockholder Shares or Warrants, as the case may be, to one or more
third parties, subject to the provisions of Sections 5(d) and 5(f)
below, at a price no less than the price per share or per Warrant,
as applicable, specified in the Offer Notice and on terms no more
favorable
7.
to the transferee(s) thereof than
the terms offered to the Company and the Investor Groups in the
Offer Notice during the 60-day period immediately following the
Authorization Date. Any Stockholder Shares or Warrants not
transferred within such 60-day period shall be reoffered to the
Company and the Investor Groups under this Section 5(c) prior
to any subsequent Transfer (that is subject to this
Section 5(c)). If the Company or any of the Investor Groups
have elected to purchase Stockholder Shares or Warrants hereunder,
the Transfer of such shares or Warrants to the Company or the
Investor Groups, as the case may be, shall be consummated as soon
as practical after the delivery of the election notice(s) to the
Transferring Stockholder, but in any event within fifteen
(15) days after the expiration of the Election Period (it
being understood that, if such Transfer to the Company or the
Investor Groups, as the case may be, is not consummated within such
15-day period (other that as the result of actions or failures to
act on the part of the Transferring Stockholder), the Transferring
Stockholder shall be permitted to Transfer such Stockholder Shares
or Warrants to one or more third parties during the 60-day period
commencing on the 16 th day after the end of the Election
Period on terms no more favorable to such transferee(s) than the
terms offered to the Company and the Investor Groups pursuant to
this Section 5(c)).
(d) Participation Rights . At
least forty (40) days prior to any Transfer of Stockholder
Shares (other than pursuant to a Public Sale or a Transfer to the
Company or an Investor Group pursuant to Section 5(c) above
and specifically excluding the Warrants and any Exempt Transfer),
the Transferring Stockholder shall deliver a written notice (the
“ Sale Notice ”) to the Company and each of the
Tag-Along Stockholders (as defined below), specifying in reasonable
detail the class and number of Stockholder Shares to be
transferred, the proposed terms, and conditions of the proposed
Transfer and the identity of the prospective transferee(s) (which
notice may be the same notice and given at the same time as the
Offer Notice under Section 5(c) above where applicable). If
neither the Company nor the Investor Groups have
elected to purchase all
of the Stockholder Shares specified in the Sale Notice, each member
of each Investor Group, each Qualifying Executive and each
Warrantholder which holds Stockholder Shares of the class to be
transferred or, in the case of any Warrantholder, holds Warrants
exercisable for the class of shares to be transferred
(collectively, the “ Tag-Along Stockholders ”),
may elect to participate in the contemplated Transfer by delivering
written notice (the “ Tag-Along Notice ”) to the
Transferring Stockholder and the Company within 35 days after
receipt by the Stockholders of the Sale Notice. If any Tag-Along
Stockholder in addition to the Transferring Stockholder has elected
to participate in such Transfer, the Transferring Stockholder and
each such electing Tag-Along Stockholder shall be entitled to sell
in the contemplated Transfer, at the same price per share and on
the same terms, a number of Stockholder Shares of such class equal
to the product of (i) the quotient determined by
dividing the percentage of Stockholder Shares of such class
held by such Person (assuming the exercise of all Warrants) by the
aggregate percentage of Stockholder Shares of such class owned by
the Transferring Stockholder and the Tag-Along Stockholders
participating in such Transfer (assuming the exercise of all
Warrants) and (ii) the number of Stockholder Shares of such
class to be sold in the contemplated Transfer. Notwithstanding the
foregoing, in the event that the Transferring Stockholder intends
to Transfer more than one class of Stockholder Shares, each
Tag-Along Stockholder participating in such Transfer shall be
required to sell in the contemplated Transfer a pro rata portion of
Stockholder Shares of all such classes (to the extent such
Tag-Along Stockholder owns any shares of such other classes of
Stockholder Shares or
8.
Warrants exercisable for shares of
such other classes of Stockholder Shares), which portion shall be
determined in the manner set forth immediately above.
For example
, if the Sale Notice contemplated a
sale of 100 shares of Common Stock by the Transferring Stockholder,
and if the Transferring Stockholder at such time owns 30% of all
shares of Common Stock and if one Tag-Along Stockholder elects to
participate and owns 20% of all shares of Common Stock, the
Transferring Stockholder would be entitled to sell 60 shares (30%
÷ 50% x 100 shares) and the Tag-Along Stockholder would be
entitled to sell 40 shares (20% ÷ 50% x 100
shares).
The Transferring Stockholder shall
use best efforts to obtain the agreement of the prospective
transferee(s) to the participation of the Tag-Along Stockholders in
the contemplated Transfer, and no Transferring Stockholder shall
Transfer any Stockholder Shares to any prospective transferee(s) if
such transferee(s) refuses to allow the participation of the
Tag-Along Stockholders, unless the Transferring Stockholder
offers to purchase from each Tag-Along Stockholder (immediately
following the Transferring Stockholder’s Transfer to such
transferee(s)), such number and class of Stockholder Shares as the
given Tag-Along Stockholder elected to sell in the Transfer
pursuant to this Section 5(d), in each case on the same terms
and conditions as the Transferring Stockholder transferred its
Stockholder Shares.
Any Tag-Along Stockholder
participating in the contemplated Transfer which does not hold
enough Stockholder Shares of a particular class to cover the number
of Stockholder Shares of such class which such Tag-Along
Stockholder proposes to include in such Transfer but which holds
Warrants exercisable for additional Stockholder Shares of such
class shall, as a condition to participating in such Transfer,
exercise its Warrants for a number of Stockholder Shares of such
class equal to the number of Stockholder Shares of such class being
Transferred by such Tag-Along Stockholder pursuant to this
Section 5(d) less the number of Stockholder Shares of such
class which such Tag-Along Stockholder holds and intends to include
in the Transfer (it being understood that, if such Transfer is not
consummated, such Tag-Along Stockholder shall be entitled to
rescind its exercise and to receive replacement Warrants for the
Warrants exercised in anticipation of such Transfer).
(e) Certain Permitted
Transfers . The restrictions contained in this Section 5
shall not apply with respect to Transfers of Stockholder Shares or
Warrants (i) in the case of an Executive, (A) by will or
pursuant to applicable laws of descent and distribution and among
Executive’s family group, or (B) to the Company upon a
repurchase of such Stockholder Shares by the Company in accordance
with any of the Company’s stock option plans and any stock
option agreement thereunder, (ii) in the case of an Investor
or a Warrantholder, among its Affiliates and (iii) in the case
of any Warrantholder, in connection with (A) any Transfer to
any other Lender under the Credit Agreement (as hereinafter
defined) or (B) any Transfer deemed necessary to comply with
any requirement of law, regulation or order or request from a
regulatory authority; provided that such restrictions shall
continue to be applicable to Stockholder Shares or Warrants, as the
case may be, after any such Transfer and the transferees of such
Stockholder Shares or Warrants (“ Permitted
Transferees ”) shall have agreed in writing to be bound
by the provisions of this Agreement. An Executive’s
“family group” means such executive’s spouse and
descendants (whether natural or adopted) and any trust solely for
the
9.
benefit of such Executive and/or
such executive’s spouse and/or descendants. Notwithstanding
the foregoing, no party hereto shall avoid the provisions of this
Agreement by 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.
(f) Recapitalization
Treatment. Notwithstanding anything contained in this
Section 5 to the contrary, in connection with any Transfer of
Stockholder Shares (other than shares received upon the exercise of
the Warrants) by a Stockholder (or a Permitted Transferee) in
accordance with the terms and conditions contained in this
Agreement (other than pursuant to Section 7 below prior to a
Public Offering), such Stockholder (or such Permitted Transferee)
shall cause to be provided to the Stockholder of each Investor
Group holding the largest number of Stockholder Shares such
information as is necessary for each such Stockholder to be
satisfied in its sole discretion that, after giving effect to such
Transfer, the transactions contemplated hereby and in the other
Transaction Documents, when viewed collectively, shall continue to
qualify as a recapitalization for accounting purposes and each such
Stockholder shall have received such opinions and advice as it
deems necessary from the Company’s accountants and advisers
as to such recapitalization treatment. No Stockholder (or Permitted
Transferee) shall Transfer any Stockholder Shares unless and until
all conditions set forth in the preceding sentence are satisfied to
the satisfaction of the Stockholder of each Investor Group holding
the largest number of Stockholder Shares in its sole
discretion.
(g) Termination of
Restrictions . The restrictions on the Transfer of Stockholder
Shares and Warrants set forth in this Section 5 shall continue
with respect to each Stockholder Share and each Warrant following
any Transfer thereof (other than pursuant to a Public Sale or a
Sale of the Company); provided that in any event such
restrictions shall terminate on the first to occur of a Sale of the
Company or (other than with respect to the Executives) a Qualified
Public Offering and, with respect to the Executives, 15 months
following a Qualified Public Offering.
6. Legend . Each certificate
evidencing Stockholder Shares or Warrants and each certificate
issued upon exercise of the Warrants or in exchange for or upon the
transfer of any Stockholder Shares or Warrants (if such shares
remain Stockholder Shares or Warrants as defined herein after such
transfer) shall be stamped or otherwise imprinted with a legend in
substantially the following form:
“The securities represented
hereby 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 a
Second Amended and Restated Stockholders Agreement dated as of
March 25, 2003, among the issuer of such securities (the
“Company”) and certain of the Company’s
equityholders, as further amended and modified from time to time in
accordance with its terms. A copy of such Stockholders Agreement
will be furnished without charge by the Company to the holder
hereof upon written request.”
10.
The Company shall imprint such legend on
certificates evidencing Stockholder Shares and Warrants outstanding
prior to the date here
